
    Newnan vs. Carroll and others.
    
    A contract for land will not be specifically executed in equity,, unless it is clearly proved to exist, and must be certain in its terms.
    Where A has agreed to sell and convey land to B, and executed a title bond, and B afterwards verbally contracts to sell to C before he has obtained a deed from A, the latter contract is within the statute of frauds, and must be in writing.
    The bill charges, that complainant, in February or March 1809, was in a treaty with Sappington for lot No. 124, in the town of Nashville, but declined giving the price asked, unless he could also get lot No 112, adjoining thereto. That he and said Sappington then went to defendant Whiteside, to whom lot No. 112 belonged, and it was agreed between complainant and Whiteside, that complainant should have said lot, and should pay therefor $1000, with legal interest until payment, which was to be made on receiving a title; and Whiteside directed complainant to take possession of said lot under said agreement, which he did in a few days thereafter. Upon that agreement being made, he closed the contract with Sappington, which he would not otherwise have done, and in a short time thereafter, he paid said White-side about $60 in part of said purchase money: that with the knowledge of said Whiteside, he proceeded to make valuable and lasting improvements on said lot No. 112. That he remained in possession thereof for about seven years, when he was .informed thafdefendants, Hays and Carroll, were about to purchase said lot of saidjWhite-side: that before any part of the purchase money was paid by them, they had full notice of the above contract. That they threatened to take possession of said lot by force, and have commenced exercising acts of ownership over it; and said Carroll has commenced digging a cellar; and that they are about to erect buildings thereon, &c. The bill prays for an injunction, and that defendants may be compelled to receive the said sum of ‡1000 with interest, and convey said lot, &c. The amended bill states, that he also paid to said Whiteside $>100 by Anthony C. Foster, since deceased, on account of said purchase money, in addition to the $¡60 before mentioned, and took a receipt therefor; that said receipt, as also the order on which said $60 was paid, have since been lost or mislaid; and the legal title to said lot is in Wm. Black, &c. To which defendant Whiteside answers, that he purchased said lot of defendant Black about 11th January 1808, for $1000, $500 of which was to be paid on the first of June thereafter, and $500 on the first of March 1809, with interest from the first of December 1808, and on said 11th of January 1808, took a bond from said Black for a title. That he was also owner of one fourth of an adjoining lot, No. Ill, on which was a small house, &c.: that about first of March 1809, complainant and Sap-ington came to his house, and complainant proposed to purchase said lot No. 112; but he refused to sell said lot alone, but informed complainant he would sell said lot and said fourth of a lot for $1500, if he would then pay the cash therefor, as he wanted money, which was about what the same had cost him. Complainant declined purchasing, alleging that the price w;as too high, and that he had not cash to pay. He denies positively that he agreed or offered to sell said lot No. 112 alone to complainant for $1000, or any other price, then or at any other time. Complainant had purchased of John Maclin about 200 acres of land near Nashville, adjoining some land of defendant’s, which he proposed to exchange for said lot and one fourth, and place defendant in his situation as to the title he obtained from Maclin, which hé refused; but observed, thatif complainant would obtain a good title thereto, he would exchange said lot and one fourth for said land, esti" mating each at a fair value, but would not allow him as much for said land as he had given. Complainant then said he would make such exchange, if he could get a good title from Maclin, and requested defendant not to dispose of said lot and one fourth for some time, until he could ascertain whether he could ohtain a good title from Maclin; and if he could not get such title, and defendant should he disposed to sell at a future day, to give him the refusal thereof. Defendant then said he would retain them until complainant might have an opportunity to ascertain whether he could obtain a good title from Maclin; and if he could not obtain such title, and defendant should be disposed to sell said lot, he would give complainant preference in purchasing, or have it on as good terms as any body else; but that the price he had offered should he no criterion for what he might afterwards ask. He denies that he ever made any other offer or proposal to sell said lot to complainant; he denies that he ever received said sums in the bill mentioned, or any other in part consideration for said lot, or that complainant ever took possession of said lot by virtue of any contract made for the purchase of it. Complainant proposed to rent said frame house and said lot No. 112, which was then well set with clover, and pay what might be reasonable therefor; to which defendant agreed, and defendant told him he might take possession as soon as he pleased. At the above interview, he is certain no such conversation took place, that if he did not get said lot he would not purchase of Sapping-ton, but thinks complainant then spoke of having purchased of him. That complainant rented from defendant about 25 acres of land, adjoining the land he had purchased of Maclin, in 1808 and 1809, for which as well as for said lot and house, no rent was paid till December 1811; defendant having made a statement of the rent of said lot, house and land, when complainant sent him $100 by Doctor Foster, who was then a student with complainant, who stated that complainant had sent that sum in part of the rent which he owed defendant. And afterwards said Foster, about 7th January 1812, paid him $20 more, which he said Newnan had sent in further payment of said rent, for which defendant gave receipts, stating that it was for rent. In April 1812, defendant drew an order on complainant for $60, for part of the balance due for rent, which was paid, which is all defendant received on account of said rents. Newnan in 1809 filed a hill to be relieved from the contract he had entered into with Maclin; and late in 1812 or early in 1813, complainant offered defendant, to give him two negro women for said lot, who replied that if he sold said lot it was not to he paid for in that way. He denies that he told complainant to go on and improve said lot, nor did he ever authorize any improvements to he made thereon. In August 1813, it was ascertained hy the opinion of the court, that Newnan would not he obliged to take said land of Maclin, and that the contract would he set aside; defendant then wrote to said Newnan that it was ascertained that no exchange could take place, and that if he wished to purchase lot and one fourth to call and do so, &c. To which complainant made no reply, hut soon after commenced making a wall on part of the line of said lot; which when defendant was informed thereof, he wrote a note to complainant to desist, for he would pay for no improvements on said lot, and that he intended to take possession of said lot in January following. This was on the 30th Oct. 1813. Complainant then desisted, and said he would not attempt making any improvements; after which complainant sent M. Barrow, J. C. M’Lemore and O. B. Hayes to purchase said lot and one fourth in their own names for him, or to ascertain what price he would take. Defendant felt disposed, and would have given complainant the preference in purchasing said lot, if he would have given a fair price for it. Defendant could have obtained the legal title at any time. On the 22d November 1815, defendant sold said lot to Carroll and Hayes for about $3135; $1500 in 60 days; $840 in 12 months; and $795 in two years; and bound himself to convey to them on or before 1st January then next, with general warranty, and directed them to take possession previously. |n December Hayes and Carroll took possession of said lot, divided it, and commenced improving thereon, with the knowledge of complainant, and had had possession more than three months before the filing of said bill. Defendant has paid all the taxes on said lot, as well those for the general government as those of the state and county and corporation, from the time he purchased of Black till he sold to Hayes and Carroll. No valuable and lasting improvements have been made on said lot by complainant to the knowledge of defendant. Defendantrelies upon the act of 1801, entitled an act to prevent frauds and perjuries, and upon the statute of limitations.
    The proof in the cause was considered by the court conflicting and uncertain. So much of it as is material to be"stated,is contained in the opinion of the court; it is therefore deemed unnecessary, to again set it forth.
    
      Doctor JVewnan argued the case in person, for himself.
    O. B. Hayes for defendants.
    1. An agreement must be clearly and distinctly proved, in all its parts and terms, otherwise a court will not execute it. Walpole vs. Lord Oxford, 3 Yes. 420. 1J. Ch. Rep. 286. 1 Ball and Beaty, 283. 1 Phil. Ev. 367. Here, if any agreement is proved, the terms of it are uncertain.
    2. If a parol agreement were clearly proved, and part performance would take any case out of the statute, yet there is no such part performance here as would, und'er the English decisions, take it out of the statute. Fraw v. Dawson, 14 Yes. 387. Clevan vs. Cooke, 1 Sch. and Lef. 22. 4 Bibb 466. 1 Sch. and Lef. 8. Robt. on Frauds 140,150.
    Payment of money is no part of performance. 2 Sch. and Lef. 5. 19 Ves. 479-480. 2 Term 192.
    Equivocal possession of vendee, or possession without substantial and valuable improvements, is no part of per, formance. 1 Ball and Beaty 282-404.
    The acts done must be, strictly, performance of part of the contract, (O’Riley vs. Thompson, 2 Cox’s Ca. 271) and such as cannot be the subject of compensation.
    3. But the law is, that no part performance of a parol agreement, however clearly proved, can or ought to take a case out of the statute of frauds. 2 Dessausure’s Eq. Rep. 190. Erwin v. Waggeman and Sullivan, Cooke, 403. Townsend v. Sharp, 2Tenn. 192. Grant’s heirs v. Craig and Miles, 1 Bibb 203. Hayden v. M’llvain, 4 Bibb 57. 5Mun. 317.1 John. Ch. Cases 283. Ex parte Whitehead, 19 Yes. 212. 7 Term 16. Grafton v. Fletcher, 3 Martin (Louisiana) Rep. 486. Brown and wife v. Parish Judge, 3 Martin’s Rep. 425. Patton v. M’Clure, delivered in 1828, by this court, 
    
    An agreement for the sale of an equitable estate in lands, is equally within the statute, as legal estates. 4 Cranch 235. Hughs vs. Moore, 7 do. 191. 4 Bibb 102. 13 Mass. 309. 2 John. Ch. R. 405. Sug. on Vendors 46. 5 Vin. Abr. 523,fol.42. As to devisees, 4 Cruize’s Digest 72.
    4. After such a lapse of time a court of Equity will not carry even a written agreement into execution.— Loyd vs. Collet, 4 Bro. Ch. Rep. 469. 4 Ves. 689. Ally vs. Deschamps, 13 Ves. 227. Pratt vs. Carrol, 7 Cranch 480.
    5. Under the circumstances of this case, the court, in the exercise of its discretion, ought not to decree a specific performance, even if the proof were clear, but leave the party to his legal remedy. 1 Fonb. 178. 1 Ves. Jr. 565. 3 Ves. Jr. 184-5 and 420.
   Green, J.

delivered the opinion of the Court.

Whether any contract for the sale and purchase of lot No. 112 ever was entered into by the complainant and the defendant Whiteside, is extremely uncertain from the proof. A contract, to claim the aid of this court for ⅛ enforcement, must he clearly proved to exist, and must he certain in its terms.

In this case we are strongly inclined to the opinion, that no specific contract, whatever, was made. The witness mainly relied on to prove the contract, is Doctor Sapping ton; who, although, in the first part of his deposition, does state, that Newnan and Whiteside did agree about the lot,- and that Newnan was to give a thousand dollars for it, yet, in the same deposition, he states facts, which tend strongly to weaken the force, and to hring into suspicion the accuracy of his former statement. Sappington states, Newnan was to take possession of the lot, and pay a moderate rent until some convenient time for Whiteside to convey. No time was mentioned for the payment of the $1000; the reason of which was owing to the uncertainty when the suit between Newnan and Maclin would be decided: after which decision Newnan was to have the privilege of paying in the Maclin land at a fair price, if the court should decree him to take the title. This statement accords well with Whiteside’s answer, and indicates most strongly that no contract of sale was made. The payment of rent agreed on, opposes the idea of a contract for the purchase of the property. No time was mentioned for the payment of the purchase money, and Whiteside was to take land in payment, without settling on any price for the land, or stipulating any means of fixing the price so as to make it certain. These facts strongly favor the conclusion, that the parties left the matter unadjusted, and open for such future contractas they might agree on, when the events which they seemed to expect should transpire, at which time they calculated on entering into a contract. But, furthermore, the lot was regularly listed as Whiteside’s property, and the taxes paid by him, and Quarles says Newnan promised to desist from making any further improvements, when he delivered Whiteside’s note stating that he would not pay for them. Robertson’s evidence confirms this statement; for he says, that Newnan told him, Whiteside had stopped him from making improvements. Whiteside’s statements, as detailed hy Darby, are made evidence by the complainant’s interrogatories calling for them. Whiteside always denied to Darby that he had ever sold the lot to Newnan. Smith understood, both from Whiteside and Newnan, that the latter had rented the lot, and occupied it as a grazing lot. Sometime before Hayes and Carroll bought the lot, M’Lemore was requested by Newnan to purchase the lot of Whiteside, in his own name, for Newnan’s benefit. He made application for this purpose to Whiteside, who was willing to sell, and said he would as soon sell to Newnan as any one else. Barrow, at the request of Newnan, made a like application. Why send these men to purchase the lot in their own name, if he knew that it had already been sold to him? These applications imply a consciousness that Whiteside had a right to sell the lot to whom he chose. Add to all this, that the answer of Whiteside most positively denies that he ever made any such contract as is charged in the bill, and it would seem, that opposed to all these facts and circumstances, in .order to establish the contract charged, the clearest and most indubitable proof ought to be produced. Does such proof exist in this cause? We think not. We have already seen that Sappington’s evidence is inconclusive. Willis and Boyd depose that they heard Whiteside say he had sold the lot to Newnan, but that never having paid any thing for it, he should not have it. Barrow says he heard Whiteside say, he had agreed to let Newnan have the lot. This evidence, the confession of the party to be charged, is always to be received with caution. How easily are expressions, in casual conversations like these, either misunderstood or perverted, and how wholly impossible to ■disprove them if false. Probably few cases more fully than this, evince the -wisdom of the legislature in passing the statute of frauds, or indicate more strongly to the court, the propriety of adhering strictly to its provisions. If, therefore, the evidence had established the contract, as charged, in the clearest manner, we should have dismissed the bill. The legislature has spoken in unambiguous and plain language, and by its enactment requires the contract should have been in writing. If the court undertake to declare the law differently, the effect is a repeal of the legislative enactment. Cooke 403. 2 Ten. 192. Patton and M’Clure. Had it been shown that any substantial improvements, adding to the value of the lot, had been made by complainant, he would have been entitled to compensation for them, because of the vague assurance that he should have the privilege over others of eventually purchasing the lot. 1 J. Ch. Rep. 286. But no proof exists that any valuable improvements were made; but, on the contrary, that none such were put upon it. A reference to the clerk and master is therefore unnecessary.

Bill dismissed.  