PLEASANT JORDAN vs. JOHN G. WILSON.
Where A., the plaintiff, had a deed of tnist under which he claimed the debtor’s property, and at a sale by execution of the same property, declared that he objected to the sale, unless the purchaser would agree to pay his debt, and he had a private conversation with the person who afterwards bid off the property — Held that the plaintiff had no right, in an action of assump-sit against the person, who purchased property, to recover the amount of his debt.
Appeal from the Superior Court 'of Law of Hertford County, at Spring Term, 1844, his Honor Judge Bailey presiding.
This was an action of assumpsit. The evidence was that the plaintiff, the defendant and several other persons were present at the sale of a house and lot in Murfresborough belonging to one George Spiers,- sold by virtue of an execution at the instance of the defendant, tested November Term 1842. The plaintiff stated, in the presence and hearing of the persons attending the sale, that he had a claim upon the house and lot by virtue of a deed in trust, executed by George Spiers, the defendant in the execution, conveying to *323biin the house and lot in trust to pay, amdng other one to himself for sixty five dollars, and unless the purchaser, whoever he might be, would agree to pay him the amount of his debt so secured by the deed in trust, he would forbid the sale. Mr. L. M. Cowper then stated, that it was true that Jordan, the present plaintiff, held a deed in trust, securing to him a debt which Spiers owed him of about sixty five dollars. The plaintiff said further that if the purchaser would pay his claim upon the land he would make no objection to the sale. A witness testified that the plaintiff and the defendant got together and had a conversation, but he did not hear what it was. Several witnesses testified that they understood, and they supposed all present understood, that the purchaser was to pay the plaintiff’s claim under the trust. It was proved that George Spiers’ interest in the house and lot was sold by the Sheriffj that the defendant became the purchaser for the sum of seven hundred and thirty five dollars, and that this amount was entered as a satisfaction on the execution. The plaintiff, having released George Spiers, at the last Term, his debtor, introduced him as a witness. He stated that he had executed the deed in trust, and was indebted to the plaintiff the sum of sixty five dollars therein mentioned. The deed of trust was then offered in evidence. It bore date the 25th day of November, 1830, was proved on the 5th of March 1831, was deposited with the Register on the 25th of May 1831, as appears by his endorsement on the deed, and was transcribed in the Register’s books on the 30th of May 1831. Mr. Spiers stated, that he had given a deed in trust before, conveying the same property to secure the same debt, but did not know what had become of it, but after the burning of the Court house and records of Hertford County, he was called upon to give another, and he executed the deed just exhibited.
The defendant contended, that no contract was made between the plaintiff and himself and that there was no evidence of such a contract — that if there was a contract, it was not binding, because there was no consideration to support *324it — that, if there was any promise, it was a promise to pay debt, default or miscarriage of another, and was void because «ot reduced to writing — and, if these points were against him, the defendant contended, that, the plaintiff having released the debt of George Spiers during the pendency of this suit, and this having been pleaded since the last continuance, the action could not be now maintained.
. The Court charged the jury, that what occurred immediately prior to the sale was for them to consider — that there was some evidence of a contract between the parties to this suit — and that, if they were satisfied that the defendant expressly or impliedly promised the plaintiff to pay him $65, if he would not forbid the sale, and the plaintiff had a deed tor the same land and Spiers was justly indebted to him the amount mentioned, and that the plaintiff did not forbid the sale nor make any objection thereto in consequence of this understanding, there was in law a sufficient consideration to support the promise — that this was not one of those cases embraced in the statute of frauds, which provides that “ no action shall be brought to charge the defendant upon special promise to answer the debt, default or miscarriage of another person, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party charged therewith, or some other person thereunto by him lawfully authorized ”— and that the release given by the plaintiff to his debtor, George Spiers, would not prevent the plaintiff’s recovery.
The jury found a verdict for the plaintiff, and a new trial being refused and judgment rendered pursuant to the verdict, the defendant appealed.
Bragg for the plaintiff
contended 1st, That as the jury had found there was a contract and some evidence to that effect had been offered, this Court could not grant a new trial on the ground that there was no contract. 2dly, That the consideration was sufficient. If the slightest benefit he conferred on the defendant by the plaintiff^ or if the plaintiff *325sustain tbe least injury, inconvenience or detriment, or subject himself to any obligation, even without beneñíting the defendant or any other person, the consideration is sufficient, Cliitt. on Cont. 7. The deed in trust to the plaintiff was good.
Having been handed to the Register within sis months after’ its execution, it was in law then registered. McKinnon v McLean, 2 Dev.' & Bat. 79. But if the deed were void for want of registration, the promise is binding, as the compromise of a doubtful right is a good consideration. The agreement benefited the defendant by causing the property to sell for a fair price, the title being then undisputed,- and the sale bound the plaintiff in a Court of Equity. It would be a fraud in him to assert his legal title after assenting to the sale, which operated as an equitable estoppel as to him. Sug. Law of Vend. 522. Roberts on conveyances 528, and cases there cited. Jones v Sasser, 1 'Dev. & Bat. 452. Sas-ser v Jones, 3 Ired. Eq. 19. Thirdly, to shew that the contract was not within the Statute of Frauds, he cited Williams v Leper, 3 Bar. 1886. Cooper v Chambers, 4 Dev. 261. Farley v Cleveland, 4 Co wen, 4391. Leonard v Vredenburgh, 8 Johns. 29. Myers v Moore, 15 Johns. 425. Ohnslead v Greely, 18 Johns. 12. Ellwood v Monfc, 5 Wend. 235. Mareen v Mack, 10 Wend. 461.
No counsel appeared for the defendant in this Court,
DaNXEL, J.
The defendant on the trial of this cause, raised several objections to the plaintiff’s recovery. One was, that there was no contract between the parties, on which this action could be sustained. His Honor told the jury, that there was some evidence of the contract. We must say, that we are unable to ' see any legal evidence of a contract on the part of the defendant, that he would pay the- plaintiff his demand, if the plaintiff would not object to the Sheriff’s sale. The plaintiff declared, that he- would object to the sale by the sheriff, if the purchaser under such sale, whoever he might be, would not agree to pay him liis debt; which *326debt, he said, was secured to him by a prior deed in trust on sa^- P10Perty- Whereupon the plaintiff and the defendant got together, as the witness said, and had a conversa-t-Qi^ was not heard by the witness. The assent of the defendant to the proposition of the plaintiff, to make a legal contract, ought to have been established, either by words spoken or act done by him, which raised a reasonable inference or presumption of assent: The fact, that the defendant and plaintiff got together and had a conversation, after the declaration made by the plaintiff as above stated, that the purchaser under the sheriff should pay his debt, was not, as we think, an act done by the defendant, which could in law raise any presumption that he assented to the plaintiff’s proposition. There must be a new trial.
Per Cukiakt, New trial awarded.