Dickerson v. Chrisman

Scott, Judge,

delivered tlie opinion of the court.

We will notice the points, on which a reversal of the judgment of the court below is sought, in the order in which they are presented in the plaintiff or appellant’s brief.

There is nothing in the objection that the court erred in not striking out the amended answer of the defendant. The answer contained the facts constituting the defence of the respondent, and it was necessary that they should have been in issue in order to determine the controversy between the parties. It is rather singular that a plaintiff should complain of the delay of a defendant.in not disclosing his defence. If he wanted earlier knowledge of it, why did he not bring his suit sooner ?

The second complaint made against the judgment below is that the order of publication against Browning was not published in conformity to law, and consequently that he was not properly before the court. This suit having been begun under the practice act of 1849, that act will determine the course of proceeding to be observed in conducting it. We do not see how Dickerson can complain of the manner in which Browning was made a party to the suit. If Browning has been improperly joined, he may make the objection. There is no judgment against him except for costs, nor was any asked. How, then, can the mere naming him as a party in the proceedings affect Dickerson ? Browning might complain, but, if he is silent and acquiesces, who shall make objections for him ? Dickerson is not damnified by any irregularity in the proceedings against Browning. The judgment against him is just what it would have been had not Browning been named.

Conceding that the evidence of G-ildersleeve was in itself admissible, we do not see on what ground the objection to the deposition can be sustained. The point that the absence of the witness was not accounted for was not made until it it had been read. As objections to the reading of the deposition were made, and as the objection that the absence of *139 the witness had not been accounted for was not among them, tbe court was warranted in regarding that objection as waived. There was nothing in the other objections to the deposition, as they were not read as the admissions of a party, but as the declarations of a vendor in possession of real estate affecting those who subsequently claim under him. This subject will be again adverted to.

The propriety of the admission of the evidence in relation to the notoriety of the contract between Browning and Chris-man is fully sustained by authority. Such evidence was clearly competent to prove notice to Dickerson of the contract. (Benoist v. Darby, 12 Mo. 206 ; 2 Stark. 191; Muller v. Moss, 1 Maul. & Sel. 325.) There was however no necessity for such testimony in the cause, as the fact of notice was clearly established by other evidence.

An objection is made to the admission by the court in evidence of the declarations made by Browning before he conveyed to Dickerson that he had sold the property to Clirisman. The fact of a sale to Clirisman was controverted, and these declarations were given in evidence to show a parol sale in order that the defendant might establish his defence and entitle himself to the relief he sought by his answer. The rule seems well established that the declarations of the grantor, bargainor or vendor of real estate, such declarations being made at any time before the act of granting, bargaining or vending, are admissible against the immediate grantee, bargainee or vendee, and all who claim more remotely under the sanie title. (Cowen & Hill’s Notes, 652.) The case of Davis v. Spooner, 3 Pick. 284 , is thus stated in the book just referred to : “ In a writ of entry for White Farm, both parties claimed under a deed from S., the deed by which the demandant claimed being oldest but not recorded. The defendant, however, purchased with actual notice of the first deed. This being shown, and that the grantor had fraudulently obtained and suppressed the first deed — held, that his declarations were admissible to prove its existence and contents, as coming from one under whom the defendant claim *140 ed.” In its main features this case is almost parallel with that now under consideration.

The most important question in this case is, whether there was such a contract between Chrisman and Browning as can be specifically enforced, although not reduced to writing. The deed executed by Browning for Chrisman must be laid out of the case, as it does not appear to have been delivered. The want of a delivery rendered it ineffectual for any purpose. There is not any difficulty in the way of enforcing the contract against Dickerson, as the court finds the fact that he had actual notice of the contract, and the evidence fully warrants the finding. The acts that shall be deemed such a part performance of a parol contract for the sale of lands as will take it out of the operation of the statute of frauds are not well defined, and the cases show much contrariety of opinion on the subject. Judge Story says : “A more general ground, and that which ought to be the governing rule in cases of this sort is, that nothing is to be considered as a part performance which does not put the party in a situation, which is a fraud upon him unless the agreement is fully performed. Thus, for instance: if, upon a parol agreement, a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser, if there be no agreement valid in law or equity. Now, for the purpose of defending himself against a charge as a trespasser, and a suit to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection, and if admissible for such a purpose, there seems no reason why it should not be admissible throughout.” (Story’s Eq. § 761.) The instance stated as an application of the rule is so extremely similar to the circumstances of the case before us that we are relieved from the necessity of .seeking further illustrations. If the statute in this instance should interpose an obstacle to the relief sought by the defendant, it would furnish a protection to a great fraud. The defendant was let into possession under a contract on which he had paid a large portion of the purchase money, and is now exposed to *141 an action of ejectment and is forced to defend himself against an account for the mean profits. The house he contracted for was used and intended for a hotel, and with it he purchased the furniture. So he is subjected not only to an action of ejectment, to an account for rents, but a quantity of useless furniture is left on his hands. If the principle above stated has any force, it must reach a case of this kind. If it is true that a statute designed to prevent frauds shall not be made a means of protecting them, the plaintiff must fail in this suit.

This being a trial by the court, there was no necessity for instructions. The practice act of 1849, under which the action was begun, did not require them.

The rule, that a judgment is an entire thing and if reversed as to one must be reversed as to all, is one only applicable to judgments in courts of common law jurisdiction; or, in other words, to judgments at law. The answer of the defendant converted this proceeding, in effect, into a suit in the nature of proceedings in equity. The eighth section of the thirtieth article of the act of 1849 prescribed the mode by which a party against whom a judgment by publication was obtained might be relieved. Dickerson has no right to appear in this court and seek a reversal of the judgment against Browning when he is not affected by it. This court will not suffer one who is beyond its jurisdiction to make objections to the proceedings of our courts, unless he will come in and enter his appearance and thereby place himself in a situation that a personal judgment can be rendered against him. If he is aggrieved, he can only obtain redress in the manner pointed out by the statute. Dickerson can not complain, if he was liable to a judgment for costs, that the judgment was jointly rendered against him and another. That the judgment was rendered against another together with himself does not injure him.

Affirmed;

Judge Richardson concurs. Judge Napton absent.