New Cases; Selected Chiefly from Decisions of the Courts of the State of New York Volume 13 (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1884 edition. Excerpt: ...notrestoreA. to his former situation, and that this would operate as a fraud upon him unless the oral agreement were earned into complete execution. Accordingly he was entitled to relief notwithstanding the statute. Ryan v. Dox, 34 N. Y. 307 (cited and commented upon fully in the argument by the plaintiffs in this cause), is an important authority. The substance of this case is, that Ryan and another were owners of an equity of redemption subject to a mortgage, and that, a foreclosure being about to take place, Dox promised orally to attend the sale, bid in the premises for Ryan and his associate, and to hold them as security for the money advanced. Dox purchased accordingly with the understanding of the mortgagors and others present at the sale, who abstained from bidding on the supposition encouraged by Dox that the purchase was really for the benefit of the mortgagors. Dox in this way bought for $100 premises worth $4,000, and refused to fulfill his promise. The court held that this course of action was a practical fraud on the mortgagor and relief was granted. The court, on pages 318 and 319, says: "The fact that an agreement is void under the Statute of Frauds does not entitle either party to relief in equity, but other facts may; and when they do, it is no answer to the claim for relief that the void agreement was one of the instrumentalities through which the fraud was Reversing 25 Barb. 440. Ryan -. Dox was also followed in Sanford -. Norris, 4 Abb. Ct. App. De-. 144. Marie-. Garrison. effected (citing Ormond v. Anderson, 2 Bail & B. 369). Where one of the parties to a contract, void by the Statute of Frauds, avails himself of its invalidity, but iinconsclentiously appropriates wJtat he has acquired under it, equity will...