Duncan v. Blair

5 Denio 196

• Court: New York Supreme Court
• Decided: January 15, 1848
• Status: Published

Opinion

By the Court, Beardsley, Ch. J.

Granting that such a contract, as is alleged on the part of the plaintiff, was made by him with the defendant and Comstock, still this action cannot be sustained. It was a contract for the sale and conveyance of land to the plaintiff on terms agreed to by him, the sellers on their part agreeing to pay off and discharge the incumbrances on said land. The contract was entire; it is counted upon as such, and if any contract was established by the evidence it was of that character. Being a mere verbal contract for the sale of land, the statute makes it void. (2 R. S. 135, § 8.) It may be that an agreement to pay off incumbrances would be good, although not in writing; but a stipulation to that effect, forming part of a verbal agreement for the sale of land, is invalid.

This objection is fatal to the present action. If the plaintiff has any remedy, it must be found in a court of equity, on the ground that the contract, having been in part performed by the execution of the deed to the plaintiff, will be enforced in such a court, although void at law. There is no other remedy in such a case as this, although I am far from thinking that this plaintiff has a fair prospect of success in a court of equity. In the first place, the evidence to prove an absolute agreement to pay off the incumbrances was exceedingly loose and unsatisfactory : and in the next place the subsequent arrangement by which the plaintiff’s note was returned to him, seems to have contemplated a total recission and abandonment of the contract originally entered into between the parties.

New trial granted.