
    *Pierce’s Heirs v. Catron’s Heirs.
    June Term, 1873,
    Wytheville.
    Absent, Anderson and Staples, Js.
    Parol Contract of Land — Specific Performance. — In a suit for tlie specific performance of a parol agreement for tlie sale of land by tlie heirs of the alleged purchaser against the heirs of the alleged vendor, the principles announced in the case of Wright v. Puckett, 22 Gratt. 370, approved, reaffirmed and acted on.
    The case is sufficiently stated by Judge Christian, in his opinion.
    Gilmore and J. W. & J. P. Sheffey, for the appellants:
    1st. The court erred in excluding the depositions contained in exhibit D as evidence, when it was shown that the witnesses, whose depositions had been taken in the cause, of which the exhibit was a record, • were dead. ■ 3 Greenl. on Evi. I 343; Gresley’s Evi. (side paging) page 259-60, note E. and authorities there cited; Carrington v. Cornock, 2 Sim. R. 567; Williams v. Broadhead, 1 Ibid 151; Coker v. Tazewell, 2 P.' Wms. R. 563; Philips on Evi. (side paging) p. 216-19; Clements v. Kyle, 13 Gratt. 468, 476 bottom and top of page 477.
    2d. The court erred in excluding exhibits C, and refusing to permit it to be used, for the reason set forth in 2d assignment of errors in petition, Tucker’s Comm. Book 2d, (side paging) p. 252, Gresley’s Eq- Evi., side paging, p. 146.
    *3d. The court erred in refusing to permit E. C. C. to be read as evidence in the case. 1 Philips on Evi. (side paging) 473, note 130; 2 Ibid 574, note 476; Carver v. Jackson, 4 Peters R. 1, 80.
    4th. The court erred in the matter set forth in fourth and fifth assignments of error in appellants’ petition.
    5th. The complainants have an equitable right to have a conveyance from defendants of the legal title to the land in controversy, and the- court erred in not decreeing such title. Ery on Spec. Performance, $ 402.
    6th. The laches imputed to David Pierce and his heirs, in not sooner asserting and prosecuting their claim to have a legal title conveyed to them, is imputable rather to Catron’s heirs. They state in their answer, that during all the lapse of time from 1802 to this day, they have enjoyed the almost exclusive possession and profits of the land In controversy. The right ■ of Pierce and his descendants was recognized and acquiesced in during the almost exclusive possession, until the naked legal title was asserted and enforced in the action of ejectment after the lapse of sixty-six years. Evans & ais. v. Spurgin & ais., 11 Gratt. ■622; Ery on Spec. Performance, note 33, to page 181, sec. 400.
    7th. Catron’s heirs having acquired from Donald’s heirs the legal title, are trustees for David Pierce and his heirs, of the title to the land in controversy; and under all circumstances, should be decreed to convejr it.
    Kent, Terry & Pierce and Caldwell, for the appellees.
    1st. Exhibit D is not evidence in the case. It is no record. There was no privity between the parties to that suit and this. The case was dismissed for want of prosecution. The bill is no evidence, and non constat, that the depositions would have been permitted to be read at the hearing. 1 Greenl. Ev. U 23, 189, 190, 552, 553, and notes to same.
    *2d. Exhibit C is not evidence. It purports to be but a copy of a copy; and was not a paper required by law to be recorded at the date of the supposed record and copy. The recording of an instrument not required by law to be recorded, is a mere nullity. Aside from the statute,' no copy is evidence at all, except as recorded evidence, and then only a sworn copy. It is not true any admission is made in reference to said supposed copy, or. supposed original; the admission is only of a partition and not of any writing in regard to it.
    3d. Exhibit C C is no evidence, for same reasons stated above. English was the father of Julia, the wife of Henry Catron; but she does not claim through him, but through her mother.
    4th. The court did not decide that the 26 acres of land belonged to Catron’s heirs; nor that so much of the land in controversy, as is included in the deed from Sanders and wife to David Pierce “belonged to said defendant,” nor that any portion of the land in controversy “belonged to them.” It was claimed by the bill of Pierce’s heirs, that the ancestor of Catron’s heirs had sold these lands to their ancestor, David Pierce; and what the court decided was that their claim was without sufficient warrant; no matter whose the lands were.
    This decision was proper, even conceding all the evidence offered to have been admissible. Por the claim of the bill was in effect to have specific performance of an alleged parol contract executed. No contract was stated intelligibly, much less with reasonable certainty. Story’s Eq. PI. 23, 27, 28, 240, 241, 257 ; 2 Rob. Prac. (old) p. 281, 290; 1 Dan. Ch. Prac. p. 421; 1 Dead. Cases Eq. p. 534; Harnett v. Yielding, 2 Sch. & Eeff. R. 549, 558; Mosely v. Virgin, 3 Ves. R. 184; Colson v. Thompson, 2 Wheat. R. 336; King’s heirs v. Thompson, 9 Pet. R. 204; Pigg v. Corder, 12 Eeigh 69; *Parkhurst v. Van Cort-landt, 1 John’s Ch. 274; Anthony v. Eeftwich, 3 Rand. 238, 246; Wright v. Puckett, 22 Gratt. 307; 1 Ball & Beat, 65; Graham v. Call, 5 Munf. 396.
    When the party seeks specific execution, on the ground of part performance of a parol contract, it is well settled that in order to relieve it from the statute of frauds, he must show acts unequivocally referring to and resulting from that agreement, such as the party would not have done unless on account of that very agreement, and with a direct view to its performance; and the agreement set up must appear to be the same with that partly performed. Phillips v. Thompson & Anthony v. Reftwich, (supra;) 1 Read. Cas. Rq. 570, and cases cited; Clarke v. McClure, 10 Gratt. 305.
    As to the origin of the possession, the answer being responsive, is evidence. Rant v. Miller & Mayhew, 17 Gratt. 187; Corbin et als. v. Mill’s ex’ors et als., 19 Gratt. 438.
    
      
      See foot-note to Wright v. Puckett, 22 Gratt. 370, for 'Collection of authorities on this subject, and for the three thing's that must concur to justify a decree for specific performance of a parol contract for the sale of land.
    
   CHRISTIAN, J.

This is an appeal from a decree of the Circuit court of Wythe county. The bill is filed for the specific performance of an alleged parol agreement between David Pierce, the grandfather of the appellant, and Christopher Catron, the grandfather of the appellees; and also for the purpose of enjoining and restraining the further prosecution of an action of ejectment, in which a judgment had been recovered in said court against Alexander Pierce, father of the appellants, by the appellees in the suit.

It is admitted that the land for which the appellants are here seeking to have a parol agreement executed, is the same land which was the subject of the action of ejectment.

record in the ejectment suit shows that at the October term of said Circuit court in the year 1869, the following judgment was entered: “This day came as well the plaintiffs by their attorney, as the defendant by his attorney, and the defendant relinquishes his former plea, and acknowledges the plaintiff’s action for the land in controversy as laid down and described in the plat and report of William B. Roster, surveyor, filed in this cause, and bounded as follows: (and then follows a minute description of the land by metes and bounds). Whereupon it is considered by the court, that the plaintiffs recover against the said defendant, the premises in controversy, bounded as aforesaid; and the Commonwealth’s writ of habere facias possessionem is awarded to the plaintiffs accordingly.

In March, 1870, Alexander Pierce, the defendant in the action of ejectment, filed his bill in the Circuit court of Wythe county, against the plaintiffs in the action of ejectment, in whose favor he had confessed judgment; in which bill he prays for an injunction from said Circuit court, to enjoin and restrain the said plaintiffs in the ejectment suit, from the further prosecution of said suit; upon the ground that he could not set up his defence, (which was purely equitable), in the action of ejectment, but could only obtain relief in a court of equity. The injunction was accordingly awarded. Before a final hearing, Alexander Pierce departed this life, and the suit was revived in the name of his heirs. At the Rebruary term of the said Circuit court, the cause came on for a final hearing, when that court dissolved the injunction and dismissed the bill. Rrom this decree an appeal was allowed to this court.

It is not necessary, in my view of this case, to consider other questions much argued at the bar, whether certain documentary evidence and certain depositions read in ^another cause, are admissible to be read in evidence in this cause. Ryen if we regard them both as properly in the case before us, and give to the testimony which was excluded by the court below, the utmost weight to which it is entitled, the appellants have, in my opinion, utterly failed to make out a case in which the powers and jurisdiction of a court of equity can be invoked.

The father of the appellants, by1- his confession of judgment in the action of ejectment, acknowledged the superior legal title of the appellees. He confesses thereby that the legal title to the land in controversy was not in him, or in those under whom he claims, but was vested in the appellees. His heirs now come into a court of equity, and ask for the exercise of its extraordinary powers by way of injunction, to restrain the further action of the appellees under the judgment which they have recovered in their action of ejectment; and seek to set up in themselves a paramount equitable title, and one which they assert could not be relied upon in their defence in the action at law. The ground upon which they claim the ■ interference of a court of equity, is, that sometime before the death of Christopher Catron, the ancestor of the appellees, who has been dead nearly three quarters of a century, there was a parol agreement between him and the grandfather of the appellants, one David Pierce, by which the land in controversy was sold by said Catron to said Pierce; and they assert that the whole of the purchase money was paid, and their ancestor, David Pierce, was put in possession of said land. They state in their bill, that the land contained 114 acres, and refer for boundaries for same to a survey made by one Robert Adams, in a suit brought by David Pierce against the widow and representatives of Christopher Catron, in the Chancery court at Staunton, in the year 1811. The prayer of their bill is, “that the agreement made and'entered *into between Christopher Catron, dec’d, and David Pierce, dec’d, may be specifically performed and carried into execution by the heirs at law of the said Christopher Catron, dec’d; and that the said defendants (the appellees) “may be compelled to convey the said land by a good and sufficient deed of conveyance,” to the appellants; and that the defendants, (the appellees,) may be enjoined and restrained from any further prosecution of the said action of ejectment,” &c. This is the statement of the parol agreement made by the plaintiffs in their bill, and of the relief which they seek. The answer denies all the material allegations of the bill on the points we are considering. It says, “it is not true as alleged in the bill, that David Pierce ever purchased from Christopher Catron either the tract of 88 acres or the tract of 26 acres, making 114 acres claimed, of land in the bill mentioned. It is not true that Christopher Catron ever put him (David Pierce) in possession of any part of either of said tracts as a purchaser. It is not true that at the time of said Christopher’s death, or at any time before or since, said David Pierce was in any such possession as purchaser from said Christopher Catron. * * * The answer further avers that the land now in controversy was at that time mainly in a state of nature. The Iron Works on the adjoining lands purchased in 1800 by David Pierce from Robert Sanders, were very near the dividing line between the two tracts, and more convenient to timber on Catron’s land than on Pierce’s own. Accordingly, by an arrangement in which each looked to his own convenience, Pierce to a cheap supply of timber for his Iron Works, and Catron to a speeds' clearing of his land for crops, from a time soon after they became adjacent proprietors, and before any proposition of purchase had been mooted, or at least entertained, Pierce had been permitted by Catron to *take wood from sundry portions of the land which he wished cleared, including certain portions from the 26 acre parcel and the 88 acre parcel, making up the 114 acres in the bill mentioned, and had of such portions such occupancy as was incident to such permission, and no other.”

This is the case as made by the bill and answer. We have now to look to the proof of the parol agreement between David Pierce and Christopher Catron, to ascertain its nature and terms. According to well settled principles, the contract, sought. to be specifically executed, must be established by competent proofs, to be clear, definite and unequivocal in all its terms. If the terms are uncertain, ambiguous cr not made out by satisfactory proofs, a specific performance will not (as indeed upon principle it should not) be decreed. 2 Story’s Eq. § 764. The reason is obvious enough ; for a court of equity ought not to act upon conjectures; and one of the most important objects of the statute of frauds was to prevent the introduction of loose and indeterminate proofs of what ought to be established by solemn written contracts. Eet us look then to the proofs of this parol agreement upon which the appellants rely, as establishing their superior equity, which they insist must override the legal title which they acknowledge is in the appellees.

Eirst. Eet us see what the contract ( under which they claim) was, as stated by their, grandfather David Pierce himself. Eet it be premised that Christopher Catron died in the year 1802, leaving a widow and children, the oldest of whom was nine years of age at the period of his death. In the year 1811, David Pierce filed his bill in the Chancery court at Staunton for the very same purpose for which these appellants filed the bill we are now considering, to wit: for the specific execution of the very contract under which these appellants now claim. *It is a fact to be noted, that while Christopher Catron died in 1802, and the alleged agreement was made some yean or two before his death, David Pierce took no step towards asserting his claim under that contract until the year 1811; and that he suffered that suit to linger until the year 1832, (over 20 years) when it was dismissed for want of security for the costs.

But let us see what is his statement of his own agreement with Christopher Catron. These appellants say that the contract was to convey 114 acres, and that the whole of the purchase money was paid, and they gave the metes and bounds. What does David Pierce, under whom they claim, say as to the same contract under which they must stand or fall? He says of the same contract in 1811, (the appellants speak of the same contract in 1869,) that he “made a contract with the said Christopher Catron for a quantity of land adjoining the said reserved part, beginning at a line tree, and to run across a hill, so as to include an angle of land — the line to run across said hill to another line of the tract which made the angle. This land, by the said contract was then estimated at fifty acres; but it was agreed that whatever it might be, your orator (David Pierce) should have it at one dollar per acre.” He avers that he paid only fifty dollars of the purchase money, and admits that there was no written agreement signed by the parties.

In this suit certain depositions were taken to prove the parol agreement. Two witnesses were examined to prove the contract. They say they “heard Christopher Catron declare that he had sold to David Pierce a quantity of land for one dollar per acre; that they asked Catron how much land he had sold; and he replied he did not know the exact quantity, but it was to begin about the blue hole, and run a square line across the hill to the other line, and that said Catron told them he had received fifty ^'dollars towards the land. That ' if it was more than fifty acres upon a survey, Pierce would have to pay him the balance, and if it was less, Catron would have to pay back what he had received too much. ”

This is all the evidence that David Pierce could produce in the year' 1811, as to his contract with Christopher Catron. This suit brought by David Pierce in the year 1811, for the specific execution of the contract upon which the appellants solely rely for their superior equity, was abandoned by him in the year 1832; he having suffered the suit to be dismissed for want of security for costs. The appellants now renew the same claim, abandoned by their grandfather more than forty years ago. And what do they prove? They introduce one witness only, an old lady eighty-eight years old. She gives certain declarations not of Catron but of Pierce, made not in the presence of Catron, made more than fifty years before. Her testimony amounts literally to nothing. She says, “I don’t know what Pierce was to give for the land, nor what he paid for it except the cows;” nor does she pretend to give a description of the quantity or boundaries of the land.

Now this is the whole proof as to the terms of the contract which the court is asked to specifically execute, except certain deeds in which the parties refer to certain lands claimed by David Pierce, the recitals of which are too indefinite (even if the ap-pellees were bound by them, which is by no means clear), upon which to found a claim in a court of equity.

Here then is- a case, in which the appellants come into a court of equity for specific performance of a parol agreement upon the ground of part performance. They assert that their ancestor purchased 114 acres of land, for which he paid the,whole of the purchase money. The proof is, (if proof it can be called), that he purchased *an indefinite quantity of land estimated at fifty acres, for which he paid fifty dollars. They now ask that 114 acres of land may be conveyed to them, for which their ancestor, according to their own testimony, and according to his solemn admission, paid only fifty dollars, and that too without even an offer upon their part to pay the balance of the purchase money shown by their own evidence to be still due and unpaid. And all this is asked in pursuance of an alleged parol agreement of the indefinite, uncertain and ambiguous character of that which is proved in this case, and entered into so long ago that three quarters of a century have elapsed, and three generations have passed away.

The principles upon which courts of equity have avoided the statute of frauds, upon the ground of part performance of a parol agreement, are now as well settled as any of the acknowledged doctrines of equity jurisprudence. From the numerous decisions on the subject, this court has in a recent case, declared the following principles, which must be taken as the settled law of this State. 1st: The parol agreement relied orTmust be certain and definite in its terms. 2d: The acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved. 3d: The agreement must have been so far executed that a refusal of full execution would operate as a fraud upon the party, and place him in a situation which does not lie in compensation. When these three things concur, a court of equity will decree specific execution. When they do not it will be refused. See Wright v. Puckett, 22 Gratt. 370, and authorities there cited.

I think it is clear that this case does not come within these well recognized principles of equity jurisdiction.

Much was said in the arguments of the able counsel for the appellants, as to the long and uninterrupted possession *and open arid notorious acts of ownership exercised for so long a period by David Pierce and his heirs. If such continued occupancj' and notorious acts of ownership amounted to an adverse possession, which (as was contended) conferred title, they ought to have been relied upon in the action of ejectment. The confession of judgment in the action at law by the father of appellants, acknowledged that the legal title was in the appellees. His heirs cannot set up a title by adverse possession in a court of equity, which is in effect and not in terms attempted to be done in this bill. And their grandfather, David Pierce, with whom the alleged contract was made, having failed sixty years ago, to establish a case for specific performance, and having abandoned his claim, it is now too late for his heirs to set up the same claim after the lapse of so many years, and when there necessarily exists such great uncertainty as to the true character of the contract which is now sought to be specifically executed. I am of opinion that the Circuit court of Wythe did not err in dissolving the injunction and dismissing the bill; and that its decree must be affirmed.

MOJSTCURF, P., and BOUDDLN, J., concurred in the opinion of Christian, J.

Decree affirmed.  