
    Samuel Sherburne versus Seth Fuller.
    Where a deed from A. to B. was made by the appointment of C., and delivered by A. to B., upon a verbal promise of B. to C. that if C. within a reasonable time should elect to pay to B. a certain sum of money, B. would convey to C. a certain, house and land, and give him three promissory notes for certain sums of money and if within a reasonable time C. should elect not to pay the money, then that B. would not cause the deed to be recorded, but would deliver it to C. ; and C. elected not"to pay the money, yet B. refused to deliver the deed, and caused it to be recorded: — In an action by C. against B. upon this promise, it was held to be within the statute of frauds, as concerning the sale of lands," and therefore not to be proved by paroi evidence.
    The declaration in this action was “ in a plea of the case for that whereas at said Boston, on the fifth day of May now last past, one Royal Makepeace had contracted and agreed with the plaintiff to convey to him, or any other person whom he should direct and appoint, certain lots of land in Cambridgeport, so called, in Cambridge, in our county of Middlesex, of the value of 5,371 dollars 67 cents, there afterwards on the twenty-fourth day of July last past, it was agreed by and between the said Fuller and the plaintiff in the manner following, viz. that the said Makepeace should, by the appointment of the plaintiff as aforesaid, make and execute a deed of the said lots of land to him the said Fuller, and that if the plaintiff should elect and choose, within a reasonable time thereafter, to pay to the said Fuller the sum of 2,500 dollars, that then and in such case the said Fuller should convey to the plaintiff a certain house [ * 134 ] and land * thereunder in Vine-street in said Boston, and should further make and give to the plaintiff three notes of hand to be signed by him, the said Fuller, which same notes should be each for the sum of 707 dollars 22-jr cents, amounting in the whole to the sum of 2,121 dollars 67 cents, and should be payable, one at the expiration of one year, another of said notes at the end of two years, and the other at the end of three years; and if the plaintiff should, within a reasonable time as aforesaid, elect and choose not to pay the said sum of money as before mentioned, that then the said Fuller should not cause the deed to him of the said lots in Cambridgeport to be registered in the registry of deeds for our said county of Middlesex or elsewhere, but should deliver and give up the same to the plaintiff; and the said Fuller at said Boston on the said twenty-fourth day of July, in consideration that the plaintiff then and there undertook and promised the said Fuller well and faithfully to perform and fulfil all and singular the matters and things in the said agreement contained on the part of the plaintiff to be performed and kept, undertook and promised the plaintiff that he, the said Fuller, would well and faithfully perform and fulfil all and singular the matters and things on the part of him, the said Fuller, to be performed and fulfilled. — And the plaintiff, in fact, says that, in pursuance of said agreement, the said Makepeace did then and there, by the appointment of the plaintiff, make and execute a deed to the said Fuller of the lots of land before mentioned in Cambridgeporl aforesaid, and the said deed was then and there delivered to the said Fuller for the purpose aforesaid; and within a reasonable time there afterwards, viz. on the twenty-eighth day of August, then next ensuing, the plaintiff did elect and choose not to pay the said sum of 2,500 dollars as aforesaid, of which the said Fuller thereafterwards on the same day had notice, and was requested to deliver and give up said deed according * to the agreement [ * 135 ] aforesaid; yet the said Fuller, not regarding his said promise and undertaking aforesaid, refused to deliver, and did not deliver, the same deed to the plaintiff not registered as aforesaid, but on the contrary thereafterwards, viz. on the thirtieth day of the same August, caused the same to be registered in the registry of deeds of the said county of Middlesex, and has ever since refused, and refuses to deliver the said deed to the plaintiff. To the damage,” &c.
    The action was tried upon the plea of non assumpsit, at the last November term, before the Chief Justice, and a verdict found by consent for the plaintiff, subject to the opinion of the Court, on the following case agreed by the parties :—
    
      “ The plaintiff proved the agreement declared on by paroi evidence, producing no memorandum in writing signed by the defendant, or by any person authorized by him, except a certain receipt of the tenor following: — ‘Boston. July 24, 1807. Received of Samuel Sherburne, a deed signed by Royal Makepeace, for a certain lot of land therein mentioned, the consideration thereof being five thousand three hundred and seventy-one dollars sixty-seven cents, which sum I promise and engage to account with said Sherburne for. Witness my hand, Seth Fuller.’
    
    
      “ It appeared by paroi evidence, that the defendant signed and delivered to the plaintiff the said receipt on the following account, viz. That in the said deed, the said Makepeace’s wife had not released her right of dower; that it was delivered by the plaintiff to the defendant that he might obtain of her such release, and then return it to the plaintiff unrecorded, and that the said receipt was signed and delivered as aforesaid by the defendant to the plaintiff as security that the defendant should return the said deed to the plaintiff unrecorded; that the deed mentioned in the said receipt * is the same deed executed by Makepeace to Fuller, men- [ * 136 ] fioned in the plaintiff’s declaration.
    
      
      “ Now, if the Court should be of opinion that on this evidence the plaintiff has legally maintained his said action, then the verdict is to stand; otherwise the same is to be set aside, and a general verdict for the defendant is to be entered, and judgment to be rendered accordingly.”
    
      Parker, for the defendant
    argued that the verdict should be set aside for the following reasons:—
    1. The promise declared on is a paroi promise, and by the English statute of 29 Car. 2. c. 3. as well as by our own statute 1783, c, 37., “ no action shall be brought to charge any person 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 is brought, shall be in writing, and signed by the party to be charged therewith, or by some person by him thereunto authorized” .
    2. The paroi promise declared on varies from, and contradicts, both the written agreement signed by the defendant, and the express declaration of the deed from Makepeace to Fuller, which is part of the case. The plaintiff’s action is misconceived. By his own showing, he proves an agreement in writing, different from that declared on. The defendant received the deed, and gave an obligation in writing to account for the consideration. Upon this the plaintiff relied, and upon this, if at all, he should have brought his action. Nothing is more settled, than that evidence of a paroi promise is inadmissible to vary or contradict an agreement in writing; and there are several authorities which may be cited to show that it is immaterial whether the written agreement be under seal or not .
    *3. A man is bound to take his remedy upon his high-[*137] est security; and if agreements in writing are better securities than verbal promises, the plaintiff should have brought his action upon the written agreement .
    4. A judgment in this action will be no bar to an action on the receipt, which contains the written promise to account for the amount of the consideration of the deed. This alone is a sufficient reason for setting aside the verdict.
    
      Jackson, for the plaintiff. If this contract was originally within the statute of frauds, yet having been in part carried into effect and operation, it is taken out of the statute. The obtaining the deed from Makepeace 'was a performance of part of the agreement. But the contract which is sued is not within the statute. This is like the case of a bargain rescinded, where an action lies for money advanced, although the original contract was within the statute. If the plaintiff could have recovered in an action of trover for the deed, he can recover in this action, in which all the facts necessary to a recovery in trover are set forth.
    As to the defendant’s second objection, there is in fact no contradiction between the two contracts. The receipt was merely a collateral security for the performance of the verbal agreement. The plaintiff had a right to abandon his security, and to proceed on the original engagement. If a mortgage be given to secure the fulfil-^ ment of a verbal promise, may not the creditor waive the security of the mortgage, and demand damages for the non-performance of the promise ?
    The defendant’s third objection relates to cases of specialties and paroi contracts, and so has no application to the case at bar.
    *In an action upon the written receipt, it would be sompetent for the defendant to show that the cause of [* 138 | action was the same, and he would thus effectually prevent a second recovery.
    
      
       See Preston vs. Merceau, 2 W. Black. 1249. — Nichols vs. Osborn, 2 P. Will. 420 — Hare vs. Shearwood, 1 Ves. jun., 241.
    
    
      
      
        Roberts on Frauds, 10.— Plowd. Com. 345. 3d point. — 2 Atkins. 384.
    
    
      
      
        Noy's Maxims, 15. — Bulstrode vs. Gilburn, 2 Strange, 1027.
    
   The opinion of the Court was delivered by

Parsons, C. J.

It is objected to the verdict, that it is found tor the plaintiff on the breach of a contract touching the sale of lands, and so is within the statute of frauds, and that the contract declared on was proved only by paroi evidence.

It is answered by the plaintiff, that when a contract within the statute is lawfully rescinded, either party may demand of the other the repayment of money advanced, or the return of any thing delivered under the contract, and may support such demand by paroi evidence.

This position is generally true; and in this case, had the plaintiff advanced money to the defendant, or delivered him as bailiff a deed for safe custody, an action would have lain for the money or deed, or even trover for the deed, and paroi evidence would support such action. For the original bargain may fall through, because one of the parties fraudulently refuses to have a written memorandum of it signed by him.

If the deed to be returned by Fuller was in his custody as bailiff this principle would apply, and the verdict would be good. But this is not the case. The laud was conveyed to Fuller by Make-peace, and the deed delivered to the former as evidence of his title; although he promised by paroi, that he would return it unrecorded, if the contract was rescinded; and on the return and cancelling of tire deed, it was understood that he would be divested of the land . A promise to return a deed under such circumstances is, in our opinion, a promise concerning the sale of lands, as the title to the lands was intended to be changed by the performance of the promise. This promise cannot, therefore, be proved by [ * 139 ] paroi evidence. This defect of written evidence * cannot be aided by the receipt in writing; for that instrument proves a contract to account for money, and the paroi evidence, given to explain it, either contradicts the contract declared on, or materially varies it.

As the justice of the case is with the plaintiff, we see no reason why he may not declare on the receipt, as on a promise to pay money. The verdict must be set aside, and a new trial granted, with leave for the plaintiff to amend on payment of costs. 
      
       But the return and cancelling of the deed would not revest thp estate. Marshall vs. Fiske, 6 Mass. 24. — Hatch vs. Hatch, 9 Mass. 307. — Conway vs. Deerfield, 11 Mass 327. — Davis vs. Spooner, 3 Pick. 327.
     