Carpenter v. French.

son why the plaintiff should not recover the amount allowed by the auditor.

It is claimed by the defendant that, by the second writing, the plaintiff bound himself to either produce the original writing, or be bound by what the defendant should claim it to be, no matter how absurd or ridiculous the claim should appear. This would be strange law; that the plaintiff would be bound to pay, or do whatever the defendant should claim it to be, without proof. This would place the plaintiff wholly in the power of the defendant, and at his mercy.

The auditor does not find that the original contract contained any stipulation that the plaintiff was to fodder the defendant's cattle for nothing, and every circumstance shows that it could not have been so understood by either party.

The plaintiff claims that the original contract was void for want of delivery by the plaintiff. The second writing describes a contract signed by the defendant alone, and not a contract signed by both parties, consequently it purports to be a contract that the plaintiff held against the defendant, and not one of any binding force on the plaintiff. Therefore the second writing, unless aided by parol, shows nothing, and refers to nothing, and proves nothing of itself; and we claim that parol evidence will not aid it.

But if we bring in parol proof, the auditor has found that there was a writing made and signed by both parties, and left with the plaintiff. If so there was no delivery of the agreement that would be binding on the plaintiff.

The opinion of the court was delivered by

BENNETT, J. We think the defendant is entitled to judgment on the report. The question in the case is, whether, by the terms of the written contract in relation to the sale of the farm, the plaintiff was bound to fodder the defendant's cattle, as a part of that contract, and without any new consideration, or compensation; and whether it was to be done without compensation or not, was a point about which the parties were at issue. It was the duty of the plaintiff, as he was the keeper of the contract, to have it at his command. Before the deed was executed and delivered to the defendant, he called upon the plaintiff for the writing which contained

Buchanan & Co. v. Clark & Tr.

the terms of the bargain, and the plaintiff said he had lost it. The parties could not agree upon the terms of a substitute in relation to the foddering, and, before the deed was delivered, the plaintiff gave the defendant the contract by which he obligated himself to produce the same, or take the defendant's recollection and construction of it. This agreement was made as a part of the transaction before the deed was delivered, and it cannot be regarded as a nudum pactum, and the defendant was fully justified in acting upon it. We think, then, the plaintiff must stand to the written contract as recollected and understood by the defendant.

Judgment of the court below reversed, and judgment for the defendant.

MOSES BUCHANAN & Co. v. ORANGE S. CLARK; ORANGE G. CLARK, Trustee.

Validity of conveyance to provide for future support.

A person not in debt may make a voluntary conveyance of his property for the purpurpose of securing his future support which will be valid against his subsequent creditors.

TRUSTEE PROCESS. Some years previous to 1836, the principal debtor Orange S. Clark, the father of the trustee, purchased a small piece of land in Groton village, for $75. He made improvements, by building a dwelling house, and other necessary buildings for a family, so that it answered for a homestead, and was occupied by him as such. One Kimball, a relative of the family, assisted him to pay for the place, and took a deed of it in his own name, but held it in trust for the said Orange S., who paid Kimball to his satisfaction. In April, 1836, the said Orange S. was fearful that Kimball was going to fail in business, and he solicited his son Orange G. (the trustee) to take a deed of the place to himself, in trust for him and family. Orange G. was just in his majority and was unwilling to take a deed or have anything to do with it,-but,

Buchanan & Co. v. Clark & Tr.

on the urgent request of his father and mother, he consented, on condition that the place was to be absolutely his and under his control, excepting that his father and mother and the minor children were to have a home, or he was to furnish a home for them so long as his father and mother lived. At this time, the said Orange S. was free of debt, and the reason why the property was not in his hands was that the family were apprehensive he would squander it, as he was in the habit of frequent intoxication.

The deed of the place was executed to the trustee on the 2d of April, 1836, and he paid no other consideration for it, than his agreement to furnish his parents with a home, as above stated. The place continued the home of the family as before, till about 1845, when, at the request of Orange S. and his wife, the trustee sold the same for $300, and purchased another place with more land, and out of the village, for $700, and the avails of the Kimball place were applied in payment of the last place, which was purchased of another son, Frost Clark.

Previous to the last purchase, the family had moved on to the place, and continued to live on it, applying the products of the place to the support of the family, without any accounting to the trustee for any portion of it;—the trustee all the time furnishing a good house, for the use of the place and family, until about four years since, when the mother deceased, and the trustee immediately took possession, taking care of his father, and giving him a home in his family.

The Frost Clark place was paid for by the trustee out of his own funds, excepting the $300 for which the Kimball place was sold; and at this time a portion of the plaintiff's claim against the principal defendant, Orange S., had accrued.

Upon the foregoing facts reported by the commissioner, the county court, December Term, 1855,—Poland, J., presiding,— discharged the trustee, to which the plaintiff excepted.

J. Potts for the plaintiffs.

The Kimball place remained the property of the principal debtor up to 1845, and subject to be set off on execution by his creditors, but not liable to be levied upon by the creditors of the trustee. It appears that, in 1845, the present trustee conveyed the trust estate

Green v. Merriam.

to a third person, by virtue of an agreement or contract made between him and the principal debtor, and received therefor the sum of $300, and this, too, after the plaintiffs' debt had accrued.

This transaction, we think, was fraudulent and void as against the rights of the plaintiffs; the only consideration therefor was the trustee's mere promise to furnish a future home for himself and family, and in this respect is similar to the case of Crane v. Stickles & Trustee, 15 Vt. 252, and Jones v. Spear & Trustee, 21 Vt. 426.

Dickey for the trustee.

The opinion of the

REDFIELD, CH. J.

court was delivered by

As the voluntary conveyance in this case, or contract for future support on the part of the principal debtor, with the trustee, was prior to the accruing of the plaintiffs' debt, or any part thereof, and seems to have been made in good faith, and strictly performed, we do not see how he can be charged as trustee. Such a contract is perfectly valid, as to subsequent creditors. Judgment affirmed.

AUSTIN M. GREEN v. WILLIAM MERRIAM.

Statute of frauds.

The plaintiff sold at auction, to the defendant, sixteen sheep for $80.00. The sheep were then in a yard of the plaintiff, and he and the defendant drove them into another yard of the plaintiff, and the defendant then told the plaintiff, if he would keep them until a certain day, he (the defendant) would then come and get them and pay all bills. This was assented to by the plaintiff, and the sheep were so kept, but at the expiration of the time the defendant declined to take them. Held, that the property was sufficiently accepted and received within the meaning of those terms as used in the Compiled Statutes, § 2 chap. 64, entitled "The prevention of frauds," &c.

Green v. Merriam.

which the auditor allowed as charged, subject to the opinion of the court upon the following facts.

Sometime prior to the 23d of February, 1854, the plaintiff advertised that on that day he would sell at auction, at his residence in Sheffield, a large amount of personal property enumerated in his advertisement, and on that day he employed one James Roberts, as his auctioneer, to sell said property; and the plaintiff and said Roberts procured one Laban M. M. Gray, as a clerk, to keep an account and record of the sale.

The defendant bid off the ox-yoke and the sheep at the prices charged in the plaintiff's account, he being the highest bidder on each of the above named articles, and they were struck off to him by the auctioneer, and entered to him by the clerk, at the time, in a book in which he kept the sales, and this the defendant knew, and he made no objection to the same at the time. Awhile after the sheep were so struck off, the defendant inquired if the plaintiff had another yard where the sheep could be put away from the horned cattle, so as not to be injured by them; the plaintiff told him there was one, and they, with others, drove the sheep into another yard.

Near night, as the defendant was about starting for home, he told the plaintiff that the roads were so drifted, and the distance to his residence so great, that he should be unable to get the sheep home that night, and that if the plaintiff would keep the sheep until Saturday night he would come then, and get them, and pay all bills. The plaintiff replied that the sheep would have to stay with some colts, if they were left; to which the defendant said "I will risk the sheep if you will the colts."

The defendant came the next Saturday night and said that he was not obliged to take the sheep, that they were not what he supposed they were, and refused to take them, though requested to do so by the plaintiff; and he then took the ox-yoke and paid for it. The plaintiff claimed that the changing the sheep into the other yard, as well as employing the plaintiff to keep them, amounted to such a delivery by the plaintiff and acceptance by the defendant as the statute contemplates, and the defendant claimed that it did not. The plaintiff further claimed that the memorandum made by the clerk of the auction was a compliance with the statute, and the defendant claimed that it was not.