
    William Beaman vs. Daniel Buck et al.
    A bill to enforce the specific performance of a parol contract for the sale of a tract of land, cannot be maintained in this state.
    W. B., being defendant in an.execution, permitted D. B., the plaintiff in the execution, to buy certain lands of his at sheriff’s sale; upon which D. B. agreed in parol that W. B. might sell the lands and reap any profit on the sale after paying D. B. the sum of $375, due him by W. B.; upon which W. B. sold the land by parol to D. for $ 650 ; of which D. was to pay D. B. $375, and the residue to W. B. In pursuance of this parol agreement D. paidD. B. the $375; but failed to pay W. B. the residue, and delivered him up the land in consequence thereof; upon which W. B. filed his bill against D. B. for a specific performance of his agreement to make title to the land, or else pay the money received from D. to him ; held, that W. B. was entitled to neither relief; he was not entitled to a specific performance because the contract was in parol; nor was he entitled to recover back .the money paid by D. to D. B., because D., if any one, was the party entitled to recover the money paid by him, from D. B. on the contract being held invalid.
    "Where payments are made upon parol contracts for the purchase of land, which are not completed, the money paid is recovered back by the party who paid it, because of the rescission of the contract; where, therefore, money is paid on a parol contract for the purchase of land which, if the contract stands, is to go to a third person, on the rescission of the contract such third person cannot insist upon his right to the money; that right belongs to the party who paid it.
    On appeal from the vice-chancery court at Columbus; Hon. Henry Dickinson, vice-chancellor.
    William Beaman states in his bill in substance, that Daniel Buck having purchased some land of his at sheriff’s sale, under a judgment in Buck’s favor against him, agreed that complainant might sell the land and reap the benefit of the surplus, after paying Buck the sum of $375, due him, and Buck would make title to whom complainant might sell. He sold the land for $650, to Hutchinson Dent, who went into possession of it and paid Buck the sum of $300, due by complainant, and arranged for the residue, and Buck agreed to make Dent a title to the land. After this Dent became embarrassed, and being unable to pay the residue of the $650, delivered up the land to complainant, who was then in possession of it. Dent was also in debt to Buck, and in order to secure that indebtedness at the expense of complainant, Dent and Buck had agreed to consider the payments made by Dent as made on Dent’s own indebtedness; and Buck insisted on complainant’s paying the sum alleged to be due to him, and -he instituted an action of ejectment for the land. The bill makes Dent and Buck parties, prays for injunction; a specific performance of the contracts between complainant, Dent and Buck; or that complainant be entitled to receive the money paid by Dent to Buck.
    The answer of Buck denies many of the allegations in the bill; and the proof of the cause tended to sustain the answer; but it is not deemed necessary to set out the case as made by the answer and proof, as the court decided the cause upon the face of the bill itself.
    The vice-chancellor dismissed the bill, and the complainant appealed.
    
      A. W. Dabney, for appellant.
    1. The sale made by Buck being for the benefit of Beaman, the appellant, and to énable him to pay a debt he owed Buck ; and Beaman having afterwards purchased the interest of Dent in the land, there is such privity of contract between the parties as to entitle Beaman to a specific performance of the contract. Buchannon et al. v. Upshaw, 1 How. Sup. Ct. R. 84; 2 Story’s Eg. 96. Halls v. Thompson, 1 S. & M. 490.
    2. Where, upon a sale of land by parol, a considerable part of the purchase-money is paid, and the vendee let into possession, who makes improvements, a court of chancery will decree a specific performance, upon the payment of the residue of the purchase-money. Cummings's Heirs v. Gill’s Heirs, 6 Ala. R. (N. S.) 562.
    3. If Beaman is not entitled to a specific performance he is entitled to compensation in equity.
    
      The purchase by Dent was for his benefit, to enable him to pay a debt of $375 he owed appellee. Dent testifies that he paid $300 for appellant. That it was applied to appellant’s debt. That he was not indebted to appellee at the time he made the payment, except in a very small amount, which appellee agreed might lay over twelve months. 1 Johns. Ch. R. 132; 2 Story’s Eq. 107.
    4. When a sum of money is paid in part performance of a verbal contract for the purchase of land, and the purchaser files a bill for specific performance and general relief, the vendor, if he relies on the statute of frauds as a bar to the performance of the contract, will be decreed to repay the sum received, with interest, although by the verbal contract it was to be forfeited unless other payments were made at other periods. Mialhi v. Lassabe, 4 Ala. R. (N. S.) 713.
    The amount of compensation in this case would be the $300 paid by Dent to appellee for the appellant, with interest from the time of payment. Otherwise appellee would cheat and defraud the appellant out of that amount. He could not recover at law, his only remedy is in a court of chancery. 2 Story’s Eq. 107.
    5. It is, however, insisted that the contract on the part of Dent has been sufficiently complied with to entitle the appellant to a specific performance. By the terms of the contract Dent was to pay a debt of appellant to appellee for $375. He paid $300 on the contract, which the appellee received. The appellee agreed afterwards to take Dent’s note for the residue of the money, and give him further time, and make a deed to the land, and never objected to taking Dent’s note in payment until Dent became insolvent. The appellee, by this arrangement with Dent, waived any right he had to hold the land liable for the residue of the purchase-money. He can only hold Dent responsible for it.
    
      A. C. Baine, for appellee.
    1. In the first place, the agreement for which a specific performance is sought by the complainant, was voluntary — no consideration is charged as a foundation for it. Equity will not decree a performance in such a case. 1 Eq. Digest by B. & Harrington, 113, (12.)
    2. Dent never performed his agreement; but abandoned it. See Lewis v. Woods, 4 How. 86; 4 Johns. Ch. R. 559.
    3. The remedy must be mutual, for the court never will decree where only one party is bound by the agreement. Here, granting Bu'ck was bound, Beaman was not. Parkhursi v. Van Cortlandt, 1 Johns. Ch. R. 282.
    4. The complainant must recover on the precise case, the very contract made by his bill. Here the evidence disproves the case made by him.. 1 Johns. Ch. R. 131.
    5. But grant there was a valid agreement between Dent and Buck for the purchase of the land, nothing is more clear than that Dent waived and abandoned the agreement.
    6. But grant there was, and still is, a valid, binding, and subsisting agreement, between Dent and Buck, for the conveyance of this land to Dent, what right has Beaman to file this bill ? He was no party to the agreement; from its very nature it was not assignable, and if it were he alleges no assignment of it to himself. So that in no conceivable state of events has he any business before the court to enforce a conveyance of this land.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed to enforce the specific performance of a parol contract for the sale of a tract of land. Our statute of frauds contains no exceptions in regard to such contracts, and it is not for us to create exceptions where none exist in the statute.

The claim which is made for a decree for money, if the specific performance be refused, rests on no better foundation. The payment, it is alleged, was made by Dent, by reason of a contract with both Beaman and Buck for a tract of land originally owned by Beaman, but bought by Buck under execution against him. But whatever might have been the original intention and contract of Dent and Buck, the payment by agreement between them was finally applied to the debt of Dent to Buck. By this arrangement Beaman has not received a sum of money, which he expected to receive, yet a decree could not be made in his favor, without giving- effect to the parol contract. It must be kept in view, that Beaman did not make the payment, but' that it was made by Dent'in consequence of an invalid agreement, which was finally abandoned. By that abandonment the right to the money resulted to Dent; he settled with Buck for it.

Where persons recover back deposits, or payments made upon parol contracts for land which the parties refuse to complete, the recovery is because of the rescission of the contract. If this contract be not obligatory, Dent was entitled to the money which he paid; Beaman could only have right to the money, in the event that the contract was held to be valid. His whole claim rests upon the contract, and must stand or fall with it. Had Dent been able to comply with his engagements, it is probable that no difficulty would have arisen. As it is, the loss must fall on him who was least careful to guard against it, and who reposed upon a contract which was invalid.

The decree of the court below, dismissing the bill of the complainant, is affirmed.

Decree affirmed.  