Sherburne v. Fuller

Where a deed from A. to B. was made by the appointment of C., and delivered by A. to B., upon a verbal promise of B. to C. that if C. within a reasonable time should elect to pay to B. a certain sum of money, B. would convey to C. a certain, house and land, and give him three promissory notes for certain sums of money and if within a reasonable time C. should elect not to pay the money, then that B. would not cause the deed to be recorded, but would deliver it to C. ; and C. elected not"to pay the money, yet B. refused to deliver the deed, and caused it to be recorded: — In an action by C. against B. upon this promise, it was held to be within the statute of frauds, as concerning the sale of lands," and therefore not to be proved by paroi evidence.

The declaration in this action was “ in a plea of the case for that whereas at said Boston, on the fifth day of May now last past, one Royal Makepeace had contracted and agreed with the plaintiff to convey to him, or any other person whom he should direct and appoint, certain lots of land in Cambridgeport, so called, in Cambridge, in our county of Middlesex, of the value of 5,371 dollars 67 cents, there afterwards on the twenty-fourth day of July last past, it was agreed by and between the said Fuller and the plaintiff in the manner following, viz. that the said Makepeace should, by the appointment of the plaintiff as aforesaid, make and execute a deed of the said lots of land to him the said Fuller, and that if the plaintiff should elect and choose, within a reasonable time thereafter, to pay to the said Fuller the sum of 2,500 dollars, that then and in such case the said Fuller should convey to the plaintiff a certain house [ * 134 ] and land * thereunder in Vine-street in said Boston, and should further make and give to the plaintiff three notes of hand to be signed by him, the said Fuller, which same notes should be each for the sum of 707 dollars 22-jr cents, amounting in the whole to the sum of 2,121 dollars 67 cents, and should be payable, one at the expiration of one year, another of said notes at the end of two years, and the other at the end of three years; and if the plaintiff should, within a reasonable time as aforesaid, elect and choose not to pay the said sum of money as before mentioned, that then the said Fuller should not cause the deed to him of the said lots in Cambridgeport to be registered in the registry of deeds for our said county of Middlesex or elsewhere, but should deliver and give up the same to the plaintiff; and the said Fuller at said Boston on the said twenty-fourth day of July, in consideration that the plaintiff then and there undertook and promised the said Fuller well and faithfully to perform and fulfil all and singular the matters and things in the said agreement contained on the part of the plaintiff to be performed and kept, undertook and promised the plaintiff that he, the said Fuller, would well and faithfully perform and fulfil all and singular the matters and things on the part of him, the said Fuller, to be performed and fulfilled. — And the plaintiff, in fact, says that, in pursuance of said agreement, the said Makepeace did then and there, by the appointment of the plaintiff, make and execute a deed to the said Fuller of the lots of land before mentioned in Cambridgeporl aforesaid, and the said deed was then and there delivered to the said Fuller for the purpose aforesaid; and within a reasonable time there afterwards, viz. on the twenty-eighth day of August, then next ensuing, the plaintiff did elect and choose not to pay the said sum of 2,500 dollars as aforesaid, of which the said Fuller thereafterwards on the same day had notice, and was requested to deliver and give up said deed according * to the agreement [ * 135 ] aforesaid; yet the said Fuller, not regarding his said promise and undertaking aforesaid, refused to deliver, and did not deliver, the same deed to the plaintiff not registered as aforesaid, but on the contrary thereafterwards, viz. on the thirtieth day of the same August, caused the same to be registered in the registry of deeds of the said county of Middlesex, and has ever since refused, and refuses to deliver the said deed to the plaintiff. To the damage,” &c.