
    William Marsh, Plaintiff and Appellant, v. John Wyckoff, Defendant and Respondent.
    1. When a party to a contract which is void by the-statute of frauds for not being in writing, refuses to perform, placing his refusal solely upon the ground of- inability to do so, and the other party is not in default, the former cannot maintain an action against the latter to recover back money paid under the contract, without making a demand for its repayment before suit.
    2. The vendor in an executory contract for the sale of land suffered the land to be sold for non-payment of taxes. The purchaser delayed, and finally refused, to complete the purchase, but solely on the ground of his inability to pay; and he now sued to recover back what he had already paid.
    
      Held, That inasmuch as during all this time the vendor’s right to redeem from the tax sale was subsisting, and he was ready and willing to complete the contract, he was not to be deemed in default. -.
    (Before Moncrief and Monell, J. J.).
    Heard, January 9, 1863;
    decided, January 31, 1863.
    This was an appeal by the plaintiff from the judgment entered upon the report of Joseph Heilson, Esq., as Referee; in favor of the defendant.
    
      The complaint was for money had and received by the defendant to the plaintiff’s use. The proof showed that the plaintiff entered into a parol agreement with the defendant for the purchase of certain real estate, and that the money in question was paid toward the contract price. The details of the facts found by the Referee are stated in the opinion of the Court.
    The part of the opinion of the Referee before whom the cause was tried, which had reference to the effect of the tax sale, was as follows:
    “The defendant appears to have been able to carry out the contract on his part, unless the fact that the land had been sold for unpaid taxes rendered him incompetent. It was urged, on behalf of the defendant, that to give effect to such apparent sale, it should have been proved that all the statutory requirements in levying taxes had been observed, so that it should appear that the premises were really incumbered by taxes and liable to be sold This would be so, doubtless, in cases where a purchaser claims under such sale. But assuming that the sale was valid, the defendant was still in a condition to perform his agreement, as the term allowed for redemption had not expired.
    “It cannot be said that he could not make title.”
    
      Levi S. Chatfield, for plaintiff, appellant,
    I. The complaint is in proper form. (King v. Brown, 2 Hill, 485; 5 Johns., 49.)
    II. This contract being by parol was void. Money paid on a void contract may be recovered back in an action for money had and received. (Thayer v. Rock, 13 Wend., 53; King v. Brown, 2 Hill, 485; Dowdle v. Camp, 12 Johns., 451; Rice v. Peet, 15 Id., 503; Gillet v. Maynard, 5 Id., 85 ; 7 Cow., 92 ; 9 Id., 46.)
    III. But in this case the defendant could not perform the contract. (Caswell v. Black River Manuf. Co., 14 Johns., 453 ; 2 Comyn on Cont., 52.) When the contract was made the defendant did not own the land; he had an equity of redemption merely, like that of a judgment debtor after a sale on execution. Clearly the plaintiff was not bound to take such a title, nor was he bound to go on with payments, after he knew the situation of the title, trusting to the defendant afterward to perform a void contract. (Judson v. Wass, 11 Johns., 525; Tucker v. Woods, 12 Id., 190.)
    IV. The Referee also erred in admitting the testimony of the defendant, that if the plaintiff had paid in full, he would have been able to redeem the land.
    V. The plaintiff was entitled to recover back this money upon well settled principles:
    
      First. Because the contract was void and furnished no consideration for the payments.
    
      Second. Because the plaintiff rescinded it, having the right to do so, and gave the defendant notice of such rescission; and
    
      Third. Because the defendant could not perform, having no such title, as the contract contemplated, to convey.
    
      George C. Blanke, for defendant, respondent.
    I. The plaintiff could not maintain this action upon his complaint. (Code, § 142, sub. 2; Cushingham v. Phillips, 1 E. D. Smith, 416; Thurman v. Stevens, 2 Duer, 609; 1 Chitty’s Pl., 355, and cases cited.) The variance between the plaintiff’s pleading and proof was total and fatal. (Walter v. Bennett, 16 N. Y. R., 250; cases cited under § 171 of Voorhies’ Code.)
    II. This action cannot be sustained on the merits. The plaintiff must show he has equity and conscience on his side. (Pease v. Barber, 3 Caines, 266.) But the equities are all with the defendant. Payments voluntarily made with a full knowledge of the facts on a parol contract for the purchase of land cannot be recovered back while the vendee is in default. (Dowdle v. Camp, 12 Johns., 451; Abbott v. Draper, 4 Denio, 51; Coughlin v. Knowles, 7 Met., [Mass.,] 59; Lewis v. Whitnell, 5 Monroe, [Ky.,] 190; Duncan v. Baird, 8 Dana, [Ky.,] 101; Dougherty v. Goggin, 1 J. J. Marsh., [Ky.,] 373; Gray v. Gray, 2 Id., 21; Shaw v. Shaw, 6 Vermont R., 69; Lane v. Shackford, 5 N. H. R., 130.) Money voluntarily paid when there has been no mistake in matters of fact, cannot be recovered back. (Notes to Mariott v. Hampton, 2 Smith’s Lead. Cas., 238; Broom’s Legal Maxims, 187; Supervisors of Onondaga v. Briggs, 2 Denio, 26, and cases cited; Clarke v. Dutcher, 9 Cow., 674; Abell v. Douglass, 4 Denio, 305.)
    III. Plaintiff must prove a demand before suit. (Abbott v. Draper, 4 Denio, 51.)
    IV. The evidence introduced by plaintiff, (under defendant’s objection.) tending to show sales for taxes of the land in question, with a view of impeaching defendant’s title, did not entitle plaintiff to a recovery.
    1. The evidence was not embraced in the issue; neither taxes nor sales were mentioned in the pleadings.
    2. The evidence did not establish the existence of any of the facts necessary to show a valid tax sale. There is no presumption of regularity in a tax sale. (Varick v. Tallman, 2 Barb., 113.)
    3. One of the alleged sales appears to have taken place since the commencement of this suit, and both sales were subject to redemption for two years, by any person interested in the property. (Charter of Brooklyn; Laws of 1854, p. 880, § 29.)
    4. These taxes and sales would have been redeemed by defendant if plaintiff had paid the $400 balance of his cash payment. Or the plaintiff could have retained the necessary amount out of the $400, and paid them himself.
    5. The defendant was not, by reason of a tax sale which could be redeemed, disabled from performing his agree-meat to convey. (Lane v. Shackford, 5 N. H. R., 130.)
    6. Assuming the land was incumbered, the same principle would apply to this case as to the case where an agreement in writing was made; and the vendee was bound to perform, it being presumed that the vendor would remove the incumbrance before the deed was to be given. (Greenby v. Cheevers, 9 Johns., 126; Ellis v. Hoskins, 14 Johns., 363; Robb v. Montgomery, 20 Johns., 15; Garlock v. Lane, 15 Barb., 359.)
    And that to put the vendor in default, a tender must be made by the vendee. (Hudson v. Swift, 20 Johns., 24 Green v. Green, 9 Cow., 46, and cases cited; Wells v. Smith 7 Paige, 22 ; Hackett v. Huson, 3 Wend., 249; Connelly v. Pierce, 7 Wend., 129.)
   By the Court—Moncrief, J.

The facts as found by. the Referee, are not disputed. It appears, therefore, as matters óf fact:

1. That on the'10th day of. August, 1860, a verbal agreement was made between the plaintiff and the defendant, whereby the plaintiff agreed to purchase, and the defendant agreed to sell and convey to the plaintiff the lands mentioned in' the defendant’s answer, for- the price and according- to the terms set forth therein. ^

•2. That the plaintiff not being ready to perform his part of the agreement, the time for such performance was, at his request, postponed from time to time, until the month of November,4860, when the plaintiff gave the defendant his two checks, amounting to $600, on account of the $1,000 cash payment, and on paying $350, a portion of said $600, proposed that the deed should be executed and the mortgage sent to him for execution, as stated in his letter of ¡November 17th, 1860. '

3. That the defendant afterward urged the plaintiff to complete the performance of said agreement, but the plaintiff declined so to do; for the alleged reason that times had changed, that he had lost money, and could not carry it out.

4. That on the 3d January, 1861, the defendant tendered to the plaintiff a deed, in pursuance of said agreement, and demanded that the plaintiff complete the performance of said agreement on his part, which he declined to do for want of means at that time.

5. That at the time said agreement was made, the land in question was subject to the taxes for the years 1858 and 1859, and that said lands were sold in the year 1860 for the non-payment of said tax of 1858; but said sale was subject to redemption by the defendant at any time within two years thereafter; and that the said taxes and interest and amount of such sale were less than the sum of $200.

6. That if the residue of the $1,000 had been paid by the plaintiff, the defendant would have been enabled to have paid said taxes, as testified by him.

7. That the money mentioned in the complaint was the sum of $600 so paid the defendant on account of said agreement; and that no demand was made by the plaintiff for the repayment of said money before the bringing of this action.

. The claim of the plaintiff, as made in his complaint, is, “ that the defendant is indebted to the plaintiff in the sum of six hundred dollars, and interest thereon, for so much money by the defendant had and received to and for. the use of the plaintiff, as follows, that is to say: On or about the 17th day of November, 1860, the defendant, at his special instance, had and received of and from the plaintiff, and to and for the use of the plaintiff, the sum of six hundred dollars, and the plaintiff is the lawful owner" and holder of the claim and demand therefor;, that the said defendant, although requested so to do, has not paid,” &e. Judgment was demanded for $600, and interest from November 17th, 1860, &c.

The contract between the parties was not illegal; at most it could only be claimed to be voidable at the election of a party to it, and of this there may be some question. (Dowdle v. Camp, 12 Johns., 451; Westervelt v. Matheson, Hoffm., 37; Spoor v. Newell, 3 Hill, 307; Boughton v. Bruce, 20 Wend., 234.) The plaintiff voluntarily, in part performance of this oral contract for the purchase of lands, has paid the sum of six hundred dollars; he has requested and been indulged in an extension of time for the completion of his purchase; his neglect to fully perform has been excused by saying “the times had changed, he had lost money and could not carry it out;” “ he could not complete the performance” of the agreement “ for want of means at í7¡.«f time.” He never claimed that he was not bound to perform by reason of the statute; and without requesting a return of the money thus voluntarily paid under an agreement of which good conscience demand ed of each party a full performance, this action is brought to recover it back. The defendant was not in default; he was ready and willing to perform the contract on his part; and it seems to me most plainly unjust, under such circumstances, to hold that the action can be maintained until the claimant, asserting a title under the statute making void his contract at his election, has also demanded the return of the money which he paid and the defendant received in good faith in part performance. (Fry on Specif. Perf., §§ 339, 340.) The authority in 4 Denio, 51, (Abbott v. Draper,) is decisive upon this point, and conclusive as to the rights of the plaintiff in this action.

As this view satisfactorily disposes of the whole case, it is unnecessary to examine the other points raised upon the argument; but as to the complaint being defective, see Eno v. Woodworth, (4 Comst., 249, 253; 1 E. D. Smith, 416; 2 Duer, 609.) I concur in the views so well expressed in the opinion of the Referee, and think the judgment should be affirmed.  