34 N.Y. 307, Ryan v. Dox

Citation:34 N.Y. 307
Party Name:MICHAEL RYAN and THOMAS NEVINS, Appellants, v. JOHN L. DOX, Respondent.
Case Date:January 01, 1866
Court:New York Court of Appeals

Page 307

34 N.Y. 307

MICHAEL RYAN and THOMAS NEVINS, Appellants,

v.

JOHN L. DOX, Respondent.

New York Court of Appeal

January 1, 1866

COUNSEL

Henry R. Selden, for the appellants.

Alexander S. Johnson, for the respondent.

DAVIES, Ch. J.

This action was tried by a referee, who held, as matter of law, that, unless the agreement set out in the complaint in relation to the purchase by the defendant at the master's sale of the premises in question, or some note or memorandum thereof, expressing the consideration, be in writing, the same was void, and created no interest in the plaintiffs in said premises, and could not be enforced against said defendant, in law or equity. And he further reported, as matter of fact, that no proof was made or offered on said trial, by or in behalf of the plaintiff, of any such agreement in writing, or of any note or memorandum in writing of such an agreement, or of any deed, conveyance or instrument in writing subscribed by the defendant or his lawful agent, creating or declaring any trust or interest in said premises in favor of said plaintiffs, and that no proof was made or testimony or evidence offered, on the part of the defendant. The judgment entered for the defendant upon the report of the referee, was affirmed at the General Term, and the plaintiffs now appeal to this court.

We are at liberty to assume, from this finding, that the agreement set out in the complaint was proven on the trial before

Page 308

the referee. To ascertain what that agreement was, we must have reference to the complaint and the offer made by the plaintiffs on the trial. The plaintiffs averred in the complaint that the plaintiff Michael Ryan, being seized of certain lands in the town of Seneca, made and executed a mortgage thereon, in the year 1839, to secure the sum of $800, part of the purchasemoney thereof, and that, in the month of October, 1841, said plaintiff Ryan conveyed to the said Nevins, the other plaintiff, an equal undivided half of the said premises; that plaintiffs being unable to pay the installments on said mortgage as they became due, the said mortgage was foreclosed, and said plaintiffs procured of one Lewis the sum of $300, which was paid on account of said judgment of foreclosure, and a portion thereof, to the extent of $300, was assigned to said Lewis as his security for such advance; that said Lewis, becoming importunate for his money, and the plaintiffs being unable to raise the same for him, Lewis proceeded to advertise said premises for sale on the 12th day of October, 1843, for the purpose of raising said sum of about three hundred dollars, while said premises were worth the sum of four thousand dollars. The complaint further averred, that while said premises were thus advertised for sale, and before the day of sale had arrived, the plaintiffs, being men of limited means, and unable to raise the money which would be needed to stop the said sale, and to pay up the amount due on the said decree for the debt and the costs which had accrued, applied to the defendant Dox, reported to be a man of ready money, and who had always professed to be interested in their behalf, and asked him to assist them, and aid them to raise the money to pay the amount due on said decree and save the said premises from being sold away from them, and from being sacrificed for the small amount, compared with their value, which was claimed upon said decree. That said Dox did then profess and declare a willingness to help said plaintiffs for such purpose, and did then and there agree with the said plaintiffs that, on the day of said sale, he, the said Dox, would attend the same and bid off and purchase the said premises at such sale, upon the express

Page 309

agreement and understanding, between the plaintiffs and said Dox, that such bidding and purchase, if made by the said Dox, should be for the benefit and advantage of these plaintiffs, and the plaintiffs upon such agreement and understanding agreed that they would not find any other one to go their friend at the said sale, and to bid in and purchase the said premises for them; and that it was expressly understood and agreed between the plaintiffs and said Dox, that if he became the purchaser of said premises at said sale he should take the deed of the same from the said master in his own name, but only by way of and as security to himself for what money he should have to advance and pay on such purchase, and with the agreement, promise and undertaking between said Dox and these plaintiffs, that whenever these plaintiffs should repay him the amount which he should pay to procure and effect such purchase and to get the deed therefor, with the interest thereon, and a reasonable compensation for his services therein, he, the said Dox, should convey the said premises to these plaintiffs and again vest the title thereto in them, and should in the meantime hold the said premises in his own name as security only for the said moneys, and always subject to the above agreement and defeasance. That in pursuance of said agreement, said Dox attended said sale, and bid off the same for the sum of $100, he being the only bidder at said sale, and the same was struck off to him and he received the deed therefor. That at said sale it was talked about and understood by those present thereat, that said Dox was bidding for the benefit of these plaintiffs, and that said premises were struck off to him only as security to him for the repayment to him by these plaintiffs of the moneys he should advance and pay for the same and interest thereon, and his reasonable charges for his attention thereto. And the plaintiffs averred that such was the fact, and that in truth said Dox did bid off and purchase the said premises for these plaintiffs, and to save the same for them, and took the deed in his own name, only as such security as aforesaid, and that in consequence of such understanding other persons abstained from bidding on said premises, and the same was

Page 310

struck off to said Dox without any opposing bid, although the plaintiffs...

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164 practice notes
  • 77 N.W. 1012 (N.D. 1898), 6731, Prondzinski v. Garbutt
    • United States
    • North Dakota Supreme Court of North Dakota
    • December 5, 1898
    ...(Ky.), 44 Am. Dec. 772; Griffin v. Coffey, 50 Am. Dec. 519; Wingate v. Ferris, 50 Cal. 105; Beatty v. Brummett, 94 Ind. 76; Ryan v. Dox, 34 N.Y. 307; Page 1014 Schroeder v. Young, 161 U.S. 334, 16 S.Ct. 512, 40 L.Ed. 721; Tice v. Russell, 43 Minn. 66, 44 N.W. 886. It may also be noted that ......
  • 156 N.Y. 491, Cox v. Stokes
    • United States
    • New York New York Court of Appeals
    • October 4, 1898
    ...O'Hara, 95 N.Y. 403, 414; Barry v. Lambert, 98 N.Y. 300, 305; Williams v. Fitch, 18 N.Y. 546; Brown v. Lynch, 1 Paige, 147; Ryan v. Dox, 34 N.Y. 307; Marie v. Garrison, 13 Abb. N. C. 214, 282, 287; Genet v. Davenport, 56 N.Y. 676.) Robert G. Ingersoll for respondents. The appellants are est......
  • 157 N.Y. 213, Sanger v. French
    • United States
    • New York New York Court of Appeals
    • November 22, 1898
    ...116 N.Y. 87; Smith v. Tarlton, 2 Barb. Ch. 336; Bissell v. Harrington, 18 Hun, 81, 86; Remington v. Palmer, 62 N.Y. 31, 34; Ryan v. Dox, 34 N.Y. 311, 312; Levy v. Brush, 45 N.Y. 589; Traphagen v. Burt, 67 N.Y. 30; Wheeler v. Reynolds, 66 N.Y. 227, 236; Johnson v. Brooks, 93 N.Y. 337, 343; J......
  • 165 N.Y. 500, Russell v. Briggs
    • United States
    • New York New York Court of Appeals
    • February 5, 1901
    ...is enforceable by a court of equity in the nature of specific performance. (2 R. S. 135, § 10; Canda v. Totten, 157 N.Y. 281; Ryan v. Dox, 34 N.Y. 307; Lowry v. Tew, 3 Barb. Ch. 407; 1 Beach on Mod. Eq. Juris. § 84; Kincaid v. Kincaid, 85 Hun, 141; 157 N.Y. 715; Pawling v. Pawling, 86 Hun, ......
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164 cases
  • 77 N.W. 1012 (N.D. 1898), 6731, Prondzinski v. Garbutt
    • United States
    • North Dakota Supreme Court of North Dakota
    • December 5, 1898
    ...(Ky.), 44 Am. Dec. 772; Griffin v. Coffey, 50 Am. Dec. 519; Wingate v. Ferris, 50 Cal. 105; Beatty v. Brummett, 94 Ind. 76; Ryan v. Dox, 34 N.Y. 307; Page 1014 Schroeder v. Young, 161 U.S. 334, 16 S.Ct. 512, 40 L.Ed. 721; Tice v. Russell, 43 Minn. 66, 44 N.W. 886. It may also be noted that ......
  • 156 N.Y. 491, Cox v. Stokes
    • United States
    • New York New York Court of Appeals
    • October 4, 1898
    ...O'Hara, 95 N.Y. 403, 414; Barry v. Lambert, 98 N.Y. 300, 305; Williams v. Fitch, 18 N.Y. 546; Brown v. Lynch, 1 Paige, 147; Ryan v. Dox, 34 N.Y. 307; Marie v. Garrison, 13 Abb. N. C. 214, 282, 287; Genet v. Davenport, 56 N.Y. 676.) Robert G. Ingersoll for respondents. The appellants are est......
  • 157 N.Y. 213, Sanger v. French
    • United States
    • New York New York Court of Appeals
    • November 22, 1898
    ...116 N.Y. 87; Smith v. Tarlton, 2 Barb. Ch. 336; Bissell v. Harrington, 18 Hun, 81, 86; Remington v. Palmer, 62 N.Y. 31, 34; Ryan v. Dox, 34 N.Y. 311, 312; Levy v. Brush, 45 N.Y. 589; Traphagen v. Burt, 67 N.Y. 30; Wheeler v. Reynolds, 66 N.Y. 227, 236; Johnson v. Brooks, 93 N.Y. 337, 343; J......
  • 165 N.Y. 500, Russell v. Briggs
    • United States
    • New York New York Court of Appeals
    • February 5, 1901
    ...is enforceable by a court of equity in the nature of specific performance. (2 R. S. 135, § 10; Canda v. Totten, 157 N.Y. 281; Ryan v. Dox, 34 N.Y. 307; Lowry v. Tew, 3 Barb. Ch. 407; 1 Beach on Mod. Eq. Juris. § 84; Kincaid v. Kincaid, 85 Hun, 141; 157 N.Y. 715; Pawling v. Pawling, 86 Hun, ......
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