Dunckel v. Dunckel

Fish, J. John A. Dunckel, the husband of plaintiff and son of defendant, •died on the 9th day of February, 1883. At the time of his death John A. and his wife were occupying a house and' lot, in the village of Fort Plain, which was owned by the defendant. They had occupied the same for about 17 years, paying no rent to defendant, during which time Jolip. A. paid the taxes, and •made improvements upon the property, from time to time, which amounted in the aggregate, according to the testimony of plaintiff, to about the sum of $2,800. Before that time the defendant had advanced to his son $3,000, with which to start business; and had paid $2,500 for the house and lot. When John A. ■died, he was largely indebted to divers persons; and the defendant was indorser •or surety for him upon divers notes, constituting a considerable part of the indebtedness, and was thus contingently liable to pay the notes. It was not known to a certainty whether or not the estate of the deceased was sufficient to pay his debts in full. There was some uncertainty about it. It afterwards transpired that the entire indebtedness of the estate, which plaintiff paid, as executrix, was $11,147; and the assets which came into plaintiff’s hands as executrix netted, in the aggregate, $11,781, suffic ent in amount to pay all the indebtedness, and leave a balance enough to cover the fees of plaintiff as executrix, and $300 allowance to which she was entitled by statute. It was also after-wards ascertained that the sum for which defen lant was so liable as surety was about $7,500. Soon after the death of John A., and before administration upon his estate, the defendant, not knowing the exact amount of the son’s estate, and being apprehensive that it might not be sufficient to pay and satisfy all of said indebtedness, so that he might be required to pay some balance of said debts from his own means, agreed orally with plaintiff that, if she would pay said indebtedness, he would give her a life-lease, for her own life, of the before-mentioned bouse and lot, which she then continued to occupy after her husband’s death. Plaintiff herein agreed to the proposition, and proceeded with her duties as executrix of her husband’s estate, and, with the moneys realized from her husband’s estate, paid the debts, paid all the notes upon which defendant was indorser or surety, and gave them up to the defendant, asking for the promised life-lease. The plaintiff did not pay any part of said indebtedness from her own money or means, and was compensated for duties as executrix by her lawful fees. There was no money or property •consideration passed between them. The plaintiff was at the time in possession and actual occupancy of the premises in question; had no occasion to move, or make any change in her business or condition, in consequence of the agreement. She simply continued to occupy the same as she had done while her husband was living. There is great conflict in the testimony as to the question whether or not the defendant ever made the agreement found, but there was sufficient evidence to justify a finding that it was so agreed. ■On this appeal the case must be treated on the assumption that such an agreement was made. Upon the case, stated, this action cannot be maintained. The agreement in question is obnoxious to the provisions of section 8, tit. 1, c. 7, pt. 2, Rev. St., (7th Ed. p. 2326,) which is as follows: “Every contract for the leasing for a longer period than one year, or for any sale of any interest in lands, shall be void unless the contract, or some note or memorandum expressing the consideration, be in writing, and be subscribed by the party by whom the [890] lease or sale is to be made.” There are cases where, in pursuance of paroi agreements, purchasers have entered into possession of land, paid the purchase money, or made substanstial improvements and considerable expenditures thereon, in which the courts of equity have enforced the agreements by compelling a performance. See Freeman v. Freeman, 43 N. Y. 34; Miller v. Ball, 64 N. Y. 286; Kenyon v. Youlan, 6 N. Y. Supp. 784. However, in the case before us, we have not one which comes within the principle thus decided. The plaintiff herein has done nothing to entitle her to the relief demanded. There is no fraud to be frustrated, no injustice to be prevented. Equity interposes only, in such cases, on account of what a party has done, as where the paroi purchaser has fulfilled, and has invested either money or other value which will be lost to him, and gained by the other party, unless the latter be required to perform his part of the paroi agreement. In other;, words, equity is allowed to relieve the stern features of the staute of frauds only when it is necessary to do so, and in cases where the enforcement of the statute would work a fraud, rather than prevent one. The full payment of the purchase' money in a paroi purchase of land, standing alone, does not entitle a party to relief as against the statute. There must be some further action. In cases of the purchase of lands in general, the taking possession and making improvements after payment of the purchase money has been held a necessary condition. See Malins v. Brown, 4 N. Y. 403; Miller v. Ball, supra; Freeman v. Freeman, supra; Wheeler v. Reynolds, 66 N. Y. 231. 2. There was no sufficient consideration passing between the parties to uphold the agreement. Whatever conversation did pass between plaintiff and defendant, after the death of John A. Dunckel, regarding the subject of controversy, had relation to the estate of the deceased. John A. Dunckel had left a will in which he had made plaintiff his sole executrix and residuary legatee. She was about to take charge of the estate in her capacity as executrix, in the discharge of the duties of which she would be bound to apply the same to the payment of the debts of her deceased husband. If defendant agreed to anything, it was simply this: If she applied the assets of the estate to the payment of the debts in full, so that the defendant should not be called upon to pay any part of them, he would let her stay where she was, would not disturb her possession, but would give her a lease, for her life,°of the house and lot. It was only a good-natured promise by an old man to the widow, which created no legal obligation on either side; and, as a fact, the plaintiff did nothing but apply the money of the estate as it was her duty to-do, and which the law would have enforced. This agreement was of no more legal force than would have been a promise that, if she discharged the duties of her trust properly, and according to law, he would make her a handsome present, or would give her additional compensation. It is not a matter of much moment, in this case, what was the arrangement between the father and son at the time he purchased the house. The defendant bought the property for $2,500, and allowed his son to occupy the same ' for 17 years without paying rent. Prior to that time he had advanced to his son $3,000, to go into business. Suppose, then, at the time he bought it, he had said he was buying it for his son. It was an expression, as between' father and son, having a different meaning than if between strangers. Every father, as he advances in years, is laboring for his children, and saving his estate for them, Then, suppose the story of the plaintiff to be true, that in the. course of 17 years her husband had laid out $2,800 in improvements. He would scarcely, by that process, have paid a rent equal to the interest on the purchase money, and would not have reduced the advance of $3,000, before advanced to him. In the year 1866, when defendant made the purchase, the rate of interest was 7 per cent., so that the interest on $2,500 ran at the rate of $175 per year for the 17 years, and exceeded the amount of the son’s repairs and improvements. As between the father and son, while living, there [891] was no legal or equitable right on the part of the son to demand a deed. This action is not to be decided upon any sentimental idea of what an old father ought, in good nature, to do with his children, or their widows. When relatives resort to the courts to enforce alleged legal demands, they must be governed by the same rules and bearings as other hostile parties. Finally, as an independent proposition, this plaintiff has not done anything, or paid anything, which gives her a claim of any sort against defendant. She could not maintain an action against defendant for any money paid, because she has paid nothing except what she was bound to pay, from the moneys belonging to the estate, without regard to the agreement. He owes her nothing for services. All she has done was to discharge the duties of executrix, for which she was paid out of the estate. It was not part of the agreement that she was to act as executrix, nor did she assume that duty because of the agreement. She expected to, and did, accept the trust because the will of her husband so appointed. The defendant agreed with her that, if she would do her duty in the discharge of that trust as the law itself required, he would give her the life-lease. There was therefore no legal consideration for the agreement. The finding of the special term that the plaintiff was entitled to judgment against the defendant, and requiring him to execute to plaintiff a life-lease of the premises, was error, and the judgment should be reversed. Let judgment be reversed, and new trial granted; costs to abide event.