14 Ga. 683 | Ga. | 1854
By the Court.
delivering the opinion.
'There are two questions in this caso :
1. Is the suit barred by the Statute of Frauds ?
2. ’Ought Johnston, the husband, to have been a party ?
As to the first ques+ien. Let it be admitted that the agreement partly concerned land ; and that it was neither in writing, or “ manifested and proved” by a writing.
The agreement, however, only in part concerned land. It ¡also concerned personalty and personal acts. In respect to this latter part, the Statute of Frauds cannot affect it. Does the Statute affect the agreement, as to the part ‘ which concerns land?
Now, the agreement stated in the bill, wras fully performed on one.side. Johnston, the husband, actually did all that he
And the agreement was partly performed on the other side. Gilmore attended the Sheriff’s sale — bid in the property; told the by-stahders that he was buying it in for Mrs. Johnston and .her children.
Afterwards, he sold the land, having previously worked it and the negroes. He also hired out the negroes. ’
He also took from Johnston other means, to be applied to the payment of the debts. Erom these he realized over ¡$3,000. He realized from the land over $>1,000. From those two sources, therefore, he realized money enough to pay off- the debts.— Nothing, therefore, was.left for him to do, under the agreement, except merely to apply money which he had in hand to the payment of the debts, if already he had not paid them, and then to deliver the rest of the property, with a proper conveyance, to a trustee, for Mrs. Johnston and her children. Little, ;-therefore, was wanting to a full performance of the whole 1 agreement.
After the performance of so much of the agreement as this, if the Statute should allow Gilmore to refuse to perform the rest, it would allow him to be guilty of a fraud — a fraud by which he would acquire many thousands of dollars’ worth of property, without having paid anything for it. The Statute, however, was made to prevent fraud; and, therefore, it will not, in such a ca.se, allow a refusal to perform.
There is, therefore, notwithstanding the Statute of Frauds, equity in the bill.
This equity is not affected by the release which Johnston, the husband, executed to Gilmore. The rights of the complainants, Mrs. Johnston and her children, had vested, before that release
The demurrpr, therefore, as far as it is founded upon the ground of a Court of Equity, was properly over-ruled.
2. Should Johnston have been a party to the bill ?
It was a part of the agreement that his debts were to be paid before the property should be conveyed, in trust, for his wife and children. It is not certain, from what appears on the bill, whether that has been done or not. If it has not been done, he has the right to object to the making of the conveyance, until it shall have been done.
On this point, therefore, the judgment of the Court below reversed; on the other, it is affirmed.