96 N.Y. 414, Wood v. Rabe

Citation:96 N.Y. 414
Party Name:GEORGE W. WOOD, Appellant, v. RUDOLPH F. RABE et al., Executors, etc., Respondents.
Case Date:October 07, 1884
Court:New York Court of Appeals

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96 N.Y. 414

GEORGE W. WOOD, Appellant,


RUDOLPH F. RABE et al., Executors, etc., Respondents.

New York Court of Appeal

October 7, 1884

Argued Mar. 14, 1884.

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Robert E. Deyo for appellant. At the time of making the agreement with his mother, Wood had a substantial interest in the property notwithstanding his time for direct redemption had gone by, and this interest remained intact until the expiration of the time within which judgment creditors and mortgagees could redeem. (2 R. S. 373, § 61 [2 Edm. Stat. 387]; 2 R. S. 371, § 51 [2 Edm. Stat. 385]; Van Rensselaer v. Sheriff of Onondaga, 1 Cow. 443, 458; Van Rensselaer v. Sheriff of Albany, Id . 501, 509; Ex parte Peru Iron Co., 7 Id . 540; Bissell v. Payne, 20 Johns. 3.) A court of equity will grant relief to prevent a fraud. ( Ryan v. Dox, 34 N.Y. 307, 311; Robbins v. Robbins, 89 Id . 251, 256; Malins v. Brown, 4 Id . 403, 408; Freeman v. Freeman, 43 Id . 34, 39;

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Miller v. Ball, 64 Id . 286, 291; Dodge v. Wellman, 43 How. Pr. 427, 430; Church v. Kidd, 3 Hun, 254; Browne on Statute of Frauds, § 445 A.; Reech v. Kennegal, 1 Ves. Sr. 123; Wheeler v. Reynolds, 66 N.Y. 236, 237.) The confession of judgment by Wood was a sufficient part performance to bring him within the exception of the statute of frauds. ( Wheeler v. Reynolds, 66 N.Y. 227; Kellum v. Smith, 33 Penn. St. 158, 236; Freeman v. Freeman, 43 N.Y. 434, 439; Malins v. Brown, 4 Id . 403, 408; Ryan v. Dox, 34 Id . 307, 312; Miller v. Ball, 64 Id . 286; Grout v. Townsend, 2 Hill, 554.) It was not "false swearing" for plaintiff to verify the confession of judgment; the most that can be said against him is that being convinced by the arguments of his mother, that the sum was a loan, he agreed to confess judgment for it upon certain conditions. ( Rankin v. Arndt, 44 Barb. 251.) He was not guilty of a fraud upon any creditor. ( Van Rensselaer v. Sheriff of Onondaga, 1 Cow. 443, 458; Van Rensselaer v. Sheriff of Albany, Id . 501; Ex parte Peru Iron Co., 7 Id . 540; Bissell v. Payn, 20 Johns. 3.) The confession of judgment by the plaintiff was a sufficient consideration for his mother's promise to hold the property redeemed in trust for him. ( Insurance Co. v. Watson, 59 N.Y. 390, 395; Wilbee v. Elgee, L. R., 10 C. P. 497, 501; Pollock on Contracts, 167; Trigge v. Lavallee, 15 Moore's P. C. 271, 292; McComb v. Kittredge, 14 Ohio, 348; Sanford v. Huxford, 32 Mich. 310, 311, 313; Beadle v. Whitlock, 64 Barb. 287; Palmer v. North, 35 Id . 282, 293.) Plaintiff's prior agreement with Stillwell, that he might redeem if set up, would have been a bar to a redemption by Mrs. Mulock under her judgment. ( Miller v. Lewis, 4 N.Y. 554.)

Randolph F. Rabe for respondents. The pretended agreement, being by parol, is void under the statute of fraud. (3 R. S. [ 5th ed.] 220, 221, § 8.) A part performance of a parol agreement will not, at law, take it out of the statute. (3 R. S. [ 5th ed.] 221, § 10; Jackson v. Pierce, 2 Johns. 221.) A court will not enforce a verbal agreement unless the plaintiff

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has parted with some value upon the promise. (Story's Eq. Juris., 287; Gernan v. Machin, 6 Paige, 293; Brown on Statute of Frauds [3d ed.], 438, 439, 440; Ryan v. Dox, 34 N.Y. ; Levy v. Brush, 45 Id . 589, 596; Baldwin v. Palmer, 10 Id . 232, 234; Brown on Frauds, § 471; 1 Story's Eq. Juris., § § 760, 761.) By "part performance" the statute means part performance of that branch of the contract which is void by the statute. ( Van Alstyne v. Wemple, 5 Cow. 162; 2 Story's Eq. Juris., § 760; Levy v. Brush, 45 N.Y. 596, 597; Baldwin v. Palmer, 10 Id . 235; 3 Parsons on Fraud, 139; Dung v. Parker, 52 N.Y. 496.) Plaintiff's claim, that under the parol agreement with his mother an estate, right, title and interest in and to the said lands, in trust, became vested in her, is untenable. ( Getman v. Getman, 1 Barb. Ch. 499, 514.) The (alleged) trust, being created by a parol agreement, is void under the statute of frauds, as no valid trust can be founded on an interest derived from an illegal contract. (3 R. S. [ 5th ed.], 220, § 6; Rathbun v. Rathbun, 6 Barb. Ch. 98.) Equity cannot interfere to take a case out of the statute unless it is a clear case of fraud; in which event it extends relief by creating a constructive trust as between the parties. ( Cook v. Fountain, 3 Swanst. 585; Browne on Statute of Frauds [3d ed.] 438; Hobbs v. Wetherwax, 38 Hun, 385; Merithew v. Andrews, 44 Barb. 200; Brown v. James, 46 Id . 400; Ryan v. Dox, 34 N.Y. 307; Freeman v. Freeman, 43 Id . 34; Tyler v. Church. 54 Id . 634.)


The trial court found, in substance, that no agreement was ever made between the plaintiff and his mother, that the latter should use the judgment confessed by the plaintiff to her November 27, 1855, to redeem the premises from the sale on the Stilwell judgment for the plaintiff's benefit, or that after such redemption she would convey the interest which she should acquire thereby to the plaintiff on payment of her claims on the property. This finding, although among the findings of fact, must have been intended as a finding of law, and to embody the conclusion

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reached by the General Term in its opinion on the first appeal, that the oral agreement to the effect stated in the finding, made between Mrs. Mulock and the plaintiff, did not in law or equity create any obligation, or, either separately or in connection with the other facts and circumstances, furnish any basis for equitable relief, for the reason that the agreement was void by the statute of frauds. Any other construction of the finding would make it inconsistent with the undisputed evidence. The proof is clear that the plaintiff confessed the judgment of November 27, 1855, at the request of his mother and upon the advice of her attorney, his former guardian, to enable her to redeem from the sale on the Stilwell execution for his benefit, and upon her promise to hold the interest acquired and re-invest him with his former estate in the land upon being paid her liens and advances.

There is a moral aspect to this case which strongly appeals to the sentiment of equity and justice. The mother of the plaintiff has acquired the legal title to property devised to him by his grandfather, of the value of at least $10,000 for a consideration, including her own debt, not exceeding $3,200, of which property she was at the time in possession as life tenant under the same will, under an agreement made with the plaintiff when he was in great straits, by which she promised to hold the property for his benefit and re-convey to him on payment of her lien and advances, which agreement she subsequently repudiated. Moreover, when the agreement was made the plaintiff was a young man recently passed his majority, and he confessed the judgment not only at the solicitation of his mother, but under the advise of his mother's legal adviser, his former guardian, upon the most solemn assurance of both that he might implicitly rely upon his mother's promise to re-convey the property.

But neither courts of equity or law sit to enforce mere moral obligations, and the question to be determined is whether a court of equity in accordance with its established principles and jurisdiction, can compel a performance of this agreement, notwithstanding the statute of frauds which makes void oral contracts

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for the sale of lands (1 R. S. 135, § 8), and forbids the creation of any trust relating to lands, except trusts arising by implication and operation of law, unless by deed or...

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