John W. Simonton, Appellant, v. Pedro A. Gandolfo, Appellee, 4 Fla. 209

ANDERSON, Chief Justice, delivered the opinion of the Court.

The plaintiff here in his declaration alleges, among other things, that “ the said plaintiff agreed and promised the “ said defendant that he (plaintiff) would make a release “ to said Brown, &c. of all claims or demands which said “ Barcroft, trustee as aforesaid, had against said Brown, “ mortgagor as aforesaid, for and on account of said mort- “ gage; and the said defendant, for and in consideration of “ said release, to be executed by plaintiff to said Brown, “ undertook and promised the said plaintiff to pay him the “ sum of six hundred dollars, upon the execution of said “ release.” On.the trial, the plaintiff excepted to the fifth instruction, as asked by defendant and given by the Court, and embodies the exception in his bill.

The instruction asked for and thus excepted to, is in the following words: That the release given in evidence as the release of Simonton, of all the interest of Barcroft, and bearing date 16th April, 1847, does not perfect Gandolfo’s title, and does not release all the claims or demands which Barcroft, mortgagee, had against Brown, as mortgagor, which is as follows : “ Know all men by these presents — Whereas, on the 22d day of August, A. D., one thousand eight hundred and thirty-six, Fielding A. Browne, of Key West, did purchase of John Barcroft, trustee of John W.

Simonton and Ann Simonton, certain lots, tracts and parcels of land on the island of Key West; and, whereas, to secure payment for the same unto said John Barcroft, trustee, the said Fielding A- Browne did,,011 the same day, execute his several promissory notes, together with a mortgage upon all the said lots, tracts and parcels of land, which said conveyance from John Barcroft to Fielding A. Browne, and said notes and mortgage from Fielding A.

Browne to said John Barcroft, are recorded in the office of the county records of Monroe County, Florida, and are herein referred to ; and, whereas, the payments stipulated for in the said mortgage have not been made, and there still remains due and payable from said Fielding A. Browne to said John Barcroft upon the same, eleven thousand two hundred and thirty-four dollars and eleven cents ; and, whereas, the said Fielding A.

Browne has, by an instrument of writing, bearing even date herewith, forever remised, released, conveyed, aliened, confirmed and quit-claimed unto the said John Barcroft, all his right, title, interest, claim, property and demand of every nature whatsoever, either inlaw or equity, in and to'the said lands, which are particularly described and set forth in the said instrument of writing, bearing even date herewith : Now, therefore, this is to declare that I, John "W. Simonton, of.

Key West, Florida, cestui que trust of said John Barcroft, in consideration of the execution and delivery of the said instrument of writing and quit-claim, do covenant, stipulate and agree to and with the said Fielding A.

Browne, his heirs, executors and administrators, that I, my heirs, executors and administrators, shall and will, within four years from the date hereof, I or they will sell, convey and finally dispose of all the said lots, tracts and parcels of land which are specified in said instrument of writing, and quit-claim, to the best advantage and in such manner, that the proceeds arising or to arise, accruing or to accrue from the same, shall be realized by me within the said four years, and that out of the said proceeds is first to be paid the aforesaid eleven thousand two hundred and thirty-four dollars and eleven cents, which is due and payable from said Fielding A.

Browne upon the aforesaid mortgage, whatever that gum justly be, to be .computed; and that the balance or surplus which may remain after I shall have paid the said sum due, shall be, within the said four years, paid over to said Fielding A. Browne, his heirs, executors, or administrators ; and I do further hereby and forever release the said Fielding A.

Browne, his heirs and assigns, from all claims or demands of every nature whatsoever, which the said Bar-croft, trustee as aforesaid, had or may have had against or upon him, for and on account of his said mortgage. “In testimony whereof, I have hereunto set my hand and seal at Key West, Florida, on this sixteenth day of April, A. D., one thousand eight hundred and forty-seven. “ (Signed,) J. W. SIMONTON, [Seal.] “ Signed, sealed and delivered in presence of— “James Johnson, “ W. R.

Hackley.” Supposing that the jury upon the issue presented by the plea of the general issue, found that the contract as alleged in the declaration was made, the deed of release, as set forth in this exception, is the evidence by which the plaintiff offered to show that he had complied with his part of the contract, and thereby entitled himself to recover of the defendant.

The second plea of the defendant was doubtless designed to present an issue as to this fact; that is, whether the plaintiff had performed his part of the contract; and if it were a good plea, the Court would have no difficulty in arriving at their judgment. The plea, though pronounced by the Court below upon demurrer to be good, is very equivocal in its terms, and we have hesitated long before consenting to consider it as sufficient to present a proper issue.

We stretch the authority of this Court to its utmost limit, when we determine to do so, under a conviction that the jury really passed upon the true merits of the controversy, and that the setting aside this verdict for mistakes in pleading would be of no advantage to the plaintiff, while it might involve both him and the defendant in unavailing expense and trouble. It is very evident that the jury in finding for the defendant, found either that there was no contract between the parties, or that the plaintiff had not complied with his part of the contract.

If they found the first, we have no right to interfere with their verdict, for it was a pure question of fact properly presented to them by the plea of the general issue — if they found the other alternative, then the legal ■sufficiency of the evidence upon which they passed is presented to our notice and decision by the fifth instruction asked for by defendant and given by the Court, and which we have recited.

In other words, we are to inquire and to say,whether the deed of release executed by the plaintiff to Browne, was a compliance with the plaintiff’s contract, as set forth by himself in his declaration, to wit, “ that said plaintiff agreed and promised the said defendant that he, said plaintiff, would make a release to said Browne, mortgagor as aforesaid, and his assigns, of all claims or demands which said Barcroft, trustee as aforesaid, had against said Browne, mortgagor as aforesaid, for and on account of said mortgage.” It appears from the recital in the deed that Barcroft was-trustee of John W.

Simonton and Ann Simonton. The deed purports to be executed by John W. Simonton, not as attorney for Barcroft, but in his own person ; and describing himself as cestui que trust, no reference being made to Ann Simonton; and the consideration mentioned is a certain instrument of writing executed by Browne. The deed concludes as follows : “ I do further hereby and forever release the said F. A.

Browne, his heirs and assigns, from all claims or demands of every nature whatsoever, which the said John Barcroft, trustee as aforesaid, had or may have have had, against or upon him, for and on account of his said mortgage,” and is signed thus : John W. Simonton, [l. s.] Was Simonton competent to convey the title of Barcroft? Let us see. Barcroft had the legal estate probacy fee-simple; if so, it could, only be conveyed by deed under seal, (2 Blackstone’s Commentaries, 297,) and “ a deed is a writing containing a contract, and signed, sealed and delivered by the party." 4 Comyn’s Digest, 270.

If it were only an estate for years, the statute 29th Charles II. requires the assignment to be at least in writing to be signed by the party. No estate, then, that Barcroft might have had could be conveyed, unless, in the case of a freehold, the conveyance • was sealed, and, in the case of a chattel, interest was signed by Barcroft. In the case before us he does neither, and it does not appear that Simonton had any authority to convey for him, to seal for him or to sign for him.

Whatever Simonton conveyed he surely did not convey the interest of Barcroft, and failing or omitting to do so, he did not perform his part of the contract with defendant. It is alleged by plaintiff’s counsel that a cestui que trust' may sell his interest, and that. Simonton, therefore, though not technically conveying Barcroft’s interest, conveyed an estate of more value. We do not deny that Simonton might have released his interest, but the proper questions are— did he do it ? and, if he did, was it the release Gandolfo bargained for 1 His own deed and his own declaration furnish replies to both enquiries.

In his deed he says, “ I release all claims or demands which John Barcroft had or may have had” — there is no release of his own interest.— In his declaration he says that he “ agreed that he would make a release of all claims and demands which Barcroft had,” but makes no agreement to release his own. These considerations afford also a response to the positions assumed by counsel, to the effect that a part performance of his contract will entitle him to recover.

Th% deed seems to us a mere nullity — it conveys nothing ; and what is supposed by counsel to be conveyed, to wit — the equitable interest of Simonton, forms no part of the agreement. We think, therefore, the Court was right substantially in instructing the jury as asked in the fifth instruction of defendant. We say substantially, because the part that relates to perfecting Gandolfo’s title is, at best,'unneccessary. But we overlook this and other defects, because we are satisfied that none of these errors misled the jury, and that they arrived at the proper adjustment of the respective rights of the parties.

Let the judgment be affirmed.