Woolley v. Stewart

• Decision Date: 22 January 1918
• Citation: 222 N.Y. 347,118 N.E. 847
• Parties: WOOLLEY et al. v. STEWART et al.
• Court: New York Court of Appeals Court of Appeals

222 N.Y. 347

118 N.E. 847

WOOLLEY et al.

v.STEWART et al.

Court of Appeals of New York.

Jan. 22, 1918.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by John H. Woolley, individually and as executor and trustee of Edward A. Woolley, deceased, and another, against Sarah E. Stewart, individually as executrix and trustee of Edward A. Wooley deceased, and as administratrix of Horatio S. Stewart, and others. From a judgment of the Appellate Division of the Supreme Court, Second Judicial Department (169 App. Div. 678,155 N. Y. Supp. 169), reversing a judgment in favor of defendants, entered upon a dismissal of the complaint by the court on a trial at Special Term, and directing a judgment in favor of plaintiffs, the defendants, other than the Attorney General of the State of New York, appeal. Reversed, and judgment of the Special Term affirmed.

John Hill Morgan, of New York City, for appellants.

A. F. Van Thun, Jr., of Brooklyn, for respondents.

COLLIN, J.

The action is to compel the specific performance of an oral agreement on the part of Horatio S. Stewart to convey real estate to Edward A. Woolley. The Special Term decided that the complaint should be dismissed upon the merits. The Appellate Division reversed certain of the findings of fact and conclusions of law made by the Special Term, and the consequent judgment, made certain new findings of fact and conclusions of law, and adjudged that the oral agreement be performed and an accounting to the plaintiffs of the rents and profits of the real estate be had.

The complaint avers, and the Appellate Division found as a fact, that on February 16, 1878, Edward A. Woolley conveyed the real estate to Horatio S. Stewart upon the oral agreement that Stewart should hold the title to it in trust to convey it on demand of Woolley to himself or to any person or persons designated by him. The legal representatives of Woolley, who died in 1899, are seeking to enforce, through this action, the performance of the agreement on the part of the legal representatives of Stewart, who died in 1908.

[1][2][3] An oral agreement to convey an estate or interest in real property, other than a lease for a term not exceeding one year, is nugatory and unenforceable. Real Property Law (Consol. Laws, c. 50), § 242. A party to the agreementmay legally and rightfully refuse to recognize or perform it. The breach of a void agreement is not a fraud or a wrong in law. Levy v. Brush, 45 N. Y. 589. He may, however, withdraw himself from the policy and defense of the statute, or waive its protection, by inducing or permitting without remonstrance another party to the agreement to do acts, pursuant to and in reliance upon the agreement, to such an extent and so substantial in quality as to irremediably alter his situation and make the interposition of the statute against performance a fraud. In such a case a court of equity acts upon the principle that not to give effect to those acts would be to allow the party permitting them to use the statute as an instrument defending deception and injustice. The acts must, however, be so clear, certain, and definite in their object and design as to refer to a complete and perfect agreement of which they are a part execution, must be unequivocal in their character, and must have reference to the carrying out of the agreement. An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance. McKinley v. Hessen, 202 N. Y. 24, 95 N. E. 32;Wheeler v. Reynolds, 66 N. Y. 227;Canda v. Totten, 157 N. Y. 281, 51 N. E. 989. Because the acts in part performance are essential to the relevancy and enforceability of the oral agreement, it has been held that the agreement cannot be proven until the acts which constitute the part performance of some contract to reconvey have been proven. Van Epps v. Redfield, 69 Conn. 104, 36 Atl. 1011; Pomeroy on Contracts (2d Ed.) §§ 107, 108.

[4][5][6] In the instant case, Edward A. Woolley and his wife conveyed on February 16, 1878, to Horatio S. Stewart, by a full covenant and warranty deed reciting a consideration of $5,000 and other considerations and subject to a mortgage of $10,000 and all taxes and assessments, the real estate involved here. Stewart assumed the payment of the mortgage and taxes. The subsequent acts of Wooley in relation to the real estate were testified to by Ellen Woolley, the wife of George E. Woolley, a son of the grantors, as a witness in behalf of the plaintiffs. She testified that at a time, not fixed, subsequent to February 16, 1878, Stewart stated to her that Edward A. ‘paid the debts on’ the real estate and said he (Woolley) did not get enough out of it. She was asked and answered as follows:

‘Q. Do you know whether or not he (Stewart) paid those rents (of this real estate), as he collected them, over to Edward A. Woolley? A. Yes, sir. * * * Q. Do you know who paid the taxes on the property on Raymond street and Fulton avenue? A. Yes, sir. Q. Who? A. Edward A. Woolley. * * * Q. Were you at all conversant with your father-in-law's business? A. Only what he told me in my house. Q. I assume that your father-in-law, Edward A. Wooley, was the one who told you he paid the taxes on this property. A. So he told me. Q. Likewise about collecting the rents and Mr. Stewart paying them over to him? A. Yes, sir.’

The record does not contain other evidence in regard to the acts of Edward A. We disregard the testimony stating the self-serving declarations of Edward A., because it was plainly incompetent, and in determining whether or not there was any evidence to sustain a finding of fact we may consider only that which is competent and probative. Giving this evidence its broadest meaning and effect, it states that Edward A. paid, March 1, 1880, the mortgage of $10,000, paid the taxes and assessments, received such rents as Stewart paid him, and complained to Stewart that he did not receive enough.

Those acts do not authorie a court of equity to disregard the imperative provisions of the statute and compel the performance of the alleged oral agreement. They do not create necessarily, or naturally and reasonably the conclusion that Edward A. had the right, or believed he had the right, to acquire again the title to and possession of the property. They do not establish an unjust and unconscientious loss and injury to him in case he did not have a reconveyance. They do not tend...