
    HUGHES v. MOORE.
    . Present....Ml the judges.■
    
    'A Plaintiffmay before verdict, discount in lús and wave* the Issues joined thereon, money as a ®°: üff for the*" “lim7 d°n? mi^maíiSofthe Defendant p“ own,name {“'¿“i wldcl1 ¡¡^patented the «amé of1 venting the tent'fohfs1own name, and in offoeDefeni. having patentoU>e be issued to ^^ntractVor the sale of land within and must be in o^nf’fa . deed set forth dl'at not mA. that deed part of. ®eJ®pply” to other ‘Pnt!ie ‘
    
      ERROR to the Circuit Court, for the District of Columbia, sitting in Alexandria.
    This was a special action of assumpsit, brought by Mooiie against Hughes. The declaration, after several amendments, contained four counts..
    
      • 1. The. first count stated, that whereas on the 16th ,of June, 1797, it was agreed between the Plaintiff, and one John Darby, by a writing under their hands and ■seals, now here shown to the Court, in substance as •lows: “ whereas Cleon Moore, had located in his own name, 9922- acres of .land in Kentucky, by a treasury warrant No. 19,100,” ■« and the said Cleon Moore, hath sold all his right, title and interest of, and in the same, to John Darby, for the consideration of 300/. and warrants that no person or persons claiming under John Tebbs, now deceased, or under him the said Cleon Moore, shall interrupt him, the said John Darby, in his said Claim to the said lands, but as to all other claims he is to run the risk, and on their account, will never require, that the said Cleon Moore, or any other person or persons, shall refund the said 300/.' or any part thereof, but if there should be as much land secured by said location, as will bring two thousand pounds or upwards, the said John Darby, is to pay the said Cleon Moore 700/. in money, over and above the '.said three hundred potmtis, so that he may receive altogether; olíe thousand pounds; otherwise the said Cleon Moore is only to have the said consideration, of .three hundred pounds.” At the bottom of which writing, was a ceipt in these words, “Received of John, Darby, the sunt of three hundred pounds, the full consideration for the . first mentioned location, in the foregoing agreeinent, oh of his right,. title, and interest of, and in the same — Cleon Moore, and a seal. And whereas, on the same day, a memorandum in writing, and under the seals of the Plaintiff and the said Darby, was added and indorsed on the said agreement as part thereof as. follows: “ Memorandum — If a patent or patents have already issued for the first within mentioned location, said Moore, doth agree to assign the same, to the with* in named John Darby, his heirs and assigns; or if not issued; that they issue in tire name of the said Cleon Moore, and he is to assign them to the said John Bar-fey, his heirs, and assigns; and if in the opinion, of any two respectable men in the neighborhood of the said lands, to be mutually chosen, shall say the said lands will sell for two thousand, pounds, or upwards, the said John Darby doth hind himself, his heirs and assigns, to pay unto the said Cleon Moore, his executors, administrators and assigns, the sum of seven hundred . pounds, as herein mentioned.”
    
      k And whereas the said Defendant, afterwards, op the 5th of October, ±799, well knowing the contract and coy-, enante aforesaid, between the said Cleon Moore.and John Darby, and more especially well knowing that ta Patent or grant had not then been issued for the tract of 9922 acres,- located in the pame of the said Cleon Moore, and well knowing that the patent for that lánd Ought, and could only be issued unto the said Cleon Moore,' and well knowing that the said Cleon Moore was entitled to the sum of 700i. lawful money Of Virginia,' of the value of 2,333 dollars, and 33 cents, pro vided, in the opinion of any'two, respectable men, in the neighborhood of the said lands, to be mutually chosen, they should say the said lands would sell for 2,0001. or upwards, lawful money of Virginia; and whereas" the Defendant, well knowing that the said lands were really and truly worth, on the day and year la '■¡ mentioned, a jhuch greater -sum than 2.000Z. and well Knowing that it Would materially injure the Plaintiff in, his contract aforesaid, and would materially benefit the said John Darby and himself, the said Defendant, he the said Defendant, on the said 5th day of October, &c. assigned the pldt'and certificate of survey, made of the said 9922 acres, and a warrant. numbered 19605, in the name of the Plaintiff, unto himself, the said Defendant, and the said John Darby, without any lawful authority, •so to do from the said Cleon Moore, by making a,nd Subscribing the said assignment of the said survey, in the name of him, the said Cleon Moore, by him the said JamesAIughes, as attorney in fact, for the said Cleon Moore, which assignment,, imported a desire of him the said Cleon, that pateftts might issue in the names of the said Darby and Hughes, intending thereby to defraud and injure the said Cleon Moore, and to benefit himself and the said John Darby, in respect to the premises aforesaid. And whereas the said James Hughes,' . by means of the herein before mentioned assignment, had caused and done to the Plaintiff, an injury to the-vaIvje of a great sum of money, to wit, the value of 4,009 dollars, which he was disposed to compensate ; the said ,Jame¿ Hughes in consideration thereof, afterwards, viz: on the 17th of March, 1806, came to An agreementywth tbc(said Cleon Moore,-whereby the said Cleon Moor®, promised, that he would quit all claim to the said tract of land, and discharge the{ said James Hughes of, and concerning all damages for, and by 'reason of his actings and doings' qfortsdid, in assigning the, survey in manner aforesaid > and he tjie said James Hughes, promised to the sajd Cleon, Moore, that he. would pay to him the sum of 700k when he should be thereafter required | and the Plaintiff avers, that he has been always ready to keep, and has always kept his promise aforesaid, in consideration of which premises, the Defendant became liable to pay to.him, the said sum of 700k &c. and being so liable, the Defendant in consideration thereof, undertook,” &c.
    2. The second count, stated, that whereas on the 5th ofDctober, 1799, the Plaintiff was owner and proprietor of a certain plat,, and certificate of survey, of 9922 acres of land; in Mason county, in thp state of Kentucky, dated the 28th of November, ±79fi, of the value of 20,000 dollars, and whereas the Defendant well knowing the premises afterwards, viz, — on the 5th of October, ±799, without any lawful authority from the Plaintiff, and with a view to benefit himself, and a certain John Darby, and to injure the Plaintiff, in this particular, assigned the last mentioned plat and certificate of survey unto him the said Defendant, and the said John Darby, by subscribing the name of the said Cleon Moorp by the said James Hughes, as Attorney in fact, for, the said Cleon Moore ¿ and in consequence of the said unauthorized assignment^ a grant of the said tract of land was afterwards made to the Defendant, and the said Darby, by the Commonwealth of Kentucky, styling them assignees of the Plaintiff. And whereas the Defendant, by the assigriment aforesaid, had caused and done to the Plaintiff an injury and loss to the value of a great sum of money, viz. to the value of 4,000. dollars, which he was willing to repair and compensate $ in consideration thereof, the said Defendant afterwards, viz. on the 7th of March,. 1806, at the county of, Alexandria, &c. promised to pay to the Plaintiff, the sum of 700k lawful money of Virginia, as compensation for the said injury and loss of the said land assigned as aforesaid.'
    
    The said Plaintiff at the same time_ngtee.dAo;Hie'said terns, and to accept of the saidcompénsation in full of 
      
      all claims and demands for the said land, andfortfye injury áfefésaid. And the Plaintiff avers, that he'has always kept, his promise aforesaid, and has been at ail times ready and willing.,tó da every thing on his part tobe, .done; and afterwards, viz. on, &c. a*, &c. ojferedto perform, the agreement on his part, and'the Defendant then and there refused. to perform, &c. whereby the Defendant became liable,, &c. and being so liable, promised to pay, &c.
    .3'. The 3d count stated, that whereas the Plaintiff, by virtue of a certain land warrant issued, &c. on the 26th of September, 17J83, duly located b.y entry oh the 7th' of December, 1783, and duly executed by actually survey, duly made ort the 28th of November, 1796, & plat and certificate whereof, liad been duly made and delivered according to law, was entitled to have a grant from the' commonwealth of Kentucky, by patent to be founded on the said survey, and to be completed and issued to him of 9922 acres of land in the county of Mason. &c. bounded, Ac. — And whereas the‘Defendant had on the 5th of October, 1799, (the Plaintiff, being so. entitled to have the land patented to him aforesaid, and the Defendant well knowing the premises,) for his own gain and advantage, and to the great wrong and damage of the Plaintiff; without any lawful authority to that cffe.ct from the Plaintiff, and Withput Ms knowledge or consent, but under color and pretence of being Attorney in fact for, the Plaintiff, wrongfully, injuriously and wilfully made and executed in the name of the Plaintiff, a certain indorsement ifi writing," upon the back of the said plat and certificate .of survey, purporting to.be an assignment by the Plaintiff, of the said plat and certificate, to one John Darby and the. said James tíughes, for value received, and purporting to express a-desire of th® Plaintiff, that patents miglit issue.in thejr,names, and purporting to be subscribed with the, name of the Plaintiff, by the . said James Hughes, his Attorney in . fact. And whereas the said James, afterwards, viz.- qn the 5th , of .April, 1800, (the Plaintiff being entitled to . have the; said land patented to Mm as aforesaid,) with* out any authority to' that effect from the Plaintiff, and withoutshis knowledge or. consent, by means of the. said pretended assignment, and under color of the samé, for Ms own gain and advantage, and to the great wrong and damage of the Plaintiff, wrongfully, injuriously arid wilfully caused and procured the land so located arid surveyed for the Plaintiff as aforesaid, and bounded as aforesaid, to be «granted by the comihonwealth of. Kentucky, to them the said John ,Dhrby and James Hughes, by patent, bearing date, Ac. founded on the said warrant and survey, and on the said pretended assignment of the plat and certificate, and signed by James Garrard, the Governor, anc sealed with the seal of the said comriionwealth of Kentucky, and in all respects, . finally completed and issued to them the said Darby and Hughes, and entered of record in the land office of Kentucky, aforesaid. And the Plaintiff, says, that the said land was patented to the said Darby and Hughes, by the procurement and pretences of the said James as aforesaid, without the Plaintiff’s having ever in any manner authorized, contracted, or consented, that the same should he patented in the name of any other person or persons whatsoever, other than himself. — And the Plaintiff producéth here in Court, a copy of the said patent, Ac.
    And whereas, afterwards, on the 13th of March, 1806, at Alexandria, Ac. a conversation was had, and propositions for an accord arid satisfaction, were moved bfctween the said James and the Plaintiff, concerning a compensation for the loss and a liquidation of the damages sustained by the Plaintiff, by reason of the misconduct and wrong, doing of the said James in the premises, and of the vesting them, the said Darby and Hughes, with the legal tille to the said land as aforesaid ; and it was then and there agreed by the said James on his part, in consideration of the premises, arid of the just claims of the Plaintiff for compensation, and damages as aforesaid, that the said Janies should pay to the Plaintiff in satisfaction of the samé, 700i. Virginia1 currency, equal to 2,333 dollars and one third of a dollar, currency of the United States, to be paid in four equal 'quarterly instalments, the first in three months, Ac. each instalment to be' secured by a. bond of the said James; and the Plaintiff agreed to accept the said 700?. by instalments as aforesaid, in full satisfaction of his just claims as aforesaid, and upon the said instalments being secured by the bonds of the said James, as aforesaid, to release and quit claim, to the said James, all the Plain tiffs' claims and demands w hatsoever, for compensation, redress, or damages arising from the wrong doing and/ misconduct of the said James, in the premises, and front fhz ■ vesting the said Darby and Hughes with the legal title to the said'land as aforesaid. The count then states, thát .the Defendant promised to fulfil the agreement on his part, and the Plaintiff on his part. That the Plaintiff is, and always was ready and willing to perform his part, if the Defendant would perform his. That he afterwards required the Defendant to perform his parí, and offered to accept, and would have accepted of the De - fendant the 7001. in instalments as aforesaid, and secured by bonds as aforesaid, in full satisfaction of all the . claims and demands of the Plaintiff for compensation, redress and damages' as aforesaid, and did then and there offer to perfect and execute, and would have perfected and executed to the said James, a good and sufficient quit claim and release to him, of all the Plaintiffs claims and demands fpr compensation, redress or damages, arising from the misconduct and wrong doing of the said James, in the premises, and from the vesting of the said Darby and Hughes, with the legal title to the ■said land as aforesaid, if he, the said James, would have , secured by his bonds duly executed, the, said 700L Sec. But the Defendant refused to perform his part of the agreement, &c.
    4. The ith count stated that whereas, on .the 5th of October, 1799, the Defendant without any lawful authority to' that effect, but for his own gain and advantage and to the great wrong and damage of the Plaintiff, with intent to prevent the land hereinafter mentioned, from being patented to the Plaintiff, and to cause and. procure the same to be patented to the Defendant and one John Darby, wrongfully, injuriously and wilfully made and executed in the -name of the Plaintiff,' a certain other indorsement in writing, upon a certain other plat and certificate of survey duly made for the Plaintiff, on the 28th of November, 1796, the said survey having been so made in due execution óf a certain pther warrant duly issued in favor of the Plaintiff, from the land office of Virginia on the 26th of September, 1783, &c. and in pursuance of a location and entry, &c. which last mentioned indorsement purported to he an assignment, See. from the Plaintiff to the said John Darby and tho Defendant, for vaiu^ received, &c. ’purporting to be subscribed, &c. And whereas the Defendant had, on the 5th of April, 1800, in further pursuance of his said intent to prevent the land from being patented to the Plaintiff, and to cause it to be patented to the said Darby and the Defendant, wrongfully and without authority, and under color of being attorney in fact for the Plaintiff, caused the land to be patented to the said Darby and the Defendant, &c. — and the Plaintiff produceth here a copy of the patent, warrant, survey, &c. &c. — and the Plaintiff avers, that he never authorized the Defendant to make the said .'assignment,, and that the Defendant knew he had no such authority-r-that it was made without the Plaintiffs knowledge or consent — that the Plaintiff was, until the issuing. of the patent to Darby and the Defendant, entitled to have the land patented to himself — by which wrong doing of the Defendant, the Plaintiff had suffered gifeat wrong and injury, and. was entitled to be compensated in damages by the Defendant, and to be indemnified for being prevented from having the land patented to him, and for the same being patented to Darby and the Defendant. And .whereas afterwards, on the 13th of March, 1806, a conversation was had and propositions for a compromise were moved between the Plaintiff and Defendant, touching the compensation and indemnification of the Plaintiff, and the Defendant then and there agreed-in consideration of the just claims of the Plaintiff to be compensated for the damage and injury arising from the misconduct of the Defendant in the premises, and in consideration of the Defendants having procured a patent to be issued to him and Darby for the land, that the Defendant would pay to the Plaintiff another sum of 700L Virginia currency of the value, &c. which the Plaintiff agreed to accept in satisfaction of his just claims to compensation arising f?om the causes and considerations last aforesaid $ and the Defendant in consideration of his said agreement, assumed and promised to the Plaintiff that he, the Defendant, would perform his part of the agreement. And the Plaintiff in considera tion of that promise agreed to accept the 7O0L in satis faction,. &c. as aforesaid and upon payment of the same or upon its being secured to be paid in four instalments, &c. that he, the Plaintiff, would quit claim and release to the Defendant, all the Plaintiffs claims and demands and rights whatsoever to compensation for being prevented from having the. land patented to liim, and for arid ori account, of ike same being patented to the said I)arby and the Defendant^ — and the Plaintiffsaysthathe was and hath ever since been willing and ready to perform, Ac. and requested the Defendant to perform, Ac. and offered to accept,_ Ac. the 7001, Ac. in'fall satisfaction, Ac. and offered to! quit claim, Ac. all the Plaintiffs claims for compensation, Ac. if the Defendant would pay, Ac. but he refused, Ac.
    The Defendant, having prayed oyer of the agreement and' the memorandum, of which á proferí was made in the first count, pleaded ñon assumpsit ■ to that count, /and so. in like manner to each off the. other counts separately; upon’all of which pleas, issues were joined.
    3d. The Defendant, (without again praying, oyer,) for further plea to each of the counts, severally, said, that the promise alleged to be made by the Defendant to the Plaintiff, or any memorandum thereof, was not in writing, signed by the Defendant or any other person by him thereunto lawfully authorized, and this he is rpady to verify, Ac.
    "’3.' The Defendant. also without, again praying oyer, for further plea to each of the counts, severally, said, «that after making the agreement and memorandum « between the Plaintiff and the said John Darby, in the « declaration mentioned, viz. on the 29th of August,'' «1799, Alexander D. Orr, and John Graham, two re- « spectable, men residing in the heighborhood of the /‘-lands, in the said agreement mentioned, were.mutually. « chosen by the Plaintiff, and the said John Darby, to «,say and determiné whether the said lands would sell ’« fov two thousand pounds, or upwards, and the said «Alexander D. Orr, and John Graham, afterwards, il viz. on the 29th of August, 1799, did say and deter- « mine', that the Plaintiff’s claim to a survey of 9922 « acres, in the county of Washington, being the land « in the said agreement, and memorandutii mentioned, .« wfthld not sell fer SJOOOLYirginia money, and this he "»iartfady to verify,” Ac.
    
      4. The Defendant also, without again praying oyer, pleaded separately to each cquht, «that there was not as much land secured by the said location in the. agreement mentioned, aS would bring 2,000i. or upwards, and this he is ready to verify, &«. The Plaintiff demurred generally , to the second plea, to all the counts, and to the 3d and 4th pleas, to the 2d, 3d and 4th counts.
    . To the 3d and 4th pleas'to the 1st.count, there was-a genérál replication and issue.
    The Court below adjudged all the demurrers in fa vor of the Plaintiff.
    The Plaintiff then entered a noli prosequi upon the first count of his declaration, and waved all the issues joined thereon. Upon the issues of non' assicmpsit to the 2d, 3d and 4th counts, there was a verdict and judgment for the Plaintiff.
    After the jury had retired to consider of their verdict they returned into Court and i*equested the Court to determine whether a verdict for the Plaintiff would give to the Defendant all the right and interest of the Plaintiff and his heirs in the patent of land in thfe declaration mentioned, and the Court instructed them that if the Plaintiff should recover a judgment in this case, he would be thereby barred in equity from setting aside the patent issued to the .Defendant and the said John Darby in the declaration mentioned. ;To this instruc-. tion the Defendant excepted," and brought his writ of error.
    Swann anb C. Simms, for the Plaintiff in-error contended,
    1*. That the Plaintiffhad no right to discontinue as to the first count aiid wave the issues on that count, without-the leave of the Coui’t, or the. assent of the Defendant.
    2. That the statute of frauds was a good bar to every* count in the declaration, and
    5. That if it was not, the Court erred in instructing the. jury that a recovery in this suit would bar the Plaintiff in equity from setting aside the patent.
    1. The Plaintiff had no right to discontinue as to the first Count, after issue, Gro. Jac. 35, 316. The oyer being once prayed and granted, the agreement and memorandum ywe spread upon the record, aftd the Defendant had a/right to avail himself of it in all his pleas. •The Defendant hád a right to show that the title of the Plaintiff to those lands was never worth 2,000/. and therefore he was never entitled to any thing, more than the 300Z. which Darby had paid him — consequently the obtaining a patent in the name of Darby and Hughes, could be no injury to the Plair+iff, and if the Plaintiff .did promise to pay the 700/.. it was a promise without consideration. This was the real substantial defence In the cause. In order to entitle the Plaintiff to recover, he must not only prove that the Defendant did a wrong action, but that it did an injury to the Plaintiff, i, Bac. Ab. 50. 6. Mod. 46.
    2. As to the plea of the statute of frauds. By the act of assembly, of Virginia, p. p. 15, which'is like that of Kentucky, it is enacted that no action shall be brought, whereby to charge any person upon any contract, for tiie sgle of lands, tenements, or hereditaments, unless t[je promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person by him thereuntb .lawfully authorized.
    .The contract set forth in ekeh count of the declaration is a contract for thé sale of land. It is a contract whereby the Plaintiff was to part with all his title to the land; and it is immaterial whether that title Was legal or equitable.
    The first count slates expressly, that the Plaintiff “ promised to quit all claim to the tract of land/'1 and the Defendant promised to pay 7001.
    
    The 2d count also states, that the Defendant wac to pay the 700/. as compensation for the injury and loss of the land ; and the Plaintiff agreed to accept it “ in full of all 
      
      claims and, demands for the said land and for the injury aforesaid.”
    
      The 3d. count says, that a conversation was had concerning a compensation for the loss, and a liquidation of the damages, sustained by the Plaintiff by rpason of the misconduct and wrong doing of the Defendant, and of the vesting them, the said Darby and Hughes, with the legal title to- the said land, and it was agreed in consideration of the-premises, that the Defendant should pay to the Plaintiff 700Í. in full satisfaction of the Plaintiffs claims as aforesaid; and the Plaintiff agreed, upon such payment being made, to quit ckim.to the Defendant all the Plaintiffs claims for compensation, &c. arising from the wrong doing and misconduct of the Defendant in the premiseses and from the vesting the said Darby and Hughes <( with the legal tille to -the said land.”
    
    The am count states that the Defendant agreed, in consideration of the just claims of the Plaintiff to be compensated for the damage and injury arising from the misconduct of the Defendant in the premises, and in consideration of the Defendants having procured apateht to be issued to him and Darby for the land,. that he, the Defendant, would pay the Plaintiff another sum' óf 7001, &c.
    
    Thus the quit-claim of the Plaintiffs title to tlie land is the consideration of every promise in the declaration; and if the Plaintiff, had no title, or if no title was to-pass from the Plaintiff, by the contract, it was nudum pactum,
    
    
      S. If this was not a contract for the sale ;of the Plaintiff’s title to the land, a judgment for him in this suit could not have barred the Plaintiff from setting aside the patent in equity. There seems'to have been an inconsistency in the opinions of the Court below. If the agreement extinguished the Plaintiffs equitable title, then it was an agreement for-the sale of land, and ought to have been in writing. If it did not extinguish the Plaintiff’s equitable title, then it could not bar him from setting, aside, the patent.
    Jones and C. Lee, contra.
    
    This was-a case of naked tori — there is no evidence of any authority from Moore to Hughes-to make this transfer, but it ivas done by the latter with a full knowledge that it was contrary to the Plaintiff’s intention. It was of. itself an injury to the Plaintiff for which he was ■entitled to redress. St was actionable per se.
    
    But suppose that a judgment for (lie. Plaintiff in this case should prevent him from setting aside the patent, yet it does not follow that it is a case within the statute of frauds. Contracts executed are not within that statute. If there be a verbal agreement for the sale of land, and the vendor executes his part of the agreement by ■conveying to the purchaser the legal title j which he accepts, and receives the possession and the title papers, it is not necessary that the vendor should have a promise in writing from the purchaser, in order to compel him to .pay for it — a Court of Chancery would decree him to execute the contract.
    The Plaintiffs subsequent ratification of the act of the Defendant, was equivolent to his previous assent. The contract then was executed on the part of Moore.’ The Defendant had all his title — and the possession. — and the title papers. No further act was necessary ori the part of the Plaintiff.
    Besides,, it docs not appear that the contract on the part of the Plaintiff if there was any, for the transfer of his right, was not in writing. If it was necessary that it should have been in writing, it will,, after verdict, be presumed to have been so. i. Chitty on pleadings, 133. 1. Sand. 276 (a.) note 2. 4 East. 400;
    As to the Noli Frosequi — the Plaintiff has a right to enter it at any time before verdict, and evdh. after verdict, before judgment. Bayer on damages, 113. 12, Mod. 558.
    The Defendant could not by oyer of the. agreement stated in the first count, make that agreement applicable to other-counts which do not refer to it. The 3d and 4th pleas were only applicable to the first count.
    It is immaterial whether the Plaintiff actually sustained damage to the value Of 7001. It is sufficient if he: sus-tamed any damage af all. ,It is an action for liquida* ■ted damages, and it is immaterial what was tbé real injury which the Plaintiff suffered. 7 Vin.300—Tit Damages. S.—Moore 419, Colman’s case.-4. Burr. 2228, Lowe v. Peers.—1. Lord Raym. 1164.
    The Court below was correct in the opinion, that a judgment in this suit would have barred ó suit in equity to. sict aside the patent It was only an agreement for the extinguishment of an equitable right which need not be in writing. It transfered nothing to the Defendant.
    
    March 7th....
    
    
      All the Judges being present,
    
    
      
       It is understood that 'the opinion of the Court below was grounded'on the idea" that this ease was to be governed by the principles relative to implied trusts1 which ave not within'the statute of-frauds. Darby & Hpghes having obtained the legal estate without the assent of {he Plaintiff were- to be considered as holding it in trust to secure to him the payment of7001. Incase the land should turn out to be .worth .2,0001. This was an implied trust,' resulting from the circumstances of the case, and1 which would cease to exist upon payment ot the 7001. Upon the Plaintiff’s 'receiving payment of that sum, his equitable title would cease. It would not be transferred to the Defendant ; but would be extinguished. II the 7001. mentioned iti the- declaration were to be considered as the compensation for the injury done in depriving the Plaintiff of his legal.security for 7001. to be paid upon a contingency, it is evident that that injury could not h$ve exceeded 7001. «And whether it were to be paid as compensation for that injury, or as thtfrsum which would be due upon the happenihg of the contingency, it would equally destroy tb¿ implied trust. Ami as an implied trust caii be raised-without writing, so, it was thought, it could be extinguished writing. ■
    
   Marshall, Ch. J.

delivered the opinión of the Court as follows:

Much of the seeming intricacy of this cause will disappear, if we extricate the questions made by the pleadings before the Court, from others which might greatly embarrass and perplex it.

The 'declaration contains four counts. The first recites an original contract between Cleon Moore and John Darby, for the sale of certain lands, lying in Kentucky, and proceeds to recount in detail those transactions on which the action was founded. The other counts state, in different terms, the sevéral assumpsits,' which they allege to have been made.

The Defendants crave oyer of the written, contract, stated in,the first count, and file several pleás to.that count.. They then, without repeating the oyer, file similar pleas to the remaining counts. After taking issue on some of the pleas, and demurring to Others, the below discontinues his first count;

By the counsel for Hughes, this has been considered as ei’ror. But the Court can perceive no reason for this opinion. After this discontinuance, the parties are in precisely the same situation, as if. all the issues both of law and fact which were joined upon that count, had been decided in favor of the Defendant below. Such decision could, not, in point of law, have affected the rights of the parties under the issues joined on the remaining counts, and consquently the discontinuance upon that count must leave those rights unimpaired. Whether this count remain in the declaration, or he stricken out of it, the right of the Plaintiff in the Circuit Court, to recover on the other counts, will be precisely the same. The examination of this right must be conducted on the same principles as if the declaration had never contained the first count.

By the Plaintiff in error it is contended, that.itheoyer, which was prayed of the written contract alleged in the first count, spreads that contract' on the record, and makes if; a part of all his subsequent pleas. This is certainly true with respect to all his subsequent pleas to that count, - but not with respect to his pleas to the other counts. Different counts allege different contracts, and. different assupipsits. It is upon-this idea alone, that a verdict can be rendered for the Plaintiff, on one count, and for the Defendant on another. Now the oyer of one contract cannot be the oyer of another contract, and cannot spread upon the record a contract supposed to he totally distinct from that which was read» The discontinuance of the first count produces no change in this respect, in the condition of the parties. Had it remained, it could have had no influence on the other counts, nor could the oyer of the written contract it stated have transferred that contract to the other counts.

The second count states, that Cleon Moore was c-wner and proprietor of a plat and certificate of survey for lands lying in Kentucky, for which he was entitled to a patent from the government of that State j and that James Hughes, without authority, transferred that - plat and certificate, in the name of Cleon Moore to John Darby and the said Hughes, by which wrongful' act a patent for the said land! was issued to the said Darby & Hughes to the great injury of the said Moore. That afterwards the said Hughes promised to pay to the said Moore, « the sum of seven hundred pounds for the said injury, and loss of the said land assigned as aforesaid ¿ the said Plaintiff at the same time, agreed to ..the said terms, and to accept of the said compensation in full of all claims and demands for the said timd and for tlie injury aforesaid.”

To this count, the Defendant pleaded several pleas, one of which was, that neither the promise nor any. memorandum thereof was made in writing. To this plea the Plaintiff demurred, and the Court sustained the demurrer.

The correctness of this decision depends entirely on the application of the statute of frauds to the contract stated in the declaration.

Cleon Moore is averred to' have been the proprietor of a plat and certificate of survey oh which Hughes & Darby obtained a patent by using his name without authority. . This tortious act did not divest Moore of his equitable title. The land, in equity, was his. Did he part with this title by the contract stated in the declara-. tion ? The answer must, in th.e opinion of the whole Court, be in the affirmative. « He agreed to accept of the said compensation in full of all claims and demands for the said ‘and for the injury aforesaid. This, then, was an agreement to sell his. equitable title to the i land for the sum of seven hundred pounds. The Court can perceive no distinction between the s,ale of. land to which a man hás only an equitable title; and a sale, of land to which lie has . a legal title. They/are equally, within the statute.

It is, therefore, the unanimous opinion of this Court, that the'judgment upon the demurrer to this plea, ought to have been hi favor of the Defendant .below* This plea being a complete bar to the second count, it is ini-, necessary to consider the other pleas. •

, The third count states the. title of Cleon Moore» and , the injury sustained by him to the same effect with the, second count. It then states a conversation between - the parties, “ concerning a compensation for the loss» “ and a liquidation of the damages sustained by the said “ Cleon, by reason of the misconduct and wrong doing “ pf the said James in the premises» and of the vesting “them, the said Darby & Hughes, with the legal.titleto “ the said land as aforesaid t, and it was then and there “ agreed by the said James, on his part, in consideration, of the premises,-and of the just claims of the said “Cleon, for .compensation and damages, as áforcsaid, “ that the said James should pay to the said Cleon, in “ satisfaction-for the same, the sum of 7001.” &c. « And “ the said Cieori then and there agreed, on- his part, to “ accept of the said seven hundred pounds in. full com- “ pensatioh of his just claims as aforesaid,” and, upon the same being secured, &c. to release and quit claim to the said Jámes, all his, the said Cleon’s, ci aims and demands whatsoever, -for compensation, redress or damages-arising from the wrong doing and misconduct of the said James in the premises, and from the vesting the said Darby & Hughes, with the legal title to the said land as aforesaid.

' T° this counf also, the statute of frauds was pleaded in bar. The Plaintiff below demurred to the plea, and the Defendant joined in demurrer.

' Upon the true construction ®f the contract stated in this count, there was some contrariety of opinion among the judges. It is,.-however, the opinion, of the majority that the contract must be understood to import a sale of' land, and that the sum of money stipulated to be paid, was, in contemplation o,f the parties, to extinguish the ti? tie of the said Cleon Moore.

The conversation was « concerning a compensation “ for the loss and a liquidation of the damages sustained “ by the said Cleon,” not only “ by reason of the mis- “ conduct of the said Hughes, but also.' by reason « of “ the vesting, them, the said Darby & Hughes, with the “ legal- title to the .said land.” “And it was then “ agreed, in consideration of the just claims, of the said « Cleon,, for compensation and ddmages, that the. said “ James, should pay the said Cleon, in'satisfaction for «the same, the sum of 700i.” To the majority of the Court, it seems, that a compensation fob the loss of the title to the land must be understood to be a compensation for the land itself, and that the receipt of this money by. Cleon Moore, would not only have barred an action for damages, but a suit in equity for the title.

If this opinion be correct, then the contract is substantially for the sale of land, and, to be valid, ought to have been in-writing. On this plea also the demurrer ought to have been overruled.

The foiirth count states the injury more in detail, than is done in either the second or-third counts. It states the claim of Cletffi Moore to be compensated foy the loss sustained by his land being granted without his consent to Hughes and Darby. A conversation was then held, and propositions-for a compromise were made, touching the compensation and indemnification of him, the said Cleon,” « and it was then and there agreed by the said James, in consideration of the just claims of the said Cleon, to be compensated for the damage and « injury for the misconduct of the said James in the pre*f mises, and in consideration of the said James having “ procured and obtained a patent to he completed and *( issued to the said James, and the said John Darby, as " last aforesaid, for the said land,” that he, the said James, would well and truly pay the said Cleon, one other sum of 7001. This the « said Cleon agreed to « accept in satisfaction of his just claims to compensáis tion arising from the causes and considerations last « aforesaid.”

The compensation here offered and accepted, is for the injury sustained by Cleon Moore, in consequence of the* grant of his land, by the state of Kentucky, to Hughes and Darby. It seems to the Court, that this compensation was in lieu' of the patent itself, and must have been intended to extinguish his right to that patent. It is difficult to suppose an intention, in this case, to receive a full compensation for the loss of a title, and yet to retain the right to that title. The majority of the Court is of opinion that, under the contrast as stated in this count also, the payment of the money agreed to be paid, would have extinguished the right of Cleon Mooré to the laud in question, and that this contract likewise is siibstanlially a confraci for the sale ofland. Thedemurrer, therefore, to this plea ought to have been overruled.

It is unnecessary to examine other points-which were made in the cause. The judgment of the Circuit Court must he reversed, and judgment rendered for the Plaintiff'in error.

Judgment reversed.  