McKinley v. Hessen

• Decision Date: 25 April 1911
• Citation: 95 N.E. 32,202 N.Y. 24
• Parties: McKINLEY v. HESSEN.
• Court: New York Court of Appeals Court of Appeals

202 N.Y. 24

95 N.E. 32

McKINLEY

v.HESSEN.

Court of Appeals of New York.

April 25, 1911.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by James A. McKinley against Susan Hessen. Judgment (135 App. Div. 832,120 N. Y. Supp. 257) for defendant, and plaintiff appeals. Reversed and remanded.

See also, 137 App. Div. 902,122 N. Y. Supp. 1135.

Alton B. Parker, for appellant.

Almeth W. Hoff, for respondent.

GRAY, J.

The action is to compel the specific performance of a parol agreement, whereby the defendant agreed to hold the title to certain real estate in trust for the plaintiff, and to convey the same to any person, or to him, as he should request. The answer set up the defenses of a denial of the agreement, of a claim that the plaintiff had purchased the premises and had caused the same to be conveyed to the defendant as a gift, and of the allegation that the agreement was void under the statute of frauds. The case was tried at a Special Term of the Supreme Court, and the plaintiff, upon findings made by the trial court, recovered a judgment, which directed the difendant to specifically perform the agreement by conveying to him the premises described and in question. Upon appeal to the Appellate Division, that court reversed the judgment, and from the order of reversal the plaintiff has appealed to this court.

[1] As it does not appear in the order that the reversal was upon the facts, it must be presumed that the judgment was not reversed upon a question of fact, but upon the law, only. Code Civ. Proc. § 1338. This limits the inquiry to a consideration of whether, upon the decision upon the facts, the legal conclusion followed that the plaintiff was entitled to the equitable relief awarded, whether any material finding of fact was without evidence to support it, and whether any material error was committed, in the admission, or exclusion, of evidence.

[2] I think that the findings have support in the evidence, and I find no material error in the rulings upon the trial. There is left, therefore, but the one important question as to the correctness of the legal conclusion reached by the trial court. The findings establish the following facts: The plaintiff was unmarried, and with him had lived for some years the defendant, his sister, with her family. He was employed as the manager of a business, which closely confined him from early in the morning until late at night and disabled him from attending to outside matters. His health began to fail, and he feared the loss of his eyesight. His sister advised him to withdraw from business; but he told her that he was not in a position to do so . At the time, he was considering a speculative investment in real estate on Long Island, upon the advice of a friend in the real estate business. He informed the defendant of this, and that he did not wish to go on record as the owner of the property. Whereupon, on June 23, 1906, as the finding reads, ‘the plaintiff and the defendant entered into an oral agreement, to the effect that the plaintiff, in case he should purchase certain real estate at Bell Harbor, Queens county, New York, would pay the consideration therefor out of his own property and take title to the same in the name of the defendant, and that she would allow her name to be so used, and that she would hold the legal title to such property as the plaintiff might so purchase, for the benefit of the plaintiff, and would dispose of it as and when he should direct, and that, in case he should at any time make a sale of any such property, she would execute a deed or deeds therefor at the plaintiff's direction, and would turn over to him all the moneys received by her on such conveyances.’ Three parcels of real estate were purchased between June 23 and August 11, 1906, in pursuance of the aforesaid agreement, at prices aggregating the sum of $16,450, of which sum $4,920 remained upon mortgage. The deeds were received and retained by the plaintiff. In December, 1907, the plaintiff sold one of the parcels for $5,000, and, at his direction, the defendant executed a deed of conveyance to the purchaser. Upon receipt of the purchase price, she turned it over to him, and he applied it to his own use. He paid all of the taxes upon the properties, the interest upon the mortgage, and the insurance upon, and repairs to, a house upon one of the parcels, which they resided in, at times of the year. At no time did the defendant make any claim to the ownership of the real estate, or to the moneys realized upon the sale of the one parcel, prior to a disagreement, which was followed by this action; but, throughout the period mentioned, she referred to the plaintiff as the owner and acted as his representative. The trial court expressly refused to find, at the request of the defendant, that ‘the moneys so, as aforesaid, advanced by the plaintiff for the purchase of said property, were free and voluntary gifts to the defendant, his only sister, in consideration of natural love and affection for defendant and her children and of many years of faithful service and acts of kindness by her bestowed on him.’ He was in solvent circumstances, and he had personal reasons for not appearing of record as owner. A disagreement arose between the parties in August, 1908, not concerning the real estate, which resulted in the defendant declaring that ‘she did not have to make deeds of the property for the plaintiff,’ and in her refusing, upon his demand, to execute conveyances of the remaining parcels. The trial court, then, finding that the plaintiff had wholly performed the agreement on his part, and that the defendant had partly performed it on her part, reached the legal conclusion that the former was entitled to have judgment against the latter that she convey to him the real estate remaining unsold.

Upon the facts which I have now stated, and which, as the case comes to us, must be accepted as true, the question of law to be determined is whether they established such part performance of the parol agreement as to take the case out of the statute of frauds, and to justify a decree for its specific performance by the defendant. It was considered by the Appellate Division that the acts relied upon did not show part performance, inasmuch as they were not, under the rule of the cases, ‘necessarily, referable to the alleged agreement and done in execution of it.’ It was thought that the facts were entirely consistent with a gift of the premises to the defendant for the purpose of a family abode. The opinion of the court is elaborate in its review of the facts, and, had the reversal been placed upon a question of fact by the order, the case would not be here . But that was not done, and, with the facts as they are found, I am brought to the conclusion that the judgment of the trial court was right. I am compelled to differ with the Appellate Division, not in the statement of the rule of law which governs, but in the view that the facts established do not come up to the requirement of the rule, which authorizes specific performance of an oral agreement for the conveyance of land. What the plaintiff claims is, not that the defendant practiced some fraud upon him in the inception of these transactions, but that, relying upon her promise, he entered into the agreement with her, and has so performed it on his part that to permit this defense now of the statute of frauds would be to enable her to perpetrate a fraud. The intervention of equity is asked to prevent the commission of fraud, and to relieve a situation which is irremediable at law.

[3] The policy of the law, which requires a contract relating to real estate to be reduced to writing and to be subscribed, for reasons founded on the fallibility of human memory, is not contravened...