Faulks v. Burns , 2 N.J. Eq. 250 ( 1839 )

The Chancellor,

In the year 1836, during the rage for speculation in building lots, the defendant made a purchase of a lot in Elizabeth-Town. The deed was never recorded. The bill charges, that during the same year the complainant purchased this same lot of Sylvanus Hoyt, the agent of the defendant, who cancelled the deed made to the defendant, and got the grantors to make (he conveyance directly to him. The answer admits that the defendant was called on by Hoyt, and informed that he could procure a purchaser for the lot, and that he let him •take the deed for the purpose of satisfying any person desirous of purchasing that he had the title ; but it is denied that he was authorized to make a sale of the premises, or to cause the defendant’s deed to be cancelled. The defendant brought an ejectment in the supreme court to recover (he possession of this lot, and upon the filing of this bill an injunction was issued, which is still in force, restraining the defendant from further proceeding in that suit, and from instituting any other suit for the same object. The complainant now seeks to have that injunction made perpetual.

There can be no doubt that the parties to a deed, in a case not affecting third persons, may by agreement, cancel it if it be not recorded. This may in some cases become necessary to correct some mistake, or to prevent wrong being done; but such course is not advisable, as the party destroying the instrument must in all cases show his authority for so doing.

. The only question here is as to the authority of Hoyt. If he was authorized, as the complainant charges he was, his acts bind his principal; if not, the whole transaction is void and a fraud on the defendant. The evidence is all on one side ; the defendant resting his case alone on the insufficiency of the complainant’s evidence.

Thomas Gibbons Trumbull testifies, that he sold the premises •to the defendant: that the contract was made with Hoyt for him. He never had any deed himself, but the legal title was in Elihu J. Crane., who made the deed. Charles Odling testifies, that Hoyt was much engaged at Elizabeth-Town in the buying and selling of lots. That he went to the city of New-York with the .complainant ■ after the defendant had commenced his ejectment suit, and stopped at defendant’s. On that occasion the defendant said Hoy,t was his agent in Elizabeth-Town: that he had bought the property and sold it to the complainant, and had got the money, and that he could not get it of him : that if he could not get the money of Hoyt he would get it of complainant. They were speaking of the lot in question in this suit. Elihu J. Crane testifies, that he first made a deed to defendant for part of the premises involved in this cause, at. the request of Mr. Trumbull and Mr. Hoyt ; afterwards, at. their instance, that deed was can-celled, and a new one made to the defendant for tiie whole premises ; and afterwards, at the instance of Mr. Hoyt, this deed was cancelled and a new one made to the complainant. This was done, as Hoyt staled, to save the trouble of going to the defendant who lived in New-York. The defendant, afterwards told the witness that he had received twenty-five dollars from Hoyt on the sale made the complainant, as the profits. Jacob G. Grane testifies that the complainant, since his purchase, has put buildings on the premises to the value of three or four hundred dollars: that Hoyt was a large dealer and speculator in lots at Elizabelh-Town, and bought and sold extensively for people in New-York. William H. Price testifies, that he was at. the defendant’s, who keeps an oyster-house in New-York, with Elihu J. Crane. The conversation came up respecting the deeds involved in this case. Crane asked the defendant if lie had received any money from Hoyt; he said he had received twenty-five dollars as a premium for the lots he sold complainant. The defendant further stated, that Hoyt had wanted to be his agent in buying some properly on the hill at Elizabeth-Town, but that he had been caught in the trap once and he did not want him to get him into another; that he had got the upper hand of him once, and he did not want him to do it again.

From this evidence, unconlradioted as it is, the agency of Hoyt in this transaction is fully made out. The evidence show's further, that Hoyt received the money on this sale, and has become embarrassed in his circumstances. The defendant has ptobably suffered by trusting to Hoyt, which has occasioned this whole difficulty. Some objections were stated to the competency of Elihu J. Crane, but the evidence is so full without his testimony that it is unnecessary to examine into them. As the complainant has now a deed which conveys to him the legal title, (he only relief he can want is to make the injunction perpetual. Such decree will accordingly be made, with costs.

Injunction perpetual, with costs.