Hall v. Solomon , 61 Conn. 476 ( 1892 )

On the 19th of April, 1884, Thomas S. Hall, one of the plaintiffs, and Lauretta S. North, trustees of the estate of Henry North, deceased, being duly authorized by the will of said Henry North to sell and convey real estate held by them in trust, sold and conveyed a building lot on Main street in the city of New Britain, to the defend ant. About the same time, and within one or two years before, they also sold other building lots in the immediate vicinity to other parties. The several purchasers, including the defendant, entered into a parol agreement with the trustees that no portion of the premises so sold should be used for the sale of intoxicating liquors. This agreement was in each case a part of the consideration of the sale. The fact that such an agreement was required of each of the purchasers was an inducement operative with most of the purchasers in buying the lots and locating their business in that locality. Most of the purchasers are co-plaintiffs with said Hall.

It is alleged, and found true, that the "defendant now intends to use or allow to be used the premises bought by him as aforesaid, for the sale of liquors, and that he threatens to lease the lower or main floor of the building erected by him on said land to one James Dawson, for the purpose of establishing and carrying on a liquor saloon."

The Superior Court issued a permanent injunction, restraining the defendant from using, or allowing to be used, his said premises for the purposes of a liquor saloon or for the sale of intoxicating liquors. The defendant appealed.

The first reason of appeal is, that the court erred in admitting parol evidence of such agreements, "on the ground that all parol statements, representations or agreements in relation to said land were merged in said deeds; that the deeds are conclusively presumed to contain the final and whole agreement in relation to said land; and that such parol evidence was an attempt to vary, qualify and contradict the absolute language of said several deeds and their legal operation and effect."

It will he remembered that it is not the office of a deed to express the terms of the contract of sale, but to pass the title pursuant to the contract. Therefore a parol agreement, being a part of the consideration for the sale, restricting the use of the premises in one particular, for a limited period, is not merged in the deed, and does not qualify or in any way affect the title to the land; and the admission of parol evidence to prove such an agreement is no infringement of the rule that parol evidence is not admissible to contradict, vary or explain a written instrument. Collins v. Tillou, 26 Conn., 368;Pierce v. Woodward, 6 Pick., 206;Willis v. Hulbert, 117 Mass., 151;Tallmadge v. East River Bank, 26 N. York, 105.

The 3d, 4th, 5th, 6th, 14th and 15th reasons of appeal may be considered together. They in effect deny the power of the trustees to sell real estate, having no authority under the will, and not being authorized by any court to do so; deny that any title was conveyed to the purchasers; and deny that the trustees had any power to make the contracts in question with the purchasers.

It may be that there is a defect of power in the trustees to make these conveyances; but it does not follow that the deeds are void. Thomas S. Hall, the husband of one of the devisees, and the agent of all of them, the devisees being the owners of the Main street property, made contracts for the sale of these lots. The deeds, which were designed to pass the title pursuant to the contracts, were executed by Lauretta S. North and Thomas S. Hall as trustees. Lauretta S. North was the widow, and as such had an interest in the estate, was in fact a trustee, and was executrix. Thomas S. Hall was interested as husband of one of the devisees, and was trustee. He was also the agent of the other devisees. Each purchaser paid a valuable consideration, of which the devisees now have the benefit, took possession of the premises, made valuable improvements thereon, and have enjoyed the same unmolested until the present time. Under these circumstances a court of equity, if need be, will have no difficulty in finding a way in which to complete and quiet the purchaser's title. They cannot therefore be heard to say that they took nothing by their deeds, and consequently that their agreements concerning the use of the land were void. As the plaintiffs' counsel well remark, this objection misapprehends the capacity in which the persons acted who made the agreements with the several purchasers, and the parties benefited by said agreements. "It was the desire of the owners of the land, namely, the devisees under the will of Henry North, that no portion of the premises fronting on Main street should be used for the sale of intoxicating liquors." Thomas S. Hall was the agent of these owners; and whether he alone made the several agreements, or made them jointly with Mrs. North, is immaterial. In either case equity will regard them as having been made with the owners. In that view there is no difficulty in regarding the agreements as valid, and as a part, of the consideration for the deeds.

The 7th, 8th and 9th reasons of appeal relate to the statute of frauds. The language of the statute is — "or upon any agreement for the sale of real estate, or any interest in or concerning it." Counsel for the defendant do not in their reasons of appeal, or in their brief, bring the case quite within the language of the statute. They contend that it is an agreement for an interest in or concerning real estate. An agreement for the sale of an interest in or an interest concerning real estate contemplates a transfer of some portion of the title. An agreement not to carry on a particular kind of business on certain premises is not an agreement for the sale of an interest in or concerning said premises. In 1809 this court said: — "The agreement not to use his mill after a certain day is not within the statute of frauds and perjuries; for this statute contemplates only a transfer of lands or some interest in them." Bostwick v. Leach, 3 Day, 476. That is as sound law today as it was eighty years ago. See also Encyclopedia of Law. vol. 8, pp. 701, 703.

Nor is it an agreement not to be performed within one year, under another clause of the statute. It has been pretty uniformly held that contracts which may be performed within one year are not within the statute. Peters v. Inhab.of Westborough, 19 Pick., 364; Roberts v. RockbottomCompany, 7 Met., 46; Lyon v. King, 11 Met., 411; Doyle v. Dixon, 97 Mass., 212.

The 10th reason of appeal is, that "the court erred in holding that the plaintiffs were entitled to relief, they having allowed a violation of the alleged contract or agreement on the premises of the plaintiffs."

We suppose that this refers to the case of the druggist. The finding is as follows: — "Up to the present time all the owners of said premises have faithfully performed and kept their agreement as to the use of the premises for the sale of intoxicating liquors, unless it be that one of the stores has been occupied as a drug store, where under a. so-called package license liquors have been sold as ordinarily sold by druggists, but not to be drunk upon the premises. None of the owners of the property have objected to such a use of said store." We are inclined to think that such a use is not within the prohibition of the agreement. The parties in interest so interpreted it and we may properly so regard it.

Under the 11th reason of appeal it is insisted that there is a want of mutuality in the agreement by reason of which a court of equity will not enforce it. because two of the original purchasers have conveyed their lands, and the agreement, if any, does not bind their grantees. The finding shows that Andrew J. Sloper and William C. Pope, soon after their purchases, sold their lots to S. W. Damon and William I. Fielding respectively. Damon bought with knowledge of the agreement and is a party plaintiff. The other purchaser has never used his premises for the sale of liquor, though not a party to this proceeding. We do not think that these sales ought to defeat the plaintiffs' right of action.

The 16th and 17th reasons of appeal are, in substance, that a present injunction will not lie against the defendant an account of the alleged lease to Dawson. This objection was not pursued by the defendant's counsel in the argument and is not noticed in the brief.

We will only add that the lease appears not to have been consummated. At first it was on condition that Dawson should receive a license. A license was at first refused. Subsequently the commissioners voted to grant it; but Dawson has never called for it or paid for it. He took possession just before the injunction was served, but has made little or no use of it since, and has paid no rent. He had full knowledge of the claims of the plaintiffs. Under these circumstances we do not think the court was bound to notice Dawson's interest as lessee.

There is no error in the judgment appealed from.

In this opinion the other judges concurred.