Kimberly v. Fox

Hinman, J. The object of one of these cases is an injunction against the further prosecution of the other. They have therefore been argued together, as if they virtually constituted but one case, and will be disposed of in the same manner ; though it will be convenient to.treat them in the order in which they were brought. The object of the first case is to relieve certain real estate, [314] which in equity belongs to the plaintiff, from a cloud upon hej title arising from a deed of it from Mineas Ives, its former proprietor, to the respondent Richmond, and a subsequent deed of the same from Richmond to the respondent Fox, who is now claiming title under those deeds. The plaintiff contracted with Richmond to cause the property to be conveyed to him, on his payment of a small portion of the purchase money, and the execution to her of a note for the balance, with a mortgage of the property to secure it. The cash portion of the purchase money was paid, and the plaintiff had procured the deed from Ives directly to Richmond, for the purpose of delivering it to him, on receiving the note and mortgage as agreed upon; but Richmond, probably thinking that he might take advantage of a mistake in the written memorandum of the contract between himself and the plaintiff, never executed the note and mortgage, but fraudulently and with force obtained possession of the deed thus executed to him, and caused it to be recorded as a valid and perfected instrument; and subsequently executed a deed of the premises to Fox, who took his conveyance with full knowledge of the state of the title, and particularly of the manner in which his grantor procured the deed under which he claimed title. As Richmond’s deed was never delivered it was of course invalid, and Fox, having knowledge of the fact., is in no better condition than his grantor. But the deed was correct in form, and therefore casts a cloud upon the title, which would remain, although Ives, who still has the legal title, should convey it to the plaintiff who is equitably entitled to it. The plaintiff’s case is so obviously just, that counsel have not even claimed that, upon the facts thus far alluded to, she would npt be entitled to relief. But it is insisted that on the 9th of October, 1855, she, in a contract of that date, expressly recognized Richmond’s title, and therefore, can now make no claim in opposition to it. It is true that she then procured from him an agreement to sell the property to her or to Selah Richmond for what it cost him, if he sold it to any body. But he was by that writing under no obligation to sell it to any body, and there does not [315] appear to have been any consideration even for this conditional agreement. Besides, the agreement itself amounts to no more than a promise to do that which he was under the strongest equitable obligation to do without any such promise, that is, to convey back the property to the equitable owner on being repaid the small sum which he had advanced for it. The committee finds that she induced Richmond to make this writing, in order to prevent his conveying away the property to her prejudice to some third party. The circumstances, therefore, under which this writing was executed, show that it was on her part an attempt to get back from him that which he had fraudulently obtained from her— the appearance of a title to this property—rather than any recognition by her of his ownership of it. We do not think, therefore, that the taking of this agreement, although it appears that she drew it up, ought to prevent her from obtaining the equitable relief which she seeks. But as Richmond did, in fact, advance towards the purchase money for the property the sum of one hundred and twenty-five dollars, it is equitable that this should be repaid to him, on the execution by him of a quitclaim deed to her, and the execution also of a like conveyance by the defendant Fox. The parties will then be placed in the condition they were in before any contract was made between them. While the original suit was pending in the superior court, after the facts had all been found by a committee, and the case was reserved for the advice of the supreme court of errors, the petitioner and the respondent Fox made a parol agreement in respect to the settlement of the cause, by which, on the performance of certain stipulations on the part of Fox, the petition of Mrs. Kimberly was to be withdrawn. And this is now made the subject of a bill for an injunction against the further prosecution of the original bill, and for a specific execution of the terms of this last agreement; and the question is whether this last bill can be maintained. It is quite obvious that so far as this original bill seeks a discontinuance of the former suit, or an injunction against its further prosecution, the matters set up for this purpose [316] might, if they amount to any thing, have been move properly set up by way of cross bill or by plea puis darrein continuance. 2 Swift Dig., 213. Story Eq. PL, 313. But we have not entered into this question, because the agreement, being by parol, and being an agreement by which Mrs. Kimberly proposes to dispose of her equitable interest in the premises, which are the subject matter of the original suit, is of course an agreement to dispose of an interest in land, and is therefore within the statute of frauds; and we know of no authority for saying that such an agreement can be taken out of the statute by the mere payment of money in part execution of it. We therefore advise that the superior court dismiss this bill. In this opinion the other judges concurred. In Kimberly v. Fox, petition to be granted. Tn Fox v. Kimberly, bill to be dismissed.