
    Walker’s Executor v. Aicklin.
    Friday, May 31st, 1811.
    Contract for Purchase of Land — When Pinal and Conclusive between Parties. — The point in Vance v. walker, (3 H. & M. 288,) again solemnly determined.
    This was a suit brought by Aicklin against Walker’s executor, in the”superior court of chancery for the Staunton district, to obtain the benefit of certain terms upon which the plaintiff, as he alleged, had settled a part of Doctor Thomas Walker’s Wolf-hill tract of land. He had accepted a ■conveyance from Francis Walker, the executor, of 840 acres, and executed bonds and a deed of trust to secure the payment of the purchase-money, at twenty shillings per .acre; but contended that If. Walker, at the ■time of executing the writings, verbally agreed that if he could, at any time thereafter, prove the contract between Thomas Walker and himself, he should be allowed the benefit of it. The evidence in the cause was of the same nature, and nearly to the same effect, with that adduced in Vance v. Walker, 3 H. & M. 288.
    On the 4th of July, 1804, the chancellor pronounced his opinion and decree: “That, as almost all the affidavits in this cause, as well as in the cause of Vance against the said defendant Walker, go to prove an advertisement, or public declaration, on the part of Dr. Walker, or his agents, that settlers on the Wolf-hill tract should be entitled to the lands by them settled, at 111. per hundred acres, the court must believe that such inducements were held out by the said Dr. Walker, or his agents; and that those terms could not relate to the lands of the Boyal ^Company, of which the said Walker was a partner and an agent, because the price required of the settlers for the lands of the Doyal Company was but 31. per hundred acres. The court is also of opinion that Dr. Walker’s promise to the plaintiff, (some years after his settlement,) that he should hold lands on the same terms with those who settled under the faith of his proposals, provided he took a certain quantity, then described, by metes and bounds, (by which the plaintiff was induced to remain on and improve the lands,) entitled him to a settlement right equally as if he had first settled under the faith of those proposals; more especially, as 81. 10s. were paid to Dr. Walker’s agent, Daniel Smith, in part consideration of the purchase money, and Dr. Walker always acknowledged the plaintiff’s right to some land in the Wolf-hill tract; this acknowledgment is proved by the receipt itself, by Dr. Walker’s letter to his agent Smith respecting the controversy between Vance and the plaintiff, and by the deposition of Jacob Murrell. It then only remains to be inquired, to how much land was the plaintiff entitled? For an answer we must look to the bill, (not absolutely contradicted,) and to the affidavits of Murrell and Andrew Vance; from these it will appear that the plaintiff was entitled, on the terms of settlement, to not less than the quantity for which he has obtained a deed from the defendants, to wit, 840 acres. And it is further the opinion of the court that the plaintiff has not waived his right to demand a fulfilment of the contract with Dr. Walker, by the execution of his bond and the deed of trust in the bill and answer mentioned. This case differs from the case of Vance and the defendant. In that case, the agreement, as set forth in the bill, (except •for three hundred acres,) was too vague and uncertain for the court to act upon ; three hundred acres, or thereabouts, appeared to be in the contemplation of the parties, and for that quantity Vance obtained a title on the terms of settlement; the bounds to which he claimed a title *were undefined; and, for more than three hundred acres, there was no mutuality of contract.” The decree, therefore, (though in Vance’s Case it was for the defendant,) was in this case for the plaintiff; whereupon the 'defendant appealed.
   After argument, by Wirt and Call, for the appellant, and Wickham, for the appellee, the judges, on Wednesday, June 12th, pronounced their opinions seriatim.

JUDGE) COAI/IIOR.

From the statement in the bill itself, the plaintiff’s first settlement on the land in controversy was not under the faith of Walker’s propositions to settlers; though he says that after seeing those proposals, he contented himself to live on and cultivate the land for several years. He did not, however, intend to purchase as much land as he now claims; on the contrary, says he objected to purchase so much, but Walker would not let him have any unless he took the whole; to which, on Walker’s saying he would make the matter easy, and take property, he finally assented. When this conversation between him and Walker took place is not stated; nor does it anywhere appear. From the quantities for which taxes were paid, it would seem that 300 acres was the quantity the plaintiff first contemplated taking; and this was all he claimed from 1793 until 1799. Yet his witness, Jacob Murrell, says that, in 1793, Dr. Walker told him he had given to the plaintiff, when last in that country, the pre-emption for 1,000 acres! Why did he not, then, pay taxes for that quantity? But, even in 1800, he is charged with only five hundred acres. Yet it is said that in April, 1800, he purchased from Francis Walker. He had probably directed an extension of his claim, on the commissioners’ books, as far as 500 acres before Francis Walker went to that country; and, in 1801 and 1802, he is charged with 840 acres, the quantity sold ■ by Francis Walker. When Dr. Walker had been last in that ^country, next preceding the year 1793, (at which time, it is said, the contract with him took place,) does not appear; and it may be that it was after the statute (.to prevent frauds and perjuries was in force. The plaintiff, therefore, ought to have stated and proved the time more precisely than he has done; in order to show that his case did not come within the influence of that statute, even as to Thomas Walker.

But, with respect to Francis Walker, the contract with him is since the statute; and was reduced to writing. It is said, however, that a very important verbal condition accompanied that written contract, whereby, at any future day, it could be done away. But such condition, forming, as it is said, part of the contract, ought to have been reduced to writing, as well as the principal contract itself. Otherwise, the statute, which requires a writing, would be completely evaded, if verbal conditions, totally changing its nature, are to be set up as part of the contract. It would be contrary to the statute, therefore, to admit of such evidence, unless there was clear proof that such condition’s not being introduced into the writing was superin-duced by fraud.

But it is said the plaintiff does not claim under the contract with Francis Walker, but under that made with 'Thomas Walker. To this I answer, first, that it does not appear that that, even,' was made prior to the statute: but the reverse is presumable from the circumstances above stated. But, if that contract was before the statute, how would the case stand,.stripped of what is said to be the-verbal agreement of Francis Walker? It would be this, that the' plaintiff, about the year 1773, took possession of, or settled on, part of the lands of Thomas' Walker; that, some time after-wards, Walker agreed to sell him a quantity, supposed to be 1000 acres, at' I'll, per hundred; that he neither gave a bond for the price, ascertained the quantity, or took one for the title;'(nor does it sufficiently appear that he ever paid a cent for it';) *and even had a smaller quantity taxed to him' on the commissioners’ books than he now claims to have purchased; that, after the death of Thomas Walker, he voluntarily purchased the land from his devisee, paid him 2251. (a . sum greater than would have been due for the 850 acres,- under the alleged contract with Thomas Walker,) and gave his bonds, and a deed on the land to secure the balance. Would not all these acts and omissions preclude him, at this day, from setting up this stale, verbal agreement with Thomas Walker, so as to set aside his subsequent written agreement with Francis? The plaintiff, therefore, must make out a case for a court of equity by means 'of the verbal condition said to be entered into with Francis Walker. To admit of such proof, without proof that the non-reduction of that condition to writing was induced by fraud, I think would open a door intended to be shut by the statute.

I think the case of Vance v. Walker, for the quantity claimed beyond the 300 acres, was a cáse as strong, or stronger, for that plaintiff, than this is for the present plaifi-tiff, as to the 850 acres he claims; and that that case is conclusive as' to this. '

The decree must, therefore',' be reversed.

JUDGE CABELE-

This case comes completely within the principles settled in this court in the case of Walker v. Vance, 3 H. & M. p. 288. I am therefore of opinion, that the decree of the chancellor be reversed. ' ‘

JUDGE BROOKE.

This- case comes clearly within the rule laid' down by this court in the case of Vance v. Walker. There is certainly no proof of fraud in obtaining the deed of trust, nor of mistake in the execution of it. The important question in controversy seems to be whether, at the time of executing that deed, there was an effectual agreement 'between the parties that, if at any time afterwards, the appellee could prove a prior agreement with *the father of the appellant of a different nature from the one ■ which was the basis of the deed of trust, and going to avoid it, in that case the deed should not be a bar to such agreement, and that the appellee should have' the full benefit of it. TH® proof offered of the alleg'ed prior agreement is not, in my opinion, conclusive to establish it; but, if it were, the principle is settled by the case before referred to-, that proof of any agreement which would operate as- a proviso to a deed solemnly executed, must be in writing. None of the evidence in this case is of that character. I am therefore of opinion, the decree of the chancellor must be reversed.

JUDGE ROANE.

In conformity to the decision of the court in the case of Vance v. Walker, I concur that .this decree should be reversed; my own opinion, however, is. otherwise, for the reasons assigned by me in that case, though, perhaps, this is rather'a weaker case than that.

JUDGE FLEMING.

I have examined this record with great attention, and discover nothing to distinguish it, in principle, from the case of Vance v. Walker; and, though the evidence, 5n the case before us, is more copious, it is of the same-complexion and character with that adduced by Vance; which varies the two-cases in some immaterial circumstances, only; and, in my conception, is inadmissible to annul, a solemn contract, deliberately entered into, committed to writing, and signed, and sealed by the, parties. The admission of oral testimony, for such a purpose'1, would, in my apprehension, be a virtual repeal of one of the most wise and beneficial acts in our statute-book.

The grounds, or reasons, on' which this-court decided the case of Vance v. Walker, are so-cogent, explicit, and conclusive • te my mind, that a volume written on the subject would throw no new light upon the cause; and I shall only add my opinion that the decree ought to be ’’'reversed, the injunction dissolved, and the bill dismissed with costs.

Decree unanimously reversed, and bill! dismissed.  