
    Jackson, ex dem. Smith and Boone, against Pierce.
    Where the legal title is in the plaintiff in an action of ejectment, the defendant will not be allowed to set up an equitable title in defence, against the action at law.
    This was an action of ejectment, for a lot of land in Whitestoivn. The cause was tried before Mr. Justice Spencer, at the Oneida. circuit, the JOth June, 1806, when a verdict was taken for the plaintiff, subject to the opinion of the court on a case, in which tl^e following facts were stated : •
    
      Samuel Rust, (under whom both parties claim) by his deed, dated the 12th June, 1795, conveyed to the plaintiff, fifty acres of land, including the premises in question. This conveyance was admitted to be subject to the operation of a former deed, from Rust to one Schaeffer, dated the 29th of April,'1795, including the farm of fifty acres, and with an exception immediately after the description of the land conveyed, in the following words: “excepting. nearly six acres conveyed .to Peter Sm-i/ii.” Under this exception, the plaintiff claimed the lot.of ground in question, being one quarter of an acre. Evidence was produced to ascertain the precise situation of the lot of ground, but as its locality was not disputed, on the argument of the case, it is not necessary to' state the facts proved on that point, at the trial. Tt appeared, that shortly before the conveyance from Rust to Schaeffer, the pieces of land excepted out of the deed, making five acres, three rods, and twenty-five perches, were pointed out to Schaeffer, and that the defendant had notice at that time, that, these parcels were excepted.
    Oirthelfith ofFebruary, 1798, the sheriff of the county, by virtue of an execution issued on a judgment entered upon against Schaeffer, the 17th of April, 1796, in the supreme court; sold and conveyed to one Merrill, the, parcel of land, “being part of lot-No. 96, in a tract called Cosb'ey’s Manor, containing fifty acres of land, be the same more or less, and was on the 23d of December last in possession of Joseph Pierce.” The same land was conveyed by Merrill, in June, 1798, to one White, who sold it in July, 1800, to one Sanger, who, on the first of May, 1804, conveyed the same to the defendant. By a written memprandum or agreement, dated the- 17th of
    
      April, 1796, Smith agreed to sell to Pierce, “ all tbs lands bought of Samuel Rust, (except five or six acres sold to Hicks, some time ago) and to give a deed,” <fcc. Immediately after making this agreement, the defendant entered and took possession of all the land described in the deed from Rush to Smith, excepting 5 acres and 67 rods, before conveyed by Smith to Hicks, and has re. mained in possession ever since. In a conversation between Smith, Pierce and _White, and another, Smith offered to purchase the farm bought by White under the sheriff’s sale, but afterwards relinquished the.design, and told Pierce that he might purchase the farm he lived: on with safety, as he would never hurt him, alluding, as was then understood by the witness, to a claim Smith had.
    A motion was made at the last term to set aside the verdict, and for a new trial.
    
      Plait, for the plaintiff.
    1. Should it be said that the conversation respecting the purchase under the sheriff’s sale, amounts to an agreement on the part of Smith, to relinquish all claim to the premises, and so must estop the plaintiff, I answer that the agreement was verbal; and that there has been no part-performance so as to take it out of the statute of frauds. It is not every act that will amount to a part-performance.
    
    [Kent, Ch. J, The cases to this point are in the court of equity. It seems never to have been decided in a court of law, that a part-performance of a parol agreement will take it out of the statute.]
    2. But admitting this agreement not to be within the statute of frauds, still it is such a one as can be enforced only in a court of equity. It furnishes no ground of legal defence in an action of ejectment. The decision in the case of Weakley, ex dem. Yea, v. Bucknel,
      
       has been since questioned,  and was strongly doubted by the
    
      Lord Chancellor, in Lowther v. Andover.
      
       In ejectment, the question of title is matter of law, and no act in pais, or a parol agreement, can be set up against the legal title. That the plaintiff stood by. and saw the defendant purchase without giving him notice, may be a defence in equity, on the ground of fraud; but cannot avail in a court of law. ' In fact, as appears from, the evidence, Pierce had notice, and therefore theré could be no fraud.
    
      Kirkland and Gold, contra.
    The construction of the statute of frauds, as to a part-performance, is the same in a court of law as in equity.
    (Kent, Ch. J. There is such á dictum of Justice Puller,
      
       while sitting, in the court of chancery, but it has never been received as law.)
    The principle on which this court will protect the possession of the defendant, though the agreement is not sufficient to pass the legal title, does not proceed so much on the ground of part-performance, as on equitable principles adopted by the courts of law. Thus in Yea v. Bucknel,
      
       the courts of King’s Bench would mot permit a tenant who had been in possession eighteen years, under an agreement for a lease, to Returned out of possession, merely that the parties might go into a court of equity for relief. In that case an equitable defence was admitted against a clear legal title in ejectment. Again; the plaintiff cannot recover in ejectment, against his own covenant or agreement. He is .estopped by his own consent. The language of the plaintiff to the defendant relative to the purchase of the land under the sheriff’s sale, must be considered as referring to the whole contained in the sheriff’s deed, which included the lot in question. In Jackson v. Dysling,
      
       this court considered a parol agreement to abide by a certain boundary line, though it would not pass the land, as binding on the parties, so as to prevent their claiming against such agreement in ejectment. On a similar principle, it has been often ruled at Nisi Prius, that where the vendor located the premises on the sale, he was stopped from asserting any title to the contrary. In these cases, the court do not require the defendant to show a legal title by deed ; but they admit the equitable defence to overrule, or prevent the assertion of plaintiff’s title against equity and justice. This case rests on stronger'grounds than that of Jackson v. Dy sling; for the defendant took possession, under the agreement to convey, and has been in quiet possession near ten years. The defence here, is not a technical trust, or of that species which peculiarly belongs to a court of chancery. The separation of the legal and equitable jurisdiction is peculiar to the English system of jurisprudence, and has not been adopted in all the American states. How far this court are bound strictly to adhere to this system, it is not. perhaps, necessary at this time to inquire ; but should the doctrine now contended for, be received, it would be a much slighter innovation on existing rules, than is often to be met- within the history of the English law. Before the reign of Henry VII. the specific recovery of a term, was held to be exclusively of equitable jurisdiction, and relief was to be found only in a court of chancery; but the courts of law, in the fourteenth year of Henry VII. adopted the same equitable remedy, and permitted the plaintiff in ejectment, to recover possession of his term. It is true, that in 1788, the court of King’s Bench, disclaimed all cognizance of trusts or equitable titles, as exclusively belonging to the court of chancery, but Butter was of a different opinion, and considered it contrary to the whole current of decisions for thirty years past. The cases ad- , , • , -I. , 1 • , 1 • 1 verse to this doctrine have all been decided since the revolution, and have not, therefore, a binding authority on this court.
    
      Platt, in reply.
    The possession of the defendant was antecedent to the parol agreement, the true construction of which is, that the defendant might safely purchase the land, actually bound by the judgment against Schaeffer.— The words of the plaintiff must be taken iii reference to the subject matter, the judgment on which the execution issued. The defendant could not be mistaken, for he knew of the parcel excepted. To purchase the title u'nder the sheriff’s sale, was an act of prudence, as the defendant had only a quit-claim from Smith, whose title had been defeated by the judgment. ■
    " Again', none of the cases cited go beyond that, of a covenant to convey, where the purchase money having been paid, ■ the covenantor is considered as standing seized to the use of the bargainee, or where part being performed, a court ofequity will decree a specific conveyance. Parol agreements are held to conclude parties jn ejectment, only where they explain some doubtful fact about boundaries; not because they prove an. equitable title, but because they -furnish the best evidence of a disputed fact. When resort can be had to the title-deeds, the terms of which are clear.and explicit, no parol agreements, or declarations of the parties, will be received.
    
    
      
      
        Powel on Contractsrol. T. 309.1 Fonblanque, 176, 178. Wills v. Steadling, 3. Vesey, jun*. 381.
    
    
      
      See 3 Fesey jua.7l2.4Pe-sey, jun. 720. 7 Fesey, jun. 341.
    
    
      
      
        Cowper, 473,
    
    
      
       In a note in 5 East, 138,139. it is said, that the Court of King's Bench not being agreed in opinion, in the case of Yea r. Rodgers, directed the case to be argued before ah the judges in the Exthequer 
        
        Chamber. .The cause was once argued, and a second argument awarded, but it never came before the judges again. It was understood, however, that though Lord Loughborough, Ch. J. Gould, 'Ashurst and Bul ler were of opinion that an equitable title might be set up as a defence in ejectment, yet Lord Kenyon, Baron Eyre and Heath, with the other judg-es, were decidedly of a different opinion; and it has ever since been received as settled law in Westminster Hall, that an equitable title cannot be'set up in defence in ejectment. ‘
    
    
      
       1 Brown. C. C. 396. In the 3d edition-, of Brown', in a note it is said the point was then.pending in the exchequer chamber. See 7 Term. 2. 47. 8 Term, 2, 122, 123. 5 East. 138.
    
    
      
      See 1 Vesey jun. 433.Bro-diev.St.Paul; and the observation of LordEldon on this opinion, 6 Vesey, jun. 39.
    
    
      
      
        Cowper, 473.
    
    
      
       4 Burrows. ,2208 Right v. Proctor, f East, Doe v. Rosser.
      
    
    
      
      
         $%Caihes9\.Q%,
      
    
    
      
       4 Term, 684. Doe r. Staple.
      
    
    
      
      l Cct&iGs 358, Jackson exdemPni-2 Caines 198.
    
   Thompson, J.

delivered the opinion of the court.

It.is not denied that the legal title to the premises in question is in one of the lessors of-the plaintiff; but it is contended, that the defendant has an equitable claim, which ought to protect him in his possession. It is unnecessary to examine into the defendant’s equitable rights» because, sitting in a court of law, we cannot enforce them, should any be found to exist. It is a rule, at this day well settled in England, (Buller's N. P. 110. 2 Term, 684. 7 Term, 49. 8 Term, 123. 5 East, 138, and note, 6 Vesey Jun. 39. 2 Evan’s Poth. 195. J and which has been adopted by this court, in the case of Jackson v. Chase, (2 Johnson, 84.) that no equitable title can be set up in ejectment, in opposition to the legal estate. The only way, in which an equitable title can be assisted at law, is, by allowing the presumption, in certain cases, to prevail, that there has been a conveyance of the legal estate. But when the case precludes any such presumption, the legal title is peremptory, and must prevail. It is not pretended, that there is any ground for such a presumption in the case before us. The defendant’s claim must rest altogether upon the memorandum, or agreement, of the 17th of April, 1796. What passed between Smith and the defendant,- could not possibly, have been understood a3 relating to the premises in question. The subject of conversation was the land sold by the sheriff, under an execution against Schaeffer. The defendant could not have been deceived on this subject. The deed from Rust to Schaeffer, expressly excepted the premises.— This was known to the defendant. The excepted parcels were pointed out to him by ’Rust. But, admitting him to have been deceived in this respect, it would only form a part of his equitable claim to relief.

The court are therefore of opinion, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.  