
    St. John against Benedict and another.
    Where a deed has been executed pursuant to a written agreement between the parties, parol evidence is inadmissible to show a re-■suiting trust.
    
    A bill for the -specific performance of an agreement is addressed to the sound judicial discreiion of the Court, in the exercise of its extraordinary jurisdiction; where, therefore, the agreement appears to have been made to defeat or defraud a creditor of the plaintiff", or an intervening purchaser at a SheriiFs sale, under a judgment and execution against him, a specific performance will not be decreed.
    THE bill, (filed June 13, 1818,) stated, that the plaintiff, on the first of January, 1807, purchased and took an assignment of a contract, made October 31, 1806, between William Thayer, and an agent of the Pulteney estate, for the purchase of lot No. 35, in township No, 13, in the third range of townships in the county of Ontario, containing 1481 acres of land, by which the agent covenanted to convey to T. the lot, in fee, on the payment of 371 dollars and 25 cents, in two annual payments, with interest, &c. That the plaintiff, immediately after the assignment of the contract to him, entered into possession of the land, and has since been in possession, (excepting such part as has been sold by him,) having made improvements thereon, and the lot was now worth 1000 dollars. That Thayer, at the time of the contract, paid 61 dollars and 80 cents, and the plaintiff has since paid to the agent of the Pulteney estate, 200 dollars. That on the 22d November, 1816, Isaac Herrington, defendant, entered into a contract with the plaintiff, for the purchase of fifty acres of the land for 500 dollars ; and paid 175 dollars, and agreed to pay the residue to the agent of the Pulteney estate, when it should be called for. That on the last day of December, 1816, or the first of January, 1817, the plaintiff and Hi, at the office of the said agent, agreed that the original contract with Thayer should be given up and cancelled, and that H. should take a new contract, in his own name, for the whole lot; and that on paying the balance due, being about 273 dollars, to the agent, a deed should be executed to him, and he was to retain the fifty acres from the north end of the lot, and convey the residue, being 981-acres, to the plaintiff. The original contract was accordingly cancelled, and a new contract entered into between the agent of the Pulteney estate and H. for the whole lot. That on the 15th of February, 1817, H., without the knowledge of the plaintiff, paid to the agent the balance due on the contract, and took a deed in his own name for the whole lot; and H. afterwards conveyed the whole lot to the defendant, Benedict; and which the plaintiff alleged to have been done fraudulently, and with a view to defeat his claim to the 98-?- acres. That the defendant, B., has brought an action of ejectment in the Supreme Court, against the plaintiff, to recover possession of the 984 acres. The bill prayed for relief, and that the defendants might be decreed to execute a conveyance to him of the 98¿ acres; and for an injunction against proceeding in the ejectment suit, and for general relief.
    ' An injunction as to any execution at law was according» ly issued.
    The defendant, Benedict, put in his answer, in which he stated, that a judgment was entered up against the plaintiff on the 23d of February, 1816, at the suit of Ira Griffin, on which an execution was issued, by virtue of which the Sheriff of Ontario sold and conveyed all the right, title, and interest of the plaintiff in the lot No. 35, containing 148 acres, describing the same by metes and bounds, to Lemuel Hotchkiss, ns the highest bidder, for 15 dollars; and that the plaintiff never apprized H. of the judgment, execution, and sale, until after H. had paid him the 175 dollars, and that H. was afterwards obliged to purchase the lot of Hotchkiss, who conveyed the same to him, by deed, bearing date the 18th of January, 1817; and II. afterwards paid the agent of the Pulteney éstate 378 dollars, and took a conveyance of the whole lot, of which the plaintiff was apprized, and made no objection. That H., on the 25th of September, 1817, for the consideration of 800 dollars, sold and conveyed the lot to the defendant, B. The defendant, B., denied all knowledge that the plaintiff had or claimed to have any title to any part of the lot. He said that the plaintiff was in possession of the 93 i acres, and had told the defendant, B., that his right and title had been sold at auction, and was extinct, and that he had nothing more to do with the land. The defendant, B., denied all fraud or collusion with H., and insisted on his right to the whole lot.
    The bill was taken pro confesso against Herrington.
    
    Proofs were taken in the cause; and the material facts are stated in the opinion delivered by the Court.
    
      
      March 26th. The cause was brought to a hearing.
    
      S. M. Hopkins, for the plaintiff,
    contended, 1. That it was established by the decree, entered pro confesso against Herrington, and by the proofs, taken in the cause, that H. held the agreement between him and the agent of the Pulteney estate, in trust, that when the contract was performed, and the lot conveyed, that the plaintiff should receive a conveyance for the 98-1 acres; and that H., having received a deed for the whole lot, was bound, in equity, to convey the 981 acres to the plaintiff.
    
      2. That the defendant, when he took the conveyance from H., was chargeable with notice of the trust under which H. held the 981 acres ; and so he took that part of the lot, subject to such trust, and was, therefore, bound in equity to release to the plaintiff. He cited 1 Atk. 384. 2 Madd. Ch. 103.
    
      Henry, contra,
    insisted, 1. That the evidence to show a resulting trust in the conveyance by the representatives of Pulteney to H., was incompetent, as the agreement upon which that conveyance was founded was in writing, and could not be varied by parol, except to show fraud or mistake. (1 Johns. Ch. Rep. 582. Roberts on Frauds, 94. Sugden’s L. of V. 414, 415. 16 Johns. Rep. 199. 1 Johns. Ch. Rep. 281. 283. 429.)
    2. That the agreement between the plaintiff and II., relative to the 50 acres, being in writing, but not produced, nor its loss or destruction shown, all parol evidence relative to it was incompetent and inadmissible; and that proof being excluded, there was no certainty as to the parts of the lot to be conveyed to each, without which there could be no decree. (1 Johns. Ch. Rep. 283, 284.)
    3. That the exclusion of the parol proof, respecting the resulting trust, and the agreement between the plaintiff and II, rendered the proof, as to notice of the alleged trust to Benedict, incompetent-.
    
      4. That even if such proof was competent, the admission by the plaintiff, that his title had been extinguished, and that B. had purchased without fraud, and in ignorance of the agreement or understanding between the plaintiff and H., were sufficient to resist the execution of the alleged trust.'
    5= That the alleged agreement between the plaintiff"and £?., was designed to delay, hinder, and defraud the plaintiff’s creditors, and, therefore, void.
    
      May 4-tIi* The cause stood over for consideration to this day.
   The Chancellor.

The bill seeks to establish and tó have enforced a resulting trust against the defendant, Benedict, who, it is alleged, was a purchaser, with notice, from the fraudulent trustee.

[Here his honour stated the substance of the pleadings.} It is abundantly proved, that the avowed object of the new arrangement, in December, 1816, between the plaintiff and H., was to aVoid the effect of the Sheriff’s sale, in September, under Griffin’s judgment, and, also, the judgment or claim of another creditor. The original contract was destroyed, and the balance was paid up, and a new deed executed to the defendant, II., on the 15th of February, 1817, for the whole lot, and the defendant, H., had, previously, on the 18th of January, 1817, purchased the right and title of Hotchlciss, under the Sheriff’s sale. He had thus acquired a complete legal title to the whole lot, and, instead of conveying the 50 acres to the plaintiff, he, on the 25th of September, 1817, conveyed the whole lot to the defendant, Benedict. It seems to be sufficiently proved, that the defendant, B., purchased with a knowledge of the claim of the plaintiff"; yet several witnesses testify to repeated subsequent declarations of the plaintiff, that he did not believe the defendant, B., had any such knowledge when he purchased.

If the defendant, B., is to be charged, as I rather think he ought to be, with notice of the plaintiff’s claim, yet there are two or three objections to the relief sought by the plaintiff.

1. It is proved, by Samuel B. Bradley, a witness produced and examined on the part of the plaintiff, that articles of agreement between the plaintiff and the defendant, 11., were drawn by him, the witness, and executed by those parties, on or about the 21st of November, 1816, containing the terms of the sale of the 50 acres. That agreement is not produced, and it is not shown to have been lost or destroyed, and it completely shuts out all the parol proof, relative to that agreement. The bill itself seems to refer to this very agreement, for it states, that on or about the 22d of November, 1816, the plaintiff executed to the defendant, if., an agreement, in writing, embracing the terms of the contract to sell 50 acres. So, also, the new contract, of the last of December or first of January, between the agent of the Pulteney estate, and the defendant, If. made at the request of the plaintiff, was in writing, and it is not produced, and that writing contained the substituted arrangement of the parties. There can be no resulting trust when the deed or conveyance is in pursuance of a written agreement. “ Where the relative rights or obligations of the parties,” says Roberts, (Treat. on Frauds, p. 94.) are stipulated and adjusted by written instruments, the instruments must still speak for themselves, by expression or implication, and no extrinsic collateral evidence ought to be received, to ingraft other or additional trusts upon the deed, by proof of intention, unless upon a ground of fraud.”

There is no allegation in this case of any misrepresentation, fraud, or mistake, in the contracts in writing, made between the plaintiff and the defendant, if., and, after-wards, between the Pulteney office, at the instance of the plaintiff, and the defendant, if And yet the plaintiff seeks. "by parol proof, to establish a resulting trust, in the conveyanee from the Pulteney agent to the defendant, if., in Fehruary, 1817, though that conveyance was in conformity to the previous agreement, in writing, made under the direction of the plaintiff. The parol proof, in such a case, is inadmissible; and if that be excluded, the whole foundation of the bill fails.

2. The plaintiff has no equity growing out of the entire circumstances of the case, to entitle him to the aid of this Court, in enforcing a specific performance of a parol agreement, (admitting the evidence of it to be admissible,) to convey to him part of the lot. All the cases agree, that a bill for a specific performance of an agreement, is an application to the sound judicial discretion, or extraordinary jurisdiction of the Court, which is not to be exercised where the plaintiff has so conducted himself as to destroy all claim to its interposition. In the exercise of that discretion, the Court will consider the circumstances under which the agreement was obtained. In this case, the agreement itself, between the plaintiff and H., that the contract with Thayer should be destroyed, and a new contract made directly with if., was made on purpose to shut out the right of an intervening purchaser under a Sheriff’s sale. Shall this Court help a party in the performance of an agreement made on purpose to defraud creditors ? The plaintiff" had entirely lost all his right and interest in the possession and improvements of the lot, by the Sheriff’s sale. He had an interest in that lot under the assignment of Thayer’s contract, which was the subject of sale on execution. (Jackson v. Scott, 18 Johns. Rep. 94.) That right had been passed, by the judgment, execution, and sale at law, to Hotchkiss, the purchaser, and the arrangement between the plaintiff and if., was confessedly made to defraud that purchaser, as well as other creditors ; and this Court will not interfere to enforce the specific performance of a contract, iniquitous and fraudulent in its very foundation.

Bill dismissed, without costs.  