
    William S. Walcott, plaintiff and appellant, vs. Peter L. Ronalds, defendant and respondent.
    1. Land was conveyed by the defendant to the plaintiff, by an absolute convey•ance, but upon an undertaking to sell the same for the defendant’s benefit, and to pay the proceeds over to him. The plaintiff having sold the farm and received the proceeds; it was held that he could not evade responsibility therefor to the defendant because he had never manifested any- “ trust in the land in writing subscribed by” him.
    2. A liability to pay over the proceeds of such sale may arise, in .such a case, if warranted by the evidence, not from any relation of trustee and cestui que trust, but from the promise, supported by a sufficient consideration not affecting the land, but binding only on the person of the grantee.
    (Before Robertson, Barbour and Garvin, JJ.)
    Heard December 12, 1863;
    decided December 31, 1863.
    Action by the plaintiff to recover the value of his services and his expenses in taking charge of the defendant’s farm, &e. at Scotch Plains, New Jersey. Defense, (among other things,) that the plaintiff was indebted to the defendant in the sum of $3600, received by him upon the sale of a farm at Rahway, for and on behalf of the defendant, and to his use and benefit. It appeared on the trial, before the referee, that on March 1st, 1860, the plaintiff received to the use, and for the account of the defendant, $2854. This was proved by a letter of the plaintiff, and his own evidence fixing the amount. It appeared that the plaintiff and defendant had been on terms of intimacy ; that in November, 1860, the defendant was married, and went to Europe. He, at the time, owned a farm at Rahway, on which he had previously given the plaintiff a home; this farm he wished to have sold during his absence. To effect this purpose, on the plaintiff’s suggestion, he gave him an absolute deed thereof. In March, 1860, the plaintiff sold the farm for $5000, subject to the payment of a mortgage of $2000, receiving net $2854. He used the money for his own purposes. The defendant discovered the sale some two years after, and on January 22d, 1862, wrote, to the plaintiff, complaining that he had not written to him about it; on February 24th, 1862, the plaintiff answered, stating that it was $4000, instead of-$5000, for which he had sold, and that the sale was made in the spring of 1861, instead of 1860. The letter seeks to justify the plaintiff’s failure to hand over the money to the defendant’s agent; deprecates his resentment, &c. The plaintiff failed to make good the amount, and sued the defendant, and now claims that the deed of the Rahway farm was intended to convey it to him, at one time alleging that it was so conveyed for services rendered the defendant, and at another that it was for his notes to be given the defendant. The referee allowed the plaintiff’s claim to the amount of $1498.98, and allowed to the defendant the sum of $3684.58 as a counter-claim, which includes $2854 and interest, as proceeds of the sale of the Rahway farm, and also $180 and interest, as the value of certain articles belonging to the defendant, and sold by the plaintiff, concerning which no question is made here. The referee gave judgment for defendant for the balance, $2185.60.
    Upon the trial the plaintiff produced a full covenant warranty deed, executed by the defendant and wife to him, of the Rah-way farm. The defendant was allowed (subject to the plaintiff’s objection,) to testify to conversations had between the parties at and previous to the delivery of the deed, for the purpose of proving that the property was conveyed to the plaintiff in trust, to sell for the defendant’s benefit, and to.pay the proceeds over to him. The defendant also put in evidence the above mentioned letter of the plaintiff, (subject to objection,) claiming that it tended to establish the same trust,
    
      A. Levinger, for the appellant.
    J. A. Parsons, for the respondent.
   By the Court,

Barbour, J.

This was an action brought to recover for services rendered and moneys expended, for and at the request of the defendant. The answer set up, among other things, that the plaintiff was indebted to the defendant in the sum of $3060, for moneys received by the former, upon the sale of a farm in Rahway, New Jersey, to the use of the latter.

Upon the trial the plaintiff testified, as a witness, without objection, that the farm in question was conveyed to him by the defendant, in compensation for certain services theretofore rendered by him to the latter. The plaintiff also read in evidence the deed mentioned in his testimony; which deed expresses a consideration of $4500 in money, the receipt of which is acknowledged, and the conveyance is made subject to a certain mortgage for $2000, which, i't is declared, forms a part of the consideration money, and is assumed by the grantor. The defendant - offered oral evidence to prove that the farm was conveyed by him to the plaintiff upon and in consideration solely of a verbal undertaking and promise, then made by the latter, that he would sell the farm and pay the entire, amount of the net proceeds thereof, after deducting the mortgage, to the defendant, and that the plaintiff had sold the farm for $5000, and received the purchase money, less the amount of the mortgage. The defendant also offered in evidence a letter, written to him by the plaintiff in February, 1862, (the defendant then being in Europe,) in which the writer states that he has sold the Rahway farm ; that he has been compelled to úse some of the money, having no means of living without it; that .he did wrong in using it, but intended to replace it; that he expected, when he used it, to receive money from his father’s estate, which he intended"to hand to Davis, (the name of the defendant’s agent,) and, among other things, adds, “ When you went away you left every thing for me to manage the best I could.” * * * “You will have to leave it till you return, as it is impossible for me to pay it now. I hope you will not think too hard of me for it, and I think we can manage'it with satisfaction of both parties on your return. I hope you will not say any thing aboüt it to any one else, as it would injure me very much, and not do you any good. In every other particular I have attended to your affairs for your best possible advantage.”

All this evidence was objected to, but admitted, and the plaintiff excepted. Exceptions were also taken to the findings of fact declaring, in effect, that all the above facts are established by the evidence, and to the referee’s conclusion that the defendant is entitled to a credit in the accounting for the purchase money so received by the plaintiff.

If the evidence objected to was properly received, there can be no doubt the facts were fully proven before and correctly found by the referee; and, upon careful consideration, I have arrived at the conclusion that such evidence was admissible.

For, although the non-payment of the consideration expressed in a deed cannot be proven to contradict the acknowledgment of its receipt, for the purpose of defeating the deed, (Meriam v. Harsen, 2 Barb. Ch. 232; S. C. 4 Edw. Ch. 70; Childs v. Barnum, 11 Barb. 14, S. C. 1 Sandf. 58,) yet, in general, and except for the purpose of defeating or impairing the grant or covenants contained therein, the consideration clause of a deed is not within the rule which excludes parol evidence offered to contradict a written instrument. (McCrea v. Purmort, 16 Wend. 460. Whitbeck v. Whitbeck, 9 Cowen, 266. Adams v. Hull, 2 Denio, 306. Bingham v. Weiderwax, 1 Comst. 509. Jackson v. Schoomaker, 2 John. R. 230. Frink v. Green, 5 Barb. 455. Murray v. Smith, 1 Duer, 412. Goit v. Nat. Prof. Ins. Co. 25 Barb. 189.)

I think, too, that the written declaration and admission of the plaintiff, clearly implied in his letter, that the net proceeds of the farm belonged to the defendant, that the plaintiff had applied them to his own use intending to replace them, and that he was liable and would account to the defendant therefor, fully justified the conclusion of the referee that the defendant was entitled to a credit for such moneys, in stating the accounts between the parties. It was, substantially, a declaration in writing, that the money was received by the plaintiff, in trust for the defendant, as well as an admission of his obligation to replace it.

The judgment appealed from should he affirmed, with costs.

Robertson, Ch. J. The plaintiff claims to evade all responsibility to the defendant for any of the proceeds of the “ Rah-way Farm,” because he never manifested any trust, in writing subscribed by him, 'of such land. Such liability may, however, arise, if the evidence justifies it, not from any relation of trustee and cestui que trust, but from a promise, supported by a sufficient consideration, not affecting the land, but binding only on the person of the plaintiff.

The referee has not found any trust to have been created, but as one of the facts contained in his special report, of which his general report is an appendage, that the plaintiff accepted from the defendant a conveyance of the Rahway Farm, to enable him more conveniently to sell it, and account to the defendant for the proceeds. This, though somewhat inartificially expressed, is unless such deed was given as a compensation for previous services, equivalent to what appears by the evidence, which is that the plaintiff, in consideration of the conveyance of such land to him by the defendant, promised whenever he sold it to pay the proceeds over to -the latter. If there was no proper legal evidence of a trust, such a-finding is necessary to sustain the report of the referee, and being borne out by the evidence, and may, therefore, be assumed to have been made by him. A mere promise to pay over the proceeds of land when sold, for-a sufficient consideration, creating no interest in, or lien upon the land, not running with it, but obligatory only on the person of the promissor, is capable of being enforced in an action at law, although it creates no trust. Unless opposed to some principle of public policy, it must be binding. The fact that a cotemporary conveyance is made, of the very lands whose proceeds are promised to be paid over, can form no obstacle to the validity of such a promise, any more than if it had been a conveyance of some other lands or some other consideration. As such a promise is' merely executory, and only binds the person, it does not restrain alienation, nor is it so attached to the land as to run with an estate in it. The grantee of the land is its absolute owner, so far as the pght of transferring an indefeasible title free from any incumbrance or trust is concerned. All who take title from him, even with full knowledge of such promise, do so free, from any claim of the promisee, which is a mere chose in action, enforoible at law. Trusts are interests in lands 1 the lea:al title of a trustee is subject to the rights of the cestui que trust into whosever hands the land may pass, if not in execution of the trust, with knowledge of it. The purpose of the statute of frauds, in regard to manifesting trusts in writing, much more even than in requiring contracts for the sale of land and leases to be written, was rather to protect the ownership of the land itself from being entangled by supposed agreements or understandings, depending on parol evidence, interfering with absolute dominion over it, than merely to protect persons against being compelled by parol evidence to take an interest in lands they had never acquired. No such protection is needed in regard to a promise to dispose of a sum of money, although it may arise from a sale of real estate.

If this had been-a contract for the sale of land, the plaintiff could not escape liability' for the purchase money, under the statute of frauds, because the contract on the defendant’s part was executed. Can he be less liable because the price for which he might sell it was fixed as the purchase money, and the time of payment postponed until he should sell it ? It is not material to inquire whether by the terms of the agreement the plaintiff was to sell in any determinable time, or the defendant could enforce a sale., A sale was in fact made, and the proceeds promised to be paid over'received. It would be a reproach to the law and the administration of justice, if the plaintiff could reap the benefit of the conveyance to himself,' which formed the consideration for his promise, and deprive the defendant of the fruits of a sale, the promise of which formed the mutual consideration of such conveyance, merely because such promise was not in writing. Such a result would be clearly inequitable, and contrary to the principle which enables accepted part performance of a contract to take a case out of the statute of frauds. To convert such a promise into u trust to bring about such a result, would be a great refinement of terms in order to work out iniquity, which the law never permits.

The reasoning of the referee, in his opinion, may possibly not lead to precisely the same result, as I have pointed out; but that is immaterial, so long as the evidence supports it, and such view is necessary to sustain the judgment. The previous relations, as well as the conduct and declarations of the parties, particularly the plaintiff’s letter after the sale of the land, admitting the receipt of moneys as its proceeds, for which he was accountable to the plaintiff, and the time and circumstances of executing the deed to the plaintiff, fully bear out such an interpretation of the understanding between the parties. Nearly, if not quite all the exceptions in this case, are based upon the supposition that the defendant had no right to prove any thing respecting the consideration of the deed, or the terms on which it was made, because it contradicted the writing. • But the promise before stated is perfectly consistent with its terms, and the exceptions were, therefore, properly overruled.

I concur in thinking that the judgment should be affirmed, with costs.  