
    *Buck & Brander v. Copland.
    [April Term, 1800.]
    Agent — To Sell — Becomes Himself Purchaser-Case at Bar. — A empowers C to purchase lands for him; M empowers B to sell lands for him, with directions to give C a refusal. A informs B that he and C are the same person, and offers 2s, saying if M will not take that price he will give more than any other person. B promises C and A a refusal ; but afterwards, without informing M of their offers, purchases for himself; A court of e.quity will not decree the benefit of this transaction to A, but if the trust was proved, would set aside the sale in favour of M; who ought to be made a party to the suit.
    Same — Same—Same—Statute of Frauds. — In such a case as the transactions between A, C and B were not in writing, B, may plead the act, to prevent frauds and perjuries.
    The bill states, that Copland being disposed to lay out some money, which he had by him, in the fall of 1795, he mentioned it to Hicks and Campbell, and told them, if they would purchase some military lands for him out of his own money, that he would allow them a commission of 5 per cent. That they afterwards told him, that Benjamin Mosely wished to sell; and that they had offered him 2s, which he had refused; but said that he would authorise the defendants to sell; .and that they had spoken to the defendant Brander who had promised them the refusal. That in a few days afterwards, the plaintiff enquired of Hicks and Campbell, whether they had heard any more of the matter? That they answered they had not, and advised the plaintiff to apply to the defendants. That the plaintiff applied to Buck & Brander accordingly, between the 1st and 16th of November; Told them that Hicks and Campbell were purchasing for him, and offered 2s. That the defendants said, they had been authorized by Mosely to sell, in order to pay a debt due themselves; but he had desired them not to take 2s, until he had advised with them; That they would write to him mentioning the plaintiffs offer, and in the mean time would enquire of the value. That the plaintiff told them, if Mosely would not take that price to let him have the refusal, as he would give as much, or more, than any other person, for it. That the defendants *promised to do so; and one of them, after-wards, told the plaintiff that he had written, but no answer had come to hand. That the plaintiff again offered 2s; which that defendant said he believed was the price, and, if Mosely would take it the plaintiff should have the lands. That he would let the plaintiff know, when he heard from him. That the plaintiff had, from the commencement, resolved to give 2s 6, if he could not get the lands for less. That all this related to two surveys only, . of 1000 acres each; for the plaintiff did not know that Mosely owned more. That the defendant Brander, afterwards, told the plaintiff, there were upwards of 2600 acres, and that Anderson the surveyor had a claim for his fees, or for a proportion of the lands, and asked the plaintiffs opinion, which would be best. That the plaintiff advised him to pay the fees; and offered to advance the money, and take the whole lands, at 2s, deducting the fees. That the plaintiff continued to apply to the defendants to know if they had heard from Mosely; and was always told that they had not; although they had written him several times. That the plaintiff was bound by his offer, if the lands had fallen in value, and always kept the money ready. That he did not apprehend any unfair dealings in the defendants with whom he was intimate; but relied on their integrity; and never suspected that they wished to buy themselves. That the defendant Buck, at length, told the plaintiff, that he believed Brander had a letter from Mosely, who consented to take 2s; but that there was some difficulty with respect to an overcharge for the surveyors fees. That the plaintiff answered, that circumstances should make no difference; for he would look to the surveyor himself; and desired Buck to tell Brander so. That Buck, at going off said, for the first time, that he believed Brander intended to keep the lands. That .the plaintiff went to Brander and insisted on the contract; but Brander refused, saying all that h,e had promised to the plaintiff was,1 that the plaintiff, *should have the refusal; . and that Kinkaid had bargained for the land for Buck and Brander; who had written him to do so. That the plaintiff replied,, that the defendant had always informed him, that he- had written to Mosely which he admitted; but said, it was only a difference in names, and not in substance. That the plaintiff mentioned what Buck had said; relative to the overcharge for surveyors fees; but Brander said Buck was mistaken-; for only the legal fees were paid. That the plaintiff then offered 2s 6, the price he first- intended to go to, if Mosely had refused 2s. But the defendants refused; upon which the plaintiff tendered the money for the said 2000 acres at 2s. The bill therefore prays a conveyance of the 2000 acres and for general relief.
    Buck and Brander the defendants plead the act of General Assembly, to prevent frauds and perjuries, to the discovery; and by answer they state. That they were interested in two concerns, one in Manchester, and the other in Buckingham. In which last Robert Kinkaid was a partner. That both were dissolved, previous to any of the transactions in the bill mentioned. That Brander settled the affairs of the Manchester business and Kinkaid those of the Buckingham business. That Mosely owed the firm of Kinkaid & Co. 19. 3. (on which judgment had been obtained;) and Kinkaid and Co. were indebted to Buck and Brander. That Mosely told the defendants, he had 2666 acres of land ; but expected 666 acres would go to pay the surveyor. That he had offered the balance of 2000 acres to Hicks and Campbell, who offered him 2s, per acre; but from their anxiety to purchase, he thought they would give more. That he asked the defendants to apply to Anderson the surveyor, pay him his fees, and endeavour to sell the lands to the best advantage, or retain them to the use of Buck and Brander; in either case crediting his account with the amount of the sales; But added, at the *same time that if the defendants should sell the lands, he hoped they would give Hicks and Campbell the refusal, as he had promised the same to them. That at this time, Buck was from home, and Brander wanted to consult; or the bargain might perhaps, have been then made: But, as it was, Brander oply said that he would endeavour to sell the lands for the best price that could be gotten, and would correspond with Kinkaid concerning them. That Brander conversed with several, but found none willing to give as much as Hicks and Campbell; although he learnt from Quarles that the lands would rise in value. That, upon Bucks return, the defendants resolved to take the lands, and thereupon a correspondence was opened with Kinkaid, about them. That one part of the contract with Mosely, was that he should have a further stay of execution, for the balance of the money. That, between the time that the defendant was entrusted to sell, and the purchase of Mosely, the plaintiff frequently threw himself in the way of the defendants, and conversed about the lands. Once at Hicks and Campbells; who followed the defendant Brander and said, if more was offered than they had offered, they would give as much as any man; and asked the refusal; which the defendant promised. That, from conversation with the plaintiff on the subject, the defendant found out, that giving a preference to Hicks and Campbell and to the plaintiff was the same thing. Perhaps, at other times, the defendant might have promised the refusal to the plaintiff; Knows that under the impression, that Hicks and Campbell and the plaintiff were all one, the defendant did make the promise of a refusal to him. That the defendant never offered the land to the plaintiff, but, having from the first determined to buy himself, he wished to avoid the plaintiff; who he feared, might take some unfair advantage of him, with Mosely. Possibly the defendant might have mentioned Mosely’s name to the plaintiff; but supposes, it was in such a way, as to shew the correspondence *was carried on, through the medium of Kinkaid. Admits the tender, after the plaintiff knew that the defendants intended to take the lands themselves. That the defendants did not pay the fees, on the first interview with Anderson : That the plaintiff advised him to pay them; and said that he would advance the money, and take the whole deducting the fees. To which the defendant made no reply. That the plaintiff once said to Buck, that he would give more, than 2s ; and that he and Hicks and Campbell were the same thing. That from the first application to the defendant Buck, the plaintiff was told the land was to be sold to pay a debt due to Kinkaid & Co. that Buck and Brander were to have the money; and that he did not know that the lands would be for sale, which might have induced a belief, that the defendants intended to take them. That the defendant Buck never made any contract with the plaintiff, or promised him the refusal.
    Amongst the exhibits filed in the cause, are, the agreement between Mosely and the defendants for the purchase of the lands. An acknowledgment by Hicks and Camn-bell, that they were treating for the benefit of the plaintiff. A letter from the defendant Brander to Kinkaid (referred to in the answer,) mentioning that Mosely had authorized the defendants to sell. That, agreeable to his instructions they had offered 2000 acres for sale, giving as he wished a preference to Hicks and Campbell; who seemed steady, as to price, and offered no more than 2s. That he afterwards applied to Pickett, Fenwick, Quarles and Anderson; but none of them would give as much as Hicks and Campbell. That, finding the above price might be got any day, he wished Kinkaid to mention it to Mosely, and ask his concurrence in a sale. That it was probable, if Buck and Brander could spare the monejr, they might take; and that he supposed a sale, to them, might be as agreeable, as to Mosely. That, if
    Mosely ^agreed to the sale, he might credit him for the same by Buck and Brander.
    Another letter from Kinkaid to Brander. Informing him, that Mosely will let him have the lands; although he had hoped for, and expected something better. A third letter from Brander to Kinkaid. Stating, that he, as well as Mosely, had once hoped to get more from Hicks and Campbell, from their anxiety to purchase of Mosely, Or at all events to have a preference, from whom he should empower to sell the land. A promise which they said they had obtained, and he believed that they had promised Mosely, if any body would give more, that they would come up to it: But he believed, it was only to gain their object; as they were the highest bidders in the market by a third. That it was not till after two applications to Hicks and Campbell (who were steady in the price of 2s,) that he thought of taking the lands on account of Buck and Brander. That if Mosely was dissatisfied he was at liberty to make the most of the lands.
    The Court of Chancery was of opinion, that the act of Assembly, to prevent frauds and perjuries, was not pleadable by the defendants; but that they were trustees for Copland; and ordered a conveyance, upon payment of the money, or a tender thereof. From which decree Buck and Brander appealed to this court.
    Warden for the appellants.
    The act of Assembly is express, that no suit can be maintained on a parol agreement; and at law no action would have lain. Courts of Equity have been extremely cautious not to depart from the principle of the statute which is a beneficial one, and ought to be adhered to. 1 Wms. 618, 770; Pow. Contr. 281: But our act of Assembly is more extensive in its operation than the act of Parliament in England. Por the recital of the preamble, in the British statute, seems to countenance the idea, that particular cases only were intended to be provided for; *but our act was manifestly intended to include all cases of parol agreements not particularly excepted by the words of the statute.
    Nor will the admission in the answer help the plaintiffs case; because the act of Assembly has been plead and insisted on. 1 Eonbl. Eq. 165. Besides the answer does not admit any precise agreement; nor does the bill charge one, but merely a promise of refusal; and Copland had not agreed on any particular price, nor could have been forced to give the best price, in the market.
    Call and Wickham contra.
    As the defendants have confessed the agreement in their answer a performance may be decreed. Ambl. 586; 1 Black. 600; 3 Atk. 3. This rule has no exception, where there is an express confession of the contract. Eor the distinction is, where the statute is plead and the agreement denied, and where the statute is plead and the agreement confessed. In the first case, j7ou cannot resort to evidence to disprove the answer; but in the other, you may hold the defendant to his confession. Because there is no danger of either fraud or perjury, the two evils which the statute was intended to guard against. It is like a declaration at law, which need not state, that the agreement was in writing, but it is sufficient to prove it on the trial; and, if the defendant confesses the action, judgment will be rendered against him.
    The doctrine in 1 Eonbl. 165, does not overthrow this reasoning. 1. Because that was but the solitary dictum of a single Judge, in a case, where, it appears, the plea was overruled. 2. Because the ground, he put it on, is not the true one; and never was assumed in any case before. Eor a man, by omitting to plead a general statute, does not lose the benefit of it: Which is proved by the cases at common law, where the defendant does not plead the statute, but takes exception at the trial. The rule on the act of limitations is no answer ; for that proceeds upon a different ground; *namely, that there are exceptions in the statute, as infancy, coverture arid absence beyond seas; which the plaintiff ought to have an opportunity of shewing. So that the difference is, where the plaintiff has a right to be informed of the nature of the defence, and where he has not. But as the statute of frauds contains no exceptions, the defendant is not bound to plead it; because the plaintiff stands in no need of the information. Hence the reason, given in the dictum, is not only unfounded in principle, but is not the ground of any decision. 3. Because Lord Thurlow does not adopt that reason, in the opinion which he afterwards delivered; which, if it had been considered as found, he certainly would have . done ; because it would have relieved him, from a great deal of nice discussion.
    The cases therefore majT all be resolved into Eord Thurlow’s distinction. That the plaintiff shall not produce evidence aliunde to disprove the answer; but if the answer does confess the agreement, as the plaintiff has no occasion to resort to evidence, the defendant shall be held to his confession. 2 Bro. Cas. Ch. 567.
    Nor is it material that the plea in that case was ultimately alknved. Eor the last decree did not decide against the ground taken in the first, but turned on quite distinct principles; namely, 1. The difference between the contract stated in the bill, and that confessed in the answer. 2. The original incompleteness of the contract; which was not definitive, but left a locus psenitentis: Therefore the court, so far from overruling the doctrine, clearly admits that it will prevail; and consequently ought to be understood as having decided upon the circumstances of that particular case. Of course, as the defendants have, substantially, admitted all the allegations of the bill in the present case, they are bound by their confession; and the more especially, as it is the case of *a trust. 2 Atk. 156. Eor the rule is, that the statute never shall be interposed to cover and protect a fraud. 1 Eonbl. 171: And «as the defendants were the agents of both parties, and had, in effect, undertaken to procure the lands for the plaintiff, they will not be allpwed to disappoint him, and take the purchase to themselves, under a pretence, that, as the agreement was not in writing, it cannot be carried into effect. 2 Eq. cas. ab. 50, pi. 26; Mosely rep. 39.
    Randolph in reply.
    This is probably the first case on our statute, and the English decisions proceed upon false principles. The doctrine, in effect, goes so far as to say, if a man is honest and tells the truth he is gone; but if he will be base enough to tell a falsehood, and deny the truth he is safe. However, even upon the English cases, the plaintiff cannot succeed. Eor, the distinction is, where only the plea states the statute, and where, the plea and answer both state it: Prec. Ch. 208. But in this case the answer expressly insists upon the benefit of the statute; and therefore it does not fall within the principles of those decisions. The case of Whit-church y. Bevis, 2 Bro. cas. Ch. 567, was ultimately decided upon the authority of Whaley v. Bagenal in the House of Lords, 6 Bro. Pari. cas. ; which appears to have exploded the doctrine, that a confession in the answer would avoid the plea of the statute.
    But, be that as it may, the plaintiff, upon his own shewing, was not entitled to re-cover. Eor he does not state (and much less, does the answer confess) any positive agreement. It was merely a promise of the refusal, and not an undertaking to procure the lands for the plaintiff. Therefore he might decline taking them, when they were offered. Indeed the very promise of a refusal, implies a right to reject the offer. But both parties must be bound or neither. Cook v. Oxley, 3 Term rep. 653. Which is consistent with the doctrine laid down by the court in the latter part of *the case of Whitchurch v. Bevis, Bro. cas. Ch; There was consequently no contract, which could be the foundation of an action; and therefore the plaintiff was clearly not entitled to relief.
    
      But the decree is erroneous upon another ground; namely, that Mosely was no party to the suit. Because he was essentially interested in the question;-and the rule is,' that all parties, having any interest in the matter to be decided, ought to be plaintiffs or defendant's to the suit." Harr. Ch. pract. 378, 14. Therefore, as Buck and Brander have not the legal title, but merely possession of the surveys, a decision between them and Copland, may _ eventually affect the interest of Mosely; who ought consequently to have an opportunity of defending his own interests.
    There is no pretext for saying that Buck and Brander were the agents of Copland. No evidence shews that they undertook to perform any thing for him; and they expressly deny that they were agents.
    Call contra.
    The case of Whaley y. Bag-enal is probably inaccurately stated in the report of Whitchurch . v. Bevis; which is the only account we have been able to procure of it, at this place. But, at any rate, that case, affords nothing contrary to the doctrine we contend for. Because it appears, that there was no answer in- the cause; and therefore there could have been no decision upon the point of confession, whatever the abridgment of the case may state.' Eor the Lords never give any reasons for their judgment; but content themselves with a silent vote.
    The case of Cook.v. Oxley, 3 Term rep. is a strange one; and seems contrary to an opinion in the year books, S Vin. ab.. SIS; pi. 10, 11. But, at any rate, it will not-áffect the present casé, because 'here was' an absolute agreement to take at two shillings; and Copland was positively bound *'for that sum. Therefore the reiusal only applied t'o -the case,' of more than two shillings being offered by. some other person ; and- it is' to the latter event only, that the case of Cook v. Oxley will bear any application. ,
    There was no necessity for making Mosely á party; because no conveyance of the lands from him to the defendants was necessary; the assignment of the survey and-papers was sufficient. So that'the defendants are in possession of a title which they can make effectual, without any further..act from Mosely: And that will enable us to proceed against them.
    Cur. adv. vult.
   LYONS, Judge.

Delivered the resolution of the Court as follows.

The Court after mature considerations, does not discover .that Mr. Copland is entitled to the relief which he sought- by his bill.

Indeed such a suit, in a Court of Equity, appears to be a little extraordinary. Eor if we understand the nature of it, as stated in the bill, it is to obtain the transfer of a fraudulent contract, supposed to have been made by Buck and Brander, as trustees for Copland, with Mosely; without allowing the latter any satisfaction for the -injury, or even making -him a' party to the suit; although he was original owner of the land, and the person on whom the fraud was first and principally committed: Since it is charged, that Buck and Brander concealed from him, the offer by Mr. Copland of two shillings per acre, and of more than any other person would give for the land. So that according to that statement, Mosely had a right to set aside the contract with Buck and Brander, and to have the land restored to him again: And as Copland had made no contract with him, he could derive no claim from the sale to the others. *But Mr. Copland insists, that he confided in Buck and Brander to make the purchase for him; that, by promising to write to Mosely on his behalf, they thereby became invested with a fiduciary character; and were converted into trustees for him, as well as for Mosely: that, acting as trustees for Mosely, they had promised him a refusal of the land, and, therefore, ought not to have purchased for themselves without hi’s consent: that, such trusts are not within the statute of frauds, but a Court of Equity will enforce an execution of them; and, therefore, that the plea in the present case will not avail the defendants, who being in possession of the lands and title papers, are not entitled to hold them; but ought to convey them to him, and not enjoy the benefit arising from their own misconduct.

But how is the trust proved? Buck and Brander deny it. They aver that they had power from Mosely either to sell the lands or retain them to their own use, in part of the debt due to them; and that they only promised a refusal to Copland, in case they should sell. They deny, that they ever wrote, or engaged to write to Mr. Mosely, for or on behalf of Copland, or made any other promise, than a refusal, in case more than two shillings per acre should be offered ; finally, they .deny, that they ever had any -offer made to them, by Copland or any other person, of more than two-shillings per aore, until after the agreement was made with Mr.-Mosely, for the purchase on their own account; although they admit that Mr. Copland, (who, according to- his own statement, at last only tendered two shillings,) sometimes stated that he would gi-ve more, but did not say,how much. In all which respects the answer is not contradicted, or disproved by any testimony in the cause; andj as it is responsive to the bill, the facts as therein stated, must be taken to be true. So, that the trust is so far from being confessed, that it is positively denied, and the plaintiff produces' *no evidence to establish it. Of course the arguments bottomed on the trust all vanish ; and the plaintiff had no foundation- for relief upon that ground.

But, if the trust was established, yet Mosely, who was so much interested, and is said to have been injured by the transaction, ought to have been made a party. Eor, surely a Court of equity would not decree all the benefit of the fraud, if one was committed, to the plaintiff only; and give him the whole gain -arising from the misconduct of his own-trustees. On the contrary, 'we suppose, that in such a case, a Court of Equity' would set aside the sale to Buck and Brander; and (as the promise to Mr. Copland was only of a refusal of the land, so that he might perhaps be allowed to take it or not as he pleased,) direct a new sale. By which means Copland would have an opportunity of bidding- for it, and by a fair public sale, justice would be done to Mosely, the party most injured in the business ; and who was conscientiously entitled to the best price that could be gotten for the land.

But as no trust is proved, and no agreement in writing shewn, Mr. Copland has no equity; but was completely barred by the plea.

The decree of the Court of Chancery, therefore, is to be reversed, and the bill dismissed with costs. 
      See Moseley v. Buck, 3 Munf. 232, and mono-graphic note on "Agencies” appended to Silliman v. Fredericksburg, etc., R. R. Co., 27 Gratt. 119.
     
      See foot-notes to Shurtz v. Johnson, 28 Gratt. 657; Griffin v. Cunningham, 19 Gratt. 572.
     