
    Lewis Ellis v. William Ellis.
    From Edgecomb.
    The act of 1819, (Rev. ch. 1016) respecting parol contracts for the sale of la»ds and slaves, and the Statute of Frauds, (29 Char. 2,) were made to effect the same object, "and should receive the same ' construction.
    Therefore, where the whole purchase money was paid, and possession delivered according to the contract, although no note in writing was made of it, a specific execution was decreed. •
    The Plaintiff alleged, that in the year 1821, be purchased of the Defendant a tract of land, at a stipulated price, which was agreed to be paid in a bond of one W. J. Stanton and J. 8. Feel, payable to one 11. Feel, as guardian to the wife of the Plaintiff, and her brothers and sisters— that the bond exceeded the amount which the Plaintiff, in right of his wife, was entitled to receive from the guardian — and to obviate this, it was agreed, that the Plaintiff should give his bond to the guardian, for the balance, after deducting the sum which was due him, in right of his wife, and that the Defendant was to become surety for him — that to indemnify the Defendant in this suretyship, a mortgage on the bargained premises was to bo given him. That according to this contract, the bond of Stanton and Feel was assigned to the Defendant, a bond given by the Plaintiff ¡and Defendant to the guardian, and the Plaintiff put in possession of the land — that from ignorance of the manner in which the deed of bargain and sale, and the mortgage should be drawn, they never had been executed.
    The bill then charged, that tiic Defendant pretending the Plaintiff was bound to him as a guarantor of the bond of Stanton and Feel, who had proved insolvent, had refused to convey the land sold, and liad commenced an action of ejectment, against the Plaintiff to turn him out of possession.
    ' The prayer of the bill was for an injunction and a specific performance of the contract of sale.
    
      The Defendant in his answer, relied upon the act of 1819, (Rev. ch. 1016.) He also denied the equity of the Plaintiff’s bill; but it is not necessary for the purposes of this report, to give his views of the contract of sale.
    The injunction had been dissolved, and it appeared from a copy of the record of the action of ejectment, which was filed as an exhibit, that the Plaintiff had been turned out of possession, and that the Defendant, had recovered for the mesne profits.
    
      Hogg, for the Plaintiff.
    — The Plaintiff is entitled to a specific performance. The bill is not founded on the contract, which is void in equity as well as at law, by the act of 1819. The Defendant is not obliged to convey bis lands on a parol contract, until he signs a written agreement. He has a loans joenitentia}, and lie may exercise it, provided be lias practised no fraud on the Plaintiff. The right to relief is not founded on the contract, nor even on the payment of the consideration. Neither is it founded upon any supposed right a Court of Equity has to set up a parol contract void at law; but the Plaintiff applies to the ancient jurisdk Lion of a Court of Equity, to redress a fraud for which a Court of Law cannot give adequate relief. Ho does not complain that the Defendant has refused to comply with his parol contracts but that by performing it in part,ho has induced tiie Plaintiff' to pay the consideration of the purchase, and to enter on the possession, and afterwards treated him as a trespasser, by ousting him by ejectment, and compelling him to pay the mesne profits in damages.
    The Defendant admitted the Plaintiff to possession in good faith, and meant to make him a deed j hue failing in his calculation to receive the money on the bond cf Stanton & Peel, he aims, by refusing the deed, to charge his ioss, arising from the insolvency of Stanton & Peel, to his innocent vendee, whey, in justice, it ought to be borne by himself, as the result of his own want of information, caution or diligence.
    
      If ijie Plaintiff had simply paid his money, without getting possession,he might be left to redress at law,by his action for money had and received; but by admitting the Plaintiffto the possession, and receiving ins money, theDe-fendant lias so committed himself by a part performance, that he cannot go back without fraud. Indeed lie meditates a fraud in going back, and the Court will apply themselves to.his conscience, and compel him to convey. In no other way can the Plaintiff be safe from the contrivance of the Defendant. He has advanced his money, and committed acts that will be trespasses at law, on the faith of possession delivered by the’ Defendant, and the law can afford him no adequate relief. The jurisdiction of a Court of Equity to decree a conveyance, where there has been a part performance, is established in England, notwithstanding the statute of frauds, from which our act of 1819 is substantially taken.
    Generally, the disputo is, what shall be deemed a part performance. It has been a vexed question, whether payment of the purchase-money is a part performance ; and it has been decided, that a part payment, by way of earnest, is not — and it is strongly intimated, that full payment will not entitle a purchaser to a specific performance ; but the admission of the vendee to the possession, is a part performance, and entitles the vendee per se to specific relief; and certainly, the payment of the whole purchase-money, and the possession, are strong circumstances in the equity of a vendee. There is, if is believed, not only no authority, but no dictum to the contrary. (Buckmaster v. Ilartop, 7 Ves. 345, 347. Butcher v. Slupely, 1 Vernon 363. Clenan v. Cooke, 1 Sell. Sf Lef. 22. Sugden’s Law of Vendors, 84, & cases cited. Newland on Contracts, 182 — 185.)
    
      Gaston, contra,
    contended, that the Plaintiff’s right to relief was founded solely upon the contract, He insisted ih at there ivas a matcrial'difference between the statute-of Frauds (29 Char. 2) and our actof 1819, that the first did not annul the contract, but simply forbid an action to he brought upon it, whereas m our act ol 1819, the Legislature had cautiously avoided the language of the 4th section of the statute of Frauds, that concerning contracts — and had adopted the words of the 5th section concerning wills. He observed that the English Judges had of late lamented the inconsistencies which the liberal construction of the 4th section of the statute, had generated, and that this liberality had never been applied to the 5th. By using the words of the latter, he argued that tiie Legislature had plainly intimated an intent to exclude the construction which the 4th section had received. He then commented upon the cases in which the 4th section had been construed, and endeavored to prove that the introduction of the principles which governed them, would introduce confusion into the jurisprudence of the State, and argued strenuously to enforce the propriety of a more simple rule of construction,
    
      Hogg, in reply,
    observed, that the 5th section of the statute had, in England, received the construction he contended for; that their Courts of Equity had relieved in cases of frauds, upon devisees in unattested wills. For this he cited Newland on Contracts, 179.
   Taylor, Chief Justice.

— I think there can be no reasonable doubt, that the act of 1819, was made to effect the same object with the statute of frauds and perjuries, so far as it respected parol contracts, of sales of laud.— The mischief hero was of the same character with that sought to be remedied in England, and the full extent of it had recently been brought into view, by a decision of this Court, decreeing the specific execution of a parol contract, where there was no part performance.

There is some difference in the phraseology of the two statutes, but none I think in their substantial meaning. Our act makes all contracts, to sell or convey any lands, void and of no effect, unless they be put in writing. The statute of Charles prohibits the bringing any action upon any contract, or sale of lands, or any interest in, or concerning them, unless the agreement, on which such an action shall be brought, or some memorandum or note thereof shall be in writing &c. And this would extend to prevent the institution of a suit in-'equity, as well as at law, it is equally operative with our act, since depriving the party of all remedy on a contract is equivalent to annulling it. In this view, I think, the expositions of the statute of frauds are applicable to ours, and that after a system has been built up by the judgments of a succession of able men, it would be unwise and unsafe, to depart therefrom.

In the present case, the purchase of the land was made by the Plaintiff, and he let into possession thereof with the Defendant’s consent. Now, if the purchase-money was paid according to contract, or there was no agreement to guaranty the note of Stanton & Peel (which is a subject of future enquiry) it is equitable that the Plaintiff should be quieted in his purchase; and indeed it would be flagrant injustice to allow the Defendant, after receiving the price, and giving up the possession, to commit a fraud, under the sanction of a statute made for the prevention of fraud. If this agreement should not be performed, the Plaintiff, by being put into possession, has had a fraud practised upon him, and made a trespasser, and liable to account for the rents and profits. To show that he entered by agreement, and thus defend himself from.the charge of being a trespasser, it is allowable to prove the parol agreement, and the delivery of possession and being allowed for that purpose, it is equally reasonable that it shall be allowed throughout. This principle is illustrated and explained in a satisfactory manner in the case of Clenan v. Cooke.

Nor docs it seem that any mischief can arise under this construction, guarded, and limited as it is to (hose cases, where the acts done are of such a nature, that they could not possibly be executed with any other view, than to perform the agreement; for if they are equivocal, or ¡night have been done with other* views, the agreement will not be taken out of the statute. (Ambler 586.) A plainer case, with respect to the design of delivering possession, cannot well exist than this: it was the clear intention of both parties, that it should be in execution of the agreement; and if the Defendant has, in fact, been paid according to contract, he ought to be enjoined perpetually, and decreed to execute a deed.

Per Curiam.

— Direct an account to be taken by the Master of the purchase money, and let him report upon the nature of the guaranty, which the Defendant claims the Plaintiff to have given of Stanton & Peel’s bond.  