Cady v. Allen

By the Court, T. R. Strong, J. It appears by the testimony of Lewis, who had, prior to the making of the contract upon which the action is founded, given a deed to Van Buskirk for the lot mentioned in the contract, with a covenant of warranty, that he drew the contract, and that it Was executed by the defendants, who were his general assignees in trust for the payment of his debts, at his request, without any benefit to themselves personally; that previous thereto Van Buskirk had made a claim upon him that he was bound to pay the judgment against the lot; and Van Buskirk testified that Lewis ivas to give him security for the payment of the judgment, .although it was not in the written agreement in pursuance of which the deed was given. The fair conclusion from this is, that the contract in question was given in fulfillment of a verbal undertaking of Lewis, at the time of the making of the written agreement for the sale and purchase of the lot, that he would secure the payment of the judgment; and that the defendants executed it as his sureties. In this view there is no difficulty in respect.,to the consideration of the contract; it is supported by the consideration of the principal agreement. The objection to evidence of the docketing of the judgment, that the fact is not alleged in the complaint, was properly overruled. The allegation in the complaint, on that subject, is that the judgment was a lien and incumbrance on the lot. This, following a statement of the recovery of the judgment, must be considered as embracing the fact of the docketing of the judgment and its legal effect. Especially will this be done, viewing the complaint with the liberality with which it should be [395] regarded at the trial. The defendant must have so understood it; it cannot be pretended that the offer of the proof was any surprise upon him; and it would be sacrificing substantial justice to the merest form to give effect to the objection made. If necessary, the complaint might have been amended on the trial by inserting the allegation in due form of the docketing of the judgment; and the court would now permit it to be done as of tho time the complaint was prepared, without terms. I do not perceive that the allegation is more obnoxious to objection than an allegation of ownership of or title to property, or similar allegations of a mixed character containing law and fact, good even on demurrer, both before and since the code. The contract being to pay all claims against the lot, it was not necessary for the plaintiff to prove that the judgment had been enforced, or that he had been evicted; the fact of nonpayment of the judgment ivas all that was necessary in respect to a breach, and the rule of damages upon a breach was the amount of the judgment with interest. (Port v. Jackson, 17 John. 239,479. In the matter of Negus, 7 Wend. 499.) This answers the objection to the amount of the recovery, that the land was sold under the judgment for much less than the amount due, and that Van Buskirk might have redeemed and sold the title for less than the plaintiff recovered. Van Buskirk was under no obligation to the defendants to redeem, but upon their omission to pay, was entitled to recover of them the amount of tho judgment. Assuming that Lewis, as surety of Heed in the judgment, had, upon Reed’s taking an assignment of the sheriff’s certificate and while he held it, an equitable claim that Reed release to him all his right to the lot under the sale, it is by no means clear that he had such an equity against Metcalf, who subsequently took an assignment of the certificate from Reed, and a deed from the sheriff pursuant to the sale and assignments. It does not appear that Metcalf is not a bona fide purchaser without notice of the equity against Reed ; nor is it certain that Van Buskirk, and those claiming title to the lot under him, could avail themselves of that equity. It should be [396] entirely clear that the facts constitute an equitable payment of the judgment, available to those persons, to operate as a defense to this action. But it is sufficient to say, in respect to this part of the case, that no question in relation to it is presented by the pleadings. It should have been set forth by the defendants specially in their answer if they designed to rely on it. [Monroe General Term, September 1, 1856. The evidence in regard to the indebtedness alleged by the defendant as a set-off, is conflicting; and I think, upon a fair construction of the report of the referee, he has found against its existence. His decision on that question, as the evidence stands, cannot be disturbed. It follows that the judgment must be affirmed. T. R. Strong, Welles and Smith, Justices.]