H. B. BAILEY v. H. W. BAILEY

H. B. BAILEY v. H. W. BAILEY. Statute of Frauds. Promise when not xoithin. A surety on a non-negotiable note conveyed his real and personal estate to the defendant in consideration of the grantor’s future support and payment of liis debts. Subsequently the defendant made a verbal promise to the plaintiff, who became the owner of the note by inheritance, that lie would pay it, if the principal on the pote did not. Held, that tlie promise was valid, and not within the statute; that the conveyance of the property was a sufficient consideration. Assumpsit. Heard on the report of a referee December Term, 1881, Orange County, Bowers, J., presiding-. Judgment pro forma for tlie plaintiff. The referee found that Isaac A. Bailey by bis warranty deed conveyed his real estate to tbe defendant, on condition tbat defendant support tbe grantor during bis life “ and pay all debts tbat remain due against ” him; ■“ tbat in consideration of tbe conveyance of said property to tbe defendant-, as aforesaid, tbe defendant verbally promised plaintiff after plaintiff became the owner of said notes, as aforesaid, that be, tbe defendant, would pay said notes to plaintiff if bis brother Harvey did not.” Tbe other facts are stated in the opinion ■of the court. Farnham c& Chamberlin, for the defendant, argued tbat tbe promise was collateral, and within flic statute; and cited Jones v. Cooper, Oowper, 227; Peckham v. Faria, 3 Dongl. 13; 1 Swift’s Dig. 249; Aldrich v. Jewell, 12 Yt. 125; Sinclair v. Iiiehardson, lb. 33; Fullam v. Adams, 37 Yt. 391; Couturier v. Hastie, 16 Eng. L. & Eq. 562; F-urbush v. Goodnow, 98 Mass. 296 ; Nelson v. Boynton, 3 Met. 396 ; Davis v. Caverly , 120 Mass. 414; Carville v. Crane, 5 Hill, 483; Barker v. Bucklin, 2 Denio, 45; 1 Smith Lead. Cas. 379; Hayden v. Welden, 43 N. J. L. 128; Douglass v. Skinner, 44 Conn. 338; Simyison v. Hall, Ml Conn. 417; Millard v. Baldwin, 3 Gray, 484; Dow v. Clark, 7 Gray, 198; Maxwell v. Longenecker,82 111. 308; Monrovj v. Dtorham, 3 1011, 584; Anderson v. Davis, 9 Yt. 136; Newell v. Ingraham, 15 Yt. 422 ; Smith v. Hyde, 19 Yt. 54; Blunt v. Boyd, 3 Barb. 209; Petriken v. Baldy, 7 Watts & S. 429. This is not a case where tbe defendant bad property put in Ins hands for tbe specific purpose of disposing of and paying certain debts, but the property became bis by the deed of Isaac. A. Bailey, and bis creditors bad only an equitable lien in it, which Isaac A. alone could enforce. Beers v. Robinson, 9 Barr, 229; Campbell yr. Haycock, 4 Wright, 448. Assumpsit not maintainable. Whipple v. Mellen, 1 Gray, ■317; Finney v. Finney, 4 Harris, 390; Treat v. Stanton, 14 Conn. 445 ; Morrison v. Buckley, 6 Watts, 349; Cumberland v. Gardington, 3 Johns. Ch. 255. If tbe plaintiff lias any remedy it is in equity. Fitch v. Chandler, 4 Ousli. 254; Frost v. Gage, 1 Allen, 262; Beach v. Hotchkiss, 2 Conn. 4-25; Clapp v. Lawton, 31 Conn. 95; Ruside v. Ruside, 13 Wright, 322. E. W. Smith, for the plaintiff. It was an original promise, and founded on a sufficient consideration. Browne Stat. Frauds, 124,163, 188; 7 Wait Act. & Def. 21; Hargraves v. Parsons, 13 M. <fc W. 561; Randall v. Kelsey, 46 Yt. 158; Eastwood v. ICenyon, 11 A. Ell. 438; Beamon v. Russell, 20 Yt. 205; Wait v. Wait, 28 Yt. 350; Allen v. Thompson, 10 N. LI. 32; Robinson v. Gilman,. 43 N. LI. 485; Earley v. Cleaveland, 4 Cow. 432; Seaman v. Hasbrouch, 35 Barb. 151; Townseyul v. Long, 77 Pa. St. 143; Sweetman v. Parker, 49 Miss. 19 ; Besshears v. Rowe, 46 Mo. 501; Woodward v. Wilcox, 27 Ind. 207; Urquhart v. Brayton, 6 Rep. 601; ILilton v. Densmore, 21 Me. 412 ; 45 Pa. St. 30; 30 Yt. 277; 17 Mass. 400. [MAJORITY — Tart, J.] The opinion of the court was delivered by Tart, J. The debt sought to be recovered in this action is one for which Isaac A. Bailey, father of the defendant, was liable as surety. The defendant was not liable upon it originally. In the year 1863 the defendant took a conveyance of the real and personal property of Isaac A. upon condition that he would pay all Isaac A.’s debts that remained due. This debt in question, which was not negotiable, became the property of the plaintiff on the 31st day of May, 1876, and after that date the defendant promised the plaintiff that he would pay it, if his brother Harvey, who was the principal upon the notes evidencing the debt, did not. The defendant contends that this was a promise to answer for the debt of another, and, being in parol, was within the Statute of Frauds. It has been held in this State that where a debtor places property of any kind in the hands of a third person, and that person promises to pay the debt, such promise is not within the statute. Merrill v. Englesby & Tr., 28 Vt. 150; Wait v. Wait’s Executors, Ib. 350; Smith v. Est. of Rogers, 35 Vt. 140; Fullam v. Adams, 37 Vt. 391. The case in brief is this: Isaac A. Bailey conveyed. bis property to the defendant upon condition that the latter would pay the debts of the former. The claim in question was one of them; and when the plaintiff became the owner of it, the defendant promised the plaintiff to pay it. The conveyance of the property to the defendant constituted a sufficient consideration for the promise; and such conveyance, the receipt of the property by the defendant, and the appropriation of it to his own use, bring this case within the rule above stated, and the promise was valid though not in writing. The promise made by the defendant, as found by the referee, ■was, that the defendant would pay the debt if Harvey did not. Harvey has not paid it and payment cannot be enforced against' him, and so the promise of the defendant, became absolute, and we see no legal reason why he should not lceep it. Judgment affirmed. Powers and Rowell, JJ., did not sit.