Hosmer, Ch. J.
No fraud is ascribed to the defendants in the plaintiff’s bill; and consequently, none can be imputed to them. However sustainable the allegation of fraud might be, had it been made, it would be going wide of the issue, and take the defendants by surprise, if it were presumed, or admitted to be proved. Executors of Everston v. Miles, 6 Johns. Rep. 138. Dean v. Mason, 4 Conn. Rep. 428.
The case, then, is restricted to the single point, whether the contract, if legally proved, ought to be specifically decreed.
To this three objections have been made by the defendants.
It was first said, that Mr. Wadsworth ought to have been made a party to the bill.
It is a well established principle in chancery, that all persons legally or beneficially interested in the subject of a suit, must be made parties. The converse of the rule is equally clear, that they who are not thus interested need not be made parties. Coop. Eq. Plead. 33—39. Wendell v. Van Rensselaer, 1 Johns. Ch. Rep. 344, 349. Wiser v. Blachly, 1 Johns. Ch. Rep. 437. Brown v. Ricketts, 3 Johns, Ch. Rep. 553. 555. By interest, it is observable, is meant something more than is comprised in the most ardent wish or partial feeling. It implies a right in the subject of controversy, which a decree, more nearly or remotely, may affect.
[347]*347The question then, arises, what right of Mr. Wadsworth, will be affected, by the specific execution requested. He voluntarily. conveyed his whole property in the premises, and claims nothing in the land. By a decree of the court, whether it be for or against the plaintiff, he, neither gains nor loses. Clearly then, he has no interest in the subject of the controversy.
The objection confounds the wishes and feelings of this gentleman with his interest in the question now controverted. As a man of honour and benevolence, he undoubtedly, must be influenced by a desire, that his generous donation to the plaintiff should not be frustrated, and that every ineqitable effort against her, should be unsuccessful. This, however, is not an interest, which, in the case of a witness, would go to his competency, but is a bias only, that would operate on his credibility. I perceive no reason why Mr. Wadsworth should be made a party to this suit.
2. It was, in the next place, objected, that the plaintiff, not being a party to the agreement made with Mr. Wadsworth, although beneficially interested, could not compel its specific execution.
It is at law a general rule, that the action shall be brought in the name of the party, whose legal right has been affected ; and in chancery, that the plaintiff must have an interest in the subject of the suit, or a right to the thing demanded. 1 Chitt. Plead. 1. Coop. Eq. Plead. 166.
The principle presents this enquiry, whether the plaintiff, on the facts averred by her, has right or title to a lease for life in the premises. Under the circumstances of the case, this is a very unexpected question. Land is conveyed, by Mr. Wads-worth, to one of the defendants, for less than half its value ; the deed is accepted ; and the act of acceptance necessarily comprises a promise, that the grantee will perform the prescribed condition, by giving to the plaintiff a lease for life.
Even in a court of law, where the question is embarrassed, by considerations somewhat artificial and technical, it is now established, that a third person may maintain a suit on a parol promise, made for his benefit, although he is not a party to the contract. Dutton v. Pool, 2 Lev. 210. Martin v. Mind, Comp. 437, 443. Company of Feltmakers v. Davis, 1 Bos. & Pull. 98. 102. Schemerhorn v. Vanderheyden, 1 Johns. Rep. 139. 140. Arnold & al. v. Lyman, 17 Mass. Rep. 400. 405. Com. Dig. tit. Action upon Assumpsit. E. a. In other [348]*348words, it is a decided point, that such person has a legal right or ⅛]6 arising out of the promise. But in equity, where a title or right, if it be ex cequo et bono, is fully recognized, it would be passing strange, if the objection were admitted to prevail. The refusal of the defendants to do the stipulated act, is unjust and fraudulent; and the right of demand in the plaintiff'is as clear as the principles of natural justice and equity can make it. The delivery of the deed to Miss Crocker is precisely analogous to the putting in her hands of a sum of money. Suppose this had been done, on the condition that she should deliver it for use to the plaintiff, for and during her natural life. No doubt would exist that she might sustain the equitable action for money had and received, to recover the money. As little is it to be questioned, that in a proper case, she might maintain her action at law, on the promise made to Mr. Wadsworth, for her benefit ; or that she may support this bill in chancery for an appropriate remedy in this court.
The cases cited for the defendants evince nothing in their favour. Bartlett v. Pickersgill, 1 Cox, 15. proved only, that parol evidence is inadmissible to show, that a party who agreed for the purchase of an estate, in his own name, had in fact purchased it on the behalf of another person. At the same time, it was declared by the chancellor, if the plaintiff had executed the contract on his part, he would have admitted the evidence ; and this makes the case a precedent for the plaintiff. In Boyd v. McLean & ux. 1 Johns. Ch. Rep. 582 , it was adjudged, that facts indicating a resulting trust, may be proved by parol. These, the only determinations referred to by the defendants, so far as they have any relevancy, are against them.
The objection made to the plaintiff’s right, unquestionably is without support.
Lastly, it was objected, that it is inadmissible to prove the plaintiff’s case, by parol evidence. This objection derives no support from the statute of frauds and perjuries ; nor has it been much pressed. For the principle is well established, that agreements carried into execution on the one part, where the acts done are performed with a view to the agreement claimed, are not within this statute. Sug. Vend. 72. Newl. Cont. 181. Phillips v. Thompson & al. 1 Johns. Ch. Rep. 131. Parkhurst & al v. Van Cortlandt, 1 Johns. Ch. Rep. 273. Clark v. Brown & ux. 1 Root 77. Ives v. Gilbert, 1 Root 89. Noyes v. Moore, 1 Root 479. Downey v. Hotchkiss, 2 Day 225. Cady [349]*349& al. v. Cadwell, 5 Day 67. And that the contract in this case was performed precisely with this view and intent, there has not been, nor can there be, any controversy.
The objection to the making out of the plaintiff’s case, by parol proof, rests exclusively on this foundation, that the evidence offered is in contravention of the memorandum given by Mr. Wadsworth to Mr. Williams, relative to the delivery of the deed.
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Hosmer, Ch. J.
No fraud is ascribed to the defendants in the plaintiff’s bill; and consequently, none can be imputed to them. However sustainable the allegation of fraud might be, had it been made, it would be going wide of the issue, and take the defendants by surprise, if it were presumed, or admitted to be proved. Executors of Everston v. Miles, 6 Johns. Rep. 138. Dean v. Mason, 4 Conn. Rep. 428.
The case, then, is restricted to the single point, whether the contract, if legally proved, ought to be specifically decreed.
To this three objections have been made by the defendants.
It was first said, that Mr. Wadsworth ought to have been made a party to the bill.
It is a well established principle in chancery, that all persons legally or beneficially interested in the subject of a suit, must be made parties. The converse of the rule is equally clear, that they who are not thus interested need not be made parties. Coop. Eq. Plead. 33—39. Wendell v. Van Rensselaer, 1 Johns. Ch. Rep. 344, 349. Wiser v. Blachly, 1 Johns. Ch. Rep. 437. Brown v. Ricketts, 3 Johns, Ch. Rep. 553. 555. By interest, it is observable, is meant something more than is comprised in the most ardent wish or partial feeling. It implies a right in the subject of controversy, which a decree, more nearly or remotely, may affect.
[347]*347The question then, arises, what right of Mr. Wadsworth, will be affected, by the specific execution requested. He voluntarily. conveyed his whole property in the premises, and claims nothing in the land. By a decree of the court, whether it be for or against the plaintiff, he, neither gains nor loses. Clearly then, he has no interest in the subject of the controversy.
The objection confounds the wishes and feelings of this gentleman with his interest in the question now controverted. As a man of honour and benevolence, he undoubtedly, must be influenced by a desire, that his generous donation to the plaintiff should not be frustrated, and that every ineqitable effort against her, should be unsuccessful. This, however, is not an interest, which, in the case of a witness, would go to his competency, but is a bias only, that would operate on his credibility. I perceive no reason why Mr. Wadsworth should be made a party to this suit.
2. It was, in the next place, objected, that the plaintiff, not being a party to the agreement made with Mr. Wadsworth, although beneficially interested, could not compel its specific execution.
It is at law a general rule, that the action shall be brought in the name of the party, whose legal right has been affected ; and in chancery, that the plaintiff must have an interest in the subject of the suit, or a right to the thing demanded. 1 Chitt. Plead. 1. Coop. Eq. Plead. 166.
The principle presents this enquiry, whether the plaintiff, on the facts averred by her, has right or title to a lease for life in the premises. Under the circumstances of the case, this is a very unexpected question. Land is conveyed, by Mr. Wads-worth, to one of the defendants, for less than half its value ; the deed is accepted ; and the act of acceptance necessarily comprises a promise, that the grantee will perform the prescribed condition, by giving to the plaintiff a lease for life.
Even in a court of law, where the question is embarrassed, by considerations somewhat artificial and technical, it is now established, that a third person may maintain a suit on a parol promise, made for his benefit, although he is not a party to the contract. Dutton v. Pool, 2 Lev. 210. Martin v. Mind, Comp. 437, 443. Company of Feltmakers v. Davis, 1 Bos. & Pull. 98. 102. Schemerhorn v. Vanderheyden, 1 Johns. Rep. 139. 140. Arnold & al. v. Lyman, 17 Mass. Rep. 400. 405. Com. Dig. tit. Action upon Assumpsit. E. a. In other [348]*348words, it is a decided point, that such person has a legal right or ⅛]6 arising out of the promise. But in equity, where a title or right, if it be ex cequo et bono, is fully recognized, it would be passing strange, if the objection were admitted to prevail. The refusal of the defendants to do the stipulated act, is unjust and fraudulent; and the right of demand in the plaintiff'is as clear as the principles of natural justice and equity can make it. The delivery of the deed to Miss Crocker is precisely analogous to the putting in her hands of a sum of money. Suppose this had been done, on the condition that she should deliver it for use to the plaintiff, for and during her natural life. No doubt would exist that she might sustain the equitable action for money had and received, to recover the money. As little is it to be questioned, that in a proper case, she might maintain her action at law, on the promise made to Mr. Wadsworth, for her benefit ; or that she may support this bill in chancery for an appropriate remedy in this court.
The cases cited for the defendants evince nothing in their favour. Bartlett v. Pickersgill, 1 Cox, 15. proved only, that parol evidence is inadmissible to show, that a party who agreed for the purchase of an estate, in his own name, had in fact purchased it on the behalf of another person. At the same time, it was declared by the chancellor, if the plaintiff had executed the contract on his part, he would have admitted the evidence ; and this makes the case a precedent for the plaintiff. In Boyd v. McLean & ux. 1 Johns. Ch. Rep. 582 , it was adjudged, that facts indicating a resulting trust, may be proved by parol. These, the only determinations referred to by the defendants, so far as they have any relevancy, are against them.
The objection made to the plaintiff’s right, unquestionably is without support.
Lastly, it was objected, that it is inadmissible to prove the plaintiff’s case, by parol evidence. This objection derives no support from the statute of frauds and perjuries ; nor has it been much pressed. For the principle is well established, that agreements carried into execution on the one part, where the acts done are performed with a view to the agreement claimed, are not within this statute. Sug. Vend. 72. Newl. Cont. 181. Phillips v. Thompson & al. 1 Johns. Ch. Rep. 131. Parkhurst & al v. Van Cortlandt, 1 Johns. Ch. Rep. 273. Clark v. Brown & ux. 1 Root 77. Ives v. Gilbert, 1 Root 89. Noyes v. Moore, 1 Root 479. Downey v. Hotchkiss, 2 Day 225. Cady [349]*349& al. v. Cadwell, 5 Day 67. And that the contract in this case was performed precisely with this view and intent, there has not been, nor can there be, any controversy.
The objection to the making out of the plaintiff’s case, by parol proof, rests exclusively on this foundation, that the evidence offered is in contravention of the memorandum given by Mr. Wadsworth to Mr. Williams, relative to the delivery of the deed. This writing is supposed, by the defendants, to be an agreement between the parties ; and that the proof offered in establishment of the contract, that a lease for life should be given to the plaintiff, is in opposition to such agreement. If such is the character of the parol proof, undoubtedly it is inadmissible : For the principle is unquestionably established, that parol evidence is never competent to supersede that which is in writing, or to contradict or vary it, in any degree. Vid. 3 Stark. Ev. 997. & seq.
But the transaction was entirely misconceived. In the first place, it was no agreement between the parties. It was merely a precautionary measure, taken by the grantor, Mr. Wads-worth, in order to coerce the payment of the consideration money, and to secure himself, by directing his agent not to deliver the deed until the money should be paid.
In the next place, if it were an agreement, there is nothing in the parol evidence, tending, in the slightest degree, to contravene it. The agreements, if such they were, relate to different subjects. The contract on which the plaintiff founds herself, regards the consideration for the land, and nothing else ; while the one supposed to be comprised in the memorandum, relates merely to the delivery of the deed. The parol evidence does not deny, that the deed was not to be delivered until the promissory notes of Higgins were paid ; but it proves, that on the delivery of the deed, Lucy R. Crocker was to execute to the plaintiff a lease of the land in question, for and during her natural life.
The objections made by the defendants are entirely without support.
It follows, as an undoubted consequence, that the determination of the court below has done complete justice to the parties, and that a new trial ought not to be granted.
Peteks, Daggett and Bisseel, Js., were of the same opinion.
[350]*350Williams, J. gave no opinion, having been of counsel in the cause.
New trial not to be granted.