Miner v. O'Harrow

Campbell, C. J. Plaintiff sued defendant for the price of a house and lot sold, and not paid for, except in part. The transaction was had more than six years before suit brought; but, if valid, was kept alive by payments within that time. Some controversy, and apparently the most obstinate, arose out of the claim that such a cause of action could not arise under the common counts. But it is familiar doctrine that an action will lie, under the common counts,.for a sum agreed upon as due, if based on lawful consideration. It is also settled that, where all the facts have been examined, and there is no reason to suppose a defendant has been misled concerning the issue, great liberality will be exercised to allow necessary amendments. In this case no such difficulty exists if the action lies at all. The facts were, in brief, that Miner, who was the real and beneficial owner of a title held by a friend of his, procured a. conveyance to be made, absolute in form, but in fact a mortgage, to secure defendant for a debt,, and perhaps for some other liability. Such, at least, the jury must have found the facts to be. Some time thereafter, having an offer of $2,500’ [94] for the land, plaintiff so informed defendant, who told him he would like to take the land himself for that price, and so it was agreed he should have it. Plaintiff, as he gives testimony, having had possession, gave it up to defendant, who assumed it, and subsequently sold the land, to the person who had been in treaty with plaintiff, for a larger price. Plaintiff proved several payments on the price subsequently, which defendant disputes as not so made, but which the jury believed were. The only question argued before us was confined to the admissibility of this parol arrangement under the declaration in assumpsit; defendant claiming the suit should have been in equity. There is no doubt that the sale of an equitable interest is as good a foundation for a legal contract as any other consideration: Holland v. Hoyt, 14 Mich. 238. The interest owned by plaintiff in the mortgaged premises was such an interest in lands as could only be transferred at law by a written instrument. But, inasmuch as possession was delivered in furtherance of it, so that the contract was carried out by pei'formance, the statute exception in regard to parol contracts partly performed comes in to aid it, and defendant’s transfer to a bona fide purchaser put an end to any redemption. We think, therefore, that the agreement to pay was based on a sufficient consideration, and that the jury were properly allowed to pass upon it. It might also be suggested that, if the parol contract was not valid, defendant would be bound, as mortgagee, to restore any surplus received on his sale of the premises, and he would stand in no better position. The judgment must be affirmed. The other Justices concurred.