Annan v. Merritt

Williams, Ch. J. Under the motion for a new trial, a question arises, as to the admissibility of evidence ; and upon the motion in error, the principal question was, whether the plaintiff was entitled to any relief. The last question will be first considered. The wife of Samuel Annan, being the owner of a tract of land, he offers to sell it to the plaintiff, at the price of 300 dollars; 50 dollars of which was to be paid down, the remainder secured by bond and mortgage, when the deed was given, which, the bill charged, was to be done soon, by warranty deed, signed by Annan and his wife. The plaintiff paid the 50 dollars, and Annan gave a receipt for the same, and delivered possession of the land to the plaintiff who entered and made improvements thereon, such as cutting bushes, fitting rocks, and collecting timber, and preparing to build ouse thereon. The defendants, J. C. Mead, knowing all these facts, combined with Annan to defraud the plaintiff, and took a deed to themselves from Annan and wife, of the lands, and have brought an action of ejectment against the plaintiff. The deed was taken to Charles Mead, but in trust for Jonas. — 487 — It has not been contended, that if Annan had been the owner in fee of this land, a court of chancery might not have decreed a specific performance ; or that, if in that case, the Meads had purchased of him, they would have been in a better situation. But the claim is, that a court of equity would not compel Annan, or his wife, (she being the owner,) to make a title ; and that their grantee has all the equity of either of them ; and that, as the plaintiff has no 'equitable claim against her, he can have none against her grantee. Formerly, the practice in courts of chancery was, to compel a specific performance of a contract made by a husband to sell the land of his wife; and an eminent judge declared, that there were an hundred precedents for it. Hall v. Hardy, 1 P. Wms. 189. And so far has this been carried, as to compel the husband, by imprisonment, to procure the title. Emery v. Wase. 5 Ves. jr. 848. This was founded upon a presumption, that he must have had her consent, before he made such a stipulation. Of course, the like rule prevailed, where she had signed the contract. Downey v. Hotchkiss, 2 Day 225. But modern opinions are entirely against these decisions, in both cases: and it must now be considered as settled law, that a contract made by the husband alone, or by husband and wife, for the lands of the wife, in which he may have an interest, will not be enforced in chancery. Davis v. Jones, 1 New Rep. 269. Martin v. Mitchell, 2 Jac. & W. 426. Martin v. Dwelly, 6 Wend. 1. Butler v. Buckingham, 5 Day 492. Squire v. Harder, 1 Paige 494. The defendants contend, that if the plaintiff has no equity, which could be enforced against Mrs. Annan, they can have none against her grantee ; that as they have her rights, they are entitled to her protection ; and that the notice they had, was only notice shewing that the plaintiff had no equitable right. To test the force of this reasoning, we must inquire, why it is, that a court of chancery will not compel a convey anee by the husband, or the husband and wife, in such case It cannot be for his sake ; although, generally, they will not compel a man to do what it is impossible for him to do. Green v. Smith, 1 Atk. 573. 2 Sw. Dig. 27. But it is considered to be absurd to compel the wife to convey her land, by inflicting penalties upon her husband, when the law is so — 488 — careful of her rights, as not to suffer her to convey, without an examination, whether any undue measures have been used by the husband. There can be but little difference, whether the wife is compelled to part with her property, by the compulsion of her husband, or by that sort of compulsion, which would operate upon her to deliver him from imprisonment. In the present case, it is not impossible for the defendants to convey the title ; nor is there any compulsion upon the wife. But the Meads say, they have all the equity of the wife, and so are entitled to her protection. Had they no notice of the plaintiff’s claims, this argument would have been decisive. If they, after notice, are to stand in Mrs. Jlnnan’s shoes, then it is not seen why any other person may not. Suppose, then, the Meads had purchased this land for Annan himself, and conveyed it to him; and the plaintiff was now claiming as against him ; could he set up any of these pleas — that he had but a life estate when he contracted, and that now he has only a right w'hich the plaintiff could never have enforced in equity, if he had not taken it, and that he must stand upon the same ground that the person stood upon from whom he purchased it ? Would a court of chancery listen a moment to such a defence ? The answer would be, you contracted to convey this land and give a good title ; and although, at that time, it was impossible for you to do it, consistently with the rights of another, or perhaps it was entirely impracticable, yet as no such objection now exists, you cannot, in face of your own agreement, set up objections, which do not now exist. If this be so, and Annan would be compelled to convey, upon what higher ground do these defendants stand ? If they rely upon the wife’s title, so did he. If, when they received it, they knew that she had a title, which chancery would not take from her, so did he. In short, we see no difference in the condition of the Meads and Annan, except ¿hat he was active, and they were passive, in depriving the laintiff of the benefit of his contract. In a court of equity, he who combines with another, in an act which operates as a fraud upon a third person, knowing the facts, can stand upon no better ground than the principal. Without the aid of some third person, Annan could not have effected this object. If Annan's conduct, therefore, is such — 489 — as a court of equity terras fraudulent, those who combined 1 - . with him, cannot escape untainted. They have become party to aid him in the violation of his contract, under the mask of his wife’s rights. If it be said, that the plaintiff is in no worse condition than if a deed had not been given ; we say, that cannot be known. If Annan, or his wife, has been tempted to the course taken, by an offer of a higher price than that which the plaintiff gave, by those who knew of the previous bargain, it would seem as if they were more than passive. Jf this was not the fact, we see no reason to suppose, but that Annan and wife would as probably convey to the plaintiff as to the defendants. The Meads, at all events, by taking this deed, have deprived Annan of the power, and the plaintiff of the hope, arising from the locus penitentice. They have, also, deprived the plaintiff of the benefit of the life estate, which he might have been compelled to convey to the plaintiff, as it would seem, had he elected to claim it. Waters v. Travis, 9 Johns. Rep. 450. In short, the Meads seem to have identified themselves with Annan; and, of course, we think they must stand rather in his situation, than in that of Mrs. Annan, who may safely claim the benefit of the shield the law has interposed for her protection. The policy of the law protects her real estate from the demands of her husband; of course, no fraud is imputable to her. But no rule of policy requires, that others should be allowed to aid her husband in deceiving those who relied upon his influence over his wife. If the effect of this construction should be, that unless a wife shall choose to comply with her husband’s contracts relative to his land, the estate must remain undisposed of, until his death; this would probably be more for her benefit, as it would remain for ter sole disposition after his death, if she survived him, or for her heirs, if she did not. It was not, then, because the plaintiff had not an equitable claim on this property, that the court would not have interfered, had it not been conveyed ; but because the wife might interpose a superior claim. When that is removed, we see no principle, which ought to prevent a court of chancery from compelling the performance of that which ought to have been done, by one of the parties, under whom the Meads claim; if — 490 — he could have done it, without unduly affecting the rights of others. Such being the view we have taken of the case, upon its merits, it becomes unnecessary to inquire whether the plaintiff would derive any aid from the decision in the state of New-Yorli, which he has set up in his supplemental bill. It was objected, to this decree, that the facts found by the court, did not support the facts stated in the bill. The bill states, that Annan was to execute, with his wife, a deed of warranty to the plaintiff. The court find, that fact is no otherwise proved, than by the receipt. The receipt shews, that Merritt was to have a warranty deed, with full covenants. It does not state by whom that deed was to be executed. But when we remember, that the land was owned by the wife ; that Annan had contracted that the plaintiff should have a deed, without saying from whom ; is not the inference a fair one, that he should have a deed from those who owned the estate 1 If the terms of the instrument are ambiguous, the rule is, that it is to be construed most strongly against him who made it. The contract, then, was, that the plaintiff should have a deed from Annan and wife, of the land in question. Again, it was said, that the decree was erroneous, because it left it optional with the plaintiff to pay the remainder of the purchase money or not, as he should choose. We do not see how the decree could have been otherwise. Should the court have directed the plaintiff, at all events, to pay the money ? Such an order would have been nugatory, unless the court intended to enforce it. And would the court, on an application of this kind, compel the plaintiff, upon a penalty, or upon pain of imprisonment, to do an act of this kind, contrary to the wishes of both parties 1 Or, can the defendants complain, that the court do not compel the plaintiff to do an act, the doing of which only will entitle him to the redress he seeks, and the omission of which will place the defendants in the very position which they claim to be placed in, by their defence ? We think, that the bill of the plaintiff discloses sufficient inducement to him to pay; and the de-fence discloses facts, which shew, that if he does not, the defendants will not suffer by it. Another objection was made to the taxing of costs against — 491 — Jonas Mead. The bill alleges, that both the Meads combined in this transaction ; that the deed was given to Charles, but that Jonas paid the money ; and that Charles holds it in trust for him ; and that he is the equitable owner; and these facts were found. Upon these facts, the plaintiff was bound to make them both parties, one as the legal owner, and one as having the real interest. And although he has taken a decree against one only, it is not upon the ground that the facts disclosed are, not such as made it proper to call the other into court, but that, as the legal title only was in one, a decree against the other would have been of no use. But if both united in the act, and that act was done for the benefit of one, but in the name of the other, we can see no good reason why one should be taxed with costs, and the other should escape. Upon the trial, the evidence offered by the plaintiff was objected to; and aside from a specific objection to the receipt, the whole evidence seems to have been objected to. The general nature of the objection would, perhaps, be a sufficient ground for overruling it; as we do not know what the real objection to it was. Most of the evidence seems to have been acts tending to shew a part performance of the contract, by the plaintiff; such as money paid, possession taken, improvements made, and money expended. To exclude evidence of this character, would be to say, that part performance will not take a case oat of the statute of frauds ; and whatever we might have been disposed to say, ■were this a new question, it is now much too late to countenance a discussion of it. The authorities are too numerous, and too overpowering, for us to treat this as an open question. If it meant, that the evidence was not sufficient to take the case out of the statute, it is enough to say to this objection, that the weight of evidence is not presented for our consideration. It was said, however, that the parol evidence must be rejected, because the parol contract was all merged in the written one. So far as it regards acts of performance, we see no objection to them, whether the contract was written or not. But we do not understand, that there was a written contract. What the defendants termed the written contract, is a receipt, introduced by the plaintiff, to prove part perform — 492 — ance in the payment of money. In that receipt, the drafts^ refers to a prior contract, and counts upon that con-_ tract. He may have gone into the details of that contract more minutely than was necessary ; but this does not, therefore, become the contract, or the only evidence of it. It purports to be an acknowledgement of 50 dollars, received, in part, upon a contract for a farm, previously made. It was but a part of the evidence upon which the plaintiff relied, in proof of part performance. That it was proper, for that purpose, cannot be doubted. Another objection to the receipt, was, that it did not prove the allegation in the bill, that the mortgage was to be given upon the land to be conveyed. We think, however, that this fact does sufficiently appear. Annan sells land lying in Greenwich, in this state. He requires part of the money ⅛ advance, and a mortgage to secure the remainder. But what is he to mortgage ? Any property he pleases ? Or who is to say how much, and where it shall be ? One would think, provision must have been made for this event, if such an one is intended. But, on the contrary, the deed from Annan, and the mortgage to him, are to be left at one place, at one time. No discretion was given to the person with whom they were to be deposited, as to what he was to receive. He was to receive both, and deliver both, at the same time, to the town-clerk; and we are not told, that the plaintiff held any other land in that town. We think, therefore, not only from the ordinary course of business, but from the particular circumstances here alluded to, that the understanding of the parties was, that the mortgage was to be a mortgage of the same property which he purchased. We think, therefore, there is no error in the judgment; and that there should be no new trial. In this opinion, the other Judges concurred, except Sherman, J., who gave no opinion, having been of counsel in the cause. Judgment affirmed. New trial not to be granted.