Wentworth v. Wentworth

• Decision Date: 01 January 1858
• Parties: DAVID WENTWORTH vs. THOMAS G. WENTWORTH.
• Court: Minnesota Supreme Court

2 Minn. 277

DAVID WENTWORTH vs. THOMAS G. WENTWORTH.

Supreme Court of Minnesota.

Appeal from order, district court, Washington county.

This was an appeal from an order of the district court of Washington county, allowing a motion in arrest of judgment.

David Wentworth, the plaintiff below, brought suit against his brother, the defendant, for the specific performance of a

parol agreement, to convey certain lands, under the following circumstances: —

He alleges that he had settled upon the land in question, then belonging to the United States, had improved and cultivated it, and had continued to reside thereon up to the time of the commencement of the action. That the defendant had offered to advance and loan him a sum of money sufficient to enter the land at the United States Land Office, and that he (plaintiff) might pay it back at any time within one year thereafter, and that such offer was accepted. That it was agreed that the defendant should enter or purchase the land for the plaintiff, but that defendant might enter it in his own name, to secure the re-payment of the loan. That the purchase and entry were so made, and that the plaintiff, relying on the good faith and integrity of his brother, did not receive, or demand from him, any bond or other instrument containing such agreement. That the plaintiff tendered the amount of the purchase money and interest within the year, &c., but that defendant refused to convey.

Issue was joined upon the main facts, and the jury returned a verdict for the plaintiff. The defendant then moved for a new trial, which was denied and afterwards moved, because of insufficiency of the complaint, in arrest of judgment upon the verdict, which latter motion was sustained. The plaintiff appeals.

Points and authorities for the appellant: —

1. There is no provision made by our code for a motion in arrest of judgment. Rev. Stat. ch. 71, § 58; Snell v. Snell, 3 Abb. Pr. R. 428.

2. Where the statute of frauds is relied upon as a defense, the defendant must plead the same in his answer, and not having done so, he is deemed to have renounced it. Harris v. Knickerbacker, 5 Wend. 638; Cozine v. Graham, 2 Paige, 177; Vaupell v. Woodward, 2 Sandf. Ch. 153.

3. The facts stated in the complaint show a part performance on the part of the plaintiff and defendant, of the contract or agreement, sufficient to take the case out of the statute of frauds. Malins v. Brown, 4 N. Y. 407; 1 Sandf. Ch. 579; 3 Barb. Ch. 407.

4. The complaint shows a state of facts raising a complete trust, and that the defendant was the agent and trustee of the plaintiff in purchasing the land. Harris v. Knickerbacker, 5 Wend. 638; Brown v. Lynch, 1 Paige, 147; Sweet v. Jacocks, 6 Paige, 355; Jeremy's Eq. Jur. 393-4; Whitcomb v. Wincher, 13 Ves. 95; Parkhist v. Alexander, 1 Johns. Ch. 394; Boyd v. M'Lean, id. 582.

5. The courts will not so construe the statute of frauds as by its operation to perpetuate a fraud. (See authorities above cited.)

Points and authorities for respondent: —

1. The power and authority to arrest a judgment are inherent in a court of law, unless the same are expressly taken away by statute; but such power and authority are expressly given to the court under the Minnesota code. Minn. Stat. 1851, 360, §§ 67-8; id. 337, § 65; Gould's Pl. 492, ch. 10; 1 Chitty's Pl. 656; 3 Bla. Com. 387, 393-5; 16 Johns. 146; 23 N. H. 171; Burnham v. De Benvorse, 8 How. Pr. R. 159.

2. When an action is founded upon an agreement which would be void under the statute of frauds unless in writing and subscribed by the party to be charged, these facts, as constituting in part the cause of action, must be averred in the complaint. 2 Duer, 609, 620; Leading Cases in Equity, Hare & Wallace's Notes, vol. 2, part 1, pp. 540-2.

3. This is an action for the specific performance of a parol contract for an estate in land; and the complaint expressly alleges that at no time did the plaintiff "require, demand, receive or take from the defendant any bond or other instrument in writing, embodying or containing the agreement" set out in this complaint; and therefore on its face shows there is no cause of action against defendant, because, by our statute: "No estate or interest in lands other than leases for a term not exceeding one year, nor any trust or power over or concerning lands or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the parties creating, granting, assigning, surrendering or declaring the same, or by their lawful agent thereunto authorized, in writing." "The preceding section shall not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament, nor to prevent any trust from arising or being extinguished by implication or operation of law." Minn. Stat. 1851, 267, §§ 6, 7; Brown on Stat. of Frauds, 77; Simonds v. Catlin, 2 Caine, 61, as to the meaning of the words "act and implication of law."

4. The unwritten parol contract set up in the complaint is wholly and entirely executory in its nature and terms; and there never was, at any time, a partial performance thereof, by either party, of a kind in its nature or extent sufficient to take the same out of the statute, if any part performance could under the law ever have that effect.

5. If the principle of trust arises at all in this action, it is in its nature an express trust, under sub. 5, § 11, ch. 44, p. 203, Minn. Stat. 1851, and therefore must be expressed in some instrument in writing creating it. If the complaint shows an express trust, the same cuts off any resulting or implied trust. Minn. Stat. 1851, 203, § 11; Wright v. Douglass, 7 N. Y. 564; Brown on Stat. of Frauds, § 92; Snyder on Vend. and Pur. 911.

6. The complaint shows that the purchase of the land made by defendant was made by him with his own money, without a loan thereof to plaintiffs, and therefore no express trust arises; and that the parol agreement between the parties that plaintiff should have the right to purchase the land from the defendant, does not entitle the plaintiff to a decree for the land, for the parol agreement is cut off by the statute of frauds. Reeve v. Strawn, 14 Ill. 94.

7. The complaint states no facts from which a trust arises, or results by implication or operation of law. Minn. Stat. 1851, 202, §§ 1, 6-8; Brown's Stat. of Frauds, §§ 89, 90, 94-5, 77; Getman v. Getman, 1 Barb. Ch. 499; Steere v. Steere, 5 Johns. Ch. 1; Rogers v. Murray, 3 Paige, 390; 2 Wend. 570; Leman v. Whitley, 4 Russ. 423; 1 Hilliard's Real Prop. 318; Willard's Eq. 416; 4 Kent, (7th Ed.) 318, n.; Garfield v. Hatmaker, 15 N. Y. 476; Miller v. Cotten, 5 Geo. 341; Leading Cases in Equity, Hare & Wallace's Notes, vol. 2, part 1, 560-5.

8. This case being one concerning neither dower, nor curtesy, nor remitter, is not one wherein an estate arises "by an act or operation of law." And even if the complaint showed — which it does not, but directly otherwise — that the land was bought with plaintiff's money, no trust could arise or result by implication of law under our statute; for Minn. Stat. 1851, 202, § 7, provides: "When a grant for a valuable consideration shall be paid by another, no use nor trust shall result in favor of the person by whom such payment shall be made; but the title shall vest in the person named as the alienee in such conveyances, subject only to the provisions of the next section." Garfield v. Hatmaker, 15 N. Y. 476, before referred to.

9. The complaint shows there was no consideration for the contract set out therein, and therefore said contract is void. Willard's Eq. Jur. 266-7, and cases there cited.

10. The contract or agreement in the complaint set out is not mutual in its character, nor certain in its terms, and is therefore void. Willard's Eq. Jur. 267, 286, and cases there cited.

11. The complaint, upon its face, shows that at the time of the commencement of this action the title to the land in controversy was in the United States; therefore, the court has no jurisdiction of the subject matter, and cannot compel defendant to convey a title which was in the United States.

12. The complaint does not state facts which constitute a cause of action.

Van Etten & Officer, for appellant.

Babcock & Cotton, for respondent.

FLANDRAU, J.

The questions presented by this case are whether the district courts had power, under the territorial organization, to arrest the entry of a judgment after verdict, and if so, whether that power has been properly exercised in this action.

The power has always been exercised by the common law courts in England and this country, as necessarily appurtenant to their control over the causes depending in them; and after verdict, where the declaration was insufficient, the suit was dismissed altogether; and where the verdict was for the defendant, where the plea confessed the cause of action, the courts would render judgment for the plaintiff without regard to the verdict, which was called a judgment non obstante veredicto. 2 Ch. Pl. 656. Blackstone says that "notwithstanding the issue of fact being regularly decided, if it appears that the complaint was not actionable in itself, or not made with sufficient precision and accuracy, the party may supersede it by arresting or staying the judgment." 3 Bla. Com. 299. It would seem that the same powers were intended to be vested in the district courts of the territory as necessary to their proper administration of justice. There are some defects in pleadings which cannot even by the consent of the parties be waived or rectified; and to allow a judgment to be entered upon such a basis would be simply absurd. The courts must have the power to arrest the judgment when the verdict leaves the cause of action or defense without any foundation in law. For instance, if the complaint shows...