
    John Boyd versus Alpheus Stone.
    A, having received a conveyance of land from B, made a verbal promise that he would, on a certain day thereafter, make a defeasance thereof so that the same should operate as a mortgage. It was holden, that such promise was void by the statute of frauds.
    The plaintiff declares in case, “ for that, on the 14th of February, 1807, at Worcester aforesaid, the said Alpheus and one James Boyd, at the special instance and request of the plaintiff, made and executed a promissory note of hand for the sum of 485 dollars 62 cents, payable to the president and directors of the Worcester Bank, being for the just and proper debt of the plaintiff; and the plaintiff avers that thereafterwards, on the same day, he made, executed, and delivered, to the said Alpheus and James a good and sufficient deed of a certain farm in Oakham, the property of the plaintiff, of the value of 3000 dollars ; and it was then and there verbally agreed, between the plaintiff on the one part, and the said Alpheus and James on the other, that the said deed should be considered, and operate in law, as a mortgage to secure and indemnify them against the note of hand by them executed as aforesaid; and the said Alpheus and Jaynes then and there promised that they would, at a * future day, make and execute a written [ * 343 ] obligation or bond of defeasance, specifying the condition on which t'he said farm was conveyed as aforesaid, so that the said deed should operate as a mortgage, and not otherwise. And the plaintiff further avers that it was afterwards agreed. upon between the said parties that they should meet at the dwelling-house of the said John Boyd on the 1st day of June then next, for the purpose of making and delivering the said obligation or bond of defeasance; and that the said James Boyd was then and there present, together with the plaintiff, and the said James Boyd was then and there willing to join with the said Alpheus in making and executing the said obligation or bond of defeasance; but that he, the said Alpheus, fraudulently intending, and contriving to injure, deceive, and defraud, the plaintiff, did not appear at the time and place so agreed upon as aforesaid, and did not then and there make and execute the said obligation or bond of defeasance; and the plaintiff further avers that the said Alpheus, although he has been often since requested, and although the said James Boyd has always been ready and willing to -join with him in the execution thereof, has hitherto utterly neglected and refused to make any obligation, bond, or promise, in writing, specifying the condition on which the said farm was conveyed as aforesaid; and the plaintiff further avers that the said Alpheus, in consequence of having signed the said note of hand, has been obliged to pay for, and in behalf of the plaintiff, the sum of 300 dollars, and no more; and that the plaintiff’s right in the said farm, which was conveyed to the said Alpheus as aforesaid, was of the value of 2000 dollars ; and so the plaintiff avers that, by the fraud, covin, and deceit, of the said Alpheus, he has been greatly injured and defrauded.”
    To this declaration the defendant demurred specially, and among other causes of demurrer assigned the following, viz.; Because the contract set forth therein is a contract respecting real estate, and ought therefore to have been put in writing, and signed by said Stone, or some one for * him, to enable the [ * 344 ] plaintiff to charge him ; yet it is expressly stated, in the said declaration, that said contract was by parole; because it appears, by the said declaration, that the said action, if it coul 1 be main tained at all, should have been brought against James Boyd and the said Stone, and yet it is brought against said Stone alone.
    The plaintiff having joined the demurrer, the cause came on for argument at the last September term in this county, when the Court called on the plaintiff’s counsel to show that their case was not within the statute of frauds.
    
      Blaise and Lincoln, for the plaintiff.
    The statute of frauds being as binding in courts of equity as in courts of common law, decisions in chancery on the point may be pertinently cited. It is said by Wooddeson 
       that where a feoffment was made, and the feoffee promised by parole to make a defeasance, yet the promise was decreed valid, notwithstanding the statute. So, where there was a paroi agreement for the purchase of lands, and a bill brought for a specific performance thereof, and the substance of the agreement was set forth in the bill, and confessed by the defendant’s answer, as in the case at bar is done by the demurrer, the Court decreed a specific execution, became there was no danger of perjury, which was the principal thing the statute intended to prevent. 
    
    Further, the agreement in the case at bar was executed in part. The defendant made the promissory note, and the plaintiff made his deed, both in part fulfilment of the original contract or agreement. 
    
    The demurrer acknowledges a gross fraud committed by the defendant. The plaintiff’s action is bottomed on the fraud and deceit. The contract set forth in the declaration is inducement only. The action is properly brought against him who was alone guilty. We could not join James Boyd in the action, against whom no cause of complaint existed. If the present action cannot be maintained, the plaintiff is without remedy. [ * 345 ] * If this objection has any weight, the defendant, to avail himself of it, should have pleaded it in abatement, unless it appeared on the face of the declaration that the party not sued is living,  which is not the case here. This is true even in actions on contracts; much more in actions for a tort or ex delicto.
    
    
      Bigelow for the defendant.
    The action was continued to this term for advisement, and now the opinion of the Court was delivered by
    
      
       1 Wood. Lect. 429, cites Skin. 143. — Free. Chan. 526. —2 Freem. 269, 281, 285. — 9 Mod. 88. — See, also, 3 Atk. 389. —Abr. Eq. 20, p. 5.
    
    
      
      
        Bac. Abr., tit. Agreements, C, cites Abr. Eq. 19. — Gilb. Eq. Rev. 35, S. C. — Prec Chan. 208, S. C.
    
    
      
       1 Com. on Contracts, 80, cites 2 Sir. 783. — Earl of Aylesford ’s case.
    
    
      
      
        Chitty on Pleading, 29, 74. — 1 Saund. 154. — 5 D. & E. 651. — 1 East, 20.— See, also, 6 Mass. Rep. 460, Baker vs. Jewell.
      
    
   Parker, C. J.

There being a demurrer to the declaration in this case, and a joinder in demurrer, the question to be decided is, whether the declaration is sufficient in law to be the foundation of a judgment for the plaintiff. An action of the case for deceit was probably contemplated by the attorney who drew the declaration ; and yet several promises being alleged, as well as a breach of those promises, if the facts stated will establish a contract which can be supported by paroi testimony, or a wrong done for which an action lies, the declaration may be considered as sufficient. [Here his honor recited the allegations of the plaintiff’s declaration, and proceeded.]

By the ancient common law, before the statute of 29 Car. 2, c. 3, commonly called the statute of frauds and perjuries, an action of assumpsit or of deceit might have been maintained upon these facts. There is a distinct promise to do something valuable to the plaintiff, and there is a sufficient consideration. That statute, however, was enacted with a view to prevent contracts concerning real estate from being enforced, or damages recovered for the breach of such contracts, unless proved by written evidence; it being found inconvenient to depend upon the memory or the integrity of witnesses in disputes relating to real estate.

In the year 1692, the legislative power of the then province of Massachusetts Bay passed a law, containing provisions similar to those in the Stat. 29 Car. 2; and, in the year 1783, the legislature of the commonwealth made a law * upon the [ * 346 ] same subject, and with nearly the same provisions, the second section of which is in the following words: “No action shall hereafter be maintained upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning the same, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.”

It is somewhat singular that a very incorrect phraseology of the statute of Charles, producing some little obscurity, should have been adopted, both in the provincial act, and in the statute of the commonwealth. No contract or sale of lands, &c., was probably at first misprinted or miswritten for, no contract for the sale of lands, &c.

We find no action sustained in the courts of common law in England, since the passing of the statute of Charles, upon a mere verbal promise to convey land, or any interest in lands, tenements, or hereditaments,

It is true, the courts of chancery have entertained bills in equity, and have decreed the specific performance of contracts of this nature, which had only unwritten testimony for their proof; but they have always proceeded cautiously; and, of late, it has been much doubted, by some very eminent chancellors, whether more mischief than good has not been the effect of a departure from the letter, if not the spirit of the statute. The cases, however, in which a specific performance is decreed are not numerous, and are reducible to two or three classes.

W herever a fraud has been committed in a bargain of this sort, the Court relieves upon the ground that a statute made to prevent frauds ought not to be used to promote them. Thus w'here one, having borrowed money, intended to secure the lender by an absolute deed with a deed of defeasance, and having executed and de livered his deed, the lender refused to execute the deed of defeasance, it is said that he may be compelled to do it in [ * 347 ] chancery. This is certainly * a very strong case, because the statement seems to admit that a deed of defeasance was actually drawn, and every thing completed but the signature of the party. This was a palpable and gross fraud, and might have subjected the party who committed it to a criminal prosecution. It is not extraordinary that a court of equitable jurisdiction should interpose in such a case.

Another class of cases, in which equity will decree in favor of a contract not in writing, notwithstanding the statute of frauds, is where the party contracting to sell or lease has in part executed his contract, by putting the other party in possession, causing him to be at expense for repairs, &c., and also when a substantial part of the consideration has been paid by the party claiming the execution of the contract. The reason given for this apparent evasion of the statute is, that the act of the party to be charged has rendered perjury in proving the contract less probable, and the danger of relying upon paroi evidence less considerable. It has also been said that even these cases proceed upon the ground of fraud; it being fraudulent in a party to avail himself of his part of a bargain, or to put the other party to expense and inconvenience, and then refuse to execute it.

It is also held, that, where a bill in equity sets forth a contract concerning real estate not in writing, and the party in his answer confesses it, in that case it will be enforced, although he plead the statute of frauds; because his confession avoids entirely the danger of fraud or perjury in establishing the contract.

Except these classes of cases, we believe even a court of chancery in England does not support a verbal contract concerning real estate.

It might be sufficient, in the case at bar, to say that we have no general chancery jurisdiction. But, as in most cases, where, by the rules of a court of equity, a specific performance might be decreed in a court of law, damages may be recovered for the breach of such contract, it is necessary * to inquire [ * 348 ] whether the case before us could be helped in a court of chancery. If it were a case of direct fraud, like the one first cited, there would be no difficulty. But no instance can be found, in the reports of chancery cases, of a specific performance decreed, where the fraud consisted only in a breach of promise. Here the deed was made and delivered, according to the real intent of the parties at the time. There was no trick or contrivance to get it out of the hands of the plaintiff, without giving him security. The plaintiff intended that the defendant should have the deed, and relied altogether upon his promise to meet him at some future time, and give the security. Without doubt, the non-performance of this promise is, in a moral point of view, a fraud; but it is no more fraudulent than any other breach of trust or of promise. There was no false representation, tokens, or pretences, which are the indications of that species of fraud which is the foundation of an action for deceit,

The case has been attempted to be likened to those in chancery, where a specific performance has been decreed, because the contract had been partially executed by the party against whom relief was prayed. But there is no resemblance. The whole contract, as far as written proof exists, has been performed. The deed is perfect in itself, and contains nothing ambiguous, or which requires explanation. The promise, as stated in the declaration, is entirely independent of the deed ; goes to change the nature of the conveyance from an absolute to a conditional one, or to set up an agreement, on the part of the defendant, to give the plaintiff an interest in the estate, which, according to the forms of conveyance established by our statute, was wholly in the defendant. It is the very case in which, by the statute, written evidence, and that alone, is permitted to be used. We are satisfied that this action, as an assumpsit upon the contract, which is stated in the declaration to be verbal, cannot be supported.

And we are equally clear that there is not enough alleged in the declaration to maintain an action of deceit, which, [ * 349 ] * by the words used in the latter part of the declaration, may be supposed the species of action principally relied upon by the plaintiff. He has stated distinctly the facts upon which he expects to ground his charge of fraud. It has been before observed that the non-performance of the promise is the only circumstance from which fraud is to be inferred; and the declaration seems to have been drawn with a view to ascertain whether that species of fraud will give a right of action, by which all the advantages of the contract may be obtained by the plaintiff, although he confessedly depends upon unwritten testimony alone to support it.

If this declaration could be maintained, it would follow that, in all cases where a party had made a verbal agreement respecting lands, &c., by choosing his form of action, he might avoid the operation of the statute. It is better that a man, who has been so grossly negligent of his affairs as to rely upon the honor of the party with whom he deals, when the laws of his country have always declared that he shall have no remedy for ¿he breach of such an engagement, should suffer, than that the rules of property should fluctuate according to the notions of different judges, as to the merits of each particular case.

It is possible that the plaintiff can make out a better case than he has stated in his declaration. It does not appear from that that the defendant intends to defraud him of his land, that he has taken possession of it, or that he has refused to receive the money it was intended to secure, and abandon his claim to it. The very facts stated by the plaintiff show that the delay and inconvenience attending upon a mortgage were to be avoided; for the defeasance was to be executed at a future day. The defendant meant to hold the land until he was indemnified. He has paid more than 300 dollars some years agone, according to the plaintiff’s showing ; yet the plaintiff has not repaid, or offered to repay, that sum.

It would appear, from the present action, that the object of the plaintiff himself was to depart from the agreement he [*350] declares *was made when the deed was executed. Instead of considering the lg.nd as security in the defendant’s hands for the money he advanced, and attempting to re« gain the land by paying the debt, his object in this suit seems to be to compel the defendant, at all events, to keep the land, and to get the value of it in money.

Whatever may be the prospect of remedy upon a different state of facts, amounting to direct fraud or trick on the part of the defendant, we are satisfied, as they are now exhibited, that there is no legal ground of action, either upon contract or tort,

Declaration adjudged bad. 
      
       4 W. & M. c. 3; vide Mass. Stat. vol. ii. p. 972.
     
      
      
        Stat. 1783 c. 37
     
      
      
         Vide Dillingham vs. Runnels, 4 Mass. Rep. 400. — Scott vs. Wilkinson, 17 Mass Rep. 249. —Hoby vs. Roebuck, 2 Marsh. 433. — 7 Taunt. 157.
     
      
       5 Vin. Abr., title Contract: — 2 Atk. 99. — 3 Atk. 389. — Vern. 160. — Freem. 269
     
      
       There can be no doubt but that relief might be had in chancery.— Marsh vs. Pell, 1 Johns. Ch. 594. — Strong vs. Stewart, 4 Johns. Ch. 167. — Washburn vs. Merrill, 1 Day, 139. —Daniels vs. Atwood, 2 Root, 196. — Ross vs. Nowell, 1 Wash. 15.— Watkins vs. Stockett, 6 Har. & M 'Hen. 24. — Wilcox’s Heirs vs. Morris & Al. 1 Murph. 117.— Wilcox vs. Carver, 4 Hay. 93.— Wheeland, vs. Swart & Al. 1 Yeates, 579.— 13 Serg. & Rawle, 239. — Bolton vs. Avery, 2 Root, 279.— Wharf vs. Howell, 3 Bing 499.
     
      
      
         Sherburne vs. Fuller, 5 Mass. Rep. 133. — Kidder vs. Hunt, 1 Pick. 338. — Von Alstine vs. Wimple, 5 Cow. 162. — Pitts vs. Waugh, 4 Mass. Rep. 424. — Baker vs. Towell, 6 Mass. Rep. 460. — Scott vs. M’Farland, 13 Mass. Rep. 309.—Bliss vs. Thomson, 4 Mass. Rep. 488. — Owen vs. Estes, 5 Mass. Rep. 330. — Cook vs. Stearns, post, 533. — Flint vs. Shelden, 13 Mass. Rep. 447. — Goodwin vs. Hubbard, 15 Mass. Rep. 218.—Bend vs. Susquehanna Br. & Bank Co. 6 Har. & Johns. 128. — Lloyd vs. Inglis, 1 Dess. 333. — Dickerson vs. Dickerson, 1 Car. Law Rep. 262. — M’Teer vs. Shepherd, 1 Bay. 461. — Fitzpatrick vs. Smith, 1 Dess. 341. — Streator vs. Jones, 1 Mur. 449. — Lund vs. Lund, Ad. 39. — Bickford vs. Daniels, 2 N. H. 71—Runlet vs Otis, 2 N. H. 167.
     