Kidder v. Barr , 35 N.H. 235 ( 1857 )

Eastman, J.

After the complainant filed his answer to the cross-bill, the defendants took exceptions to the answer. These exceptions at a former term of the court were considered and overruled. The defendants thereupon made a motion that their cross-bill be dismissed, to which the complainant objected. That motion is still pending, and we propose to consider it first. If the cross-bill is dismissed, the answer of course follows, and the-parties stand as though no cross-bill had been filed.

A cross-bill is a bill brought by a defendant against a plaintiff, or other parties in a- former bill depending, touching the matter in question in that bill. Mitford’s Eq. Pld., sec. 389; 3 Danl. Ch. Prac. 1742; Story’s Eq. Pld., sec. 389; White v. Buloid, 2 Paige’s Ch. 164.

It is treated as a mere auxiliary suit, or as a dependency upon the original suit. Story’s Eq. Pld., sec. 399; Slason v. Wright, 14 Vt. 208.

A bill of this kind is usually brought either to obtain a necessary discovery of facts in aid of the defence to the original bill, or to obtain full relief to all parties in reference to the matters of the original bill. Mitford’s Eq. Pld. 81; Story’s Eq. Pld., sec. 389; 3 Danl. Ch. Prac. 1742.

A cross-bill for a discovery arises from a settled rule in equity that the plaintiff in a suit cannot be examined as a witness in that suit, and if his testimony is wanted by a defendant as to any material facts, it can only be obtained by a cross-bill. 1 P. Wm’s 595; Story’s Eq. Pld., sec. 890.

A cross-bill, therefore, where the answers in both suits are used, gives a perfect reciprocity of proof to each party, derivable from the answers of each. Story’s Eq. Pld., sec. 390; 3 Danl. Ch. Prac. 1742. And when the original bill and cross-bill are both filed, both are usually heard together. Story’s Eq. Pld., sec. 395; 1 Smith’s Ch. Pr. 468; 3 Danl. Ch. Pr. 1751.

If a cross-bill is taken as confessed, it may be used as evidence against the plaintiff in the original suit, on the hearing, and will have the same effect as if he had admitted the same facts in an answer. 3 Danl. Ch. Pr. 1743; White v. Buloid, 2 Paige 164. And where a cross-bill is answered, and the matter ter is brought to a hearing, and the answer used, it is evidence for the party making it, so far as it is responsive to the bill.

Such are some of the general principles in regard to cross-bills. When, as in the present case, the bill is brought by the defendants only for a discovery of facts in aid of the defence, the object is to obtain evidence which cannot otherwise be procured. The plaintiff cannot be examined as a witness, and this is the only mode by which his testimony can be obtained. His answer to the cross-bill is treated as the evidence of the original defendant, which he may use or not; and unless he reads it, it is not before the court for consideration. This point was distinctly presented and settled in Phillips v. Thompson, 1 Johns. Ch. 131, where Kent, Chancellor, says, that the plaintiff cannot read his own answer to a bill of discovery in a cross suit, unless the defendant chooses first to produce it in evidence; that the plaintiff cannot testify for himself unless at the instance and on the nail of the defendant; and it is for the defendant to determine whether the answer is to be admitted as evidence or not.

The rule appears to be this, that the plaintiff in the original suit, being required to make out his case by evidence, cannot use his own answer to the cross-bill as such evidence, unless the original defendant, having taken that answer as his evidence, shall first use it. If he does, it then becomes evidence for both parties.

In the present case, the defendants filed their cross-bill for the sole purpose of procuring a discovery in aid of tbeir defence. The plaintiff has answered their bill; but the answer is such that they do not desire to use it on the hearing, but on the contrary move to dismiss their own bill; and, upon an examination of the question, we see no objection to granting the motion. As the answer is not to be used, the object of the cross suit is at an end. Nothing is to be gained by either party by retaining it upon the docket, and the defendants may have the bill dismissed.

We pass now to the consideration of the more particular merits of the case.

The object of the complainant’s bill is to enforce against the representatives of Wilkins, being the executor and trustees named in his will, a parol contract for the conveyance of the lands particularly described in the bill.

By our statute this court has power to hear and determine, as a court of equity, all cases of trust, fraud, accidents or mistakes, and in suits to compel the specific performance of contracts and for discovery. Rev. Stat., ch. 171, sec. 6. And a specific performance of a parol agreement for the conveyance of land may be decreed, if the statute of frauds be not interposed. Newton v. Swazey, 8 N. H. 9. And where there is an effectual agreement for the sale of an estate by the owner, the heirs and legal representatives of the vendor are bound to perform it, and it may be enforced against the vendee. The death of either of the parties to the contract does not impair its obligation. Newton v. Swazey, 8 N. H. 9; 1 Madd. Ch. 368; Baden v. Countess of Pembroke, 2 Vernon 215; Lacon v. Mertins, 3 Atkyns 1.

This court, then, has jurisdiction of the case, and there is no difficulty in sustaining the suit against the defendants as the executor and trustees by the will of Wilkins. The case is to be determined as though brought against him in his lifetime.

A careful examination of the evidence satisfies us that the contract set up in the bill was undoubtedly made; that Wilkins agreed that he would convey to Kidder the lands, upon the payment of the $300 and interest. The rule that the contract must be established as charged, (Harris v. Knickerbocker, 5 Wend. 638; Tilton v. Tilton, 9 N. H. 385; Phillips v. Thompson, 1 Johns. Ch. 146,) is fully complied with by the evidence. These matters are shown by the direct and positive testimony of Riddle, who was present when the contract was made, and by the strong confirmatory testimony of Perkins Cheney, Lane and Straw, who testify to the repeated declarations and admissions of Wilkins in regard to the matter.

The evidence also establishes the fact that the money was duly paid by Kidder to Wilkins.

But the defendants in their answer set up the statute of frauds, and insist that the contract, not being in writing, is void; and they claim the same benefit from their answer as if they had pleaded the statute. This they have the right to do; for the statute of frauds may be relied on in defence to a bill for specific performance, although the defendant admits the agreement, if he insists upon the statute in his answer. Harris v. Knickerbocker, 5 Wend. 638; 6 Vesey 39.

The contract which this complainant seeks to enforce was not in writing. Although there were papers signed by Wilkins relative to these lands, as set forth in the bill, yet they were all signed long subsequent to the contract, and are only evidence of what the contract was. The contract upon which the plaintiff must rely for a decree was made in 1835, and it was by parol-only. It is, therefore, liable to the condemnation of the statute, and cannot be enforced unless there was something in the transactions between the parties that can take it out of the operation of the statute.

It is well settled that a part performance of a parol agreement for the sale of land will take it out of the statute, and that a specific performance in such cases will be decreed. 2 Story’s Com. on Eq., sec. 759; Fonbl. Eq. 260; Sug. Law of Vendors 83; Newton v. Swazey 8 N. H. 9; Tilton v. Tilton, 9 N. H. 385; Ayer v. Hawkes, 11 N. H. 154; Harris v. Knickerbocker, 5 Wend. 638; 1 Madd. Ch. 376; 1 Vernon 160, note; 3 Vesey 381; 18 Vesey 328; Parkhurst v. Van Cortlandt, 14 Johns. 15.

As to what shall amount to part performance the authorities are not all agreed. By some it is held that payment of a substantial part of the purchase money is a part performance sufficient to take the case out of the statute. Thompson v. Todd, 1 Peters 388; Mann v. Melbourne, 4 Vesey 720; Ball v. Andrews, 4 Dallas 152. But Lord Redesdale held that payment of the purchase money will in no case amount to a part performance, and such appears to be the present doctrine. Clinan v. Cooke, 1 Schoales & Lefroy 40, 41; do. 129; Sugden on Vendors, ch. 3, sec. 3; Lake v. Morris, 2 Ch. Cases 135; 2 Story’s Com. on Eq, sec. 760. Story, in the section referred to, says that the doctrine that payment was such part performance as took the ease out of the statute, was open to much controversy, but that it is now finally overthrown.

The governing rule is, that nothing is to be considered as a part performance which- does not put the party into a situation which is a fraud upon him, unless the agreement be performed. Tilton v. Tilton, 9 N. H. 390; Fonbl. Eq. 260; 2 Story’s Com. on Eq., sec. 761.

But possession by the vendee, having unequivocal reference to the contract, has always been considered an act of part performance. Ayer v. Hawkes, 11 N. H. 154; Marphett v. Jones, 1 Swanston 181; Harris v. Knickerbocker, 5 Wend. 638; 1 Madd. Ch. 380; Newton v. Swazey, 8 N. H. 9.

Thus, it is said, if upon a parol agreement a man is admitted into possession, he is made a trespasser, and liable as such, if there is no agreement valid in law or in equity to protect him ; and that a stronger case exists, where a vendee, upon a parol agreement for a sale of land, makes improvements upon the estate in the confidence of a due completion of the contract: That in such a case there would be a manifest fraud upon the party in permitting the vendor to escape from a strict fulfillment of his contract. 2 Story’s Com. on Eq., sec. 761; Fonbl. Eq. 158. And in Newton v. Sawyer, Parker, C. J., says, that it is well settled that if a party is let into possession, and has proceeded to make valuable improvements, it is a part performance within the rule.

Has there been a part performance in the present instance, so as to take this case out of the statute, according to the rule ? We think it quite evident that there has. Passing by the payment of the consideration by Kidder, which we have already stated is proved, the evidence establishes the fact that Kidder was let into possession of the premises in the fall of 1835, and continued in the uninterrupted enjoyment of the same, as tenant ia common with Wilkins, up to the time of the decease of the latter, in January, 1855. During this time he made extensive and valuable improvements upon portions of the land, expending large sums of money thereon, and exercised all the rights of ownership over the whole. He united with Wilkins in the conveyance of a piece of the land, and received one half of the ' consideration. He also united in the sale of wood and timber from other portions, and received his share of the avails; and the rents and profits arising from the various tenements which he and Wilkins had built upon the land at their joint expense, were equally divided between them. This the evidence fully establishes. It does not appear that Wilkins ever demanded any rent of Kidder for the use of the land, or that any was ever paid, but on the contrary Wilkins repeatedly and on various occasions declared the property to belong to him and Kidder, and the whole tendency of the evidence goes to show that tlm entry by Kidder was in pursuance of the contract made by Wilkins to convey. Add to this the admission in the answer of the defendants that “ Kidder occupied the said real estate jointly with said Wilkins, and participated equally with him in the management and income thereof, as set forth in said bill, and that he paid one half of the taxes assessed upon the same, and one half of the money expended for improvements on the same, and that said real estate has been taxed to them jointly, as set forth in said bill,”' and we cannot doubt that a case of part performance is clearly made out.

The theory of the defendants, that Kidder, having been the ward of Wilkins, the latter, from friendship, and from the interest which he took in Kidder, permitted him to occupy and receive the profits of the land, is plausible, but it is overborne by the evidence. The reason why the conveyance was not made probably was that Wilkins thought that the property was more safe in his hands than in Kidder’s, and that it would be more for Kidder’s interest to have it remain as it was. Such is the inference which we draw from the evidence.

But whatever may have been the reason, we are satisfied that a case of part performance is well made out; that the rule governing cases of this kind is fully complied with, and that the prayer of the bill should be granted.

There are other grounds upon which our decision might perhaps be placed, which have been ably argued by counsel upon both sides; but the view which we have taken we think to be the correct one, as well as the more simple and direct. Wilkins took an absolute deed of the land, and the legal title was therefore in him. He made a parol agreement to re-convey upon being paid the §300 and interest. This agreement, the legal title being in him, was tantamount to a contract to convey, in the same manner as though Kidder had never owned the land.

The decree should be for Kidder’s share of the three pieces of land, as set forth in the bill. The evidence is stronger as to a the acre” than as to the other pieces, but a part performance is made out as to the whole.

Decree according to the prayer of ike hill.