
    CONSTITUTIONAL COURT,
    CHARLESTON,
    JAN. 1803.
    Williman v. Robertson.
    An equitable title cannot be set up as a defence against a legal title, in an action of trespass to try title.
    Motion on behalf of the defendant for a new trial, in an action to try titles to land, tried in Charleston district. The case appeared to be this : R. Gibbes sold land to Job Colcock, on condition that the latter should sell and take bonds from those who should purchase from him, which bonds Gibbes was to receive in payment for the land. Colcock sold all the land but seven acres, and paid Gibbes all the money due him except seventy pounds. Colcock made a title to the remaining seven acres to defendant, and Gibbes made a title to the same to plaintiff. Gibbes had made no title to Colcock, and Colcock promised tofget Gibbes’ title to defendant, but never did. Titles were made by Gibbes to the other lands sold by Colcock. The agreement between Colcock and Gibbes was in writing, and it was argued by J. Ward, for the defendant, that the contract between Gibbes and Colcock was part executed, and pursuant to a written agreement, for defendant was put in possession, and paid part of the consideration money, and therefore was not within the statute of frauds, and a good title vested in the defendant. ThatGibbes was bound by the contract of his agent; and that inasmuch as a Court of Equity would, in such a case as this, upon a bill brought against Gibbes, decree a specific execution of the contract between Colcock and the defendant, this court ought to recognize the equitable title of the defendant, and support his possession : and more especially, as it was proved at the trial, that Gibbes had made titles to different persons of different pieces of these lands sold out by Colcock, in pursuance of the parol agreement entered into between Colcock and the purchaser. 1 Atk. 13. 1 Fonbl. 382. 3 Atk. 4.
    
      E contra.
    
    It was insisted by Gaillard, for the plaintiff, that Colcock was only the agent of -Gibbes, and the sale by him could not be good without a title from Gibbes 5 and that Gibbes was not bound by the contract between him and Colcock, to make a title until satisfied by bonds, or otherwise for the price of the land : and even allowing that an action would lie against him for a breach of oontraci, or for money had and received ; or that in equity a bill for 3 specific execution might be sustained ; still this could give no title to the land in question, to the defendant. That the doctrine rela-e" tive to part' execution, to validate a parol contract for land, as it prevails in equity, cannot apply and operate in such a case as this. And a Court of Equity will not decree a specific execution of a parol contract, if it should appear under all the circumstances of the case, that the party claiming it is not equitably entitled to it. Here, all the money is not paid, and the defendant is insolvent. The contract was executory, and not executed, and the money, to be paid by way of consideration, was a condition' precedent. The purchaser was to have a title when he satisfied the owner for the purchase money. He did not do so in a reasonable time ; and therefore Gibbes was not bound, even in equity, any longer to consider him as purchaser.
   The court were of opinion with, the plaintiff, and refused a new trial. See Hayw. Rep. 331.  