Pierce v. Pierce

25 Barb. 243, 1857 N.Y. App. Div. LEXIS 147

• Court: New York Supreme Court
• Decided: May 5, 1857
• Status: Published

Opinion

By the Court, C. L. Allen, P. J.

There can be no doubt that a verbal contract, which relates entirely to the sale of an interest in land, is void by the statute of frauds. This principle seems to have been conceded by the defendant’s counsel, on • the argument; but the applicability of the doctrine to this particular case was denied. It has been repeatedly decided that the action for use and occupation will lie where the holding is upon an implied, as well as under an express, permission; and the defendant who goes in under such circumstances is not to be permitted to dispute the title. (Osgood v. Dewey, 13 John. 240.) The agreement under which the party enters may be invalid in part, and yet this action may be supported, and the agreement used to prove the measure of damages. In the case of Little v Martin, (3 Wend. 219,) it was decided that where there was a verbal agreement to demise a house for five years, and leases were afterwards to be executed, under which agreement the party entered, and he subsequently refused to execute the leases, the owner might maintain assumpsit for use and occupation. It was remarked that the statute of frauds could not be objected, to a recovery, as the suit was not on the contract, and the plaintiff was not bound to sue upon it; that the landlord might recover under the statute, where the agreement was not by deed; that if the defendant went into posses-

sion by permission of the plaintiff, it was sufficient, whether he entered under a valid or a void contract. (2 R. 8. 4th ed. 155. And see 1 R. 8. 748, § 20, (26;) 6 John. 46; 13 id. 240; 7 Wend. 109.) The agreement here was followed by uninterrupted possession for a year ; and though it was void by the statute, so far as the sale was concerned, the defendant was bound to pay for its use, as a tenant from year to year. (Schuyler v. Leggett, (2 Cowen, 660.) In that case the court said, that though a parol demise was void by the statute, yet it enured as a tenancy from year to year. (And see The People v. Rickert, 8 Cowen, 226 ; 8 T. R. 3; 5 id. 471.) If the purchaser retains possession after the contract is abandoned, he is liable for use and occupation. (Dart on Vend, and Purch. 120, 221, 222, 448.) The defendant in this case entered under the plaintiff, notwithstanding the plaintiff’s deed to Levi Pierce, of August, 1851. He knew of that deed, or was bound to know of it, as it was recorded in September, 1851. The probability is the arrangement was a family one, for the benefit of the plaintiff, who seems to have been involved in some trouble, relating to a certain indictment, of which one of the witnesses speaks. He (the defendant) was to sell at the best price he could, within two years, and account to the plaintiff for the amount received on the sale, and to pay at the rate of $140 a year for the use of the premises until he should sell. - He entered, therefore, in the spring of 1852, under and with the permission of the plaintiff, whatever may have been the legal effect of the agreement, so far as it related to the sale. He occupied until he sold to Mitchell, with the consent of the plaintiff. . And he continued to occupy, after that sale, which took place in August, 1852, not only until the next spring, which would have been for one year, but also the next year. I think he was clearly liable to pay the plaintiff for the use and occupation until the sale to Mitchell, as he was then under the plaintiff The question then arises, can the plaintiff be entitled to recover against the defendant after he parted with all title to the premises, and consented to have Levi Pierce convey them to Mitchell, in August, 1851. His consent bears date the 16th of August, and the conveyance by Levi Pierce to Mitchell is dated 18th of August. There is no reservation of any right to possession, either in the consent or in the deed. The latter is an absolute warranty deed in fee, for the consideration expressed and proved, of $2500. In addition to this, it was proved that the whole consideration was paid to the plaintiff, and that $46.66 was paid to him on or about the 20th of August, 1852. This sum would be about the amount of interest on $2000 from the 1st of April previous, up to the time of the conveyance. There can be little doubt, therefore, that without any other proof, the plaintiff would not be entitled to recover any thing more. The deed to Mitchell, given by the plaintiff’s consent, and also with the defendant’s knowledge and approbation, would legally terminate all leases, trusts, rights of possession and licenses then existing, unless a right of possession was legally reserved. (6 Barb. 98. 8 Paige, 225. 16 John. 110. 1 Wend. 341, $*c.) The plaintiff by his letter consented to an absolute conveyance of his land, and divested'himself of all title, whether held in trust or otherwise. The legal effect of this would be to divest himself of all right to rent, or claim for use and occupation, after the conveyance. The relationship of landlord and tenant, if it before existed, would then be terminated. It is said the defendant would be estopped—having entered under the plaintiff—from denying his title. Such, undoubtedly, is the general doctrine. But can it be applied to a case where all parties, including both landlord and tenant, consent to an absolute conveyance of the premises to a third person, without any reservation ? I think a party, under such circumstances, is not estopped. But the plaintiff seeks to get rid of the legal effect of this deed, by showing that there was a verbal reservation of the right of possession by the defendant, for the residue of the year; and this evidence, if it proves any thing, establishes such agreement before the deed to Mitchell was executed. The witness Harvey Pierce swears that the defendant told him and Anderson that he had agreed to sell the farm for $2500, and that he was to have the right of possession the year out. The bargain which he requested the witness Anderson to communicate to the plaintiff was that he was “to sell to Mitchell for $2500, and was to have it the year out.” And Harvey Pierce swears that on reckoning it up he calculated that Charles was to get $2640 for his farm. He said the same thing to Anderson, who communicated the bargain to the plaintiff, and the consent in writing that Levi might convey, as drawn up by Harvey Pierce, was shortly after signed by the plaintiff; thus leaving it to be pretty fairly inferred that the plaintiff was induced to sign such consent in consequence of the information sent to him by the defendant, that he was to get the $2500 from Mitchell, and the $140 for the use of the farm, from the defendant, who in return was to receive, and from aught that appears from the evidence, did receive the profits for the year, at a cheap rate, as the annual value was shown to be at least $150. And it was proved that the defendant said he did not wish to make any thing out of the plaintiff; that all the profits he expected, would be the crops which he raised. That the plaintiff was to have all that could be got for it.

I think the testimony proving these facts was properly admitted. For although as between the defendant and Mitchell it would probably be inadmissible, yet as between these parties, it was not objectionable. As between the defendant and Mitchell, if the right to possession was not legally reserved in the deed, or by agreement after its execution, it might be the defendant’s own fault or misfortune. But the agreement, which was for the benefit of the plaintiff, was that it should be reserved ; and that agreement was communicated to the plaintiff, and would be calculated to have its due weight, in inducing him to consent to the conveyance. He had a right to presume, and probably did presume, as did the witness, that he was about to obtain $2640 for his farm, and thus consented to have it conveyed. He had a further right to presume that the defendant would legally reserve the right of possession for his (the plaintiff’s) benefit. And if he did not do so, can he avail himself of his own neglect without the knowledge or consent of the plaintiff, and come in, when defending an action for the use and occupation, and when he has probably received the avails of the crops, and had the whole use of the premises, and say to the plaintiff, “ true when I reserved the use of the farm the year out, it was in fact a part of the consideration, and I so sent you word, when I requested you to consent to the conveyance, but I neglected to reserve my and your right of possession, in the deed, and no reservation was made afterwards. And you are therefore cut off from all claim for the use of your farm after the date of the deed to Mitchell.” It appears to me that this would be allowing the defendant to take advantage of his own wrong, and that to prevent this, the doctrine of estoppel would apply, as intimated by this court in Esmond v. Van Benschoten, (12 Barb. 366 ;) and in French v. New, (20 Barb. 481, 487, 488;) and in Stone v. Sprague, (Id. 509, 515, 516 ;) and Fleming v. Gilbert, (3 John. 528.) The testimony was proper, as tending to show such a state of facts, and as proving that the premises were in the hands of Levi, and in possession of the defendant, as mere trustees of the plaintiff, and that they were holding for his benefit; and that the defendant did not pay rent to Mitchell for the first year, but did in fact reserve the use of the place to himself, for the benefit of the plaintiff; and 'that he was acting for the plaintiff. The objection that it went to explain, contradict or vary a written instrument, does not, therefore, in my judgment, apply. For these reasons the motion for a nonsuit was properly denied.

The remaining question 'for consideration is, whether all matters were settled, or not, between the parties, when the deed to Mitchell was executed; and whether the receipt, by the plaintiff, of the sum of $46.66, at that time, was an acceptance by the plaintiff in full of all claims against the defendant for the use of the farm.

The evidence is, that when the defendant paid the plaintiff the money, the plaintiff claimed rent for the use of the farm for a year, and the defendant refused to pay any more. If the plaintiff accepted this sum as in full, there being a dispute between the parties as to the amount due, he would be concluded by it. (Palmerton v. Huxford, 4 Denio, 167.) The plaintiff, on receiving the $46.66, claimed for the whole year, which had not then expired and would not be then due. The defendant’s son, it is true, testified that the plaintiff told him that the defendant had paid him at the time, all that the law would allow him, but he thought he ought to have more, as the defendant had done so well out of the farm. And in a further conversation, he said the plaintiff insisted that unless the defendant would pay him more, he would prosecute him to Malone, and Harvey Pierce and Anderson would swear him down. This was probably construed by the jury to mean that they would prove his claim, which the defendant ivas resisting, was a just one. It is to be presumed that the court properly charged the jury, and left it to them to say, whether there was a settlement between the parties, or not. Ho objection was made to the charge, on this point; nor does any request to charge them in relation to it appear in the case. The presumption therefore is, that no fault was found with the charge, in that particular. The only point excepted to, was that part of it where the court told the jury that if they believed the testimony of Harvey Pierce and Anderson the plaintiff was entitled to a verdict for the balance of the $140, after deducting the sum paid, (the $46.66.) I see no objection to that part of the charge. If the defendant had wished a more explicit charge in relation to the payment and alleged settlement, his counsel should have called the attention of the court to it, specifically.

On the whole, I can perceive no good reason for disturbing the judgment, in this case. If, as has been often remarked, the action for use and occupation is an equitable action, then the equities between these parties have been well preserved by the verdict. The defendant entered for the benefit of the plaintiff, and with the avowed object of aiding him in his misfortunes. He repeatedly declared he did not wish to make any thing out of him. He expected to have the crops -which he raised, and was willing to pay, as long as he occupied, the cheap rent of $140 per annum. He engaged the premises for a year, and received the avails, to his own use. He advised the plaintiff to consent to convey, under the impression that the year’s rent of $140 was to be a part of the consideration; and there is no good reason why he should not pay the balance due, as found by the verdict.

[Clinton General Term, May 5, 1857.

The judgment must be affirmed.

C. L. Alien, James and Roseforams, Justices.]