Frost v. Paine , 12 Me. 111 ( 1835 )

Weston C. J.

delivered the opinion of the Court.

The first inquiry is, as to the true construction of the agreement, signed by the defendant’s testator in May, 1830. There is great want of precision in its terms ; but the defendant, as the representative of the testator, is bound by any lawful contract made by him, which can fairly be deduced from it. The agreement provides for the distribution of the funds, arising from the sale of the farm, which once belonged to Ichabod Lord. It is sufficiently clear that it was agreed to be sold. Did the testator agree to sell it ? It appears to us, that the instrument by him is to be so understood. The plaintiff, and Powers in the right of Curtis, had levied upon the laud as the property of Ichabod Lord; Robert Fernald had levied upon part of it as the property of Lord, Jr. but the testator, having obtained judgment and execution against both the Lords, had levied upon the whole land as their property. Neither of the Lords could defend against the testator; but all the other levying creditors might be embarrassed by conflicting and opposing claims. The value of the farm was amply sufficient to satisfy all their demands, if they could agree, as it appears they did, to proceed in concert. Their first object was, to dispossess the Lords, To effect this, they put forward the testator, who, for their common benefit, obtained judgment for possession against them, in September, 1829. He thus acquired actual seisin of the land, which gave him a lawful right to sell and convey it; and he could pass a title, which neither of the judgment debtors could disturb. He appears to have been the party, through whom the others agreed to act. The plaintiff must have taken the agreement, signed by the testator, as evidence that he was to mako. the sale, and distribute the proceeds, in the manner therein stipulated.

The interest of the other parties, named in the agreement, was several. They were to receive the amount of their respective claims, if the fund proved sufficient, and .if it did not, the agreement provided for a certain order of distribution, and if there was any surplus, it was to be equally divided. The agreement of the testator must then be taken distributively, as both promises and covenants must be, where the interest is several, and such is the intention of the parties.

It is contended, that the testator was not bound, because there was no consideration moving from the plaintiff. But the agreement that the testator should prosecute his action against the Lords, for the benefit of all, carried with it a right on his part, to call upon each to contribute to the expense; and the co-operation of the plaintiff, and his forbearing to assert his rights, or to bring them in conflict with the testator, together with the plaintiff’s agreement that the land should be sold, and that in dividing the proceeds, the testator’s claim should be placed in the first class, which is set forth in the instrument, constituted in our opinion a sufficient legal consideration to support the promise, upon which the plaintiff relies.

It is further insisted, that the testator acquired nothing by his levy, and therefore had nothing to sell. This objection arises from the return of the officer, who served the writ and made the attachment in the original suit brought by him. In the return, the Frosts are named. No persons of that name are to be found in the process. The word Frosts is perfectly unmeaning, and manifestly slipped in by mistake. TJtile, per inutile, non vitiatur. By overlooking that word, or striking it out, the property attached cannot be misunderstood. It never ought to be suffered to impair the validity of the attachment; certainly not at the instance of any of the parties to the agreement, who acquiesced in the title of the testator, and made use of it for their common benefit.

A further point taken for the defendant, is, that the testator was not bound to sell, until the other parties put him in a condition to pass an indefeasible title, by releasing their interest to him. Such a course was doubtless necessary to satisfy a prudent purchaser: and should have been provided for in the agreement. That instrument is very loosely drawn, and apparently upon little advisement. Possibly the parties might think that the testator, having obtained judgment for the land, and having taken possession, and proceeding also as he did for their benefit, it was not essential for them to convey to him, or to join in any other assurance. Be that as it may, the testator stipulated to sell, without imposing any condition upon the other parties. If it was an improvident contract, or one not well adapted to effect the purposes contemplated, we must take it as made by the parties, and are not at liberty to interpose terms, which, in our judgment, would render it less exceptionable.

If the testator was to sell, it was to be done as soon as possible ; and we hold it to be very clear, that his omission to do so, from May, 1830, to January, 1833, when this action was instituted, was a violation of his promise ; especially as performance was in the mean' time demanded by the plaintiff.

As to the objection of maintenance, it does not apply to this case. The parties all of them had an interest in the subject matter of the agreement. They were seeking payment of their honest debts. The property, upon which they had levied, was sufficient to pay them, if they could act in concert; and we perceive nothing unlawful in the measures they adopted.

There having been a violation of this agreement on the part of the testator, the default is to stand. In regard to damages, they may turn out upon inquiry to have been merely nominal. No sale has been made. The deceased had received no money to the use of the plaintiff. His title to the land, whatever it is, remains unimpaired. As neither he, nor the other parties, invested the deceased with lawful authority to sell their interest, if he had sold, a purchaser might have been unwilling to have given more than his interest alone was fairly worth. For, although it has been contended, that if the deceased had sold at their instance, and for their benefit, they could not have been permitted to have set up their title against a purchaser ; yet no one could have been expected to give much for an interest, subject to litigation upon this point. It may, therefore, be thought that the plaintiff’s situation would not have been much improved, if the testator had sold ; and these are circumstances, to be considered, in estimating the amount of damages.