
    John L. Allen and William Burt vs. Micajah Bennett.
    A bill to enforce a vendor’s lien bears a strong resemblance to a bill of foreclosure, or for a specific performance ; neither of which can be sustained where it is utterly uncertain what interest was conveyed.
    M. B. filed a bill against A. & B. to enforce a vendor’s lien ; the bill charged that M. B. purchased the land against which the lien was sought to be enforced from A., and afterwards sold it to A. again, who subsequently sold it to B., he having notice of M. B.’s lien ; A. denied the allegations of the bill, and a pro confesso was taken against B. who failed to answer; the only written evidence of any contract in regard to the land, was a receipt executed by A. in the following words, to wit: “ Received of Micajah Bennett one hundred dollars, on account of an interest that I have let said Bennett have in a section of land, located in Range 8, east, Township 17, and sec. 17 Held, that the only written evidence that M. B. ever had any title to the land, was entirely indefinite as to the extent of his interest, and too vague to be the foundation of a decree; that parol evidence to explain or to aid the instrument of writing, was not admissible under the statute of frauds; and the bill must therefore be dismissed.
    ERROR from the vice-chancery court, held at Columbus, in Lowndes county; Hon. Henry Dickinson, vice-chancellor.
    Micajah Bennett filed his bill in the vice-chancery court held at Columbus, against John L. Allen and William Burt, alleging, that about the first day of December, 1835, Allen purchased of Malla-to-k'a, a Chickasaw Indian, a float or Indian reservation, calling for one section of land to be located on any unoccupied land subject to such a float, for which he agreed to pay one thousand dollars. That about the 7th day of December, 1835, complainant and Allen entered into an agreement, by which complainant was to pay Allen one hundred dollars more’than one half of the cost of the float; to locate it, and the land when located was to belong to the two jointly, each owning one half; that complainant did, in pursuance of that agreement, locate the float on fractional section number seventeen, in Township number seventeen of Range eight, east, containing five hundred and thirty-eight acres, and on the same day he paid to Allen the sum of one hundred dollars, and took his receipt therefor, which was made exhibit A to the bill, and was in these words, to wit:
    
      “ Received of Micajah Bennett one hundred dollars, on account of an interest that I have let said Bennett have in a section of land located in Range 8, east, Township 17, and sec. 17.”
    “ December 7th, 1835. John L. Allen.”
    The bill further alleged that about the first of May, 1836, Allen examined the land, and being well pleased with it, proposed to buy complainant’s half at the rate of six dollars per acre; which proposition was accepted by complainant, and he then authorized Allen to take the title to the whole of the land in his own name, the title being still in MalIa:to-ka; out of the six dollars per acre, Allen was to pay Malla-to-ka complainant’s half of the cost of the land, and the residue to complainant when ascertained. That about the 13th day of June, 1836, Allen, in accordance with his agreement with complainant, paid Malla-to-ka for the land, and took from him a deed to the same in his, Allen’s, own name. That about the 21st day of July, 1836, Allen and complainant had a settlement, when Allen was-found to be indebted to complainant, for and on account of the land, in the sum of one thousand and fourteen dollars, and executed his note to complainant for the same; a copy of which note was filed with the bill as exhibit B ; that complainant, relying on his equitable lien on the land, never took from Alien» any other security for the purchase-money, than the note. The bill further charged that complainant, about the 16th day of September, 1839, instituted suit on the note, in the circuit court of Lowndes county, and about the 7th of January, 1840, recovered a judgment thereon against Allen, for the sum of twelve hundred and sixty-five dollars and five cents, besides costs of suit; Upon which judgment an execution was issued, and returned by the sheriff “ nulla bona." A transcript of the record of the proceedings in the circuit court was filed with the bill as-exhibit C. The bill further charged that about the 27th day of September, 1838, Allen sold and conveyed the land to William Burt. The deed to Burt was made exhibit D to the bill. That Burt knew when he purchased the land from Allen, that Allen bought one half of it from complainant, and had never paid for-it, and that the money was still due and owing to complainant. Before, and at the time Burt paid over the money to Allen, he was notified by complainant, or his agent, that his, complainant’s, claim for the purchase-money for the land, was due and unpaid by Allen; and Burt was requested in a friendly manner to pay the same, but being confederated with Allen and others, he refused to pay the whole or any part of it. The prayer was that one half of the land be set apart and sold for the payment of complainant’s claim against, Allen, and for general relief.
    Allen answered the bill, and admitted he did buy a float or reservation in 1835, from Malla-to-ka, at the sum of one thousand dollars, but he denied that he ever entered into any agreement with complainant for the location of it, or the sale of one-half, or any other part of the land as charged in the bill. He denied that he employed complainant to locate the float; complainant, he stated, furnished the information of the section of land on which the location was made, but he did it voluntarily, and as respondent supposed gratuitously. The receipt for one hundred dollars, made exhibit A to-the bill, respondent admitted was signed by him, though he did not recollect the inducement to his giving it, nor the interest referred to in it. He admitted he paid for the land in specie, and took the deed to it in his own name; but he did it without the assistance, advice or assent of complainant, or any agreement for the sale of it: During the negotiation with Burt for the sale of the land, complainant set up no claim to any part of it, so far as respondent knew or ever heard. He admitted he gave complainant the note for one thousand and fourteen dollars, mentioned in the bill; but he denied that it was for any interest complainant owned in the land. When Burt called on respondent to purchase the land, respondent referred him to complainant for information in relation to the quality of it; and after respondent bad closed the contract with Burt for the sale of it, at five thousand dollars, complainant came to him and said as he, respondent, had sold the land so well, he ought to do something for him, complainant, for furnishing him the information to make the location ; and respondent accordingly gave complainant the note for $ 1014, with which complainant then seemed well content, and did not assert any claim to any interest in the land. The note was given merely as bonus for assistance afforded respondent in effecting the sale to Burt, and not for any copartnership interest of complainant, nor for locating the claim. Respondent admitted that judgment had been obtained against him, execution issued thereon, and returned as charged in the bill. He had no knowledge of any such notice or friendly caution to Burt being given, as stated in the bill.
    Burt failed to answer, and the bill was taken for confessed against him. The complainant proved by William Bennett, that the one hundred dollars mentioned, in the receipt" filed as exhibit A to the bill, was left with deponent by complainant for defendant, and paid by deponent to defendant; that at the time the money was paid, defendant told deponent he had sold complainant one half of the land described in the receipt, and which complainant had located for him; and that the hundred dollars then paid was in consideration of that sale. Deponent also proved the resale of the land by complainant to defendant, at the sum of six dollars per acre. Upon this slate of pleadings and evidence, the cause was submitted^to the vice-chancellor on final hearing; and he decreed one half of the land to be sold for the payment of the debt due complainant. To reverse which decree, the complainant now prosecutes this writ of error.
    
      Evans and Topp, for plaintiffs in error.
    By statute (see How. & Hutch. 343, sec. 1,) “No estate of inheritance or of freehold, or for a term of more than one year, in lands or tenements, shall be conveyed from one to another; unless the conveyance be declared by writing.sealed and delivered ; nor shall such conveyance be good against a purchaser for valuable consideration not having notice thereof,” &c., &c. And at page 370, How. & Hutch, sec. 1, No person shall be charged by an action “ upon any contract for the sale of lands, tenements or hereditaments, or the making any lease thereof for a longer time than one year,” «fee., «fee.
    By the statute first above quoted no estate of inheritance or of freehold, or for a term of more than one year, could have passed from Allen to Bennett, as there was no conveyance in writing. ■ His claim therefore to one half of the land is merely null and void. He never had the least interest in the laud, either legal or equitable, as he admits that there was no conveyance in writing to him either from the Indian or from Allen.
    His claim, if it could exist in parol, is absurd. He alleges that he was to pay one hundred dollars over and above one-half the cost of the land. The land cost one thousand dollars. Consequently he was to pay six hundred dollars. He paid one hundred dollars mentioned in the receipt, Exhibit A. Did he ever pay the other five hundred? Never — not one dollar of the five hundred dollars was ever paid. After the bargain made and the hundred dollars paid as alleged by Bennett, Bennett, instead of paying the remaining five hundred dollars which had to be paid before he could have even an equity in the land, pretends that he reconveyed to Allen at six dollars per acre, and thus not only never paid a dollar of the five hundred dollars which he had to pay before he could claim an equity in the land, but brings Allen in debt to the amount of $1014. Now, what was it that passed./rom Allen to Bennett by virtue of the one hundred dollar receipt ? not even an equity ; because the five hundred dollar balance of the purchase-money was not paid. If nothing passed from Allen to Bennett, what could have passed in Bennett’s reconveyance back to Allen ? Surely less than nothing, if possible. This is surely a poor basis to support a special lien for purchase-money. A vendor can nev.er claim a special lien on anything more than he parted with. Bennett never parted with the land or any part of it, because he never had it to part with.
    
      Isham Harrison, Jr., for defendant in error.
    The vendor of an estate has a lien upon it, for the purchase-money against all persons, except a purchaser for a valuable consideration without notice. 15 Ves. 329, and cases cited ; 6 Howard R. 362.
    And this lien is not waived by the vendee’s giving a promissory note to secure the purchase-money. 15 Ves. 344, and cases cited. The receipt (Ex. A) gives an accurate description of the land, and Allen admits its execution.
    The witness, William Bennett, explains the receipt, and shows that an interest of one half the section was intended to have been conveyed. This receipt, therefore, takes the conveyance from Allen to Bennett out of the operation of the statute of Frauds, &c. 1 M’Cord R. 425 ; 9 Ves. Jr. 234; 12 Ibid. 466.
    So that by the execution and delivery of said receipt, Allen conveyed an equitable title to one half of the land to Bennett, which contract a court of chancery would at any time have consummated, by compelling Allen to convey the legal title.
    But after Bennett had located the float on the land in question, and Allen had examined it, he re-conveyed to Allen at six dollars per acre, according to the testimony of the witness; which re-conveyance is now sought to be established, and upon which Bennett’s equitable lien rests.
    The only witness examined testifies positively to the fact, that about one year after the execution of said receipt, the said re-conveyance was made. Now it is contended, that the testimony of one witness, corroborated by circumstances, is sufficient to authorize a decree. 9 Vesey, 275 ; 2 John. Ch. R. 93; 2 Tucker, Lect. 487. And that these circumstances may be found in the answer itself: as where it is inconsistent or contradictory. 2 Tuck. Lect. 487.
    Bennett paid Allen six hundred dollars for one-half of the land (the fractional section.) The one hundred dollars evidenced by the receipt (A), and the five hundred dollars out of moneys due from Allen to him. This gave Bennett an equitable title. 5 S. & M. 506.
    The re-sale appears to have been made after the location, and when the legal title was in the Indian; the deed (as above shown) was taken to the whole section, directly from the Indian to Allen alone; instead of a conveyance from the Indian to Allen and Bennett jointly, and a conveyance then from Bennett to Allen. It is submitted, whether the lien for the purchase-money due Bennett, is not as effectually upheld by the conveyance of Bennett’s interest by the Indian directly as if the conveyance had first been from the Indian to Bennett, and then by him to Allen 1
    
    Upon the payment of the purchase-money to the Indian by Allen and Bennett, nothing remained with the Indian but the naked legal title; he was a mere trustee for the purchasers. 5 S. & M. 506 ; 4 Equity Dig. 693 ; 1 Brock. 97. And as such conveyed in pursuance of the agreement between Bennett and Allen.
    It is not necessary, for the purposes of this bill, that Bennett should have ever had a legal title to any of said section. Because “ one who sells an equitable title to lands retains a lien for the purchase-money, whenever, under the same circumstances, the vendor of the legal title would hold an equitable lien.” “ The same principle and reason apply to both cases.” 3 J. J. Marshall, 179. And “ so far as it relates to the abstract equity, upon which this lien is founded, it can make no difference, whether the proprietorship of the land is evidenced by a legal or an equitable title. 7 J. J. Marshall, 289.
    These authorities settle the law upon the facts above stated, and sustain the decree of the court below. But the statute of frauds, &c. is relied on by Allen in discharge of the re-conveyance. This is no defence in this case, 1st. Because the contract of re-conveyance, if any there was, is in Allen’s possession ; and in his answer he does not rely on the statute, but by it admits the legality of the contract, so far as this statute is concerned. 2d. It does not appear, from the bill, proof or answer, whether the contract was by parol or in writing, and under such state of pleadings, the court will presume that the re-conveyance was a legal one, and that it complied with the statute in every respect. 3 J. J. Marshall, 179. 3d. If Allen relies on said statute, or any other of that nature, he should have plead such fact, specially, or insisted on it in his answer, but he chose to do neither, and has thereby waived that defence. Gresley’s Eq. Ev. 304.
    Then the re-conveyance was regular, as it appears in this case, and stands precisely on the same ground, and is entitled to as much regard as if the proof had shown it to have been by deed between the parties.
    But should this court think the statute has been taken advantage of properly, still Bennett was entitled to a decree. Because he paid Allen six hundred dollars, to be paid by the latter to the Indian, which was done, and a deed to the whole section taken directly from the Indian to Allen alone. It is imagined that there is, in legal contemplation, no difference between a payment by Bennett directly to the Indian, or a payment in cash to Allen to be paid to the Indian for the land, and a payment in cash by Allen to the Indian for Bennett, out of moneys due and owing from Allen to Bennett. If so, these facts constitute in Bennett’s favor a resulting trust, which Burt admits he had notice of, and by which he is therefore bound. And to trusts resulting from the operation of law, the statute of frauds does not extend. 1 Yern. R. 366; 1 Atk. R. 59 ; 10 Ves. 360; 1 John. Gh. R. 582, and authorities cited.
    Then it appears that Allen paid the Indian for one half of the land with Bennett’s money, and procured in his own name the legal title, not only to one half, but to the whole; he subsequently sold the same land to Burt, and made the latter a title to the whole, with notice on Biirt’s part of our outstanding equity. Now Burt can stand in no better condition than Allen, in whom, although, the legal title was, still one half of the original purchase-money was paid by Bennett, which most certainly creates in his favor a resulting trust. 7 Howard, 181; 5 S. & M. 506. Then if the property was conveyed to Allen, and the consideration or any part of it were paid by or on account of Bennett, a court of chancery will raise a presumption in favor of the latter, from which in its contemplation will spring a trust, and such a trust need not be in writing. Jeremy’s Eq. 81, 85 ; 1 Yes. 275 ; 10 Ibid. 360 ; 15 Ibid. 50, 350.
    But, independent of this, the case is taken out of the statute, by parol performance. The purchase-money having been all paid by Bennett, and Burt having occupied the land since 1838. Burt’s possession being Allen’s. See Freem. Ch. R. 65 ; 4 Yesey, 720; 4 Equity Dig. 700; 5 S. & M. 506; 2 Caines Cases, 109; 1 Fonbl. Eq. 182.
    Furthermore, Allen will not be permitted to set aside this contract, even though it were illegal, and yet retain possession of the property he acquired under it. He must adhere to that part of it which requires him to pay the purchase-money as strictly as he does the other, which gives him the possession and profits. Freem. Oh. R. 35. And his abandonment of the land must be simultaneous with his refusal to pay the purchase-money.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed by the defendant in error to assert his lien as a vendor of land. The bill states that the complainant made a contract with Allen, in the first place to locate a Chickasaw reservation of one section of land for a stipulated price; but that he afterwards bought one half of the land. The only written evidence of any contract in regard to the land, is the following receipt; “ Received of Micajah Bennett one hundred dollars on account of an interest that I have let said Bennett have in a section of land located in Range 8, east, township 17, and section 17,” executed by Allen.

The bill farther states that the complainant afterwards sold his interest in said land to Allen, and took his note for $1014; and that Allen procured the deed from the Indian in his own name. That the land was afterwards sold by Allen to Burt, and that Burt had notice of the claim of the complainant.

The answer of Allen denies the allegations of the bill. Burt did not answer, and the bill was taken for confessed against him. There is also one deposition, which sustains the allegations of the bill against Allen. Judgment was obtained on the note at law, and the execution returned nulla bona. A decree was rendered by the vice-chancellor for the complainant.

The general principles which govern the lien of the vendor of land for the purchase-money, and. affect his right to relief, have been frequently decided in this court. The lien is usually recognized and enforced, unless circumstances exist which show either an express or implied waiver. See Cloun v. Rawlins et al. MS. But in this case there is a preliminary point. Was Bennett a vendor at all, and if so, of what interest? It is clear that nothing can be subjected to the lien of the vendor, except that which he sold. The only written evidence, that the complainant ever had any title, is entirely indefinite as to the extent of his interest. Whether it was a half or a hundredth of the section is only matter of conjecture. The agreement was too vague to be the foundation of a decree; in directing a sale of half the section, the court cannot know, but that it reaches beyond the interest held by the complainant.

A decree for a specific performance will not be rendered, where the agreement sought to be enforced is .indefinite and uncertain. 1 Smith’s Ch. Pr. 489, notes; German v. Machin, 6 Paige, 288; Colson v. Thompson, 2 Wheat. 336.

Parol evidence to explain or to aid the instrument of writing, was not admissible under the statute of frauds. Pattin v. M'Clure, Mar. & Yerg. 333. It is not admissible to engraft exceptions upon the statute. A bill to enforce a vendor’s lien bears a strong resemblance to a bill of foreclosure, or for a specific performance; neither of which can be sustained, where ■ it is utterly uncertain, what interest was conveyed.

The pro confesso as to Burt cannot afiect Allen. Burt claims under Allen, a.nd can only be reached through him. If, therefore, the complainant has no right to relief against Allen, neither has he any against Burt. The decree as to Allen is erroneous; it follows, the whole must be reversed, and the bill dismissed.

Decree reversed.  