Mahagan v. Mead

A verbal promise by A to pay B one half the proceeds of a piece of land when he should sell it is not within the statute of frauds. Judgments and awards bind only parties and privies-

Bills in Equity, for the removal of a cloud from the plaintiffs’ title to their respective lots of land, &e. Facts found by the court. In 1866 the defendants, at the solicitation of one Quimby and his wife, advanced to them $250 with which to buy a tract of land called the Yail tract, upon a verbal agreement that the Quimbys would pay the defendants one half the proceeds of the land when they should sell it, above the purchase-money, interest, and taxes. Upon receiving the money the Quimbys gave the defendants their note for $250, and a mortgage of the tract to secure it. May 7, 1868, Mrs. Q., to whom the tract was conveyed when purchased, conveyed a portion of the same, lot A, to the defendants, in performance of an agreement between the Quimbys and the defendants that in consideration of such conveyance the defendants would relinquish their claim to profits under the agreement of 1866. The plaintiffs are respectively the owners of other portions of the Vail tract, deriving their title from Mrs. Quimby through mesne conveyances. June, 1872, Mrs. Quimby, then administratrix of her husband’s estate, agreed with the defendants in writing “ to refer our account and note to J. B. Rand, of Concord, for adjustment, and his decision shall be final.” Rand awarded that $100 should be applied on the $250 note on account of the above conveyance of lot A to the defendants; and having adjusted the accounts, awarded a general balance of $96.72 and interest due from the estate to the defendants. September 18, 1876, the defendants brought a writ of entry against Mrs. Quimby to foreclose their mortgage, and recovered conditional judgment at the October term, 1882, for $618.15 damages. The defendants claimed that the record of the foreclosure suit is conclusive evidence of the amount due upon their mortgage, and excepted to the admission of all evidence introduced for the purpose of showing that a less sum, or nothing, was due upon the note. Independent of the award, the court finds that the defendants agreed in the life of Mr. Quimby to apply upon their note the amount that might be found due from them to him upon an adjustment of their respective accounts, and that there was a balance of $81 due from the defendants to Quimby on account, April 1, 1871, which should be indorsed on the note.