Carpenter v. Ottley

By the Court Johnson, J. It is settled, upon abundant authority, that a defendant, under section 150 of the Code, may set up an equitable defence to an action in the nature of a legal action, and defeat such action thereby, if he can establish such defence. (Dobson v. Pearce, 12 N. Y. R., 156; Crary v. Goodman, id., 266; Phillips v. Gorham, 17 id., 270.) A recovery of property or the value thereof by a plaintiff who has the mere legal title, will not be allowed against a defendant who has the equitable title to such property, and who might in an action against the plaintiff, to compel a specific performance, compel the latter to convey or transfer such legal title to the defendant. The defendant must, of course, set up his defence, in such a case, by way of answer, and establish it by his evidence. If, therefore, the defendant, Milton H. Ottley, under whose authority the timber in question was taken, could have compelled the plaintiff to convey to Mm the timber, in an action for that purpose, the decision of the referee is right upon the merits. I do not see but that the facts found by the referee are warranted by the evidence in [456] the case before him. Tire case, then, upon the facts is briefly this: The two parcels of land owned by the plaintiff and the defendant, Milton IT. Ottley, respectively, were originally .-a- single farm. The plaintiff purchased her parcel without the timber, then growing thereon, and upon an agreement that the same should be reserved when the land was conveyed to her. The defendant, Milton H. Ottley, purchased the parcel of said farm occupied by him, and in addition thereto the timber in question standing on the land purchased by plaintiff, and agreed to pay, and did in fact pay, or secure to be paid, $800 over and above the price of his land for the timber aforesaid. When the plaintiff’s land was conveyed to her, it was suggested and agreed, that, instead of reserving the timber in her deed, according to the original agreement and understanding, the deed should be made without reserving the timber, and the plaintiff should thereafter, upon request, execute to the said defendant an instrument in writing, conveying him the timber in question. This was suggested by the scrivener who drew the plaintiff’s deed, as a more convenient way of carrying out the original bargain, and adopted by the grantor and the plaintiff. This writing the plaintiff subsequently refused to execute, on request. This action is for trespass in taking that timber, and the plaintiff’ claims treble damages under the statute. Upon these facts it is obvious that the defendant, Milton H. Ottley, was the equitable owner of the timber, and that the plaintiff held the legal title as his trustee only. Milton H. could have compelled her to execute the writing, giving him the right to the timber, in an action for a specific performance, though he was not a party to the agreement. It was made for his benefit, and was to be performed to him. The consideration moved from him. It is now well settled that such a promise may be enforced in an action legal in form, as it always could have been in equity. The case upon this point is so clear upon the merits, that the other questions need not be examined at length. The original contract of sale to the plaintiff was made [457] with her husband, who acted as her agent. The price at which the premises were offered was eighty-five dollars per acre with the timber included, or sixty-five dollars per acre with the timber excluded and reserved. The latter proposition was accepted. The agreement also in regard to the deed, and the execution of the writing by the plaintiff to the defendant, Milton H. Ottley, for the timber, was made with the plaintiff’s husband, who claimed to be acting as her agent. The deed, after it was made out in pursuance of such understanding and agreement, was delivered to the husband for the plaintiff. The plaintiff, having accepted the deed and taken all the benefits and advantages cf the bargain and the arrangement, made in her name and behalf, must be held to have ratified what her agent did in her behalf, in making the bargain and in taking the conveyance, and to have adopted it. She cannot enjoy the fruits of the transaction without adopting all the instrumentalities employed by the agent in bringing it to a consummation. (Bennett v. Judson, 21 N. Y. R., 238.) The arrangements made with the husband acting for the plaintiff were therefore properly received in evidence. They were not mere declarations of an agent, but were res gesta}. They became, and were, in part, the acts and agreements of the plaintiff herself, after she took the conveyance and held the land under it. The evidence of the agreement in respect to the reservation of the timber, and that the plaintiff should convey it to the defendant, did not tend to vary or contradict the covenants in the deed. The agreement to convey the timber was founded iipon the deed, and was in no respect in hostility to it. It was like any other paroi agreement to convey an interest in land founded upon any other consideration, which has been paid by the purchaser. It is not the fault of the defendant, Milton H. Ottley, that his right now rests in paroi. It was agreed that it should be secured by a written conveyance, and it now rests in paroi merely because the plaintiff, in violation of her obligation, has refused to execute the written instrument. Under such circumstances, the plaintiff [458] attempts, with bad grace, to set up the non-existence of written evidence of the right. The courts will not allow a party to take advantage of his own wrong in this way. It would be using the statute of frauds to promote, instead of preventing, frauds and perjuries. The plaintiff, upon the facts of this case, is estopped from setting up the statute of frauds. (Ryan v. Dox, 34 N. Y. R., 307, and cases there cited.) The judgment is right and must be affirmed with costs.