Mann Fairchild.

even the fact that the purchase was in the name of another, amounts to an exception in the law; it establishes no justification. The object for which the statute was passed would fail and could always be evaded if such defenses could avail. Arden v. Patterson, 5 Johns. Ch. 44, 48. The case of Orcutt v. Pettit, 4 Den. 233, is not in conflict with this view. If the intimation given in that case, that the plaintiff is to be examined, is sound (the soundness of which I do not concur in), such examination was had in this case. The statute does not demand that the testimony of the plaintiff when so received shall be conclusive, and if the question of intent is for the court, and not for the jury, the referee, who stood in the place of the court, has decided that question. This statute is entirely unaffected by section 303 of the Code of Procedure authorizing attorneys, &c., to agree with parties as to their compensation.

Assuming what this court is bound to assume as facts, the purchase in this case was contrary to public policy and to good morals, and is in contravention of the positive statutes of the State, and cannot be enforced. Pennington v. Townsend, 7 Wend. 276.

There are several other minor points raised on the argument, one of which is as to the form of the judgment—that is, that it should have been a judgment of nonsuit, instead of dismissing the complaint. Without seeing that any injury could result to the plaintiff if the judgment was in another form, it is sufficient to say it is right that judgment should be in favor of the defendant, and for costs, and, if we are right in the position we have taken, another trial could be of no avail to the plaintiff. I think the judgment must be affirmed.

All the judges concurred.

Judgment affirmed, with costs.

VOL. III.-11

Mann v. Palmer.

MANN v. PALMER.

December, 1865.

The owner of lands made an agreement with the plaintiff to convey the lands to plaintiff, who agreed to pay off incumbrances, to make advances, &c., and to sell the lands from time to time, during the term of three years, the proceeds to be divided between the parties. The plaintiff subsequently agreed with the defendant to convey the lands to him, the defendant agreeing to make the required advances, and to sell off the lands, and to pay to the original owner his share of the proceeds. Held, that the expiration of three years, and the settlement of a suit between a committee subsequently appointed of the estate of the owner and the parties to this action, brought for the purpose of setting aside the original contract, amounted, under the circumstances, to a complete abandonment of the contract and a termination of the agencies.

The statute of limitations, though not pleaded, is available as a bar to an off-set interposed by a defendant which is not a counter-claim within the definition of the Code.

Acquiescence in the rescission of an executory contract is not necessarily a waiver of an existing claim for profits already made under it.

Abijah Mann, Jr., brought this action, in the supreme court, against George Palmer (for whom, on his death pending the action, Everard Palmer, administrator, was substituted as defendant), for an accounting in respect to money alleged to have been received by defendant under contracts relative to an adventure in the sale of lands.

The facts material to this appeal were, that on November 21, 1851, one Lockwood agreed, under seal, with the plaintiff, to convey to plaintiff certain lands subject to his wife's dower and to assign an award of damages for land taken by a railroad company, in consideration of which plaintiff agreed to pay off liens on the property and cause the property to be sold within three years, and, after deducting his advances, to pay to Lockwood one-half the net proceeds. Pursuant to this agreement Lockwood conveyed the lands to Mann, the plaintiff. On November 22, Mann entered into an agreement with Palmer, the defendant, reciting the agreement with Lockwood, and agreeing that Mann should convey the premises to Palmer, and

Mann v. Palmer.

Palmer should perform the agreement and pay over half the net proceeds to Lockwood.

On the same day the defendant Palmer made an agreement with William W. Mann, giving him the management, sale and disposition of the premises, and agreeing to pay him, for his services therein, one-half the net proceeds remaining after paying Lockwood, the original owner, his share; it being further provided that Palmer should advance all moneys which he might deem expedient and necessary for the purchase and preservation of the property and for the perfection and security of the title thereto.

Under these agreements some lands were sold and moneys were received by William W. Mann.

Subsequently to the making of this contract, Lockwood was adjudged an habitual drunkard; and one Stevens was appointed a committee of his estate. In July, 1853, Stevens brought an action against Abijah Mann (the plaintiff in this action), Palmer and others, to restrain the further sale of the lands, and to annul the contract on the ground of fraud, &c. That action was compromised in 1856 with the approval of the court upon the terms stated in the opinion of DENIO, J., and thereafter no further sales were made.

In the present action the plaintiff sought to recover some eleven thousand dollars paid on the settlement of the suit brought by Lockwood's committee and the conveyance to Wm. W. Mann, and the taxes and assessments since paid.

The referee found that the original contracts were canceled by the new arrangement with Wm. W. Mann, and that plaintiff could not recover the sums paid on the settlement of the suit by the committee, nor subsequent payments; but that he could recover the balance of proceeds of sales prior thereto, and interest.

Other details sufficiently appear in the opinion. Both parties appealed from the judgment.

Abijah Mann, Jr., plaintiff, in person.

Wm. H. Green, for defendant, appellant, respondent.

Mann v. Palmer.

DENIO, Ch. J.-The most important question as regards the amount, arises upon the claim of the plaintiff to be allowed the sum of eleven thousand seven hundred dollars paid by W. W. Mann, to the committee of Daniel Lockwood, for the purchase of the remaining interest of Lockwood and his wife in the land. The plaintiff claims to be entitled to this by virtue of his contract with Palmer, or the assignment of W. W. Mann to him of June 3, 1861. This assignment professes to transfer the agreement which had been entered into between George Palmer, the defendant's intestate, and W. W. Mann, and all rights of action which might be had under it. One inquiry is whether W. W. Mann had any right of action against Palmer under that agreement. The interest, which was the subject of the agreement between those parties, was the rights acquired by Palmer under his contract with the plaintiff, in the remaining land of Lockwood, incumbered by mortgages and tax liens, and subject to his wife's inchoate right of dower. The stipulations of the parties were that W. W. Mann should take charge of the sales of the land, under the direction of Palmer, and that the one-half of the net proceeds of the sales, which would have been the share of Palmer but for the agreement with W. W. Mann, should be equally divided between him and said Mann Palmer was to make advances, in his discretion, for the purchase and preservation of the property, and for the security of the title. The right and duty of the plaintiff under the original contract, to make sales of the lands, was limited to three years from November 21, 1851. After that time had passed, with the bulk of the land remaining unsold, the agreement, so far as it looked to sales for the final account of the plaintiff, and those having interest under him of one part, and Lockwood of the other part, had expired. It would, no doubt, result from this that the plaintiff would afterwards hold the legal title of the land as a lien for his advances made under the agreement, over and above what he or his assignees, Palmer and W. W. Mann, had received. The substance of the original agreement was the creation of an agency by Lockwood, for the sale of his lands; and for the plaintiff's services in making the sales, and the advance of his money and credit to manage the liens and incumbrances, he was to have half the net proceeds

Mann v. Palmer.

of the sales. But the agency was not perpetual as to time, but was limited to three years from the time of making the agreement; that limitation extended equally to Palmer, under his contract with the plaintiff, and to W. W. Mann under his agreement with Palmer. They were all based on the first contract.

In September, 1855, after the limitation had expired, the validity of the arrangement between Lockwood and the plaintiff, and of course of all the derivative contracts connected with and depending on that arrangement, were challenged by Stevens, claiming to represent the interest of Lockwood, as his committee, on the ground of want of mental capacity of Lockwood to affect his property by his contracts and conveyances. All proceedings under the agency were suspended during the pending of that suit, and it had, moreover, ceased to be operative by the efflux of time. Stevens, by his suit, sought to annul and have declared void all the transactions of the plaintiff, Palmer, and W. W. Mann, and to have paid to him all the money which they or either of them had received as the fruit of these transactions, except that he elected to affirm certain sales of portions of the land which had been made to certain railroad companies.

This suit was settled between the parties to it by stipulations entered into on March 1, 1856, and the settlement was afterward confirmed and made the judgment of the court. The terms of the settlement were the following: First, the defendants were to pay the plaintiff's costs, liquidated at the gross sum of seven hundred dollars. Second, they were to release to Daniel Lockwood all their claims against him or his estate which they had at the date of the agreement or had acquired since. This put an end to the title acquired by the deed of Lockwood to the plaintiff, and to all the stipulations of the contract for the sale of these lands. It completely annulled the agency, out of which all the transactions respecting the land arose. Third, a deed of release was to be executed to W. W. Mann of all of Lockwood's title and estate in the lands, and his wife was to release to him her right of dower; and, Fourth, the plaintiff was to be released from all demands.

These several stipulations, it is understood, were all per