Lasley v. Delano

Grant, J.

(after stating the facts). 1. The testimony on the question of fact, namely, "Was there an agreement that, out of the moneys received from the sale of the lands, Mr. Delano’s obligation on this note should be paid? is in sharp conflict.

The circuit judge, in disposing of the case, said:

“ I have made an examination of the evidence, and I will state that it is impossible for the court to determine what the facts are as to what the truth is with reference to the arrangement they claim to have made. The evidence is very conflicting and very unsatisfactory, but I am inclined to the opinion that the theory of the defendants may be correct. * * * I have examined the evidence two or three times with a view to determining, but I am unable to satisfy myself, as to what the facts are. I have examined the authorities. * ' * * I think the law is against him [the defendant Mr. .Delano]. It may be conceded, for the disposition of the case, that the facts are with him, and I am inclined to think that they may be.”

We are convinced that the following facts are established by the testimony: Mr. Lasley and Mr. Delano purchased these lands. Mrs. Lasley paid nothing. The deed was made to her to assist her husband in his financial troubles, and was without any consideration. He was obligated on the note with Mr. Delano for one-half the amount thereof. Deeds were executed by Mrs. Lasley and Mr. Lasley, with the name of the grantee in blank, *606 and delivered to Mr. Delano, to enable him to sell the lands. It was then agreed that, out of the proceeds received therefrom, the note of Mrs. Delano should be paid by Mr. Delano. Mr. Lasley acted for himself and for his wife. The funds received were treated as his own, and were used by him as his own. Both complainant and her husband knew that Mr. Delano sold the lands, received half in cash, and took a mortgage and notes to himself as trustee for the balance. Mr. Lasley’s obligation upon the note to Mrs. Delano is fully canceled. Mr. Delano carried out his instruction and executed his trust.

The legal questions raised are:

(1) Is the parol agreement void under the statute of frauds (3 Comp. Laws, § 9515, subd. 2) ?

(2) Is the agreement void as against the statute of uses and trusts, under 3 Comp. Laws, §§ 8829, 8833, 9509 ?

(3) Was Mr. Lasley a necessary party to the suit?

If these questions are answered in the negative, the decree must be reversed.

2. Neither the statute of frauds, nor that of uses and trusts, applies to this case. The parol contract between complainant and Mr. Delano has been performed, and the parol trust imposed upon him fully executed. No contract for the sale of lands is involved. The relation of vendor and vendee did not exist between them. Complainant concedes his right to sell and receive the money, and that he did sell and receive the money. The relation, then, between them, was not other or different than it would have been if she had sold the lands herself, and intrusted the money to him, to be disposed of as directed and agreed by her. Petrie v. Torrent, 88 Mich. 43 ; Carr v. Leavitt, 54 Mich. 540 ; Edinger v. Heiser, 62 Mich. 598 . If, however, the trust rested in parol, and while so resting could not be enforced as an executory contract, yet, when the parol agreement has been executed, neither party can invoke the statute. The courts have repeatedly held that a party may perform a promise \yhich he could not legally be compelled to perform, and *607 that, when so performed, it is binding upon him and the other party to it. Moore v. Crawford, 130 U. S. 122 ; Desmond v. Myers, 113 Mich. 437 ; Collar v. Collar, 86 Mich. 507 (13 L. R. A. 621); Bork v. Martin, 132 N. Y. 280 ; Gwaltney v. Wheeler, 26 Ind., 415 .

3. Mr. Lasley was not a necessary party to the suit. The issue presented by the pleadings upon this branch of the case is whether Mr. Delano disposed of this money as it wás agreed he should do. The condition of accounts between Mr. Delano and Mr. Lasley is not in issue here, except in so far as it might throw light upon the question whether Mr. Delano had disposed of this fund as agreed. All three agreed that but of this fund, received from the sale of the lands, Mr. Delano should pay Mr. Lasley’s share of this note. He has done this. If Mr. Delano owes Mr. Lasley on accounts which have run between them, that is a question in which complainant has no concern. She very properly did not make her husband a defendant in the suit; neither did defendants make any objection that he was not a party.

Decree reversed and bill dismissed, with the costs of both courts.

Moore, C. J., and Carpenter, McAlvay, and Hooker, JJ., concurred.