Harrison v. Bailey
14 S.C. 334
S.C.
1880
Check Treatment

The opinion of the court was de- • livered by

McIver, A. J.

In this case the Circuit judge dismissed the complaint upon two grounds; First. Because it did not state *337facts sufficient to constitute a cause of action. Second. Because the contract sued upon was obnoxious to the statute of frauds. The case must therefore be considered as though all the allegations contained in the complaint, which are properly pleaded, were true. So considering it, we agree entirely with the Circuit judge. If the cause of action be regarded as a contract by which the defendant undertook to purchase the land of the present plaintiff under the execution in favor of Townes, “ and then transfer one-half of the land to the plaintiff in such manner as plaintiff should direct, in order to secure to his family the uninterrupted enjoyment thereof,” as some of the allegations in the complaint would seem to imply, then, clearly, it was a contract for an interest in lands which is within the terms of the-statute of frauds, and parol evidence, upon which alone it is-alleged to rest, would not be sufficient to establish it. McDonald v. May, 1 Rich. Eq. 91.

If, on the other hand, the cause of action alleged be regarded as an agreement on the part of the present defendant to buy the judgment in favor of Townes against the present plaintiff, and to allow him one-half of any profit that might be made by the transaction, then, clearly, there was no consideration alleged for such an agreement, and hence it does not constitute a cause of action. The present plaintiff was under an obligation to pay the whole amount of the judgment, and his property, as the event proved, was sufficient for that purpose, and although something is said in the complaint about a homestead having been set off to him under the Townes judgment, there is no allegation that such homestead was set off to him in the land which was subsequently sold, or that it was a part of the agreement that the present plaintiff should abandon or waive his claim of homestead, if, indeed, he could do so, whereby the land out of which it was carved might be sold by the present defendant for its full value, and that in consideration thereof the defendant had agreed to divide with the plaintiff any profit made by the transaction.

There is another view of this matter which would be fatal to the claim of the plaintiff. There is no principle of equity better settled than that he who seeks equity must himself do equity— that one who comes into the court of equity must come with *338clean 'hands. In this case it is impossible to avoid the impression that the whole object of the alleged arrangement between the pláintiíf and the defendant was to defeat the claims of the creditors of the plaintiff, and to such purpose no court should lend its aid.

The judgment of the Circuit Court is affirmed.

Simpson, C. J., and McGowan, A. J., concurred.