On appeal from the Supreme Court.
For the appellant, Benjamin M. Ratner (Milton S. Goldberg, of counsel).
For the respondent, Emanuel Wagner.
The opinion of the court was delivered by
TRENCHARD, J. This is the appeal of the plaintiff below from a judgment of nonsuit at the conclusion of plaintiff's opening to the jury.
The opening disclosed, and it is conceded, that the facts were these:
The plaintiff-appellant's assignor, in October, 1930, orally agreed to forbear from foreclosing a mortgage held by him covering lands owned by Wilabert Realty Company, a corporation of which defendant-respondent is an officer and stockholder, in consideration of an oral promise on the part of the respondent that he would pay the principal and interest due on the bond secured by the mortgage within a few months thereafter. The complaint was filed July 11th, 1935. Respondent was not personally liable on the bond.
Respondent contended below, and contends here, that the agreement comes within Comp. Stat. 1910, p. 2612, § 5, which was pleaded and which provides "that no action shall be brought * * * (4) upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them; * * * unless the agreement, upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the person to be charged therewith, or some other person thereunto by him or her lawfully authorized."
The trial judge agreed with that contention, and so granted the nonsuit, and we think rightly.
We have pointed out that the agreement in question was not in writing.
The appellant cites cases holding, in the given cases, that an oral contract based upon a valid consideration to forbear an action at law was not within the statute of frauds. But such are in point only if the particular agreement relied upon does not specifically come within the statute. Here the only question to be determined is, was there an enforceable agreement between the parties hereto in the circumstances of the present case, which the respondent insists is specifically within the statute.
Now in Boteler v. Leber, 112 N.J. Eq. 441; 164 A. 572, it was held: "In this state the common law rule that a mortgage in fee creates an immediate estate in fee-simple in the mortgagee ...