Long v. Hartwell

Van Syckel, J.

John H. Platt, as agent for Nathaniel O. Carpenter, on the 15th of March, 1866, executed an agreement in writing, under seal, with Patrick Long, by which Carpenter agreed to convey to Long a lot of land, Avith a dAvelling-house thereon, situated on the north side of Clinton avenue, in Hudson City, known as lot No. 44, and also the lot of land adjoining thereto, for the sum of $850; $100 of the consideration money were paid at the signing of the articles; $450 were to be paid on or before April 2d, 1866, when the deed was to be delivered ; and the balance of the purchase money secured by a mortgage on the premises to be conveyed. On the 4th of April, 1866, Long having paid Carpenter $450, he executed to the wile of Long a deed for lot No. 44, and Long and wife executed to him a mortgage on the same lot for $300, the balance of the purchase price. This suit was instituted in the Hudson Circuit, to recover from the administrator of Carpenter damages for not conveying the lot adjoining lot No. 44, and resulted in a verdict for the plaintiff for the value of the part not conveyed.

1. The authority to the agent to execute the written agreement having been by parol, it is insisted that it does not bind the principal. Our statute of frauds does not require the agent’s authority to make a contract to convey land to be in writing; it exacts a Avritten contract, not a Avritten poAver to the agent. The distinction is clearly drawn in the terms of the statute, between conveying and contracts to convey land. In the former case, under the tenth section, the power to the agent must be in writing; Avhile in the latter, under the fourteenth section, the words *122 “ in writing ” are omitted, and the cases, both in England and this country, agree that the appointment may be by parol. 2 Kent’s Com. 613; 10 Paige 386 ; Story on Agency, § 50 ; Brown on Frauds, § 370, note (2). The fact that the contract in this case was sealed by the agent does not vitiate it. There is no doubt about the general rule that a power to execute an instrument under seal must be conferred by an instrument of equal solemnity. If the writing given by the agent be under seal, and that be essential to its validity, the authority of the agent must be of equal dignity, or it cannot operate. Here a seal was not vital to the contract; there was no authority to the agent to attach a. seal, therefore the seal is of no value, but the power to execute the contract without seal having been ample, so far it becomes the act of the principal, and inures as a simple contract. 2 Kent's Com. 613; Lawrence v. Taylor, 5 Hill 107 .

2. Was the stipulation in the executory contract that the vendor would convey two lots merged in or extinguished by the acceptance of the deed conveying only one lot ?

The general rule will not be questioned, that the acceptance of a deed for land is to be deemed prima facie full execution of an executory, agreement to convey, and thenceforth the agreement becomes void, and the rights of the parties are to be determined by the deed, not by the agreement. Covenants collateral to the deed are exceptions to this rule, and cases may be stated where the deed would be considered only in part execution of the contract.

In cases where the clause in the agreement stipulating that the tract contains a certain number of acres is omitted in the deed, no action will lie on the agreement for deficiency in quantity . Houghtaling v. Lewis, 10 Johns. 297 .

So, where in the deed there is an absence of covenants against encumbrances, the vendee cannot resort to the contract. Until consummated, an executory contract is subject to modification. In all cases, the deed when accepted is presumed tq express the ultmate intent of the parties with *123 ¡regard to so much of the contract as it purports to execute. The acceptance of a deed conveying the whole premises without the covenant as to quantity, or against encumbrances, raises the presumption that the grantee agreed to take title at his own risk as to quantity or encumbrances, or he would have rejected it. These contracts in this respect are a unity, and not distinct or separable in their provisions, and if executed at all, it is necessarily an entire execution. This reasoning will not apply to cases where two things are to he conveyed by distinct acts. The conveyance of one would purport to be only in part execution, and should not be held io destroy the vitality of the contract so far as relates to the part unexecuted.

In Brown v. Moorhead, 8 S. & R. 569, where the defendant agreed to convey a piece of land, and also to convey, or cause to be conveyed, the interest of A. B. in another piece, Chief Justice Tilghman held that a deed conveying only one parcel was but in part fulfillment, the contract contemplating two conveyances.

In Wilbeck v. Waine, 16 N. Y. 532 , which broadly recognizes the general, rule, the distinction is clearly stated that the rule is not applicable where the deed covers only part of the subjects embraced in the executory contract.

In Bull v. Willard, 9 Barb. 641 , the rule is well stated in these terms, “that the covenant, in order to be deemed collateral and independent, so as not to be destroyed by the execution of the deed, must not look to or be connected with she title, possession, quantity, or emblements of the land which is the subject of the contract."

In the case of Crotzer v. Russell, 9 S. & Rawle 78, where the agreement was to convey a certain tract of land, and the deed reserved a small portion, the deed prevailed over the contract, for the acceptance of a deed embracing the whole tract, with an exception of a portion, raised a clear presumption that the reservation was within the final understanding of the parties, and it could not be regarded as part execution.

The rule to be deduced from the authorities is, that the *124 executed contract supersedes all prior negotiations and agreements, where the iast contract covers the whole subject embraced in the prior one. But where the stipulation is to do a series of acts at successive periods, or distinct and separable acts to be performed simultaneously, the executory contract becomes extinct only as to such of its parts as are covered by the conveyance.

In the ease now submitted, the engagement was to convey two l'ots of land, and whether the conveyance of one dispensed the vendor from all liability under the executory contract is a question of strict law, to be determined by the court.

The contract contemplates-a single deed, and one mortgage upon both lots, to secure the purchase money, fixing one price for both lots, and not a distinct price for each.

The vendor did' not agree in. writing to pass title to the remaining lot by a separate deed, nor does the contract provide for the acceptance of a separate mortgage, or settle the amount in which it is to be taken. The act of the grantor, accepted by the grantee, must be regarded in full execution.

Regarding the conveyance as a full execution, is there any difference in law whether such conveyance passed the title to the wife, by vendee’s directions, or to the vendee himself? A written contract within the statute , of frauds cannot be modified or altered by parol, so as to furnish, in its altered state, the basis of an action at law.

Whether parol evidence is admissible to prove the discharge or abandonment of such contract. is a question upon which there is great conflict of authority, and as the discussion of this case can be confined within narrower limits, no opinion will be expressed on this point. The solution of this branch of the casé will be reached by determining whether a substituted performance, actually and fully executed by the vendor, and accepted by the vendee, may be set up in defence at law to this suit on the written contract. . It will be observed that this is not an attempt to found an action, or even strictly to base a defence upon an oral agreement *125 engrafted on the written contract, but simply to prove in defence actual performance of the contract, by way of accord and satisfaction.

The statute does not declare all parol contracts relating to land to be void or illegal. There is a class of cases in which it is held that where, upon a parol contract for the sale of land, the vendee has paid the purchase money, he cannot recover it back if the-vendor is ready and willing to convey. The vendee, having paid the money voluntarily, cannot compel the vendor to take advantage of the statute. Abbott v. Draper, 4 Denio 51 ; Conghlin v. Knowles, 7 Metc. 57.

It has been the accepted law in this state ever since the decision of Perrine v. Cheeseman, by Chief Justice Ewing, 6 Halst. 174, that an executory agreement in writing not under seal may, before breach, be discharged, abandoned, or rescinded by a subsequent unwritten agreement. The letter of the statute of frauds simply defeats an action upon the parol agreement relating to land; it does not expressly forbid a defence under the parol contract, nor deny its virtue as a rescinding act, and therefore the only ground upon which a written contract not under seal for the sale of lands can be taken out of the rule in Perrine v. Cheeseman is, that by the written agreement the vendee has acquired an interest in lands which he may enforce in equity, and it would be against the spirit of the enactment to permit that interest to be taken away by oral testimony. Whatever force this view may have, it is difficult to perceive how the policy of the statute would be violáted by parol proof, establishing not an abandonment or surrender of the stipulation, but an execution of it by a substituted performance accepted and enjoyed by the vendee.' To disregard the execution in this case would enable the vendee to enforce the letter of the writing, after placing the vendor in a position where it is impossible for him to fulfill it.

While the statute asserts its control over the contract itself, the performance of the contract is not within its purview.

*126 A contract under the dominion of the statute of frauds can he no more secure against invasion by parol than a sealed instrument. .

In an action on a bond, parol proof is competent to defeat the plaintiff by showing payment, or accord and satisfaction, and in all cases a specialty may be shown by parol to be discharged after breach by accord and satisfaction.

Fleming v. Gilbert, 3 Johns. 528 , was an action on a bond conditioned that the defendant, by a given day, would procure for plaintiff a certain bond and mortgage, and discharge the same of record. The defendant did procure them, and offered them to the plaintiff, prpffering to do whatever was necessary to discharge them, but the plaintiff agreed by parol to waive a performance, in this respect if the defendant would do another thing, which he afterwards did; held, that evidence of the substituted performance constituted a defence. Monroe v. Perkins, 9 Pick. 298 , and Lattimore v. Harson, 14 Johns. 330 , are similar in principle. These cases go upon the ground that he who prevents a thing from being done by saying he will accept something else for it, shall not, after such acceptance, avail himself of the non-performance he has occasioned.

In Cummings v. Arnold, 3 Metc. 486 , which was a contract required to be in writing, the defence was successfully rested upon parol proof of accord and satisfaction, by a substituted performance.

In Cuff v. Penn, 1 M. & S. 21, which has been followed in many cases, the plaintiff succeeded in enforcing the contract by suit at law, when he had not himself performed according to the terms of the writing, but in accordance with a substituted performance agreed upon by parol.

The cases of Goss v. Lord Nugent, 5 B. & Ad. 65; Harvey v. Grabham, 5 Ad. & El. 61; Stead v. Dawber, 10 Ad. & El. 57, and all the cases since these, in which the authority of Cuff v. Penn is denied, have been placed upon the ground that the plaintiff’s suit was founded on a contract required to be in writing, but, in fact, partly in writing -and partly in *127 parol; tlie suit thus resting on a ease made out by incorporating in it oral stipulations, was held to be inhibited by the words of the statute.

But in none of these eases, so far as my investigation has reached, has it ever been doubted that a substituted performance, actually executed and accepted, would dispense the defendant from liability on the contract.

Whatever may be thought of the correctness of the rule In Stead v. Dawber and Marshall v. Lynn, it may be safely said that if the substituted performance in those cases had been actually executed and accepted, the result would have been different.

The conveyance, therefore, to the vendee’s wife must be held to have the same effect as if made to the vendee himself. This result will do no more violence to the statute of frauds than the' well-established rule which enables the vendor, after the execution on his part of a parol contract for the sale of lands, to recover the purchase money.

Another view of this case will lead to the same result. In the written agreement, the vendor bargains to convey to the vendee or his assigns, and although an assignee of the contract could not enforce it by suit unless ho had an assignment in writing, the vendor having been directed by the vendee to pass the title to another, had a right to presume that the assignment had been duly executed, and the fact cannot now be questioned.

3. If merger had not taken place, the plaintiff was not entitled to recover. By the terms of the contract, the vendee was to execute a mortgage on both lots, to secure the balance of the purchase money, and no evidence was produced to show that he tendered himself ready to do so.

It is the sel lied rule in this state, that if either the vendor or vendee wishes to enforce the contract against the other, he immediately makes his part of the agreement precedente

On the one hand, the purchaser’s right of action for nondelivery of the deed does not accrue until he tenders performance on his part; and, on the other hand, the vendor’s *128 action must be preceded by execution and offer of the conveyance. Shinn v. Roberts, Spencer 444, and cases there cited.

In this case, therefore, no suit would lie until vendee tendered himself ready to execute a mortgage on both parcels.

If the plaintiff, when he accepted the deed, supposed it conveyed both lots, it is a case of mistake, to be dealt with by a court of equity.

The judgment below must be reversed.

The Chief Justice, and Depue and Woodhull, Justices, concurred.