Farrar v. Patton
20 Mo. 81
Mo.
1854
Check Treatment
Scott, Judge,

delivered the opinion of the court.

Richard Farrar, as one of the devisees of his father, had an interest in the land in controversy, at the time of his con*84veyance to Patton. By Ms deed to Patton, be did not con: vey tbe tract of land itself, but only all bis right, title, claim, interest and demand, both in law and equity, therein. These words are only effectual to convey that which a man may lawfully convey. The interest that R. Farrar possessed under his father’s will was a subject on which his deed could operate, without affecting the land he exchanged with his father. Although the contract for an exchange was a parol one, yet it was not void. Richard Farrar could avail himself of the plea of the statute of frauds or not, as he pleased. (Dawson v. Ellis, 1 Jac. & Wal. 503. McGowen v. West, 7 Mo. Rep. 570.) His conduct showed that he regarded the contract as binding on him. In the inventory which he returned, he recognized it as obligatory, anl this fact was communicated to Patton. Now, as the words of the deed are only effective to pass that which Farrar may lawfully convey, and as they can have effect without passing the land subject to the contract for an exchange, there is no reason why the deed should receive such a construction as would make Farrar guilty of fraud, when no such thing was intended. Had Farrar conveyed the tract of land itself, then it would have appeared that he insisted on the invalidity of the contract, but the terms employed are consistent with the idea that he only conveyed what he lawfully might.

But there is another ground on which the plaintiffs are entitled to the relief prayed, even though the land, the subject of the contract of exchange, passed by Richard Farrar’s deed. From the evidence, it is clear that Patton purchased with notice of the agreement. Being affected with notice, he is not a purchaser in good faith. Such being the case, he stands precisely in the situation that Richard Farrar would have occupied, had the suit been brought against him. It is a rule in equity that, when one party to a contract has been placed in such a situation by a total or partial performance, that it would be a fraud on him if the contract was not fully executed, then equity will interfere, notwithstanding the statute. Leonard Farrar, in pursuance to the contract of exchange, executed and delivered a-*85deed, .thereby fulfilling his part of the agreement. In -what a situation will he and his heirs be, if the other party is not compelled to perform his part of the agreement. Surely a fraud will have been committed on them, and they will be without redress unless a court of equity interferes. Leonard Farrar could not recover the land he had conveyed in an action of ejectment. His deed would be against him. He could only have relief in equity, and that, too, on the ground of fraud. Now it is an established principle, that a statute which was made to prevent frauds, shall not receive such a construction as will protect them. As the terms of the contract plainly appear by a written acknowledgment of R. Farrar, we see no difficulty in granting the relief sought by the plaintiffs.

The other judges concurring, the judgment will be reversed, and the cause remanded.