
    Gosden and Wife v. Tucker’s Heirs.
    Decided Oct. 15th, 1817.
    Specific Performance— ParoS Agreement for Conveyance of Land-Part Performance. — A parol agreement, "between husband and wife, that, in consideration of her joining him in a conveyance of a parcel of her lands, he would purchase certain other lands, build thereon, and convey the same to her, being clearly proved, and partly executed, by her joining in the deed, and his making the purchase and erecting the buildings, ought to be enforced in equity against, his heirs; notwith-sta.nding a great disparity in ‘value between the lands so bought and sold; it appearing that, at the time of the marriage, the husband was very poor, and that all the real property in his possession, (except the land purchased as aforesaid.) was held in right of the wife.
    See Quarles v. Lacy, i Mvmf.251.
    The appellants exhibited their Bill in the Superior Court of Chancery for the -Richmond District, (in 1807) setting forth, that the female plaintiff Mary was formerly wife of Joel Tucker ancestor of the defendants; — that she, being seined in fee in her own right of a parcel of land, called the Bowling Green, adjacent to the city of Richmond, consented, after much importunity from her husband Tucker, to join him in a sale of that property, in consideration of a positive verbal agreement and promise on his part, that he would purchase other land on Shockoe hill, build thereon, and convey the same to her for the same estate she held in the Bowling Green; that she accordingly did join in the sale of the Bowling Green ; and Tucker actually bought and built on a lot on Shockoe hill containing two acres ; — but died without settling the same on her according to his agreement. The prayer of the Bill therefore was, that the defendants should be decreed to convey the lot on Shockoe hill to *'the female plaintiff, or at least assign her dower therein.
    A joint answer of the adult defendants, admitted the plaintiff Mary’s title originally to the Bowling green, and the sale thereof by Joel Tucker, in which she joined; but denied the agreement alledged in the Bill, which, however, (the plaintiffs having put that fact in issue by a general replication,) was fully proved by depositions. It also appeared by exhibits, that four acres of land in Duval’s addition (the Bowling Green) were conveyed by Tucker and wife to James Thomson, for the consideration of 481., by deed dated June 26, 1800; and that, on the same day, Alexander M’Rae and wife conveyed to Joel Tucker the two acres of land on Shockoe hill, for the consideration of one thousand dollars.
    At September term 1809, Chancellor Taylor dismissed the Bill as to so much thereof as prayed specific execution of the agreement, but directed the plaintiff Mary’s dower, in the lot bought of M’Rae, to be assigned her by commissioners: and, at June term, 1813, it being admitted that her dower had been assigned in another suit, the bill was finally dismissed with costs.
    This Court granted the plaintiffs an appeal.
    Wickham for the appellants, contended that a Court of Equity will enforce a contract between husband and wife, founded on the consideration of her relinquishing her right to dower, or joining in a sale of her real property; — "in like manner as if she were a feme sole. It has long been settled not to be necessary to interpose trustees, (a) The Court will set up the contract, tho’ void at law.
    As to the agreement in this case, the testimony is clear; and the Statute of Frauds does not apply, the contract having been executed on one side.
    Deigh contra.
    The proof of the agreement, I admit, is sufficient; but the question is, will the Court enforce it? The property of Mrs. Tucker sold for 481. only; that afterwards purchased by her husband, was ten or twenty times its value. And that property, so much more valuable, is what she claims; — not to be paid her 481., with interest. Is this claim reasonable? Surely a more unreasonable one was never exhibited. The Chancellor did sright in dismissing the bill altogether. I know of no instance of an executory contract, for a sale from husband to wife, being enforced in equity.
    Wickham in reply.
    All contracts are executory when first made, (b) Ina°dequacy oi consideration is not sufficient to vitiate a fair contract. Besides; it appears by the record, that the husband, in the present case, had not a shilling on earth but what he got by the wife. This circumstance repels the objection of hardship. The truth is, he chose to lay out her money for her benefit. It is not pretended that there are any creditors; and, if there were, their claims would not be affected by any dectee between these parties.
    
      
       See generally, monographic note on “Specific Performance" appended to Hanna v. Wilson, B Gratt. 243.
      See principal case cited in Glascock v. Brandon, 35 W. Va. 90, 12 S. E. Rep. 1106.
      (a) 1 Fonbl. 102-3; 3 P. Wms. 337, Slanning v. Style; Tblfl. 339, Calmafly v. Calmady.
      (b) Moore v. Freeman, Bunb. 105.
    
   JUDGE ROANE

pronounced the Court’s opinion.

On the merits, and as between the present parties, the Court is of opinion that the decree is erroneous, and that the prayer of the bill ought to be grantedbut one of the defendants, the infant, has not answered the bill. Eor this cause, the Decree is to be reversed, and the cause remanded for farther proceedings,  