8 Tenn. 333 | Tenn. | 1828
The bill charges, that in 1813, Bennet Sear-cy made a verbal contract with M’Clure for ten feet of ground, lying on the public square in Clarksville, extend
That M’Clure was desirous Searcy should become bis neighbor, and that Searcy might erect a dwelling bouse partly upon the adjoining lot of Searcy, and upon the 10 feet of ground.
That in pursuance of the contract, so made, and according to its terms, Searcy look peaceable possession of the said 10 feet of ground in the year 1813, enclosed the same, and partly erected thereon the dwelling house occupied by complainant, Patton, at the filing of the bill. That since the erection of the dwelling house, other buildings have been erected upon said ground, with the knowledge and approbation of M’Clure.
That on the 1st day of May, 1817, Patton, the complainant, purchased the ground upon which said buildings were erected, including the 10 feet, with other property from Searcy, for a valuable consideration, and got said Searcy’s deed of the above date; and, from the time of the purchase until the 1st of January, 1820, had continued in the unmolested enjoyment of said house and premises, when an action of ejectment was commenced by M’Clure against complainant for the 10 feet of ground. Complainant prays that the 10 feet of ground may be specifically decreed to him, and the defendant, M’Clure, enjoined from prosecuting his action of ejectment.
This bill was filed 20th April, 1820. The defendant by his answer admits he gave Searcy leave to erect part of his house (a framed one) upon the 10 feet of ground, but denies he ever contracted to sell the ground to Searcy as alleged, and as a defence relies upon the statute of frauds.
No proof was made that any money had ever been paid .by Searcy to M’Clure for the 10 feet of ground, but it was proven that M’Clure was to have so much of one of Sear-cy’s lots, also conveyed by the deed to Patton, as was of value equal to the 10 feet.
That Searcy contracted by parol for the 10 feet of ground is proven, as are the other allegations in the bill.
Numerous are the decisions of the English court of chancery declaring cases not within the statute, where there has been apart performance of the contract, although the same was not in writing. Our statute is a copy of the British statute of frauds, and should réceive the same construction that the British statute ought originally to have received.
Aside from authority, our statute is simple and unambiguous in its provisions; is consistent with our constitution, and bars all suits upon parol contracts for the sale of lands. Rules of construction deduced from legal learning, can add nothing to explain the meaning of the legislature. The English judges of modern times, sufficiently lament the decisions of their predecessors, going to relieve against cases of supposed or real hardship, affected by the statute of frauds. For instance, says Lord Kenyon, I lament extremely that exceptions were ever introduced in construing the statute of frauds; it is a very beneficial statute, and if the courts had at first abided by the strict letter of the act, it would have prevented a multitude of suits that have since been brought. (7 Term Rep. 201.)
Lord Eldon expresses himself to the same effect in Forster v. Hale, (3 Ves. 712.) Again says Lord Eldon in Cooth v. Jackson, (6 Ves. 32,) the cases have already gone so far as nearly to cancel the statute.
In the case exparte Whitbread, (19 Ves. 210, 212,) Lord Eldon says, the statute shall not be repealed further by him than it has been by his predecessors, to whose authority he submits. He says furthermore, that the evidence in that case is so imperfect as to leave the court in doubt what the contract was. All of this goes, he remarks, to prove, that departing from the rule laid down in the statute, we have ao rule to go by.
In Blore, v. Sutton, Sir Wm. Grandmaster of the rolls, (1817, 3 Mer. Rep. 247) says, were he to decree for complainant in that case, it would be to break in upon the statute of frauds, without the existence of any of the pretexts on which it had been already too much infringed.
In the cause of Grant v. Naylor, (4 Cranch 235,) the supreme court of the United States refused to hear proof to explain a mistake in a letter of the name of the mercantile firm, which letter was relied on by the plaintiff as evidence in writing of a collateral undertaking for the debt and default of another. “ The letter was addressed by Grant to John and Joseph Naylor, whereas the firm consisted of John and Jeremiah N. Says the Ch. J. in delivering the opinion of the court, “that the letter was designed for John and Jeremiah Naylor cannot be doubted, but the principles which require that a promise to pay the debt of another shall be in writing, and which will not permit a written contract to be explained by parol testimony, originated in a wise policy, which this court cannot relax so far as to except from its operation cases within the principles.” It is then remarked,that the court will not further relax the construction of the statute than it has already been done. That is, the supreme court will not go further than the state courts have gone in relaxing the construction of the statute, that court being bound by the decisions of the state courts of the state from which the cause comes up, if upon the construction of a statute of the state. Hence the doctrine holden by the court is recited more to show the sense of that distinguished tribunal upon the construction of the statute, than as an authority. The courts of this state are not constrained by authority to follow the English decisions. For myself, I disclaim all power in a court of equity to relieve against the provisions of a statute in any case. This is the rule laid down by Lord Bacon, and is believed to be the correct one. (7 B. W. 269.) It follows that no parol proof can
Stripped of this proof, and how does the present cause stand? That Searcy, by the consent of M’Clure, erected part of his dwelling house, and some appurtenant buildings, upon the 10 feet/ of ground, enclosed the same, resided thereon from 1813 to 1817, when he sold to the complainant, Patton, for a full and fair price withoutany objections being made by M’Clure. Under such circumstances, is M’Clure estopped as against Patton, from prosecuting his action of ejectment for the 10 feet of ground?
It is a rule in' equity, that if one man knowingly, though lie does it passively by looking on, suffer another to purchase and expend money upon land, under an erroneous opinion of title, without making his claim known, he shall not after-wards be permitted to exercise his legal right against such person. To do so, would be an act of fraud and injustice, and his conscience would be bound by this equitable estoppel. (The East India Company v. Vincent, 2 Atk. 83; Hunsdeny. Cheney, 2 Ves. 150; Hanning v. Ferrers, 1 Eq. Ca. Abr. 356, Pl. 10; Raw et al. v. Potts, Prec. in Ch. 35; Styles v. Cooper, 3 Atk. 692; Jackson v. Cator, 5 Ves. 688; Dann v. Spurrier, 7 Ves. 231; Wendel v. Van Rensselaer,1 John. Ch. Rep. 354; Storrs v. Brooks and Barker, 6 John. Ch. Rep. 166.)
Does the present cause fall within the foregoing class of causes? Did M’Clure stand by and knowingly permit Patton to purchase from Searcy, and pay his money, without making his claim known, Patton being ignorant of such outstanding title in M’Clure? No such case is set forth in the bill. It is not pretended by the complainant but that he had full knowledge of the fact that Searcy’s claim to the
It has been already remarked, that the legislature required the contract to be in writing, and that the court can require nothing less; that part performance is only evidence of a secondary character of the contract, weaker than direct parol proof and consequently inadmissible. Set aside then, the circumstance that judge Searcy improved the property by building thereon, and what is there in the present cause to sustain the bill? Nothing but the naked parol contract, without any price having been fixed upon for the 10 feet of ground, or any consideration having been paid therefor.
That this bill w.as filed, and the decree for a specific performance pronounced in the circuit court upon the ground of part performance on the part of Searcy, cannot be doubted ; for if Searcy had never built upon the ground, it is most certain that the chancellor below, would not have divested the title to the land out of M’Clure, and vested it in Patton without decreeing any compensation to M’Clure for, the properly.
It has been supposed that the cause of Dudley Cox's heirs v. Cox and Talbot, (Peck’s Rep. 443,) had decided the point that part performance took a parol contract for Ihe sale of lands out of the statute of frauds. The fact will be found otherwise, when the cause is examined. In that cause Reid Cox sold to Haynes a tract of land for $1200, and gave his bond to Haynes for a title. Afterwards Haynes gave the land and delivered the title bond to his son-in-law Hill. Reid Cox then proposed to purchase the land from Hill for Dudley Cox, the brother of Reid. The purchase was made by Reid for Dudley at the price of $850, which Dudley paid and secured to be paid to Hill. All this time the legal title vested in Reid Cox. To whom the title bond was delivered by Hill did not apppear, nor was itmaterial, for Reid, as agent, could only receive it for his principal, Dudley.
Shortly after this Dudley Cox died and left William Cox one of his executors, who alone qualified, Eind had the whole management of his estate. The land, before the death of Dudley Cox, had been in his possession, and continued in that of his heirs, the complainants, after his death, and the rents were received by Neal, their guardian.
Presently, William Cox, the executor, purchased the land from Reid Cox and sold it to Talbot, to whom Reid made a deed for the same, wholly disregarding the purchase 'from Dudley t-sc Hill. All the papers of Dudley Cox had fallen into the hands of his executor William Cox, and no account could be given of the title bond from Reid Cox to Haynes.
Dudley Cox had devised the land to his three daughters, minor children, who, by their guardian filed their bill to set the conveyance to Talbot aside, and for the specific decree upon the title bond as against Reid Cox.
Talbot had notice of the facts fully before he purchased. Reid Cox in his answer relied upon the statute of frauds for a defence amongst other things. The cause, as above stated, was pretty satisfactorily made out by the proofs and the answers.
The question whether Reid Cox could protect himself by the statute of frauds, was ably discussed, and the court decided that he could not, because he had given a title bond to Haynes, which was assigned to Hill, and by him, they would presume, to Dudley Cox. The fact most probably was, that Hill had delivered the bond to Reid Cox, who was purchasing for Dudley.
The court secondly decided, that Reid Cox, William Cox and Talbot, had, with a full knowledge of the equity of Dudley Cox’s heirs, combined themselves together to cheat the minor heirs out of the land, and therefore held as trustees of the heirs of Dudley Cox.
The whole transaction, as between Reid Cox, William Cox and Talbot, was declared fraudulent and void; and of course Dudley Cox’s heirs left free to proceed upon the title bond of Reid Cox to Haynes, which was assigned to Hill, and.from him to Dudley Cox, as the court presumed.
True, the court do hold the doctrine that a part performance will take a case out of the statute of frauds: but once establish the fact that Reid Cox’s bond came to Dudley Cox by assignment, and it is not to be conceived how the question could arise. The opinion is learned and able, and the decree indisputably correct; but is necessarily based upon facts wholly beside the question of the defence of the statute of frauds, relied upon in Reid Cox’s answer; and hence not binding upon the court as an adjudicated point.
It will be here remarked, that I am the more confirmed in the opinion now delivered in opposition to the construction given to the statute of frauds in the English court of chancery, because the late lamented judge Crabb fully concurred in the construction here given. ■ Not judicially, to he sure, but with a knowledge that it would be presented to the court at this term in several causes. We both deemed
I say thus much, because it is a well known fact that the late jude Haywood was of a different opinion, and thought a part performance would take a case out of the statute. The distinguished ability and learning of this gentleman,, together with his age and experience, gave to his opinions upon legal subjects, a weight of authority accorded to few men in a judicial station, and well authorized younger men upon the bench to distrust their judgments, and to draw upon every legitimate source of information for aid when they found themselves under the necessity of doubting the correctness of such opinions, which were furthermore in accordance with the adjudications of other countries pronounced by judges inferior tonone for talents and learning that any age or nation has produced. In forming my opinion, however, upon the construction of the statute of frauds. I have thought it my duty not to compromise with that of any brother judge; in most other causes I should feel it a duty to act otherwise.
The appaling train of litigation resulting from a departure from the words of the statute in England, is a solemn warning to the courts of this state not to fall into similar error; for the courts of that country now admit them to have been errors, and would most willingly return to the words of the statute, were it possible to do so consistently with the construction but too well settled by their ancestors, which virtually repeals the act, and has given rise to as much fraud and perjury, in all probability to bring causes within the various exceptions made by the courts as would have arisen had the statute never been passed. Whether the statute has done more good’than harm to the people of England, is at this day a doubtful question.
It has been asked by those who advocate the present
The first error in departing from the letter of the statute in England, grew out of the assumed power in the court of chancery to relieve against cases of particular hardship falling within .the provisions of statutes, upon the supposition that the legislature could not have intended to include such a case. This assumed power was in violation of the well settled rule of the common law courts in the construction of statutes — that where the legislature makes a. general provision without making any exceptions, the courts can make none; that it would be legislating to do so. (Hall v. Wyburn, 2 Salk. 420; Anbury v. Fotescue, 10 Mo. Rep. 206, 4 Bac. Ab. 480; Batlay v. Falkner, 3 Bar. and Ald. Rep. 288; M'Iver v. Regan, 2 Wheat. 29; Troup v. Smith, 20 John. Rep. 33; Hamilton v. Smith, 1 Murp. N. C. Rep. 115; Callis v. Waddy 2 Mun. Rep. 511.) The foregoing doctrine, as applicable to courts of common law, was fully recognized by this court in the cause of M’Ginnis v. Jack and Cocke, in Knoxville, in 1825, the opinion in which is referred to as containing the settled decision of this court.
The proposition that courts of equity are bound equally with courts of law, by a statute, will be stated as unquestionable; because to hold otherwise, would be setting at nought the legislative power, when coming in conflict with the courts of chancery, and rendering it dependant upon these tribunals; whereas the constitution declares it shall be independent. If authority, however, were wanting to prove this,, it would be found in the causes of Shelby v. Shelby, Cook’s Rep. 176; Porter’s lessee v. Cocke, Peck’s Rep. 30; Elmondorf v. Taylor, 9 Wheat., and in the Marquis Chalmondeley v. Lord Clinton et als. 2 Jac. and Walker’s Rep.
It is almost useless to add, that one exception or part performance, more than another, will not take a case out of the statute when the foregoing principle is applied as the rule of decision. The only question to be asked a complainant applying to the court for aid to enforce a contract for the sale of lands, is — Have you the writing required by the statute of frauds evidencing your purchase? If the answer is in the negative, the response by the court must in every case be the same: Your contract is void, your parol evidence inadmissible, and. the court can neither hear nor help you. Such is the case of the present complainant. 1 therefore think the decree below should be reversed and the bill dismissed.
after stating the case, proceeded. Upon the above state of facts, the circuit court decided that all the right, title, claim and interest of Hugh M’Clure, in and to the said ten feet of ground, running ten feet on the square and fifty feet back, be divested from the said Hugh M’Clure, and that the same be vested in the said John Patton, and that there be a perpetual injunction against the judgment at law, and the defendant pay the costs in this behalf expended.
In support of this decree of the circuit court, it was argued by the appellee’s counsel, that the same should be affirmed on two grounds — 1st. That though the contract stated in the bill was a verbal contract, not reduced to wri
As to the first ground, the bill states a formal contract for the sale of land. The answer denies that contract, and one positive witness, Mrs. Murrell, with corroborating circumstances, which are existing in the cause, prove the contract. It must, therefore, by the practice in chancery, be taken as established. It must be taken as established also, upon the same testimony, and circumstances in corroboration, that the said contract was fully consummated by the parties, with the exception that it was not sanctioned by writing.
This brings the construction of our statute of frauds directly before this court, and makes a question not entirely new to it; but one generally considered by the profession, both the bar and the court, as unsettled. Decisions have been given in the courts below both ways; and something has been said upon it by this court which will be noticed. The first case occurring in this court, was in 1812, within
These two cases are the only ones which it is incumbent on this court to notice. I am not aware of any other case
I am therefore of opinion that the appellant, M’Clure, in this case, is entitled to the benefit of the statute of frauds, 1801 ch. 25, claimed by him in his answer; because the contract for the land, by which it is attempted to charge him, was not in writing, nor any memorandum or note thereof in writing signed by him, or by some other person by him thereunto lawfully authorized, and that the performance, payment and satisfaction made by virtue of the verbal contract, appearing in the evidence in the cause, do no take the appellee’s case ont of the statute.
Upon the second ground taken by the appallec’s counsel in support of the decree of the circuit court, it is not necessary forme to examine particularly whether the evidence comes up to the case required by a court of equity for its interference in restraint of the legal right for the protection of the party who has done acts, either in ignorance of that right, or with the acquiescence of, or by the permission of him who has that legal right, where the court, acting upon the principle that such conduct in the holder
The bill of the appellees is founded wholly in contract. It sets forth the formal contract between M’Ciure and Sear-cy, and says that Searcy was to pay for the ground what it was reasonably worth — states that Searcy built a dwelling-house, or part of a house, on the land, and that other houses were afterwards raised on the land; that Patton measured the land in dispute with other lots in 1817 for Searcy'; and M’Ciure, in 1820, brought his ejectment. A specific performance of the contract is prayed for by Patton, offering at the same time, to perform on his part what may be required of him; he also prays an injunction against the obtaining of a writ of possession if judgment should be rendered against him on the ejectment j and prays general relief. But there is no allegation in the bill that M’Ciure stood by, saw the houses built, and other acts stated in the evidence done, and made no objection, or being present, acted and
The hardship of a particular case would not justify this tribunal in prostrating the fundamental rules of a court of chancery: rules which have been established for ages on the soundest and clearest principles of general utility. If the pleadings in a cause were to give no notice to the parties, or to the court, of the material facts on which the right asserted was to depend, no notice of the points to which the testimony was to be directed, and to which it was to be limited — if a new case might be made out in proof, differing from that in the pleadings, all will perceive the confusion and uncertainty which would attend legal proceedings, and the injustice which must frequently take place. The rule that the decree must conform to the allegations, as well as to the proofs of the paities, is not only one which justice requires, but one which necessity imposes in courts — we cannot dispense with it in this case.
The proofs respecting the conduct of the appellant not
Decree reversed.