John W. Simonton, vs. Pedro A. Gandolfo, 2 Fla. 392

Baltzell, J., delivered the following opinion: . The defendant Gandolfo demurred in the Court below to the declaration of the plaintiff, assigning the following special grounds: 1st. “ That the assumpsit declared on should have been in writing and so stated in the declaration.” 2d. “ A parol promise respecting the sale of lands is illegal and cannot be enforced in a court of law.” Judgment on the demurrer having been for defendant the plaintiff has appealed to this Court. We do not regard the agreement as'set forth tobe within the statute of Frauds.

Mortgages are not considered as conveyances of lands within the statute. 2 Burr., 969 ; 1 Pow. Mortg., 144. In Massachusetts where it is held that the equity of redemption .may not be transferred by parol, an action was maintained by the grantor against the grantee to recover the consideration acknowledged in the deed to have been paid. The Court saying “ it is not a contract for the sale of lands,' that contract was executed and finished by the deed. This is only a demand for money arising out of that contract.” Scott vs. McFarland, 13 Mass., 311; Wilkinson vs. Scott, 17 Mass., 249., In Hess vs.

Fox, Executor of Fox, plaintiff declared on a special agreement to this effect, that plaintiff being indebted to Fox the testator in the sum of $400 secured by mortgage, it was agreed that plaintiff should convey the premises by absolute deed, and deliver them to Fox, and he should discharge plaintiff from the debt of $400, and sell the premises at the best price, and pay over to plaintiff any surplus over the $400.

This was insisted to be void within the statute of frauds: The Court say after reciting the statute which is substantially the same as ours,the meaning is that no interest in lands shall pass otherwise than by deed or writing,” and they held the agreement not within the statute but valid and binding. 10 Wend., 439, 440. Now in that case the agreement was to the benefit of the mortgagor, in this it is the mortgagee that asks the aid of the Court in his behalf. The principle we regard as the same, the statute not operating in the one case we cannot see how it can be made to bear in the other.

There is another difference. Gandolfo is the assignee of the mortgagor, having purchased a portion of the lots. In reference to these he occupies the same position to the mortgagee as the original mortgagor, with the exception that he is not liable to judgment on the notes originally given. As assignee however, a suit for foreclosure would properly be maintainable against him, and a decree for the sale of the lots be had against him. We then see that he had a direct and fixed interest of his own in the discharge of the mortgage.

There was express benefit and advantage to him, and injury to tire plaintiff in parting with the security of the mortgage by the release given, thus making an original independent promise in his behalf. 2 Peter’s S. C. R., 182; 5 Bing., 464. A different result could not well be arrived at without holding the release of the mortgage void and the lots held by Gandolfo subject to the incumbrance.

It is scarcely consistent with right, that he shall have the advantage and benefit of the release, and keep the money also which he was to pay the mortgagee for it. .The judgment of the Court below will be, reversed and the cause remanded with directions to overrule the demurrer of defendant to the plaintiffs declaration, and for further proceedings to be had therein agreeably to the principles of law.