
    GEO. FOUST v. PETER SHOFFNER and DANIEL SHOFFNER.
    One who has accepted apa/rdl promise for the conveyance of land, cannot, upon being compelled at law to pay the notes given for the purchase money, waive his claim to specific performance, and compel a repayment of such money by the bargainors, who submit to perform the contract.
    
    
      (Albea v. Grifjm, 2 Dev. & Bat. Eq. 9, cited and approved.)
    Bill for the repayment of money, filed to Fall Term, 1860, of the Court of Equity of Randolph, and set for hearing upon bill, answer and proofs, at Spring Term, 1867, and transmitted to this court.
    The bill alleged that the complainant had contracted with the defendants verbally for a tract of land, and afterwards had been compelled by suit to pay the notes given for the purchase money; that he was advised that the contract was void, because it was not in writing, and that therefore he could not ash a Court of Equity to decree its specific performance ; that owing to his poverty he had been unable to obtain an injunction against the judgment at law; and thereupon the bill prayed for re-payment of the money, and for specific relief.
    The joint answer admitted the agreement, and submitted to perform it.
    No counsel for the complainant.
    
      Dich, for the defendants.
   Pearson, C. J.

There can be no doubt when one gives his note as the price of a tract of land, and takes no bond for title, but relies upon the verbal promise of the vendor to make a deed, that if the vendor collects the note by judgment, and then refuses to make title, and takes advantage of the Statute of Frauds, a Court of Equity will not allow him to keep the money, but will compel him to refund, on the ground that the note was obtained by a fraudulent misrepresentation, and a false promise; and in sucb case, the purchaser may maintain a bill, and require the vendor either to comph' with the confidence reposed in him and make title, or else refund the money. Albea v. Griffin, 2 Dev. & Bat. Eq. 9.

The plaintiff in this case however, seeks to avoid the contract for the defendants, instead of waiting to see whether they will take advantage of the Statute of Frauds; and the defendants, by their answers, aver a willingness to execute title, and comply with their verbal undertaking in respect to the land. This fully meets any equity on the part of the plaintiff.

Per Curiam.

Bill dismissed.  