Thomas Richards v. Richards

Bigelow, J. This cause has been argued upon the admitted fact that there was no agreement in writing for the sale and conveyance of the premises, set out in the bill. But for this admission, the question of the validity of such a contract, on the pleadings as they now stand, would not have been open. Story Eq. Pl. § 762. Cozine v. Graham, 2 Paige, 181. Newton v. Swazey, 8 N. H. 13. It seems to us quite clear, that the contract is within the statute of frauds, and that no action will lie upon it against the defendant alone, because, it was not in writing. It is an agreement with a cestui que trust, having the entire beneficial interest in a parcel of land, for its sale and conveyance by the trustee, who was seised of the naked legal title only. This is clearly a contract for the sale of an interest in land, and it is well settled 315 that equitable as well as legal interests in land are embraced within the statute of frauds. Smith v. Burnham, 3 Sumner, 435, We have not considered the question whether the facts set out in. the bill, as to part performance of the verbal agreement, would be sufficient to warrant the court in taking cognizance of the case under St. 1855, c. 194, § 1, and enforcing the contract on the ground of fraud, because it is clear that the bill cannot be maintained for this purpose against the present defendant alone. Upon the allegations in the bill Samuel Richards, the alleged cestui que trust, is a necessary party. He has a direct interest in the subject matter of the suit; his rights will be affected by the final decree. Besides, the rights of the present defendant, the supposed trustee, require that his alleged cestui que trust should be joined as party, in order that he may be protected by the decree in this suit from any further claim by the cestui que trust on account of the estate in case he is compelled to convey it to the plaintiffs. Demurrer sustained.