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Ascutney Bank et als. v. McK Ormsby.

it. There is no case where it has been held that an action will lie for the breach of the contract in such cases ; Cocking v. Ward, 1 C. B. 858; 12 id., reported in 10 Eng. Law & Eq. 521; Davis v. Farr, 26 Vt. 592; 13 Vt. 21; Kidder v. Burt, 1 Pick. 328.

3. When such a contract has been executed by the vendor, it has been held, a promise to pay the purchase money is implied by law from the execution and acceptance of the conveyance, on which implied promise an action of general assumpsit will lie; Parsons on Contracts, vol. 2, p. 315-319. This is the only theory that can be found for the American decisions on this subject; but is a theory based upon these decisions, and not on the principles of the common law. The common law teaches that promises are only implied in the absence of contracts.

The opinion of the court was delivered, at the circuit session in October, by

ISHAM, J. It is unnecessary to say, in this case, what would have been the plaintiffs' right, had they instituted proceedings to recover the possession of the premises, or to avoid the deed which, it is admitted by the demurrer, was fraudulently obtained from them and placed on record. The plaintiffs had the right to waive the tort under which the deed was obtained, and treat the premises as having been conveyed under their contract. It is not for the defendant to object to that course, or claim any advantages he otherwise would not have had, arising from his wrongful act in obtaining the deed and the possession of the premises in that manner. It was competent for the plaintiffs also to waive their right to retain the deed in their possession until the securities for the payment of the balance of the purchase money was deposited with them as stipulated. If they saw fit to deliver the deed before the securities were furnished, or to treat the deed then in the possession of the defendant, as having been delivered under their contract, they had a right so to do, and to hold the defendant to the performance of his contract. In commencing this suit to recover the price agreed to be paid for the premises, the plaintiffs proceed upon the ground that the deed has been delivered, that the defendant has acquired a title to the premises under it, and that they now rely upon the defendant's promise to pay the stipulated price for the land con

Ascutney Bank et als. v. McK Ormsby.

veyed to him. In thus treating the matter as a contract, the plaintiffs must take the contract altogether, and be bound by all its provisions. If the defendant, at the time the request was made, or at any other time within the period limited by the contract, had furnished the securities for the balance of the purchase money, it is clear that this action could not be sustained. The defendant would have been entitled to the whole time of credit for the payment of the money, as it was stipulated when the purchase was made, and no action, in the interim, could have been sustained. Strutt v. Smith, 1 Crom. Mees. & Ros. 312; Ferguson v. Carrington, 9 Barn. & Cres. 59. But the neglect and refusal of the defendant to furnish the securities when requested for that purpose, or within the time stipulated, will prevent the defendant from claiming the benefit of the stipulated credit. The plaintiff has the right, on such a refusal, to commence his action immediately, and recover the balance due. In such case, the declaration should be special on the contract to furnish the security, and not in general assumpsit, and the rule of damages will be the sum agreed to be paid. Eddy v. Stafford, 18 Vt. 237; Mussey v. Price, 4 East 147; Hinckly v. Hardy, 7 Taunt. 312.

In relation to the question arising under the statute of frauds, it is sufficient to observe that this question has been decided by this court, during the present circuit, in the case of Hodges & Wife v. Green, ante p. 358. We can add nothing more upon that question to what was said in that case. The English authorities sustain the general principle, that a promise to pay the consideration money on the sale of an interest in real estate, is within the statute and void, at law, unless the promise is in writing. The case of Cocking v. Ward, 1 Man., Gran. & Scott 858; Kelly v. Webster, 10 Eng. L. & Eq. 517, and Smart v. Harding, 29 Eng. L. & Eq. 252, are very decisive as to the English rule on that subject. The courts of that country will sustain no action on the express contract for the money agreed to be paid on the sale of land, unless in writing. But, if there has been a subsequent acknowledgment of the debt, they will allow a recovery on that evidence, under the general counts, for the the amount due. The rule in this country, and particularly in this state, is otherwise ; and where the land has been conveyed, and the contract fully executed on the part of the grantor, and nothing re

Ascutney Bank et als. v. McK Ormsby.

mains to be done but the payment of the stipulated price for the land, an action at law can be sustained. Bowen v. Bell, 20 Johns. 338; Wilkinson v. Scott, 17 Mass. 249; Brackett v. Evans, 1 Cush. 79; Preble v. Baldwin, 6 Cush. 554; Hibbard v. Whitney, 13 Vt. 21; Thayer v, Viles, 23 Vt. 497 ; Davis v. Farr, 26 Vt. 596. In such case, all that part of the contract which was within the statute of frauds has been performed by the execution and delivery of the deed. The contract to pay the money, in such case, is not within the statute. We think the replication is a sufficient answer to the plea, and that the plaintiffs are entitled to recover the balance due on that purchase.

The jndgment of the county court must be reversed, and judgment rendered for the plaintiffs.

CASES

ARGUED AND DETERMINED

IN THE

SUPREME COURT

OF THE

STATE OF VERMONT,

FOR THE

COUNTY OF LAMOILLE.

AT THE

APRIL TERM, 1856.

PRESENT,
Hon. ISAAC F. REDFIELD, CHIEF JUDGE.
Hon. PIERPOINT ISHAM,

ASSISTANT JUDGES.
Hon. MILO L. BENNETT,

}

R. H. VAN BUSKIRK, Apt. v. J. C. MARTIN and his trustee

B. D. B. FOSTER; L. T. MARTIN, Claimant.

Appeal. Trustee process.

The plaintiff in a trustee suit before a justice, the subject matter of which is appeal

able, may appeal from the judgment of the justice in reference to the liability of the trustee, where the principal defendant is defaulted.

TRUSTEE SUIT, commenced before a justice of the peace and appealed.

Van Buskirk v. Martin & Tr.

In the county court, L. T. Martin who had appeared as claimant moved that the cause be dismissed for that " said cause was originally brought before a justice of the peace, and that said principal defendant was defaulted by said justice, and said trustee was discharged by said justice, and this court has no appellate jurisdiction of said cause."

The county court, May Term, 1855,-Peck, J., presiding, found the facts to be as stated in the motion to dismiss, in reference to the disposition of the cause hefore the justice, but overruled the motion, to which the claimant excepted.

J. A. Child for the claimant.

for the plaintiff.

The opinion of the court was delivered by

REDFIELD, CH. J. The question in the present case is whether the plaintiff, in a trustee suit before a justice, where the action against the principal defendant is defaulted, and the trustee discharged, is entitled to an appeal upon the question of the liability of the trustee.

Where the trustee is adjudged liable the statute gives the trustee the right to appeal. This statute was passed in 1842, in consequence of the decision of this court denying that right to the trustee, (14 Vt. 320.) But from the first, after jurisdiction in trustee cases was given to justices, the general provision giving either party the right to appeal was held to extend to the question in regard to the liability of the trustee. And the statute of 1842 was passed to give the trustee the same right of appeal upon the question of his liability which the statute, under the construction of this court, already gave the principal parties to the action. The statute certainly would have been a very one-sided affair to have extended a right of appeal to the trustee which was denied to the plaintiff, the antagonist party upon that issue. The words of the statute show this to have been the general purpose and intention of the act, to put trustees, in regard to the right of appeal, upon the same ground as other parties to the suit. The appeal was allowed to the claimant, by the decision of this court (23 Vt. 504,) upon the

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