Ascutney Bank v. McK Ormsby , 28 Vt. 721 ( 1856 )

The opinion of the court was delivered, at the circuit session in October, by

Isham, J.

It is unnecessary to say, in this ease, what would have been the plaintiffs’ right, had they instituted proceedings to recover the possession of the premises, or to avoid the deed which, it is admitted by the demurrer, was fraudulently obtained from them and placed on record. The plaintiffs had the right to waive the tort under which the deed was obtained, and treat the premises as having been conveyed under their contract. It is not for the defendant to object to that course, or claim any advantages he otherwise would not have had, arising from his wrongful act in obtaining the deed and the possession of the premises in that manner. It was competent for the plaintiffs also to waive them right to retain the deed in their possession until the securities for the payment of the balance of the purchase money was deposited with them as stipulated. If they saw fit to deliver the deed before the securities were furnished, or to treat the deed then in the possession of the defendant, as having’been delivered under their contract, they had a right so to do, and to hold the defendant to the performance of his contract. In commencing this suit to recover the price agreed to be paid for the premises, the plaintiffs proceed upon the ground that the deed has been delivered, that the defendant has acquired a title to the premises under it, and that they now rely upon the defendant’s promise to pay the stipulated price for the land conveyed to him. In thus treating the matter as a" contract, the plaintiffs must take the contract altogether, and be bound by all its provisions. If the defendant, at the time the request was made, or at any other time within the period limited by the contract, had furnished the securities for the balance of the purchase money, it is clear that this action could not be sustained. The defendant would have been entitled to the whole time of credit for the payment of the money, as it was stipulated when the purchase was made, and no action, in the interim, could have been sustained. Strutt v. Smith, 1 Crom. Mees. & Ros. 312; Ferguson v. Carrington, 9 Barn. & Ores. 59. But the neglect and refusal of the defendant to furnish the securities when requested for that purpose, or within the time stipulated, will prevent the defendant from claiming the benefit of the stipulated credit. The plaintiff has the right, on such a refusal, to commence his action immediately, and recover the balance due. In such case, the declaration should be special on the contract to furnish the security, and not in general assumpsit, 'and the rule of damages will be the sum agreed to be paid. Eddy v. Stafford, 18 Vt. 237; Mussey v. Price, 4 East 147; Hinckly v. Hardy, 7 Taunt. 312.

In relation to the question arising under the statute of frauds, it is sufficient to observe that this question has been decided by this court, during the present circuit, in the case of Hodges & Wife v. Green, ante p. 358. We can add nothing more upon that question to what was said in that case. The English authorities sustain the general principle, that a promise to pay the consideration money on the sale of an interest in real estate, is within the statute and void, at law, unless the promise is in writing. The case of Cocking v. Ward, 1 Man., Gran. & Scott 858; Kelly v. Webster, 10 Eng. L. & Eq. 517, and Smart v. Harding, 29 Eng. L. & Eq. 252, are very decisive as to the English rule on that subject. The courts of that country'will sustain no action on the express contract for the money agreed to be paid on the sale of land, unless in writing. But, if there has been a subsequent acknowledgment of the debt, they will allow a recovery on that evidence, under the general counts, for the the amount due. The rule in this country, and particularly in this state, is otherwise; and where the land has been conveyed, and the contract fully executed on the part of the grantor, and nothing re'mains to be done but the payment of the stipulated price for the landj an action at law can be sustained. Bowen v. Bell, 20 Johns. 338; Wilkinson v. Scott, 17 Mass. 249; Brackett v. Evans, 1 Cush. 79; Preble v. Baldwin, 6 Cush. 554; Hibbard, v. Whitney, 13 Vt. 21; Thayer v. Viles, 23 Vt. 497; Davis v. Farr, 26 Vt. 596. In such case, all that part of the contract which was within the statute of frauds has been performed by the execution and delivery of the ■deed. The contract to pay the money, in such ease, is not within the statute. We think the replication is a sufficient answer to the plea, and that the plaintiffs are entitled to recover the balance due on that purchase.

The jndgment of the county court must be reversed, and judgi taent rendered for the plaintiffs.