
    William Cooley, App’lt, v. Elmina E. Lobdell, as Admistratrix, etc., Resp’t.
    
      {Supreme Court, General Term, Fourth Department,
    
    
      Filed December 7, 1894.)
    
    1. Statute of frauds—Ratification. "
    A prior oral contract to convey is not validated by a writing which does not express the consideration or sufficiently describe the property.
    2. Specific performance—Payment of consideration.
    Payment of consideration is not such part performance of an oral contract to convey as to entitle the vendee to equitable relief.
    '3. Limitation—Action to recover proceeds of lands sold.
    The statute of limitations begins to run against an action to recover the proceeds of land which the defendant had agreed to convey to plaintiff, but afterwards conveyed to a third person, from the time the right of action for specific performance accrued.
    Appeal from a. judgment dismissing the complaint, and from an order denying a motion for a new trial.
    
      A. D. Wailes, for app’lt; Carver, Deyo & Jenkins, for resp’t.
   Merwust, J.

Olive Cooley, a daughter of the plaintiff, married Gideon Lobdell, defendant’s intestate, in 1864. They had one child, who died in 1878. Lobdell, in 1871, became the owner of a farm of 160 acres in the town of Conklin, in the county of Broome, and on the 'east side of it there was an old house. In 1874, Solomon Bunnell, the grandfather of Olive, died, and she was one of his heirs," From him, before be died, or from his-estate, after he died, and prior to 1876, she received about the sum of $4,000. There is evidence tending to show that in the'fall of 1874, or early in 1875, it was verbally agreed between Olive and her husband that she would let him have her money to enable him to build a new house on the west side of the farm, and that, when the house was done, he'would deed it to her, together with 60 acres, the western part of the farm. One witness testifies as follows: “While I was there on my visit, Gideon said to me: ‘Mother, I am going to tell you what I have been thinking of doing, or would like to do; that is, divide the farm, run off sixty acres, and build a house on it, and move there. But I can’t do it unless Olive will let me have the money to build the house with.’ Olive says: ‘ He offered me his note if I would let him have the money, and I won’t do it, and take his note.’ He hesitated a few minutes, and he said: ‘I will tell you -what I will do. I will give you a deed of the sixty acres when the house is done, if you will let me have the money to build the house with/ And she said: “I will let you have the money if you will give me a deed when the house is done.’ He said he would give her a deed of the sixty acres of land when the house was done if she would let him have her money to build the house with. She told him she would. The money spoken of was money she expected from her grandfather. It was after his death. In this talk I have thus given, it was said that he was to work the farm, and have the proceeds, and he was to pay off the mortgage,—to see that the mortgage upon it was paid off if he had the proceeds of the farm. In this conversation it was said the money she had let him have and would let him have was four-thousand dollars.”

Prior to 1876 the husband received the money, and the new-house was built in 1876, at an expense of about $2,600, and the parties moved into it in September, 1876. Stakes were set indicating the division line between the sixty acres and the balance of the farm. There is evidence that the husband stated that the house was built just as his wife wanted it, and that he called it hers. There is no proof that Mrs. Lobdell made any improvements, excep't she set out a rosebush and some pieplant roots and various other roots for Sower beds to ornament the yard. Mr. and Mrs. Lobdell lived in the house until April 1, 1880, when they moved to Binghamton, where they lived until the death of Mrs. Lobdell, on August 27, 1882. The sixty acres were never deeded to her, though request was made as early, at least, as February, 1877, and he verbally promised to do it. In August, 1880, when Mrs. Lobdell was at her father’s, her husband wrote to her a letter, signed by him, in which he says, among other things: “ If you will come back, I will surely do as I agreed to. I will give ymu a deed of the sixty acres of land." Mrs. Lobdell died intestate, leaving the plaintiff as her sole heir at law. On the 31st January, 1892, Mr. Lobdell died, and the defendant was afterwards duly appointed his administratrix. Prior to his death, he sold and conveyed all of the sixty acres. Three acres he sold in 1879, his wife, Olive, joining in the deed; and the balance was sold in 1887 and 1888, the last being April 1, 1888. He received upon these sales about $4,500, and that is the amount the plaintiff seeks to recover here. This action was commenced ¡November 9, 1893. The defense is twofold: First, that a case for specific performance was not made out; and, second, that the statute of limitations is a bar.

1. There was no writing to take the case out of the statute of frauds, unless the letter of August, 1880, be such. That, how-" ever, was imperfect. It did not express the consideration, nor was the property sufficiently described. Wright v. Weeks, 25 N. Y. 161; Rollin v. Pickett, 2 Hill, 552; Wat. Spec. Perf. § 236.

Was there such a part performance of the verbal contract as to authorize equitable relief? The payment of the consideration was of itself not enough. Winchell v. Winchell, 100 N. Y. 163; 2 Story Eq. Jur. § 760. In Miller v. Ball, 64 N. Y. 292, it is said: “ The payment of the consideration alone, in a case where its recovery in an action at law would fully indemnify the party paying, would not be a sufficient part performance within the rule under consideration, and neither would mere possession be, without any other circumstance of hardship or fraud. But payment of the consideration and possession under the agreement, or by the consent of the vendor, are facts which may be considered with other facts upon the question of part performance.”

The part performance must be substantial, and nothing will be considered as part performance which does not put the party into a situation which is a fraud upon him unless the agreement be fully performed. Wheeler v. Reynolds, 66, N. Y. 231; 2 Story Eq. Jur. § 761. .If improvements are relied on, they should be of a substantial and permanent nature. Wat. Spec. Perf. § 281; 2 Story Eq. Jur. § 761, note 4; Dana v. Wright, 23 Hun, 32. In Adams’ Equity (6th Am. Ed. p. 212) it is said that the principle of part performance does not apply “ to any acts which do not alter the position of the parties,—such, for instance, as the taking of surveys, the preparation of conveyances, the payment of earnest, and even the payment of purchase money itself; for, although all these acts are in some sense a performance of the contract, yet, their consequences may be set right by damages at law, and they ■do not place the parties in a position from which they can only be extricated by its completion.” The taking possession and making improvements is said to be a necessary condition. Dunckel v. Dunckel, 56 Hun, 29; 29 St. Rep. 477.

In this case there was nothing done by the wife that could fairly be considered improvements as applicable to such a case. There was no possession; certainly none that would make her a trespasser if there were no contract. She was not in control of the property. By the arrangement the husband was to pay off the mortgage with the proceeds of-the farm, and so necessarily he was to remain in possession. The case of Smith v. Smith, 51 Hun, 164; 20 St. Rep. 597; affirmed in 125 N. Y. 224; 34 St. Rep. 857, is relied on by the plaintiff. In that case the husband, with the assent of his wife, with his own means, built a block upon the land of the wife upon her verbal agreement that, if he did so, he should have a lien thereon for the amount, with a right to sell if necessary, and recover back the advancement. This was in 1879, and the property was increased in value to the amount of the advance. The husband thereafter managed the property, using the rents and profits for the benefit of the family until 1887, when there was a disagreement, and the wife repudiated the agreement. It was held that the husband had a lien that equity would enforce, it being said that the wife incurred no individual liability by reason of the arrangement. The husband had no remedy unless he had a lien. In the present case the situation is different, especially in the fact that the wife, upon the refusal of the husband to perform, could have sued for the money advanced. There is no evidence to what extent the farm was benefited. Besides, if the transaction be treated as a security for money advanced, the right of action on the death of the wife would go, not to the heir, but to the personal representatives, and so inure to the benefit of the surviving husband. Robins v. McClure, 100 N. Y. 328, 336. The Smith Case does not, I think, help the plaintiff, but his case must be determined by the rules ordinarily applicable to the specific performance of such agreements. For aught this case discloses, an action for the recovery of the money would have fully protected the wife, and no such fraud can be said to have existed as would furnish a basis for equitable action under well-settled principles applicable to such subjects.

2. The house was completed in the fall of 1876. Then, upon failure of the husband to perform, if the wife had good ground for specific performance, she might then have brought her action. Bruce v. Tilson, 25 N. Y. 194; McCotter v. Lawrence, 4 Hun, 107. The present action was not brought till November, 1893. The application of the 10-years statute of limitations is sought to be avoided upon the idea that plaintiff’s right of action accrued upon the sale by the husband of the land. The last sale was on April 1, 1888. In some cases the value of the property, or what it was sold for, may be the measure of damages, but the sale does not give the cause of action. The plaintiff has no right except as he may establish a case for specific performance. As said in Matthews v. Matthews, 133 N.Y. 679; 45 St. Rep. 842, the substituted damages founded upon the value of the property could not be awarded until it was determined that the plaintiff was entitled to a specific performance. “ The law giving the purchaser an immediate action, it is no answer to the claim that the statute of limitations then commenced running that the form of relief which he could then have had was not precisely the same as that now attainable.” Peters v. Delaplaine, 49 N. Y. 369. A new cause of action cannot be created by a subsequent demand of specific performance. Bruce v. Tilson, 25 N. Y. 194. “ If there are suecessive owners of'the cause of action, or of equitable relief, and the right to prosecute arises in the time of the first, the period of limitation commences at that time, and continues attached to the demand during the several subsequent changes of both; and, when the statute period has elapsed, the demand is barred, though the last proprietor had recently acquired his right.” Denio, J., in Bucklin v. Bucklin, 1 Abb. Dec. 251. This is not. the case of moneys received by an agent- from a third party, within the rule laid down in Nearing v. Brown, 10 St. Rep. 637.

But it is urged that Gideon Lobdell was a tenant by the curtesy, and so the time from his wife’s death to his own death should be excluded. It is not clear that any such right existed. If, as held in Wheeler v. Reynolds, 66 N. Y. 227, the paroi agreement was. void in equity as "in law, and the right of the court to give relief is founded, not on the agreement, but on the fraud, it is difficult to see how the wife had any seisin, legal or equitable, that would furnish a basis for curtesy. In Harvey v. Brisbin, 143 N.Y. 152; 62 St. Rep. 270, the right of a tenant by the curtesy is said to be a legal right. Besides the right to sue being in the wife, the running of the statute commenced before his death. A person cannot avail himself of a disability, unless it existed when his right of action or of entry accrued. Code Giv. Proc. § 408. The general rule is that, when time has once commenced to run in any case, it will not cease to do so by reason of any subsequent event which is not within the saving of the statute. 1 Wood, Lim. Act. (2d Ed.) § 6. The existence of a possible right of curtesy would not prevent the plaintiff establishing his right, if he had one; it might affect the extent of his relief. A number of cases are cited with reference to the enforcement of debts of ancestors against heirs or devisees, but they do not seem to apply here.

The foregoing considerations lead to the conclusion that the defense in both aspects is-made out, and that the nonsuit was properly granted.

All concur.

Judgment and order affirmed, with costs.  