
    Judith M. Traver, App’lt, v. Thomas O. Purdy, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 20, 1893.)
    
    1. Statute op frauds—Pleading.
    In an action in equity to enforce specific performance of a contract required to be in writing by the statute of frauds, where the answer denies the existence of the contract, it is not necessary that it plead the statute. It is only where the contract is admitted or not denied that the defendant must plead the statute in order to claim its protection.
    3. Same—Promise.
    Defendants’ ancestor, who held a mortgage against plaintiff’s property which he was foreclosing, made her a promise without further consideration, that he would bid in the property on the sale and sell it, and after paying the amount of the mortgage debt and costs, to give her what was left. He bid in the property, allowed her to remain thereon, but died before carrying out the remainder of the agreement. In an action to compel specific performance, Held, that the promise was void because not in writing, and because no consideration therefor moved from plaintiff.
    Appeal from judgment in favor of defendants in an action for specific performance of a contract in relation to land.
    The following is the opinion of the court at special term:
   Rumsey, J

The defendants are the heirs at law and the personal representatives of Isaac S. Purdy. • In the latter part of the year 1874 Isaac S. Purdy owned a bond and mortgage made by the plaintiff, dated April 10, 1872, to secure the payment of $7,500 in five years, with annual interest The interest was en- . tirely unpaid, and the plaintiff was not able to pay it, nor was there any likelihood that she would be able to pay the principal sum when it should become due. The land covered by the mortgage was 153 acres, and it was worth something over $9,000. The interest due was $1,050, and the total amount of the incumbrance ■due and to become due was something more than $8,900. There was more or less valuable timber on the farm, which the plaintiff had begun to cut and take away, and to prevent this, and at the ■same time to collect what was due upon his bond, Isaac S. Purdy began an action. During the pendency of that aption the transaction occurred which is at the foundation of this suit. It is stated by the daughter of the plaintiff, who was then a girl of 12 years, that Mr. Purdy came to her mother’s house, and said to her, substantially, that if the farm did not bring at the foreclosure sale a sum sufficient to pay the amount then due on the mortgage and the costs, and something over for her, he would bid it off, and would try to sell it for as good a price as could be got, and, after paying the mortgage debt and costs and expenses, would give her what there was left. This was by parol, and not in writing. It does not appear that Mrs. Traver paid anything to Purdy for this promise, or that she either took any action, or forbore to take any action, in reliance upon it. It is true she put in no defense to the action, but then there is no claim that she had any defense. It is true, also, that she did not object to having the farm sold together, and the whole amount of the mortgage, due and to become due, paid out of the proceeds. But it appears from the judgment-roll upon the foreclosure that it was conceded that the mortgaged premises were so situated that it would be most beneficial to the parties to have the whole farm sold together. Upon that state of facts the law required that the whole sum secured by the mortgage, due and to become due, should be paid if the debt bore interest, as it did here. 2 Bev. St., 193, §.§ 165, 166. So that it is clear she waived no right by not objecting to the payment of the whole debt. It seems that she was told she need not attend the sale. But there is no pretense that if she had attended she was in a situation to bid off the premises, or that she could have, or would have, procured any one else to do so, or that she would have made any effort to do so. There is nothing in the evidence to show the existence of any relation of trust or confidence between Mr. Purdy and the plaintiff. It is sworn to by the daughter that Mrs. Travel- followed Mr. Purdy’s advice, and did as he thought best in regard to all her affairs; but it must be remembered that she was then only 12 years old, and that she could have known but little about the matter, and her conclusion upon that subject (and her testimony is only her conclusion) is in the nature of things entitled to but little weight The fact that she was stripping the farm of its timber, and that Purdy was obliged to sue her to prevent it, is pretty strong evidence that in some matters at least, and this matter was one of them, she acted without consulting him.

The plaintiff’s case then stands upon a mere verbal promise to hold this farm for the benefit of the plaintiff in a certain event, which has not occurred. There was no fraud or estoppel, no consideration, no relation of trust or confidence, no part performance, no act done or forborne by the plaintiff which puts her in any worse condition than if this talk had not taken place. It appears that Mr. Purdy allowed her to live in the house, while he occupied and worked the farm, and it may be inferred, from what took place on his deathbed, that he would have done something for her had he lived. But nothing was said there which indicated that he felt any obligation, or that he was governed by any other motive than his regard for her. What was- said to his sons clearly showed that he did not understand that he or they were bound to do anything as the result of a contract, but he left the plaintiff dependent upon their kiridness, as she had been upon his. Mr, Purdy bought the land upon the foreclosure, and entered no judgment for deficiency. The amount unpaid on the mortgage was $8,965.63, and the costs and expenses of the foreclosure suit and sale were about $120, making in all $9,085.63. This was in fact, about the value of the farm, although it seems that Mr. Purdy thought it worth more. But it is worthy of remark that, although the farm had been on the market some time, Mrs. Travel- was unable to sell it for any such price, and the highest offer stated to have been made at any time was $9,000, or perhaps $10,000; so it is quite clear that Purdy gave practically all the farm was worth when he took it on his mortgage.

There is nothing in the facts of this case to bring it within that class of cases of which Ryan v. Dox, 34 N. Y., 307, constitutes an example. The whole transaction shows a mere verbal promise to buy land and hold it for the benefit of the plaintiff, of which it has been said that, in order that the doctrine of trusts ex maleficio with respect to land may be enforced under any circumstances, there must be something more than the mere verbal promise, however unequivocal; otherwise the statute of frauds would be virtually abrogated. Pom. Eq. Jur., §> 1056. The facts of this case bring it within the rule of Wheeler v. Reynolds, 66 N. Y., 227. See also Bank v. Bennett, 76 Pa. St.. 402; Merritt v. Brown, 21 N. J. Eq. 401. But the plaintiff insists that the defendant, not having pleaded the statute of frauds, is not entitled to its protection. The statute says that no interest in lands, nor any trust over or concerning lands, shall be created or declared, unless by writing. 2 R. S., 134, § 6. In the courts of equity it had always been held that when an action to compel the specific performance of a contract to convey lands, or to enforce, a trust concerning them, had been brought, the bill or complaint need not set out a writing. Bliss Code PL, § 353. If the defendant answered admitting the contract, or not denjnng it, he must set up the statute of frauds if he relied upon that as a defense. If he did not set up that defense, the contract being established by the pleadings, there was no legal dispute as to its existence, and in that case, unless the defendant claimed the protection of the statute, no question could arise upon it. Cozine v. Graham, 2 Paige, 177; Duffy v. O'Donovan, 46 N. Y., 223, 226. In such a case it was necessary to plead the statute. But if the contract was denied, so that the plaintiff -was put to his proof, then he must make such proof as the statute required, and, if the statute required a writing, he must prove his contract by the writing, or fail in his suit. Cozine v. Graham, supra; Livingston v. Smith, 14 How. Pr., 490 ; Haight v. Child, 34 Barb., 186; Marston v. Swett, 66 N. Y., 207. This happens, not because the defendant insists-upon the statute, but because the law requires written evidence to make out the cause of action. The denial by the defendant puts the plaintiff here to her proof, and, when the proof made is not such as the law requires, the defendant who denies the existence of any contract is in a situation to insist that there is none. The case of Porter v. Wormser, 94 N. Y., 431, cited by plaintiff, was, as appears by the remarks of the judge at page 450, one of the class where the party insisting on the statute had feet up the contract in his pleading, and relied on it as the basis of his cause of action, and the court does not consider whether the contract was proved by a writing or not. In Hamer v. Sidway, 124 N. Y., 538; 36 St. Rep., 888, it appeared that the defendant had written a letter admitting the promise sued on. ETo question of the statute-could therefore arise, and the conrt held there was no such question in the case. The defendant here has not waived the statute,, but is still in a position to insist upon it. It is a bar to the action of the plaintiff.

It may be said, too, that, besides the insuperable barrier of the statute, tlie plaintiff’s case is fatally defective in that no consideration is shown to have moved from her for the promise of Purdy. This fact is fatal to her cause of action. Pom. Eq. Jur., § 1293. ■ But it is not necessary to enlarge upon this point. 'There is no view of the case in which she could be entitled to judgment.

Charles W. Kimball, for app’lt; M. A. Leary, for resp’ts.

Judgment appealed from affirmed, with costs, upon the reasons ■stated in the opinion of Rumsey J., at special term.

Lewis, Haight and Bradley, JJ., concur.  