
    Smith against The Lessee of Patton and wife.
    In Error.
    THIS was a writ of error to the Common Pleas of Westmoreland county.
    It was an ejectment brought by the plaintiff below against the defendant, Smith, in which a verdict was taken for the plaintiff, subject to the opinion of the Court on the following facts.
    
      John Proctor was the owner of a tract of lan'd not patented or surveyed, of which the land for which this action was brought, is a part. On or before the spring of 1783 he agreed with Andrew Mitchell, who was the father of Elizabeth Patton one of the lessors of the plaintiff, to sell him one hundred acres at the price of sixty pounds. No memorandum in writing of the contract signed by the parties or their agents exists, or can .be found. The part so sold was surveyed by the deputy surveyor for the district, at the request of Mitchell and Proctor. Nine pounds were paid by Mitchell in his life time to Proctor, iri part of the purchase money; and Mitchell took peaceable possession of the part so sold in the spring of 1783, built a cabin, and resided there till his decease. He cleared and put under fence two or three acres, sowed them with grass seed, and planted some apple and peach trees. In the fall of the same year he had another field cleared on the premises, and rails made ready for a fence.
    On the 4th February, 1784, Mitchell made his will, devising the premises to his wife, Mary, (the daughter of the said Proctor) for life, with remainder to his only child Elizabeth, wife of Patton, in fee ; and made his wife and Proctor his executors. When the will was read to Mitchell he observed that a conveyance had not been made to him for the land by Proctor, and asked Proctor whether it would make any odds. Proctor answered that it should not; that he ('Mitchell) left plenty to pay him the balance owing for it, and that he would convey it agreeably to the directions of the will. The testae ] * for died next day; leaving, besides his widow, Mary Mitchell, who was the daughter of Proctor, his child Elizabeth, one of the lessors of the plaintiff, then not a year old.
    
      Payment of part of the purchase money for land, a survey and taking possession, clearing and building a house by the purchaser, give a title, though the contract be by parol.
    Query, whether the payment of a Small part of the purchase money unaccompanied by any other circumstance, be such a part performance as would authorise a decree of specific performance? *
    It, is a general rule that where a contract has been made for the purchase of land, the purchaser shall not recover possession till he has paid or tendered the purchase money.
    Query,whether this must he done previous to the commencement of the ejectment?
    If the vendor be the executor of the vendee and retains effects equivalent to ♦Lia nni’Almef» * money, sucll tender or payment need not be made.
    
      An appraisement of the goods and chattels of Mitchell, amounting to 84/. 9s. 6d.. dated the 21st Aprils 1784, was filed in the register’s office. Mitchell owed no debts except the 51/. due for the 100 acres.- Proctor was the acting executor and .'settled his accounts as such on the 2d February, 1791, leaving a balance of 105/. l6s. 3id. due by him exclusive' of the third part belonging to the widow. Mitchell owned another plantation at the time of his decease, of the yearly value of 13/. Proctor took upon himself the care of the last mentioned plantation, and received the profits of it, until the year 1791, amounting to 130/. in the whole. On the 3d May, 1791, a guardian was appointed for Elizabeth. A note or bill, signed by George Smith, the defendant, for 15/. payable to Elizabeth on her coming of age, Was delivered by Proctor to her guardian, and alleged to be a compensation for the improvements made by Mitchell on the premises. This note was never paid, and was offered to be given up by the plaintiffs to the defendant immediately after the trial.
    Proctor, by deed dated 23d April, 1784, conveyed the premises to his daughter Mary Mitchell in fee. Mary shortly after the decease of Mitchell removed with her infant daughter to the dwelling house of her father Proctor, and abode there until her marriage with George Smithy the defendant, in the spring of 1785. George and Mary, shortly after their intermarriage, took possession of the premises in question. Mary died in 1790, leaving two daughters, the issue of the second marriage. Subsequent to this marriage, notice of the survey for Mitchell was communicated by the district surveyor to George Smith, who objected to a return being made in the name of Mitchell. Proctor afterwards directed the surveyor to make a return for George Smith. A receipt was given on the 26th March, 1785, by Proctor to George Smith for 60/.; but Proctor, in his testimony taken on commission, denied-the actual receipt of the money. George-Smith paid to the late receiver general 21/. 12s. 3d. for 124 acres .(of which the premises are a part), on the 1st April, 1796.
    
      Proctor was in embarrassed circumstances, and it does not appear that he ever claimed any balance as being due to him on the contract with Mitchell, since the decease c&. Mitchell.' 
      Proctor left the state in 1793 or 1794, in debt to Elizabeth, for the rents he had received of Mitchell’s other plantation. ^or those rents, or for the personal property left by Mitchell, Proctor rendered no account to her guardian in her minority, or to the lessor of the plaintiff since ; and no payment or satisfaction whatsoever has been received from Proctor for the same. After the marriage of George and Mary, he built a new house on the premises, raised higher the cabin which had been put up by Mitchell in his life time, and covered it with a shingle roof. He also erected a bank barn, cleared from fifteen to twenty acres of meadow, and about fifty acres of arable land, on the premises.
    It was agreed between the parties, that the verdict should be taken, subject to the opinion of the Court on the following points:
    1. Whether from the facts before stated, the act of as'sembly, passed the 21st March, 1772, be a bar to the present action ?
    2. In case the Court should be of opinion, that the said act is not a bar, whether a previous tender of the balance appearing to be due to the said John Proctor, on the contract with the said Andrew, was requisite to support the present ejectment.
    Ross, for the plaintiff in error,
    cited 1 Smith’s Laws, 389 to 398. Sugd. 78 to 81. Vern. 198, Bell v. Andrews 
      
      . He contended that this land was intended as a provision to Proctor’s daughter, the wife of Mitchell, and that the plaintiff ought not to recover the whole, when her mother left two Other children. On the second point he cited 2 Wash. Rep. 94, 103.
    
      Wilkins and Forward contra,
    contended that the first point was too well settled to be now questioned. 2. That this was no marriage settlement, but a sale. They cited Billington v. Welsh 
      .
    
      
      
        4 Dall. 152.
      
    
    
      
      
         5 Binn. 129.
    
   Tilghman C. J.

John Proctor sold to his son-in-law, Andrew Mitchell, 100 acres, part of a tract of land which had not been patented or surveyed, but to the right of pre-emption of which the said Proctor was entitled according to the laws of Pennsylvania. The purchase money was 60/., of which Mitchell paid Proctor 91. and entered into possession. He erected a house, cleared and improved a few acres of land, and lived on the premises until the time of his death, which was about a year from the making of the purchase. On the 4th February, 1784, (the day before MitchelPs death,) he made his will, by which he devised the premises to his wife Mary, the daughter of the said Proctor, for life, with remainder to his only child Elizabeth, wife of Thomas Patton, then about a year old, in fee, and made his wife and father-in-law Proctor, his executors. Proctor was the acting executor, and it appears by his administration account, settled 2d February, 1791, that a balance of more than 100/. was due from him exclusive of the third part, which belonged to the widow. He also received the rents of other lands devised by Mitchell to his daughter Elizabeth, from the time of his death till the year 1791, when the Orphan’s Court appointed a guardian, on which account he was considerably indebted to the said Elizabeth. On the 23d April, 1784, Proctor conveyed the land which he had sold to Mitchell, to his own daughter the widow of Mitchell, in fee. She married George Smith, the defendant, in 1785, who afterwards procured a return of survey of the said 100 acres to be made in his own name, although it had been surveyed for Mitchell in his life-time, by consent of Proctor, of which the deputy surveyor of the district gave notice to the said Smith previous to his procuring the return of survey as aforesaid. Two questions are submitted to the Court: 1st. Whether the plaintiffs are barred of their recovery by virtue of the act for prevention of frauds and perjuries, passed 21st March, 1772? 2d. Whether in case the plaintiffs are not barred by that act, a previous tender of the purchase money due from Mitchell to Proctor, was not necessary in order to support this ejectment ?

. 1. Although .the act for the prevention of frauds and perjuries declares, that no estate greater than a lease at will shall pass without a written contract, yet it has been repeatedly decided, that no man shall convert into an instrument of fraud that law, which was made for the purpose of preventing fraud. No man shall reap the fruits of a contract for the sale of land, and afterwards annul the contract; he shall not permit the contract to be executed in part, and then refuse to execute it in whole. There may be some difference °^" °pini°n, whether the payment of a very small part of the purchase money, unaccompanied by any other circumstance, be such a part performance, as would induce a Court of Chancery to decree a specific performance ; but there can be no doubt in a case like the present, where there was not only a payment of money, but a survey, a taking of possession, a residence, a clearing of land and building of a house by the purchaser. I refer to the cfises cited by Mr. Smith in his edition of the Laws, vol. 1. p. 391 to 397, and will only add, that I consider the law as too well settled to admit of a question. The counsel for the plaintiff in error, treated this as an agreement by Proctor to settle the land on his daughter on her marriage, and in that case he contended, that chancery >vould not compel a specific performance, by which the land might eventually be carried to another family. As to that, it is sufficient to say, that the Court cannot suppose any facts not stated on the record, and the case on the record is not a marriage settlement, but a sale by Proctor to Mitchell. But even if the father had given the land to his son-in-law, at less than its value, with a view of promoting the marriage of his daughter, and it were proper to consider now what would be equitable under the.se circumstances, I should say, that the son-in-law having paid at least part of the value, the estate ought to be so settled, as to be secured after the death of the parents to the issue of the daughter by that marriage, that is to say, to the lessors of the plaintiff..

2. It is a general rule, that where a contract has been made for the purchase of land, the purchaser shall not recover possession, till he has paid or tendered the purchase money. Whether this must be done previous to the commencement of the' ejectment, or the Court may so protect the seller by ordering a stay of execution, fkc. as may render a previous tender unnecessary, we need not now decide, because it appears, that Proctor had received more than the amount of the purchase money long before the suit was commenced. He was the executor of Mitchell, as such he had a right to retain the amount of his debt, and he has retained it, as appears by his administration account. What renders this matter more clear is, the declaration of Proctor to Mitchell on bis death bed, at the time of making his will, that he should have plenty of effects in his hands as executor, to satisfy the debt, and that he would execute a deed in conformity to the will, which Mitchell was about to make. The counsel for the plaintiff m error, introduced a third point, viz. that a tender ought to have been made to Smith of the money paid in the land-office on the return of survey, in order to obtain title from the commonwealth. If this point were open I should wish to be satisfied, whether Smith meant to secure the title to the daughter of Mitchell according to her father’s will, or whether, with full notice of her equitable claim, he unjustly endeavoured to frustrate the contract and last will of Mitchell, and obtain the land for himself and his own children. But I forbear to enter into this consideration, because by the record no such question is submitted to us. I am of opinion, upon the whole, that the judgment should be affirmed.

Yeates J.

It is too late to inquire at this day into the propriety of our adoption of the British decisions, that agreements as to lands in part executed, are taken out of the statutes of frauds and perjuries. Statutes made to prevent frauds were not designed to protect them. Wanting a Court of Chancery, we have admitted its rules in certain cases to prevent an absolute failure of justice, although we differ in the mode of relief. A system has thus grown to maturity, established by repeated decisions, and recognised by the constitution, as to the chancery powers usually exercised in the courts of law. It is not correct to assert, that in many of these cases justice is administered by halves. Several instances have occurred within my knowledge, where the courts have refused to execute agreements specifically, on the ground of not having it in their power to do complete equity between the parties. The discretion of the chancellor is devolved on the judges, and is exercised through the instrumentality of the jurors.

It cannot be asserted that a court of equity would not interpose, and grant relief on a bill filed by the lessors of thó plaintiff below, under all the circumstances of the case. Here has been a parol agreement, wherein fohn Proctor, confessedly the owner of the whole tract of land, agreed with Andrew Mitchell, his son-in-law, to sell him 100 acres,, part thereof, for 60/., which were surveyed and marked off by the district surveyor, at the instance of both parties. Mitchell pays 91. in part of the purchase money, and in pursuance of the contract receives peaceable possession of the part sold to builds a cabin, wherein he resides with his family until his death, clears and fences fields, and plants fruit trees. Upon his death bed, his will is drawn up and read to him, and anxious for the interests of his child, he inquires of Proctor, his father-in-law, whether his not having obtained a conveyance could make any odds. Proctor answers in the negative, and that Mitchell having plenty of property to pay him the sum of money remaining due, he would execute the conveyance according to the provisions of his will. He executes his will, making his widow and father-in-law his executors, and dies on the next day, without any other debts than the 51/. due on the sale of the 100 acres. Upon this state of facts, I have no doubt, that the act of assembly of 21st March, 1772, is no bar to the present action, instituted by the daughter of Mitchell and her husband, after the death of his wife.

The only remaining question on the record is, whether a previous tender of the balance due to Proctor on the sale of the land was requisite to support the ejectment ?

It appears that Proctor settled his administration account on the 2d February, 1791, and that a balance of 105/. 16s. 3id. remained in his hands, exclusive of his daughter’s third part of the personal estate, under the will of her first husband. On this part of the property Proctor relied for payment, and the funds were adequate for this purpose, which he might well retain. He has made no claim for this balance. He was moreover indebted to his grandchild in 130/. for rents received on another place belonging to her father, and thus fell considerably in her debt, after receiving his 51/. and interest. Independently hereof, should a tender be made to Proctor after he had conveyed the 100 acres to his daughter Mary, during her widowhood, shortly after the death of her husband ? And why should this balance be paid to the plaintiff in error, who intermarried with the widow ? Proctor denied on oath, that he received any money from Smith on account of these 100 acres. But if it really had been so paid, it was not on account of his step-daughter, or as her trustee. Smith Claimed the land adversely to her interests, asserting, as the deed expresses it, that the lands were improved by Mrs. Mitchell during the short, period of her widowhood. But the wife of Smith, under whom he claims, as tenant by the courtesy, well knew that the contract of her father was made with Mitchell her first husband, that he had built the cabin, made the other improvements, and undertaken to devise it. ■ The interest therefore of Smith,which grew out of the supposed estate of his wife, was visited by her knowledge of these facts ; she never could be considered as an innocent purchaser without notice. It is moreover stated, that shortly after the death of her first husband, she removed from the premises in question to her father’s house, and there continued about one year, until her intermarriage with Smith, when they returned to these lands. He could not, therefore, but know, that the cabin which he raised higher, and the improved fields which he cultivated, were not the result of her labours during her widowhood ,• and besides, the survey made for Mitchell was communicated to him by the district surveyor, so that it appears there was not only constructive, but actual notice of the right of tiie infant child, to the plaintiff in error. Upon the whole, X conceive this to be such a case, as a chancellor would not hesitate to decree a specific execution of the original contract, in favour of the defendants in error, and would not refer them to a compensation in damages for the breach thereof.

I am of opinion, that the judgment of the Court of Common Pleas of Westmoreland county be affirmed.

Brackenridge J. concurred.

Judgment affirmed.  