
    Eliza B. Lefferson v. Sarah E. Dallas et al.
    
    1. A verbal contract for tbe sale of land is not absolutely void, but voidable only, at tbe election of either party. A creditor of tbe vendor in sucb contract cannot require that considerations of equity, of good faith, and of moral obligation arising therefrom, shall be ignored, and the contract held void.
    8. A contract for the sale of real estate does not, of itself, free the land-from the lien of judgments against the vendor. It is the payment of the purchase-money which entitles the purchaser to protection in equity; and to the extent that the purchase-money remains unpaid when the lien attaches, the land will be held bound.
    Error to tbe district court of Butler county.
    Prior to tbe year 1860, tbe father of Sarah E. Dallas and her brother William S. McClelland died intestate, leaving to them and bis four other children a farm in Butler county.
    The widow was entitled to dower in the farm.
    All the children except Mrs. Dallas gave up to their mother the use of the farm during her life. For the use of Mrs. Dallas’ share of the farm, being an undivided one-sixth part, her mother was to board her and her two children.
    The mother rented the farm to her son Robert for the year 1868, and was receiving the rent.
    
      Afterward, on the 25th of October, 1863, Mrs. Dallas bought, by verbal contract, of her brother William S. McClelland, his undivided one-sixth part of the farm for $1,000, and paid thereon, in hand, $30. About the 1st of November, 1863, she paid $45 more, and about January 1st, 1864, she paid $75 more, and on March 11th, 1864, she paid the residue, $850, of the purchase-money, and received a deed. The reason she did hot, as she testified, pay all the purchase-money down was, that William did not want the money, and left it with her. On November 9,1863, William left the farm, where he had also been living with his mother, and went to Lebanon, to attend school, and took away all his property and clothes. He has not made his home on the farm since he thus left, but makes it his stopping place when he is in the county. When Mrs. Dallas bought William’s interest in the land he told her she could take possession of it and have his share of the rents. In November, 1863, after her purchase, of William, she verbally renewed the contract with her mother to board her and her two children for the use of her two-sixths of the farm. This same arrangement was intended for the coming year, to begin January 1st. Mrs. Dallas then and ever since lived' on the farm with her mother and brother Robert.
    On the 13th of November, 1863, Eliza B. Lefferson brought suit against William S. McClelland in the court of common pleas of Butler county for breach of promise of marriage. On the 20th of November, 1863, the sheriff left a summons in the case for William at the home, notifying him that the suit was for $10,000. Mrs. Dallas saw the summons at the time. It was the first knowledge she had of any difficulty between William and Eliza. The latter lived in sight of the farm, but Mrs. Dallas had never been at her house more than two or three times.
    The next term of the Butler common pleas began February 15th, 1864; and when Mrs. Dallas paid William the $850, «he knew court was in session, and that the case between Eliza and William was expected to be tried at that term.
    When Mrs. Dallas made the purchase of William she did not, as she testified, intend to defraud his creditors, and did not know that he had any, and did not know that he had promised to marry Eliza.
    About a year before Mrs. Dallas purchased William’s interest in the farm she proposed to buy him out, but he then refused to sell.
    When she did make the purchase she had considerable means — about $7,000 in her own and her children’s light.
    During said February term, 1864, to wit, April 6th, 1864, Eliza recovered a judgment, in her action against William, for $5,000. Upon this judgment execution was issued and levied upon William’s interest in the-land.
    Thereupon Mrs. Dallas filed her petition against both Eliza and William to set aside the levy and quiet her title. Eliza answered. William was in default.
    The case being in the district court by appeal, that court, at its Apz-il term, 1866, upon the facts stated, entered judgment quieting the title as pi’ayed for. The plaintiff in error moved the court for a new trial, but her motion was overruled.
    
      Thomas Millihin for plaintiff in error:
    1. There was no part performance sufficient to take the case out of the statute of frauds.
    The rule is that nothing will be deemed part performance which does not put the party into a situation which is a fraud, hardship, or deceit upon him, unless the contract is perfozmed. 1 Am. Lead. Cas. Eq. 568.
    The tendency of later decisions is to give compensation in damages instead of a specific perfozmance, whenever damages will answer the purpose of indemnity. This alternative 'is to be preferred, as it will equally satisfy justice, and will be in coincidence with and in support of the statute. 11 Ohio, 265 ; 1 Am. Lead. Cas. Eq. 568.
    Thé possession must be connected with the contract — in consequence of and in pursuance of it, and intended to b® in execution of it. Ibid. 570.
    
      “ Mere continuance in possession by a tenant not enough.’* Ibid. 570.
    “ Payment of purchase-money not enough.” Ibid. 571.
    
      “ Courts regard with favor the statute of frauds in later times.” Ibid. 573.
    “ There must be no further encroachments.” Kent, J., cited in 1 Am. Lead. Cas. Eq. 574.
    There was no possession taken by Sarah E. Dallas. Wil liam had previously given to his mother the use of his interest during her Ufe, and she had rented the entire farm to Robert. Mrs. Dallas was, herself, a boarder with her mother. No possession of William’s interest was taken by Mrs. Dallas, and none could have been taken. It was beyond William’s power to give possession.
    2. Conceding the agreement to be valid, yet as only $150 was paid before the 15th February, 1864, when the judgment lien attached, the $850, balance of the purchase-money, should be appropriated on the judgment.
    The rule is that the purchaser must show not merely a purchase, but fully completed, before notice of an adverse claim. 1 Am. Lead. Cas. Eq. 79, 82, 83; 9 Peters, 86.
    Must deny technical as well as constructive notice. 2 Lead. Cas. Eq. 83; 1 Sumner, 192.
    “ Must deny notice not only at existence of deed, but at time of payment of purchase-money.” 7 Johns. Oh. 65; 10 Paige, Ch. 399.
    The denial must be certainly andpositively. 2 Am. Lead. Cas. Eq. 83.
    Mrs. Dallas had full notice of the pendency of the action of Lefferson v. McClelland.
    
    The judgment rendered at the February term, 1864, operated, by statute, as a lien from the 15th February, the first day of the term. Then William S. McClelland had more than a naked legal title. He had, in addition to the legal title, a hold upon the land to secure the unpaid part of the purchase-money. To that extent at least it was subject to levy.
    To constitute an outstanding equity in Mrs. Dallas in the land, which will prevent the judgment lien of Lefferson from operating, it must be an equity which could have been enforced — one by which William S. McClelland was bound, not a mere honorable or even a moral obligation. Hunter et al. v. Bales, 24 Ind. 302; 2 Story’s Eq., secs. 790, 792, and authorities there cited; Duvall v. Wilson, 9 Barb. 487; Silvermail v. Cole, 12 Barb. 685; 1 Story’s Eq., see. 64 (g).
    But it will not be pretended that a mere verbal contract for sale of land is valid or binding, or that either party could successfully insist upon its performance.
    3. Lefferson can set up the statute of frauds as against the sale to Mrs. Dallas. After the judgment lien attached McClelland could do no act of omission or commission that could affect such lien, and Lefferson, by virtue of the judgment lien, stands in such privity with McClelland, as to the land, that she can plead the statute of frauds or any other plea in bar that will defend the title. Sands v. Hildreth, 14 Johns. 693; 2 Johns. Ch. 35; 3 Wend. 411; 8 Wend. 339; Jackson v. Myers, 18 Johns. 425.
    
      N. C. McFarland for defendant in error:
    1. Possession given under the contract and part payment will take the case out of the statute. Wilber v. Paine, 1 Ohio, 251.
    The land not having been divided, there could be no formal possession given of any particular part; but all the possession capable of being given was given. It seems that neither the mother nor William considered the previous understanding in regard to the whole farm as binding, for he told Mrs. Dallas that she could take possession of his part, and receive the rents, and the mother entered into the new arrangement-recognizing Mrs. Dallas'as the owner. , I claim that possession was given to Mrs. Dallas, and by her transferred to her mother. Harrow v. Johnson, 3 Met. (Ky.) 578.
    Willianl S. McClelland filed no answer — did not set up the statute of frauds as a defence. In such case performance will be decreed. 11 Ohio, 455, 457.
    A parol contract for the sale of lands is not void but void
      
      able, and where the statute is not set up by the party, it wilJ be enforced.
    McClelland, in making the deed, only did what the court would have ordered him to do, unless he pleaded the statute in bar, even if there had been no delivery of possession.
    Lefferson is not a bond fide purchaser; she, at most, has only a lien on what William S. McClelland had February 15th, 1864, the first day of the term. Independent of possession, Mrs. Dallas then had an equitable claim, as between her and William, which good conscience required him to comply with, even if the law would have excused him on defence made.
    If Mrs. Dallas had a contract with William which she could enforce either with or without defence made by him, she had a right, on the 11th of March, 1864, to pay the money and receive the deed. She had no right to suppose he would not fulfil his contract, much less to make an unconscionable and technical defence for him which he did not desire to make.
    If she had no such contract as the law would enforce— without defence — if it was a void contract — then we have no case: so the payment of the $850 after knowledge of suit brought does not change the condition of the parties.
    The authorities cited as to “ notice of an adverse claim ” are not in point. There was no ad/oerse clcrnn as to this land. Mrs. Dallas did know, when she paid the $850, that Miss Lefferson had sued William for a breach of promise. Whether a judgment would be obtained at that term or any other was merely conjectural. No fraud is charged here.. Mrs. Dallas acted, throughout, in good faith. She had the money with which to buy; had before talked of buying, and paid a reasonable price for the land, without any notice whatever of William’s troubles.
    Counsel speak of the lien attaolvmg, etc., at least on the $850. I submit that it never did attach, for the reason that there was nothing to attach to. William had sold the land, and by a contract which was valid unless he avoided it by plea. This he never did and never sought to do. He had, 
      
      no lo/nd on which a lien could rest Februa/ry 15th, 1864. Hs had $850 in money due him, which, perha/ps, might have been reached in another way. It certainly might if Lefferson had recovered her judgment in time.
    The attention of the court is asked to the case of Williamson's Administrator v. Rees' Administrator, 15 Ohio, 572, and to 5 J. J. Marsh. 380, cited in 1 Eq. Dig. 571.
   Scott, J.

There is no evidence in this case tending to impeach the good faith of the parties in the contract of purchase, under which the premises in controversy were conveyed to the defendant in error. That contract, however,, was by parol only; and the plaintiff in error claims that it can therefore have no effect as against the lien of her judgment, which attached before the execution of the conveyance. Conceding, as we do, that there was in this case no such change of possession as would take the case out of the operation of the statute of frauds, it is clear that the mere payment of a portion of the purchase-money would not have enabled the plaintiff in error to enforce in equity a specific performance of such parol contract. The statute of frauds, if pleaded by the vendor, would be a sufficient answer to such a claim. Rut here, the parol contract has been fully executed by the vendor, and the statute is set up to invalidate the contract, by a judgment creditor, who became such after the date of the contract, and after a part payment., of the purchase-money. The statute does not make parol contracts for the sale of land absolutely void. By withholding a right of action upon them, it simply makes them voidable at the will of either of the pai’ties. But neither party-can be compelled to ignore the considerations of equity, of good faith, and of moral obligation which may arise from such parol contract, and to avoid it by pleading the statute of frauds. Minns v. Morse and others, 15 Ohio, 568; 5 J. J. Marsh. 380; 6 Dana, 194.

The case of Hunter and others v. Bales, 24 Ind. R. 299, is cited as maintaining a contrary doctrine; but the decision in that case is simply this : That a vendor may elect to treat a verbal contract for the sale of his land as void; and that he makes suck election whenever he makes a valid agreement for its sale in the face of such prior verbal contract. This is not in conflict with the principle we have stated.

But another question equally important arises in this case. The plaintiff in error recovered her judgment against the vendor in this case at a term of the court which began on the 15th day of February, 1864. Though this judgment was not in fact entered till the 6th day of April, yet by the provisions of the statute it became a lien upon the lands and tenements of the vendor, within the county, from the first day of the term. Code, sec. 421. The legal title to the premises remained in the vendor, and the most of the purchase-money remained unpaid, till March 11th, 1864; when, with full knowledge of the pendency of the suit against her vendor,, the defendant in error paid the residue of the purchase-money, amounting to $850, and received a conveyance of the premises. Now it is claimed on behalf of the plaintiff in error, that to the extent of the purchase-money remaining, unpaid on the first day of the term, her judgment became a valid lien upon the lands in question; and that defendant in error has no equitable right to the discharge of such lien, and the quieting of her title, without accounting to the judgment creditor for this residue of the purchase-money. And this claim, we think, rests upon sound principles, and is well supported by authority. “The principle upon which relief is afforded to purchasers, when the legal title remains in the-vendor, and the land is consequently at law subject to execution upon judgments against the latter, seems to be, that the-purchaser has as good an equity as the judgment creditor, and prior in point of time, having honestly paid his money before the land became subject to the judgment lien. But this principle presupposes that the land is subject to execution and to the lien of judgments against the vendor, and it is manifest that the purchaser has no such prior equity if the purchase-money was not paid before the lien of the judgment attached.” Smith, J., in Simpson v. Niles, Smith’s (Indiana) Reports, 104. So in Fasholt v. Feed, 16 Serg. & R. 266, it was held that a judgment against one who has articled to sell, but made no deed, nor received tbe whole of the purchase-money, is a lien on the vendor’s interest, and a purchaser, under a sheriff, of such interest will stand in the place of the vendor and be entitled to tbe money due from the purchaser

The case of Minns v. Morse and others, 15 Ohio, 568, is not in conflict with this doctrine; for in that case no part of the purchase-money remained unpaid at the date of the judgment under which the premises were taken in execution and sold; and the judgment debtors were therefore held to be mere naked trustees of the legal title. But where, as in this case, the judgment debtor, at the date of the judgment, holds not merely the legal title, but has the right to retain such title till the purchase-money be paid, this is a beneficial interest accompanying the legal title, and which will pass to the purchaser in execution under such j udgment. The defendant in error was under no obligation to pay to her vendor the remainder of the purchase-money during the term of court at which she knew judgment might be rendered against him. She might have required indemnity against the lien of such judgment, or retained the unpaid purchase-money for its extinguishment. Its voluntary payment during the term gave her, as we think, no equity as against the judgment creditor. ’ It follows that the district court erred in decreeing to the plaintiff below the relief prayed for in her petition, and in overruling the motion of plaintiff in error for a new trial, and its judgment is therefore reversed.

Brinkeehorf, C.J., and Welch, White, and Day, JJ., concurred.  