Summary
ERROR to the Circuit Court, for the District of Columbia, sitting in Alexandria.
This was a special action of assumpsit, brought by Mooiie against Hughes. The declaration, after several amendments, contained four counts..
• 1. The. first count stated, that whereas on the 16th ,of June, 1797, it was agreed between the Plaintiff, and one John Darby, by a writing under their hands and ■seals, now here shown to the Court, in substance as •lows: “ whereas Cleon Moore, had located in his own name, 9922- acres of .land in Kentucky, by a treasury warrant No. 19,100,” ■« and the said Cleon Moore, hath sold all his right, title and interest of, and in the same, to John Darby, for the consideration of 300/. and warrants that no person or persons claiming under John Tebbs, now deceased, or under him the said Cleon Moore, shall interrupt him, the said John Darby, in his said Claim to the said lands, but as to all other claims he is to run the risk, and on their account, will never require, that the said Cleon Moore, or any other person or persons, shall refund the said 300/.' or any part thereof, but if there should be as much land secured by said location, as will bring two thousand pounds or upwards, the said John Darby, is to pay the said Cleon Moore 700/. in money, over and above the '.said three hundred potmtis, so that he may receive altogether; olíe thousand pounds; otherwise the said Cleon Moore is only to have the said consideration, of .three hundred pounds.” At the bottom of which writing, was a ceipt in these words, “Received of John, Darby, the sunt of three hundred pounds, the full consideration for the . first mentioned location, in the foregoing agreeinent, oh of his right,. title, and interest of, and in the same — Cleon Moore, and a seal. And whereas, on the same day, a memorandum in writing, and under the seals of the Plaintiff and the said Darby, was added and indorsed on the said agreement as part thereof as. follows: “ Memorandum — If a patent or patents have already issued for the first within mentioned location, said Moore, doth agree to assign the same, to the with* in named John Darby, his heirs and assigns; or if not issued; that they issue in tire name of the said Cleon Moore, and he is to assign them to the said John Bar-fey, his heirs, and assigns; and if in the opinion, of any two respectable men in the neighborhood of the said lands, to be mutually chosen, shall say the said lands will sell for two thousand, pounds, or upwards, the said John Darby doth hind himself, his heirs and assigns, to pay unto the said Cleon Moore, his executors, administrators and assigns, the sum of seven hundred . pounds, as herein mentioned.”
k And whereas the said Defendant, afterwards, op the 5th of October, ±799, well knowing the contract and coy-, enante aforesaid, between the said Cleon Moore.and John Darby, and more especially well knowing that ta Patent or grant had not then been issued for the tract of 9922 acres,- located in the pame of the said Cleon Moore, and well knowing that the patent for that lánd Ought, and could only be issued unto the said Cleon Moore,' and well knowing that the said Cleon Moore was entitled to the sum of 700i. lawful money Of Virginia,' of the value of 2,333 dollars, and 33 cents, pro vided, in the opinion of any'two, respectable men, in the neighborhood of the said lands, to be mutually chosen, they should say the said lands would sell for 2,0001. or upwards, lawful money of Virginia; and whereas" the Defendant, well knowing that the said lands were really and truly worth, on the day and year la '■¡ mentioned, a jhuch greater -sum than 2.000Z. and well Knowing that it Would materially injure the Plaintiff in, his contract aforesaid, and would materially benefit the said John Darby and himself, the said Defendant, he the said Defendant, on the said 5th day of October, &c. assigned the pldt'and certificate of survey, made of the said 9922 acres, and a warrant. numbered 19605, in the name of the Plaintiff, unto himself, the said Defendant, and the said John Darby, without any lawful authority, •so to do from the said Cleon Moore, by making a,nd Subscribing the said assignment of the said survey, in the name of him, the said Cleon Moore, by him the said JamesAIughes, as attorney in fact, for the said Cleon Moore, which assignment,, imported a desire of him the said Cleon, that pateftts might issue in the names of the said Darby and Hughes, intending thereby to defraud and injure the said Cleon Moore, and to benefit himself and the said John Darby, in respect to the premises aforesaid. And whereas the said James Hughes,' . by means of the herein before mentioned assignment, had caused and done to the Plaintiff, an injury to the-vaIvje of a great sum of money, to wit, the value of 4,009 dollars, which he was disposed to compensate ; the said ,Jame¿ Hughes in consideration thereof, afterwards, viz: on the 17th of March, 1806, came to An agreementywth tbc(said Cleon Moore,-whereby the said Cleon Moor®, promised, that he would quit all claim to the said tract of land, and discharge the{ said James Hughes of, and concerning all damages for, and by 'reason of his actings and doings' qfortsdid, in assigning the, survey in manner aforesaid > and he tjie said James Hughes, promised to the sajd Cleon, Moore, that he. would pay to him the sum of 700k when he should be thereafter required | and the Plaintiff avers, that he has been always ready to keep, and has always kept his promise aforesaid, in consideration of which premises, the Defendant became liable to pay to.him, the said sum of 700k &c. and being so liable, the Defendant in consideration thereof, undertook,” &c.
2. The second count, stated, that whereas on the 5th ofDctober, 1799, the Plaintiff was owner and proprietor of a certain plat,, and certificate of survey, of 9922 acres of land; in Mason county, in thp state of Kentucky, dated the 28th of November, ±79fi, of the value of 20,000 dollars, and whereas the Defendant well knowing the premises afterwards, viz, — on the 5th of October, ±799, without any lawful authority from the Plaintiff, and with a view to benefit himself, and a certain John Darby, and to injure the Plaintiff, in this particular, assigned the last mentioned plat and certificate of survey unto him the said Defendant, and the said John Darby, by subscribing the name of the said Cleon Moorp by the said James Hughes, as Attorney in fact, for, the said Cleon Moore ¿ and in consequence of the said unauthorized assignment^ a grant of the said tract of land was afterwards made to the Defendant, and the said Darby, by the Commonwealth of Kentucky, styling them assignees of the Plaintiff. And whereas the Defendant, by the assigriment aforesaid, had caused and done to the Plaintiff an injury and loss to the value of a great sum of money, viz. to the value of 4,000. dollars, which he was willing to repair and compensate $ in consideration thereof, the said Defendant afterwards, viz. on the 7th of March,. 1806, at the county of, Alexandria, &c. promised to pay to the Plaintiff, the sum of 700k lawful money of Virginia, as compensation for the said injury and loss of the said land assigned as aforesaid.'
The said Plaintiff at the same time_ngtee.dAo;Hie'said terns, and to accept of the saidcompénsation in full of all claims and demands for the said land, andfortfye injury áfefésaid. And the Plaintiff avers, that he'has always kept, his promise aforesaid, and has been at ail times ready and willing.,tó da every thing on his part tobe, .done; and afterwards, viz. on, &c. a*, &c. ojferedto perform, the agreement on his part, and'the Defendant then and there refused. to perform, &c. whereby the Defendant became liable,, &c. and being so liable, promised to pay, &c.
.3'. The 3d count stated, that whereas the Plaintiff, by virtue of a certain land warrant issued, &c. on the 26th of September, 17J83, duly located b.y entry oh the 7th' of December, 1783, and duly executed by actually survey, duly made ort the 28th of November, 1796, & plat and certificate whereof, liad been duly made and delivered according to law, was entitled to have a grant from the' commonwealth of Kentucky, by patent to be founded on the said survey, and to be completed and issued to him of 9922 acres of land in the county of Mason. &c. bounded, Ac. — And whereas the‘Defendant had on the 5th of October, 1799, (the Plaintiff, being so. entitled to have the land patented to him aforesaid, and the Defendant well knowing the premises,) for his own gain and advantage, and to the great wrong and damage of the Plaintiff; without any lawful authority to that cffe.ct from the Plaintiff, and Withput Ms knowledge or consent, but under color and pretence of being Attorney in fact for, the Plaintiff, wrongfully, injuriously and wilfully made and executed in the name of the Plaintiff, a certain indorsement ifi writing," upon the back of the said plat and certificate .of survey, purporting to.be an assignment by the Plaintiff, of the said plat and certificate, to one John Darby and the. said James tíughes, for value received, and purporting to express a-desire of th® Plaintiff, that patents miglit issue.in thejr,names, and purporting to be subscribed with the, name of the Plaintiff, by the . said James Hughes, his Attorney in . fact. And whereas the said James, afterwards, viz.- qn the 5th , of .April, 1800, (the Plaintiff being entitled to . have the; said land patented to Mm as aforesaid,) with* out any authority to' that effect from the Plaintiff, and withoutshis knowledge or. consent, by means of the. said pretended assignment, and under color of the samé, for Ms own gain and advantage, and to the great wrong and damage of the Plaintiff, wrongfully, injuriously arid wilfully caused and procured the land so located arid surveyed for the Plaintiff as aforesaid, and bounded as aforesaid, to be «granted by the comihonwealth of. Kentucky, to them the said John ,Dhrby and James Hughes, by patent, bearing date, Ac. founded on the said warrant and survey, and on the said pretended assignment of the plat and certificate, and signed by James Garrard, the Governor, anc sealed with the seal of the said comriionwealth of Kentucky, and in all respects, . finally completed and issued to them the said Darby and Hughes, and entered of record in the land office of Kentucky, aforesaid. And the Plaintiff, says, that the said land was patented to the said Darby and Hughes, by the procurement and pretences of the said James as aforesaid, without the Plaintiff’s having ever in any manner authorized, contracted, or consented, that the same should he patented in the name of any other person or persons whatsoever, other than himself. — And the Plaintiff producéth here in Court, a copy of the said patent, Ac.
And whereas, afterwards, on the 13th of March, 1806, at Alexandria, Ac. a conversation was had, and propositions for an accord arid satisfaction, were moved bfctween the said James and the Plaintiff, concerning a compensation for the loss and a liquidation of the damages sustained by the Plaintiff, by reason of the misconduct and wrong, doing of the said James in the premises, and of the vesting them, the said Darby and Hughes, with the legal tille to the said land as aforesaid ; and it was then and there agreed by the said James on his part, in consideration of the premises, arid of the just claims of the Plaintiff for compensation, and damages as aforesaid, that the said Janies should pay to the Plaintiff in satisfaction of the samé, 700i. Virginia1 currency, equal to 2,333 dollars and one third of a dollar, currency of the United States, to be paid in four equal 'quarterly instalments, the first in three months, Ac. each instalment to be' secured by a. bond of the said James; and the Plaintiff agreed to accept the said 700?. by instalments as aforesaid, in full satisfaction of his just claims as aforesaid, and upon the said instalments being secured by the bonds of the said James, as aforesaid, to release and quit claim, to the said James, all the Plain tiffs' claims and demands w hatsoever, for compensation, redress, or damages arising from the wrong doing and/ misconduct of the said James, in the premises, and front fhz ■ vesting the said Darby and Hughes with the legal title to the said'land as aforesaid. The count then states, thát .the Defendant promised to fulfil the agreement on his part, and the Plaintiff on his part. That the Plaintiff is, and always was ready and willing to perform his part, if the Defendant would perform his. That he afterwards required the Defendant to perform his parí, and offered to accept, and would have accepted of the De - fendant the 7001. in instalments as aforesaid, and secured by bonds as aforesaid, in full satisfaction of all the . claims and demands of the Plaintiff for compensation, redress and damages' as aforesaid, and did then and there offer to perfect and execute, and would have perfected and executed to the said James, a good and sufficient quit claim and release to him, of all the Plaintiffs claims and demands fpr compensation, redress or damages, arising from the misconduct and wrong doing of the said James, in the premises, and from the vesting of the said Darby and Hughes, with the legal title to the ■said land as aforesaid, if he, the said James, would have , secured by his bonds duly executed, the, said 700L Sec. But the Defendant refused to perform his part of the agreement, &c.
4. The ith count stated that whereas, on .the 5th of October, 1799, the Defendant without any lawful authority to' that effect, but for his own gain and advantage and to the great wrong and damage of the Plaintiff, with intent to prevent the land hereinafter mentioned, from being patented to the Plaintiff, and to cause and. procure the same to be patented to the Defendant and one John Darby, wrongfully, injuriously and wilfully made and executed in the -name of the Plaintiff,' a certain other indorsement in writing, upon a certain other plat and certificate of survey duly made for the Plaintiff, on the 28th of November, 1796, the said survey having been so made in due execution óf a certain pther warrant duly issued in favor of the Plaintiff, from the land office of Virginia on the 26th of September, 1783, &c. and in pursuance of a location and entry, &c. which last mentioned indorsement purported to he an assignment, See. from the Plaintiff to the said John Darby and tho Defendant, for vaiu^ received, &c. ’purporting to be subscribed, &c. And whereas the Defendant had, on the 5th of April, 1800, in further pursuance of his said intent to prevent the land from being patented to the Plaintiff, and to cause it to be patented to the said Darby and the Defendant, wrongfully and without authority, and under color of being attorney in fact for the Plaintiff, caused the land to be patented to the said Darby and the Defendant, &c. — and the Plaintiff produceth here a copy of the patent, warrant, survey, &c. &c. — and the Plaintiff avers, that he never authorized the Defendant to make the said .'assignment,, and that the Defendant knew he had no such authority-r-that it was made without the Plaintiffs knowledge or consent — that the Plaintiff was, until the issuing. of the patent to Darby and the Defendant, entitled to have the land patented to himself — by which wrong doing of the Defendant, the Plaintiff had suffered gifeat wrong and injury, and. was entitled to be compensated in damages by the Defendant, and to be indemnified for being prevented from having the land patented to him, and for the same being patented to Darby and the Defendant. And .whereas afterwards, on the 13th of March, 1806, a conversation was had and propositions for a compromise were moved between the Plaintiff and Defendant, touching the compensation and indemnification of the Plaintiff, and the Defendant then and there agreed-in consideration of the just claims of the Plaintiff to be compensated for the damage and injury arising from the misconduct of the Defendant in the premises, and in consideration of the Defendants having procured a patent to be issued to him and Darby for the land, that the Defendant would pay to the Plaintiff another sum of 700L Virginia currency of the value, &c. which the Plaintiff agreed to accept in satisfaction of his just claims to compensation arising f?om the causes and considerations last aforesaid $ and the Defendant in consideration of his said agreement, assumed and promised to the Plaintiff that he, the Defendant, would perform his part of the agreement. And the Plaintiff in considera tion of that promise agreed to accept the 7O0L in satis faction,. &c. as aforesaid and upon payment of the same or upon its being secured to be paid in four instalments, &c. that he, the Plaintiff, would quit claim and release to the Defendant, all the Plaintiffs claims and demands and rights whatsoever to compensation for being prevented from having the. land patented to liim, and for arid ori account, of ike same being patented to the said I)arby and the Defendant^ — and the Plaintiffsaysthathe was and hath ever since been willing and ready to perform, Ac. and requested the Defendant to perform, Ac. and offered to accept,_ Ac. the 7001, Ac. in'fall satisfaction, Ac. and offered to! quit claim, Ac. all the Plaintiffs claims for compensation, Ac. if the Defendant would pay, Ac. but he refused, Ac.
The Defendant, having prayed oyer of the agreement and' the memorandum, of which á proferí was made in the first count, pleaded ñon assumpsit ■ to that count, /and so. in like manner to each off the. other counts separately; upon’all of which pleas, issues were joined.
3d. The Defendant, (without again praying, oyer,) for further plea to each of the counts, severally, said, that the promise alleged to be made by the Defendant to the Plaintiff, or any memorandum thereof, was not in writing, signed by the Defendant or any other person by him thereunto lawfully authorized, and this he is rpady to verify, Ac.
"’3.' The Defendant. also without, again praying oyer, for further plea to each of the counts, severally, said, «that after making the agreement and memorandum « between the Plaintiff and the said John Darby, in the « declaration mentioned, viz. on the 29th of August,'' «1799, Alexander D. Orr, and John Graham, two re- « spectable, men residing in the heighborhood of the /‘-lands, in the said agreement mentioned, were.mutually. « chosen by the Plaintiff, and the said John Darby, to «,say and determiné whether the said lands would sell ’« fov two thousand pounds, or upwards, and the said «Alexander D. Orr, and John Graham, afterwards, il viz. on the 29th of August, 1799, did say and deter- « mine', that the Plaintiff’s claim to a survey of 9922 « acres, in the county of Washington, being the land « in the said agreement, and memorandutii mentioned, .« wfthld not sell fer SJOOOLYirginia money, and this he "»iartfady to verify,” Ac.
4. The Defendant also, without again praying oyer, pleaded separately to each cquht, «that there was not as much land secured by the said location in the. agreement mentioned, aS would bring 2,000i. or upwards, and this he is ready to verify, &«. The Plaintiff demurred generally , to the second plea, to all the counts, and to the 3d and 4th pleas, to the 2d, 3d and 4th counts.
. To the 3d and 4th pleas'to the 1st.count, there was-a genérál replication and issue.
The Court below adjudged all the demurrers in fa vor of the Plaintiff.
The Plaintiff then entered a noli prosequi upon the first count of his declaration, and waved all the issues joined thereon. Upon the issues of non' assicmpsit to the 2d, 3d and 4th counts, there was a verdict and judgment for the Plaintiff.
After the jury had retired to consider of their verdict they returned into Court and i*equested the Court to determine whether a verdict for the Plaintiff would give to the Defendant all the right and interest of the Plaintiff and his heirs in the patent of land in thfe declaration mentioned, and the Court instructed them that if the Plaintiff should recover a judgment in this case, he would be thereby barred in equity from setting aside the patent issued to the .Defendant and the said John Darby in the declaration mentioned. ;To this instruc-. tion the Defendant excepted," and brought his writ of error.
1*. That the Plaintiffhad no right to discontinue as to the first count aiid wave the issues on that count, without-the leave of the Coui’t, or the. assent of the Defendant.
2. That the statute of frauds was a good bar to every* count in the declaration, and
5. That if it was not, the Court erred in instructing the. jury that a recovery in this suit would bar the Plaintiff in equity from setting aside the patent.
1. The Plaintiff had no right to discontinue as to the first Count, after issue, Gro. Jac. 35, 316. The oyer being once prayed and granted, the agreement and memorandum ywe spread upon the record, aftd the Defendant had a/right to avail himself of it in all his pleas. •The Defendant hád a right to show that the title of the Plaintiff to those lands was never worth 2,000/. and therefore he was never entitled to any thing, more than the 300Z. which Darby had paid him — consequently the obtaining a patent in the name of Darby and Hughes, could be no injury to the Plair+iff, and if the Plaintiff .did promise to pay the 700/.. it was a promise without consideration. This was the real substantial defence In the cause. In order to entitle the Plaintiff to recover, he must not only prove that the Defendant did a wrong action, but that it did an injury to the Plaintiff, i, Bac. Ab. 50. 6. Mod. 46.
2. As to the plea of the statute of frauds. By the act of assembly, of Virginia, p. p. 15, which'is like that of Kentucky, it is enacted that no action shall be brought, whereby to charge any person upon any contract, for tiie sgle of lands, tenements, or hereditaments, unless t[je promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereuntb .lawfully authorized.
.The contract set forth in ekeh count of the declaration is a contract for thé sale of land. It is a contract whereby the Plaintiff was to part with all his title to the land; and it is immaterial whether that title Was legal or equitable.
The first count slates expressly, that the Plaintiff “ promised to quit all claim to the tract of land/'1 and the Defendant promised to pay 7001.
The 2d count also states, that the Defendant wac to pay the 700/. as compensation for the injury and loss of the land ; and the Plaintiff agreed to accept it “ in full of all claims and, demands for the said land and for the injury aforesaid.”
The 3d. count says, that a conversation was had concerning a compensation for the loss, and a liquidation of the damages, sustained by the Plaintiff by rpason of the misconduct and wrong doing of the Defendant, and of the vesting them, the said Darby and Hughes, with the legal title to- the said land, and it was agreed in consideration of the-premises, that the Defendant should pay to the Plaintiff 700Í. in full satisfaction of the Plaintiffs claims as aforesaid; and the Plaintiff agreed, upon such payment being made, to quit ckim.to the Defendant all the Plaintiffs claims for compensation, &c. arising from the wrong doing and misconduct of the Defendant in the premiseses and from the vesting the said Darby and Hughes <( with the legal tille to -the said land.”
The am count states that the Defendant agreed, in consideration of the just claims of the Plaintiff to be compensated for the damage and injury arising from the misconduct of the Defendant in the premises, and in consideration of the Defendants having procured apateht to be issued to him and Darby for the land,. that he, the Defendant, would pay the Plaintiff another sum' óf 7001, &c.
Thus the quit-claim of the Plaintiffs title to tlie land is the consideration of every promise in the declaration; and if the Plaintiff, had no title, or if no title was to-pass from the Plaintiff, by the contract, it was nudum pactum,
S. If this was not a contract for the sale ;of the Plaintiff’s title to the land, a judgment for him in this suit could not have barred the Plaintiff from setting aside the patent in equity. There seems'to have been an inconsistency in the opinions of the Court below. If the agreement extinguished the Plaintiffs equitable title, then it was an agreement for-the sale of land, and ought to have been in writing. If it did not extinguish the Plaintiff’s equitable title, then it could not bar him from setting, aside, the patent.
This was-a case of naked tori — there is no evidence of any authority from Moore to Hughes-to make this transfer, but it ivas done by the latter with a full knowledge that it was contrary to the Plaintiff’s intention. It was of. itself an injury to the Plaintiff for which he was ■entitled to redress. St was actionable per se.
But suppose that a judgment for (lie. Plaintiff in this case should prevent him from setting aside the patent, yet it does not follow that it is a case within the statute of frauds. Contracts executed are not within that statute. If there be a verbal agreement for the sale of land, and the vendor executes his part of the agreement by ■conveying to the purchaser the legal title j which he accepts, and receives the possession and the title papers, it is not necessary that the vendor should have a promise in writing from the purchaser, in order to compel him to .pay for it — a Court of Chancery would decree him to execute the contract.
The Plaintiffs subsequent ratification of the act of the Defendant, was equivolent to his previous assent. The contract then was executed on the part of Moore.’ The Defendant had all his title — and the possession. — and the title papers. No further act was necessary ori the part of the Plaintiff.
Besides,, it docs not appear that the contract on the part of the Plaintiff if there was any, for the transfer of his right, was not in writing. If it was necessary that it should have been in writing, it will,, after verdict, be presumed to have been so. i. Chitty on pleadings, 133. 1. Sand. 276 (a.) note 2. 4 East. 400;
As to the Noli Frosequi — the Plaintiff has a right to enter it at any time before verdict, and evdh. after verdict, before judgment. Bayer on damages, 113. 12, Mod. 558.
The Defendant could not by oyer of the. agreement stated in the first count, make that agreement applicable to other-counts which do not refer to it. The 3d and 4th pleas were only applicable to the first count.
It is immaterial whether the Plaintiff actually sustained damage to the value Of 7001. It is sufficient if he: sus-tamed any damage af all. ,It is an action for liquida* ■ted damages, and it is immaterial what was tbé real injury which the Plaintiff suffered. 7 Vin.300—Tit Damages. S.—Moore 419, Colman’s case.-4. Burr. 2228, Lowe v. Peers.—1. Lord Raym. 1164.
The Court below was correct in the opinion, that a judgment in this suit would have barred ó suit in equity to. sict aside the patent It was only an agreement for the extinguishment of an equitable right which need not be in writing. It transfered nothing to the Defendant.*
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
