Webster v. Tibbits

If A., having^covenanted to convey land to B., subsequently, at B.’s request, conveys the land to C., he thereby performs his covenant, and may maintain an action against B. for the unpaid purchase money. G. held a mortgage on land of W. containing 325 acres. In consideration of a deed of 270 acres of said land to be executed to them by W., T. and E. covenanted to pay G. $4410 in such payments as had been or might be agreed upon between them and &., and to procure within two years a release from the mortgage of the 55 acres retained by W., and they at the same time executed to W. a penal bond conditioned to procure such release in the time named. W., on his part, covenanted to pay, in a manner which should be acceptable to G., “ the balance of the mortgage and interest,” and the costs of a suit then pending to foreclose the mortgage. The foreclosure suit having gone to judgment, in consequence of the neglect of T. and E. to pay the $4470, W. paid the sheriff the costs and that portion of the mortgage debt which he had agreed with T. & E. to pay; but the whole of the mortgaged land was sold to G. for the $4470 and interest thereon from the date of said agreement; and G. afterwards conveyed the whole of the land to E. and the wife of T., and the mortgage sale and this conveyance are alleged to have been made by collusion between GK and T. and 3?., and in fraud of W.’s rights. On demurrer to a complaint stating these facts, Held, 1. That T. and F. purchased of W. only the equity of redemption of the 2‘TO acres; and the execution of the deed therefor, and the payment made by W., constituted a full performance of the agreement on his part. 2. That by the terms of said contract T. and F. became responsible to W. for the payment of said sum of §4A10from the date of the agreement, and, as between them and him, were bound to pay any interest which might subsequently accrue on that portion of the mortgage debt. 3. That the agreement of W. to pay “ in a manner acceptable to £}.” was performed by a payment which Gr. was legally bound to accept. 4. That an averment in the complaint that “although the two years have expired within which T. and F. covenanted in their bond to release W.’s land from the lien of Gt.’s mortgage, they neglect and refuse to perform said covenant or to make any restitution or equivalent compensation for the collusive and fraudulent acquisition and possession ” of said land by themselves, is a sufficient averment of a breach of the covenant. 5. That no cause of action is shown against the wife of T. To maintain an action to compel her to deed the 55 acres to the heirs of W., it must be shown that the consideration of the conveyance of said land to her by Gr. was from her husband. An administrator may sue m his representative character on a bond running to his intestate; but an equitable action to obtain from the defendants a deed of lands which belonged to the intestate, and of which they are alleged to have fraudulently acquired the legal title, contrary to the condition of said bond, must be brought by or in the name of the heirs. A joint demurrer by two or more defendants on the ground that the complaint does not state a cause of action, is bad if the complaint shows a cause of action against one of them.

APPEAL from the Circuit Court for Jefferson County. This action was brought by Oatharine Webster, as adminis-tratrix of the estate of Lemuel Webster, deceased, against Samuel H. Tibbits, Asa Foster and Sally P. Tibbits. After the proper allegations as to the representative character of the plaintiff, the complaint alleges in substance the following facts: In the life time of her decedent he was the owner and in possession of certain described lands in Walworth county in this state, comprising about 325 acres and worth $6000. On the 19th of October, 1854, he mortgaged said lands to one Persons to secure the payment of $4,540 in five years from that date, with interest payable annually; and in October, 1856, the mortgage was sold and assigned to one George Goodrich of Chautauque county, N. Y. In September, 1861, Goodrich commenced an action in the Walworth circuit court to foreclose said mortgage for over $5000 claimed to be due thereon; and while said action was pending, to wit, on the 15th of October, 1861, Samuel H. Tibbits and Asa Foster entered into a written agreement, under seal, with said Webster, which, after the formal part, is as follows: “ Said parties of the first part [Tibbits and Foster], for and in consideration of a certain deed of land from said Lemuel Webster to them fox two hundred and seventy acres of land, agree to pay George Goodrich — (he, the said Goodrich, now holds a mortgage of $4,540, with interest, upon the land deeded as before stated, and also upon fifty-five acres more [belonging] to said Webster) — the said Tibbits and Foster are to pay to the said Goodrich the full sum of $4470, in such payments as have been or may hereafter be agreed upon by the first party and said Goodrich, and, within two years from date, to procure a satisfaction of the aforesaid mortgage upon that part of the farm retained by Mr. Webster, according to the conditions of a certain bond bearing even date herewith ; the balance of the mortgage and interest said Webster is to pay in a manner which will be acceptable to the said Goodrich, and to pay the taxes for this year, and costs of the suit now commenced.” Thereupon Webster, “at the request of said Samuel H. Tibbits and Asa Foster, conveyed by deed the aforesaid two hundred and seventy acres of land ” to said Asa Foster and Sally P. Tibbits, the wife of said Samuel H. At the same time Samuel H. Tibbits and Asa Foster executed to Webster the bond referred to in the above agreement, in the penal sum of $3000, conditioned that they should within two years from its date obtain a release of the fifty-five acres retained by Webster, from the incumbrance of the mortgage owned by Goodrich. Webster paid the taxes on the whole premises for 1861, according to his covenant, and, before the 23d of June, 1862, offered, to pay Goodrich, through one Bronson, his agent, “ the balance due upon the mortgage, over and above the sum of $4470 on the 15th of October, 1861, together with all taxable costs that had accrued in said foreclosure suit up to the day said offer was made, so that said Tibbits and Foster would have had only the aforesaid sum of $4470, and interest thereon from October 15th, 1861, to pay the said Goodrich in order to obtain a legal discharge of the mortgage and discontinuance of the action; but said agent, as plaintiff believes and charges to be true, at the instance and request of said Tibbits and Foster, and for the purpose of defrauding said Webster out of said fifty-five acres of land, refused to receive said money.” Webster thereupon, on the 19th of June, 1863, paid to the sheriff (who had in the mean time been charged with the sale of said mortgaged premises under a judgment in favor of said Goodrich in said foreclosure action) the sum of $665. 06; “ which sum included the excess of principal and interest due on said mortgage October 15th, 1861, over and above the aforesaid sum of $4470, and the interest on that excess up to said 19th of June, 1862, together with all the taxable costs up to that date in said actionand the sheriff gave him “ a receipt for that sum as a payment of so much money on said judgment and costs of action;” of all which defendants had notice. Afterwards, on the 23d of the same month, the whole mortgaged premises were sold to Goodrich for the balance' of the mortgage debt; and the sheriff’s deed executed to him. On the 5th of July following, “ to more fully carry out the alleged collusion and fraud,” Goodrich conveyed the whole of said mortgaged premises to said Asa Foster and Sally P. Tib-bits, who took immediate possession of the same and have since remained in possession, receiving the rents, issues and profits. And although the two years have expired within which Samuel H. Tibbits and Foster covenanted as aforesaid to release from the lien of the Goodrich mortgage the fifty-five acres reserved by Webster’, “ they now neglect and refuse to perform [said covenant], or make any restitution or equivalent compensation for tbe collusive and fraudulent acquisition and possession” of said fifty-five acres, tbe value of wbicb is alleged to be at least $3000. Prayer, that said Asa Foster and Sally P. Tibbits be required to make a proper conveyance of said fifty-five acres to tbe defendant as guardian of tbe minor beirs of said Lemuel Webster, or to them directly; or that they be directed to pay tbe plaintiff for tbe use and benefit of said beirs, tbe sum of $3000, tbe penalty of said bond; and for general relief. Tbe defendants demurred to tbe complaint as not stating a cause of action, and specified tbe following particular grounds of demurrer: “1. It appears on tbe face of tbe complaint that the agreement and bond sued on were abandoned by tbe parties thereto, by mutual agreement, immediately after tbe same were entered into. 2. It does not appear by tbe complaint bow tbe defendant Sally P. Tibbits is liable on tbe agreement or bond, or in any other way. 3. It appears upon tbe face of tbe complaint that defendants Samuel H. Tibbits and Asa Foster were to have two years from tbe 15th of October, 1861, to perform their part of tbe agreement and bond — i. e. to pay Goodrich the $4470; and that whenever, within that time, they should make that payment, said Lemuel Webster was to pay the balance due upon tbe mortgage to Goodrich, and the costs of tbe action to foreclose tbe same ; and that said Webster never paid or offered to pay any balance due on said mortgage and costs, except tbe supposed balance due October 15th, 1861. 4. It appears on tbe face of tbe complaint that on tbe 15th of October, 1861, there was due upon said mortgage, over and above tbe sum of $4,470, a balance of $2,294; wbicb balance tbe complaint does not show that Webster ever paid or offered to pay. The venue was afterwards changed to tbe circuit court for Jefferson county; where the demurrer was overruled, and the defendants appealed. 1. The complaint, after alleging the mating of the written contract by which 270 acres of land were to be conveyed to Samuel H. Tibbits and Asa Foster as the consideration of their promise, admits and alleges that Webster thereupon, at the request of said Samuel EL and Foster conveyed the land to Asa Foster and Sally P. Tibbits. This shows that the written contract was abandoned by the parties, and another and verbal contract substituted in its stead, which is not declared on, and which as to Sally P. Tibbits is void under the statute of frauds. By the request and compliance alleged, the entire direction of the consideration was changed, new obligors and beneficiaries were substituted; and Samuel H. Tibbits resigned all advantages under the contract. There was a meeting of minds upon a different consideration, between different parties, for a different end. Such a substitution of one contract for another is an accord and satisfaction of the first contract. Addison on Oon., 1099; 5 Exch., 104; 29 Barb., 410., 2. The consideration of the written contract was the deed to be made to Samuel H. Tibbits and Foster; and no such deed was ever made. The consideration of the verbal contract was a conveyance of the 270 acres by deed to Sally P. TiW&and Foster ; but it appears that the deed which was executed conveyed nothing, and was of no benefit to the defendants or injury to Webster in any way; since the foreclosure suit proceeded to judgment, the land was sold to Goodrich, and the grantees in Webster’s deed, in order to acquire title at all, had to buy the land of Goodrich, and get their title from him. There was therefore a total failure of consideration as to all the defendants. 8. There was also an entire failure on the part of Webster to perform the conditions precedent on his part. (1.) If the condition as to a deed of 270 acres of land could have been fulfilled by conveying to Sally P. Tibbits and Foster, still the deed must be effectual to convey title to the land, or the covenant is not performed. 5 Abb. Dig., 828, § 20; 11 Yt., 549. (2.) The complaint does not show that Webster ever paid any sum to Goodrich “ in a manner acceptable” to bim, or to any person authorized to act on his part. If the offer to Bronson, without the statement of a single fact showing him to have been- an agent, is equivalent to an offer to Goodrich himself, even this offer is shown to have been unacceptable. Where a party contracts for the act, consent, acceptance or satisfaction of a third person, he is bound at all hazard, and without reason, for the conduct of such third person. 1 Chitty’s PL, 312; 6 Term, 710; 13 Wend., 95; 24 id., 447. 4. The complaint does not properly aver a breaeh by defendants. It does not aver that Webster notified Tibbits and Foster that he had paid Goodrich the balance with interest, the costs of the foreclosure suit, and the taxes of 1861, and thereupon requested them to pay the $4,470; nor that Webster or his representatives ever demanded a conveyance of the fifty-five acres (10 Wis., 18, and authorities there cited); nor that the penalty of the bond has not been payed; nor that Tibbits and Foster did not within two years pay to Goodrich the $4,470, and obtain a release of Webster’s land from the mortgage. 5. The complaint shows no cause of action against Sally P. Tibbits.