
    CANDA v. TOTTEN.
    (Supreme Court, General Term, Second Department.
    May 13, 1895.)
    Statutes of Eraud—Agreement Relating to Land.
    An oral agreement by defendant to purchase land at a public sale in his own name, and then convey it to plaintiff, is void under the statute of frauds, where plaintiff did not furnish any money to make the purchase, and did not omit to attend the sale or to procure the attendance of others in reliance on the agreement.
    
      Appeal from special term, Kings county.
    Action by Lizzie J. Canda against John Totten to compel defendant to convey real estate. Judgment was entered in favor of plaintiff, and defendant appeals.
    Reversed.
    Argued before BROWN, P. J., and DYKMAN and CULLEN, JJ.
    William C. Davidson, for appellant.
    Seymour & Hopkins, for respondent.
   DYKMAN, J.

It is the object of this action to obtain a judgment which shall require the defendant to convey to her four lots of land in the city of Brooklyn. The cause has been tried before a judge of this court, without a jury, and decided in favor of the plaintiff, and the defendant has appealed from the judgment entered upon such decision. According to the claim of the plaintiff, the facts of the case are these: The defendant made a parol agreement with the husband of the plaintiff, who was acting for her, that he (the defendant) would attend a sale of real property which was to be made by the assignee of Canda and Kane, and buy the same for her, take the title therefor in his own name, and then convey the same to the plaintiff. There was no written agreement, and the defendant was furnished with no money with which to make the purchase. The defendant attended the sale, which was at public auction, and bought four parcels of real property, for $540. He paid the auctioneer’s fee of $20 on each lot, and 25 per cent, upon the amount of his purchase, with his own checks,—one for $80, and the other for $135. That was on the 15th day of February, 1894; and on the 27th day of the same month the defendant paid the balance of the purchase money, and received deeds of conveyance for the lots in his own name. On the following day the husband of the plaintiff went to the office of the defendant, and handed him an envelope containing $620, and gave him $10 besides. There is no proof that the defendant consented to accept the money, and he says he did not consent to do so. He took the money, and placed it in his bank. The husband says he then requested the defendant to make a deed to the plaintiff. We have taken the version of the parol agreement and of this last transaction respecting the money left with the defendant from the testimony of the plaintiff’s husband, because it is the most favorable to her, although the defendant, in his testimony, gives a very different version of both. In respect to the other facts which we have stated there is no dispute.

It is to be observed, preliminarily, that there is no consideration shown for the agreement. There was neither loss nor harm to the plaintiff, nor benefit to the defendant. The plaintiff surrendered no right, and the defendant acquired no privilege, thereby. The plaintiff was at liberty to attend the sale, and buy the property, after the agreement; and it was the right and privilege of the defendant to attend the sale, and buy the property, without the agreement. There is no proof that the plaintiff omitted to attend the sale or to procure the attendance of others in reliance upon the agreement. There was no allegation in the complaint, and no proof upon the trial, of any fraud practiced upon the plaintiff by the defendant.

The question presented for solution under the foregoing facts is whether a court of equity will enforce the performance of a parol agreement between these parties whereby the defendant undertook to attend the public sale of the land in question, buy the same thereat, pay for it with his own money, take the title in his own name for the benefit of the plaintiff, and then convey the property to the plaintiff. The answer to the question depends primarily upon the contract. If that be valid, the answer will be in the affirmative; if invalid, in the negative. The contract must be tested by the statutes relating to fraudulent conveyances and contracts in relation to lands.

The particular sections applicable to this case are these:

“See. 6. No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power, over or concerning lands, or in any manner relating thereto, shall hereafter he created, granted, assigned, surrendered or declared, unless by act or operation of law, or by a deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering or declaring the same, or by his lawful agent, thereunto authorized by writing.”
“Sec. 8. Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party, by whom the lease or sale is to be made.”
2 Rev. St. 135.

As we have already seen, the agreement was that the defendant should convey the land in question to the plaintiff after he had bought it, and that contract falls directly under the condemnation of section 8 of the statute, which declares that such contracts shall be void unless the contract or a note or memorandum thereof be in writing. The agreement between the parties was therefore void, and the defendant was under no legal obligation for its performance. Neither can it be successfully claimed that the agreement created a trust which the defendant was bound to execute, because the sixth section of the statute condemns parol trusts in land, and no such agreement relating to such trusts will ever be enforced in equity. Sturtevant v. Sturtevant, 20 N. Y. 39. Even where courts of equity intervene to enforce the performance on the ground of fraud, such intervention is not for the purpose of upholding or enforcing the parol trust, but for the purpose of relieving against fraud. That end is attained by treating the perpetrator of the fraud as a trustee ex malificio, and not a trustee by virtue of the parol agreement. A breach of such a contract' for the sale does not create a trust, and a party commits no fraud by refusing to perform a void contract, because, in a legal sense, he has made no contract.

It is to be observed, further, that the plaintiff here makes no complaint of the conduct of the defendant in making the purchase of the property. That was in accordance with her version of the agreement. The defendant, therefore, committed no wrong at the sale. It is the subsequent breach of the contract of which the plaintiff complains, but it cannot be successfully contendedthat a breach of the promise will create a trust or raise any obligation which the contract itself was insufficient to raise. The foregoing views are sustained, and the principles laid down in the cases of Lathrop v. Hoyt, 7 Barb. 59, Levy v. Brush, 45 N. Y. 590, and Wheeler v. Reynolds, 66 N. Y. 229, and the cases cited in the opinion in the last case. In relation to the case of Ryan v. Dox, 34 N. Y. 307, which is invoked by the plaintiff in this case, it is sufficient to say that the case is so unlike the present one as to be incapable of application here. It is true there was in that case, as in this, an offer of performance; but, if the statute can be avoided in that way, it is practically a nullity. Levy v. Brush, 45 N. Y. 597.

It is further insisted that the contract has been partially performed, and therefore the court should decree its specific performance. We must therefore see whether there has been any performance of the agreement. There has been no payment of the purchase money, for, although the husband of the plaintiff left the money with the defendant, he never agreed to accept it. There can be no payment without an acceptance of the money. The very term implies a concurrence of two minds. The mere tender of payment constitutes an offer only, and all that distinguishes a payment from a tender is acceptance. What money the plaintiff has paid was without the assent of the defendant. She was a volunteer in the matter, and we suppose the term “part performance,” in the statute, requires action with the assent of both parties. Especially must that be so in relation to expenditures upon the property. Freeman v. Freeman, 43 N. Y. 39. In any view, however, if there was a payment after the purchase of the defendant was completed, it would be of no avail. Botsford v. Burr, 2 Johns. Ch. 405.

After a most thorough examination we are unable to affirm this judgment. In no view has the plaintiff any cause of action against the defendant. He has not induced the plaintiff to do one single act, and he has not placed himself under any legal obligation to her. He has not induced her to pay any money or make any expenditures in any way or for any purpose. In short, the plaintiff has lost no money, and has been placed in no disadvantageous position, by reason of any act or inducement of the defendant.

It is claimed on behalf of the plaintiff that the retention of the property by the defendant, and his refusal to convey the same to the plaintiff, was the result of a change of his original purpose; but if it was, and he did change his design, he had a legal right to do so. Courts speak for the law, and not for morals. This case is a good illustration of the wisdom of the statute of frauds. We have adopted the plaintiff’s version of the contract, but the defendant denied in positive terms that he made such an agreement, and his testimony is quite as natural and quite as consistent with the motives which actuate men in affairs of business as that of the plaintiff’s husband. So far as our researches have extended, the decisions of the courts in cases analogous to this have been uniformly in accordance with our conclusion. In the case of Lathrop v. Hoyt, 7 Barb. 59, where the defendant, at the plaintiffs request, agreed by parol that he would go and attend a sale of the plaintiff’s farm under a decree of foreclosure; that he would bid off the premises, and take a deed in his own name; that he would give the plaintiff an opportunity to repay him the amount of his bid, and have a reconveyance of the premises; and that the plaintiff should have two weeks’ notice to pay the amount,—and the defendant accordingly bid off the farm, and took a deed in his own name, it was held that the agreement was void, as being within the statute of frauds, and would not support an action. That decision was approved in the case of Wheeler v. Reynolds, supra, more than 25 years after it was made, and 10 years after the decision of the case of Ryan v. Dox, in the same court..

Judge Story, in his erudite and exhaustive work on Equity • Jurisprudence, promulgated the same rule, in the following language:

“Where a man employs another person by parol as an agent to buy an estate for him, and the latter buys it accordingly in his own name, and no part of the purchase money is paid by the principal, there, if the agent denies the trust, and there is no written agreement or document establishing it, he cannot, by suit in equity, compel the agent to convey the estate to him; for that would be decidedly in the teeth of the statute of frauds.” Volume 2, § 1201a.

The same doctrine was laid down by Chancellor Kent more than 75 years ago, in the case of Botsford v. Burr, 2 Johns. Ch. 405.

The judgment should be reversed, and a new trial granted, with costs to abide the event.

BROWN, P. J., concurs.

CULLEN, J.

I concur. The principle of Ryan v. Dox, 34 N. Y. 307, and Carr v. Carr, 52 N. Y. 251, has no application to this case. In the cases cited, the party in whose favor the agreement to purchase was made had an interest to protect at the sale, and the purchaser under this agreement became merely a mortgagee. This distinction is well pointed out in Bauman v. Holzhausen, 26 Hun, 505, decided by the general term of this department. Here the plaintiff had no interest in the property sold. She had not joined in the assignment, and her dower could not be divested by the sale. To justify a decree in her favor, she was bound to show such a part performance as would take the case out of the statute of frauds. This has not been found by the trial court, the decision being based solely on the original contract. The judgment, therefore, should be reversed, and a new trial had.  