1 Gill 383 | Md. | 1843
delivered the opinion of this court.
The first point relied on by the appellees is not disputed, and on an inspection of the record, is a self-evident proposition. It simply asserts, “that there is no proof of any written agreement for the conveyance of the real estate, mentioned in the said proceedings, by the appellees to Philip Moore, the ancestor of Ann G. Hall, one of' the appellants.”
The second point on which one of the solicitors of the appellees has very confidently relied is, “that the existence of any parol agreement for the conveyance of the said estate, as alleged in the bill of the appellants, being denied by the appellees in their answer to the said bill, and the appellees having insisted on the benefit of the statute of frauds, the statute constitutes a complete bar to the relief prayed for by the bill, and that it was not competent for the appellants to make out a case by parol evidence.”
To sustain this proposition, which if sustainable, would interpose an insuperable bar to the relief sought by the bill, several authorities have been cited; but that most strongly pressed upon the court, is the general rule upon the subject, stated by
If in this opinion the court meant to assert, that by the statute of frauds the evidence of part performance of a parol contract, in the delivery of possession or payment of the purchase money must be in writing, to such an assertion we cannot
To refer to authorities to shew that courts of equity will decree the specific performance of an oral agreement, on the ground of part performance, may well be regarded at this day as an useless waste of time; but as the contrary doctrine, as applicable to the circumstances of the case, has been so confidently urged by one of the solicitors of the appellee, it may not be out of place, perhaps to advert to a few of such authorities. 1 Fonb. Eq., ch. 3, s. 8, 153, in commenting on the statute and the decreeing of the specific execution of verbal contracts, states that, “so if it be carried into execution by one of the parties, as by delivering possession, and such execution be accepted by the other, he that accepts it must perform his part; for where there is performance the evidence of the bargain does not lie merely upon the words, but upon the fact performed, and it is unconscionable that the party that has received the advantage should be admitted to say, that such contract was never made.”
In Roberts on Frauds, 131, it is stated, that the relief against the statute in the cases of part performance was originally founded on fraud.
This doctrine of decreeing the specific execution of verbal contracts, in part performed, is also fully recognised and established by Lindsay vs. Lynch, 2 Sch. & Lef. 1. Morphett vs. Jones, 1 Swanst. 172. Frame vs. Dawson, 14 Ves. 386. Exparte Hooper, 19 Ves. 479. Caldwell and others vs. Carrington’s Heirs, 9 Peters, 86. Phillips vs. Thompson, 1 John. C. C. 132. Graham and wife vs. Yates and Meyer’s Heirs, 6 H. & J. 229; and Moale and others vs. Buchanan and others, 11 G. & J. 314, and a host of other cases, almost without number, to which it is unnecessary to refer.
It was insisted by the appellee’s solicitor that the specific execution of a parol agreement had in no case been decreed where, by the answer, the fact of the agreement was denied, and the statute pleaded. A reference to the authorities will at once shew that this position cannot be sustained.
In Morphett vs. Jones, 1 Swanst. 172, the bill was filed for the specific performance of an oral contract for a lease of land for twenty-one years. The answer denied the agreement, also the acts charged to have been done in part execution of the agreement, and pleaded statute of frauds. The master of the rolls decreed the specific performance of the contract, and in delivering his opinion says, “the plaintiff has established a parol agreement in part performed.”
A party, who has permitted another to perform acts on the faith of an agreement, shall not insist that the agreement is bad, and that he is entitled to treat those acts as if it had never existed. In Caldwell and others vs. Carrington’s Heirs, 9 Pe
No principle is better settled, than that by no device or form of proceeding or solemnity of the instruments, or means used for its perpetration or concealment, can you deprive a court of equity of the power of “unkennelling a fraud.” To permit a defendant, when charged with fraud, to shield himself from a disclosure by a denial of the agreement, and pleading the statute, would be to cloak or conceal a fraud, by means of a perjury. And if such a proceeding were tolerated, instead of its being “a statute for the prevention of frauds and perjuries,” it might not inaptly be termed a statute for the encouragement of frauds by the rewarding of perjuries. But, says the solicitor of the appellees, conceding that cases may be found where a specific performance has been decreed, notwithstanding the denial in the answer, of the parol agreement charged, and of the acts of part performance alleged, and the plea of the statutory bar, yet no case can be found in which relief has been granted, where the point on which he now relies was distinctly presented for the
This preliminary objection to the powers of the Court of Chancery to grant any relief to the appellants (no matter what may be their proof,) being disposed of, our next inquiry is, are the appellants upon the case, as established by proof, entitled to the relief they have sought? To sustain such title, they must surmount double the difficulties ordinarily encountered by a vendee seeking the specific execution of a parol contract by the vendor, on the ground of part performance. They must not only shew the contract made between Edward Hall and Philip Moore, and such acts in part performance thereof, as would entitle them to its specific execution, but they must shew themselves entitled to a conveyance from the appellees, Charlotte and Maria Hall, under the parol gift, alleged to have been made by them to Edward Hall. That Edward Hall, at the time of his alleged sale to Philip Moore, had made no such expenditures or improvements oh the lands in controversy, or done any such acts in relation thereto, as would, as far as is disclosed by the testimony, entitle him to a decree for a conveyance from Charlotte and Maria Hall, is, we think, a proposition too clear to require, in its support, either argument or authority. Philip Moore, by his purchase, at the date thereof, acquired in the
But suppose it were conceded that the gift made to Edward, C. Hall was binding on Charlotte and Maria Hall, and that in virtue of it he could, in a court of equity, have compelled them to convey to him, have the appellants offered that full and satisfactory evidence of the terms of the agreement, and of ifs performance on their part, as to entitle them to a decree for its specific execution ? If must be borne in mind that Edward C. Hall, by his answer, denies all the allegations in the bill in relation to the contract, or that any portion of the alleged purchase money was ever paid him by Philip Moore. Not a witness in the cause states what, by the terms of agreement, was the amount of purchase money stipulated to be paid. The only two witnesses deposing upon this subject are, first, William F. Giles, who said that Edward C. Hall stated to him that “Philip Moore had paid him four thousand dollars, but deponent cannot recollect, at this time, on what account he stated the said sum of money was paid him by Mr. Moore; and he stated in said conversation that Mr. Moore did not owe him any thing; since that he had made a verbal claim, and accounted for the inconsistency, by stating that his claim was for the interest due him on some legacy under his father’s will.”
The second witness is James C. Gittings, who states that Edward Hall told him “that it was true that he had sold said farm to Mrs. Moore, and that he had received from said Moore, a part, but not all, of the purchase money.” If the testimony of these two witnesses stood unexplained by any other testi
DECREE AFFIRMED WITH COSTS.