
    Montgomery et al., Adm’rs, v. Norris et al., Adm’rs.
    Courts of equity will not enforce contracts unless they are certain in terms, and the rule applies with additional force between representatives of contracting parties.
    An appeal may be taken from chancery upon a decision on demurrer, and the defendants are not hound to answer before decision on the appeal.
    APPEAL from chancery.
    The complainants filed their bill in the chancery court to enjoin a judgment at law and for a specific performance of contract. The bill was dismissed and an appeal taken to this court.
    The facts are sufficiently stated in the opinion of the court below, delivered by Chancellor Quitman, which is given at length.
    Opinion of the Chancellor: — In 1810, Thomas L. Norris died leaving a widow Anne Norris and several children, and an estate considerably embarrassed. The widow administered upon his estate, and some time afterwards married one'Fogle. The embarrassments of the éstate continuing to press her, in 1812, she applied to James Norris, the brother of her former husband, to take the administration of the estate. He after some hesitation consented so to do, and by prudence and economy so improved the condition of the estate that, after a final settlement of the same, in 1818, he was able to make a distribution of the estate to the widow and children. Prior to this distribution and in the lifetime of Fogle, an execution from the circuit court of Jefferson county had issued against the latter, and under it the distributive share or dower of Mrs. Fogle had been sold at sheriff’s sale, and said James Norris became the purchaser for about 300 dollárs. On the partition, slaves Peter, Malinda, Oliver and Sam were allotted as the portion o'f Anna, then wife of Fogle. Under the sale aforesaid or otherwise, the complainants’ intestate claimed,- and occasionally held possession of the slaves except Oliver, np to the present time.
    Sometime before the institution of this suit Anna, having after the death of Fogle married one Lisson, departed this life and the defendant Samuel Robb became her administrator, and as such instituted a suit in trover against the complainants for the negroes Malinda, Peter and Sam.
    The defendant Norris having by some means got possession of Oliver held and claimed him as the agent of said Anna Lisson. In order to obtain possession of Oliver, the complainants as administrators of James Norris instituted their action against the defendant Norris. Relying upon the title acquired by their intestate under the sheriff’s sale, the complainants went into the trial of the action instituted, by them against Norris and failed upon the ground that the interest of Mrs. Fogle in the estate of her deceased husband could not be sold under an execution against Fogle before it had been set apart to her. The complainants, still confident in the sufficiency,of their legal title, took an appeal to the supreme court, and while this suit was pending made an agreement with the defendant Robb, by virtue of which a judgment was entered against them in the circuit court in the action in which said Robb as administrator of Thomas L. Norris was plaintiff, to be dependent upon the decision of the supreme court in the former case. The decision of the circuit court having been affirmed by the supreme court, the complainants were concluded in their course at law. They have filed their bill in this court, in which they set out that said Anna, when she prevailed upon James Norris, deceased, to become the administrator of Thomas L. Norris, agreed with him to convey, in consideration of his services and of advances to be made for her, her dower interest or distributive share in the estate of her deceased husband; that James Norris made advances to said Anna to the full value of her dower interest, and after the partition claimed and held the slaves allotted to her, as his own, although of his own accord he frequently offered to said Anna the privilege of redeeming said slaves upon paying his advances and twelve and a half per cent, interest. That upon the trial at law, the complainants confiding in their title under the sheriff’s sale, did not set up or claim under this agreement of sale, and consequently that no full trial on these matters has been had. This alleged agreement for the sale of said Anna’s interest is positively denied by the defendants as well as the fact of advances having been made for the use of said Anna. To prove- it, the complainants offered on the hearing the testimony of Mrs. Mary Norris, the widow of James Norris, deceased. The defendants opposed the introduction of this testimony on the ground that the wife could not be a witness for or against her husband, even after the dissolution of the marriage contract by divorce or death. Although some general remarks of treatises on evidence lead to sustain such a position, yet they are neither supported by the cases to which they refer, nor by the reasons laid down for the general rule. After a full examination of many cases upon this point, I have had no reason to change the opinion given at the hearing, that Mrs. Norris is a competent witness. The more recent British and American decisions support this opinion. 11 Eng. Com. Law Rep. 421; 3 Har. and McH. 2.
    Admitting such portion of Mrs. Norris’s testimony, as are not liable to objections founded upon known rules of evidence, still it seems to me, that the proof is very defective to establish the complainants’ claim.
    It must be borne in mind, that this bill is founded not upon any claim arising from advances, made by James Norris, for the estate of Thomas L. Norris, nor upon any right arising out of his purchase of Anne Fogle’s dower estate at sheriff’s sale; but solely upon the agreement alleged to have been made by Anna, to convey or pledge to James Norris, her dower interest in the personal estate of her deceased husband, in consideration of advances to be made by him for her benefit, and of the subsequent offers of James Norris, to permit Anna to redeem the slaves, upon payment of the amount claimed by him. The existence of such an agreement, is positively denied by the defendants. There is no evidence to support it, but the assertion of Mrs. Norris, that Anna Fogle, when she came to request James Norris to administer on the estate of Thomas L. Norris, offered to relinquish to him her dower, if he would undertake the task of extricating the estate, alleging that she thought it but right, as she and her husband had contracted débts, that she, and not the children, should be the loser. This occurred in a conversation with the sheriff of Jefferson county. The witness does not even state, that, upon that proposition, James Norris accepted the administration. It would be dangerous to allow such loose conversation, not attended with any corroborating facts, to change titles to property; but there are other circumstances which would prevent me from allowing a claim of property upon §uch proof. Anna Fogle was then a married woman, and could not, either at law or in equity, without the consent of her husband, create even a lien upon her right of dower, to personalty belonging to the estate of her former husband. Again, I could not decree upon this testimony alone, because the oath of one witness alone, is not sufficient to establish a fact against the positive denial of the answer. It was contended on the hearing, that the fact of the possession of these slaves by James Norris, after the division in 1818, and the disclaimer of Lisson, the subsequent husband of Anna Fogle; were corroborating circumstances sufficient to establish this contract of sale. They might be so considered, were the court not apprised that there existed a claim of a different character, to which all these circumstances may, with greater propriety, be referable. That is the claim of James Norris under the sheriff’s sale. It seems, indeed, that all parties, for a time considered this sale as perfectly valid, and conveying a good title, and from the whole connection of the testimony, I am induced to think that all the subsequent divisions of Anna, looked alone to the title which she, as well as others, supposed James Norris had acquired under the sheriff’s sale. It is certainly very strange, that nothing definite in relation to so important a contract appears; and still more so, that James Norris has left behind him no evidence of any claim upon Mrs. Fogle, not even evidence of the payment of a single dollar for her benefit. That by his economy and good management, he relieved the estate of his brother from waste, and perhaps from ruin, sufficiently appears; but having settled the' account of his administration fully, he must be supposed to have received, therefore, the full compensation which he deserved,, and which the law gave. His purchase of Mrs. Fogle’s right, under an execution against her husband, was a mistake, which, if it eventuates in a loss, can only be attributed to his ignorance of the law, and not to the fault of others. The late supreme court of this state has decided, that under that sale he did not acquire any title. This court can give him no relief in that particular; indeed, all questions in relation to his right under that sale, are foreclosed by the final decision of the supreme court. Considering that the complainants have failed to prove their case, I must decree that the bill be dismissed.
    Winchester, for the appellants,
    cited 17 Johns. Rep. 5,48; Ewing v. Smith, 3 Dessaus. 418; Dumond v. Magee,4 Johns. Chan. Rep. 318; 3 Burrows’ Reports, 1783-4-5.
    Grayson, contra,
    cited 3 Johns. Chan. Rep. 351; 6 Ibid. 87; Phil, on Ev. 63, 65; 6 East, 119; 3 Starkie on Ev. 709.
   Mr. Chief Justice Sharkey

delivered the opinion of the court.

The appellants filed their bill in chancery for the purpose of enjoining a judgment at law, and for specific performance on the ground that they, as administrators of James Norris, hada title to the negroes which had been sued for. The property in controversy belonged originally to Thomas L. Norris, the brother of James Norris, who died leaving a widow and several children. The widow administered and married a second husband, and not being able to relieve the estate from embarrassment, relinquished the administration, and it was given to James Norris, who, by his economy and good management, relieved it from debt, and ultimately divided the property amongst the widow and children.

During his administration, his right to the distributive share of Mrs. Norris, afterwards Mrs. Fogle, is said to have been acquired in two ways. First, an execution was issued against Fogle, and levied on the individual interest of his wife, in the estate of Thomas L. Norris, which was sold under the execution, and purchased by James Norris. Secondly, it is said that Mrs. Fogle, being desirous to pay off the debts of the estate, together with other debts contracted by her, proposed to James Norris to take the administration, pay off the debts, and he should have her share of the estate when divided in discharge of the advances he would have to make.

In relation to the title acquired under the sheriff’s sale, it has undergone adjudication in the proper tribunals, and has been decided against the claimants; with that, therefore, we have nothing to do. The right acquired by the alleged purchase from Mrs. Fogle, is the one which the complainants rely on, and seek to enforce, and we are, therefore, to inquire 'into its actual existence and validity. It is alleged in the bill, that the estate of Thomas L. Norris was much embarrassed, and that Mrs. Fogle, the ad-ministratrix, being unable to -relieve it, and being herself indebted, requested James Norris to take the administration, and purchase her dower. That said James Norris took the administration, and made advances out of his own funds, in paying off the debts due from the estate, and from Anna Fogle individually, and for her benefit, and at her request, with an express understanding, that said Norris was to have the distributive share of Anna Fogle when the estate should be divided. A declaration made by Anna Fogle is averred in which she said that James Norris had paid on-account of the negroes, including the sum paid at the sheriff’s sale, the sum of eight or nine hundred dollars, and that she thought it right, and would pay twelve and a half per cent, for the use of the money in' case she was ever able to raise the amount necessary to redeem the negroes. It also appears, that after the division the negroes were generally considered by Anna Fogle and others to be the property of James Norris, and that they were, except one, at times in his possession. The allegation in the bill, in regard to the agreement and understanding of the parties is founded on information derived from James Norris in his lifetime. The proof in relation to this agreement, is no less vague and uncertain. Mrs. Mary Norris, the wife of James Norris, states, that she was present, when Anna Fogle insisted on her husband’s taking the administration, and settling the debts, which were then pressing, being in executions in the hauds of the sheriff, and that, as a compensation, she would relinquish her share of the estate to him. That she and her husband Fogle, who had separated from her, had created debts, and she thought it nothing but right, that she should be the loser, and not the children.

The executions mentioned appear to have been against the estate of Thomas L. Norris, and were then in the hands of the sheriff who was present. This is all the evidence in relation to' the agreement, except that it is stated by some of the witnesses, that James Norris claimed her negroes after the division, and that Anna Fogle and her last husband Lisson did not deny his right: She it seems, however, was desirous to redeem the negroes which Norris repeatedly said she might do, by paying twelve and a half per cent, for the use of the mone3r advanced.

The agreement, as thus proved, amounted to nothing more than a mere proposition to sell, on the part of Mrs. Fogle, and there is no evidence that it was acceded to when made. It was not placed in the shape of a contract. The general understanding which appears to have prevailed afterwards, in the family of Norris, that the property was his, was evidently not entirely predicated on this supposed sale, but in part in consequence of that and the advances made, and in part in consequence of the purchase under the sheriff’s sale. The bill expressly so states it to have arisen; and the evidence shows it to have been the case. Both Norris and Anna Fogle, no doubt believed that he had acquired a good title under the sheriff’s sale, and under such belief she in all probability acted, when she admitted his title.

Such also was evidently the opinion of his administrators, and they accordingly tried the strength of that title at law, before they resorted to equity to enforce a performance of the contract. I do not think, therefore, that this impression of the parties, can have much weight in establishing the agreement, which is positively denied by the answers, and must rest solely on the facts above stated by the witnesses. The alleged advances do not create any presumption in favor of a contract to sell, for although it is said that James Norris paid the debts out of his own funds, yet there is nothing to show what amount he advanced, except loose declarations, or on what account it was advanced, whether for the estate, or for Anna Fogle and her husband. If made for the estate, they would not create a lien on the portion of Anna Fogle, more than on the part of the children. If advances were made for Anna Fogle, it is remarkable that James Norris should have kept no account of them, or that there should be no evidence that they were made.

From the view I have taken of the agreement, if such it may be called, it appears to be too uncertain, both as to its terms, and as to the proof of its existence, to justify a confirmation. Courts of equity will not enforce contracts, unless they are certain in terms, and this rule applies with additional force, as between the representatives of the contracting parties. 1 Fonblanque, 173. This too, was an executory contract, and although the parties lived á considerable time after the first conversation on the subject, and after the property was divided, yet no memorandum was ever made in writing. This I take to be an additional evidence, that James Norris supposed he had acquired a good title by the sheriff’s sale.

In addition to the uncertainty of the agreement, Mrs. Fogle was a married woman, and although there is some evidence that she had separated from her husband, yet that in itself did not necessarily enable her to make a valid contract.

If there was any direct evidence of advances to Mrs. Fogle, I should dislike to turn the parties out without relief; but we have-none, and all the evidence calculated to raise a presumption in favor of such advances, would lead to the conclusion that they were most probably made for the benefit of the estate of Thomas L. Norris. That, it appears, was considerably embarrassed, and much of the proof was evidently introduced for the purpose of raising a belief that it it would have been sacrificed, but for the advancements made by James Norris. If this were even true, it would by no means follow that the distributive share of Mrs.F.ogle, was alone liable for the amount. >

The relief afforded to the estate was, perhaps, not more on account of the money, than the economy and good management' of James Norris; for it is proved, in one instance, that, after he had. made himself personally responsible, by giving his own note, he paid the note, or part of it, by the hire of the negroes.

It was urged in the argument of this case, that the merits of the-bill are not open for investigation, but that the party was precluded by the decision on the demurrer. I do not think this position sustainable. The defendants first demurred to the bill, which was overruled by the chancellor. From that decision they took an appeal, as they had a right to do. The decision of the chancellor was sustained, and the parties then answered.. Leave was given to answer when the demurrer was sustained, but the parties I presume, wished the principles of the case settled before they answered, and for that purpose, took the appeal, which is a right given by our statute.

They were not bound to answer before the decision on the appeal, for if it had been decided in their favor, no answer would have been necessary.

I do not think there is any thing to justify a reversal of the decree of the chancellor. It must be affirmed.  