6 Ga. 589 | Ga. | 1849
The Court not being unanimous, the Judges delivered their opinions seriatim.
delivering the opinion of the Court.
I have not the bill before me. The foregoing analysis is taken from the bill of exceptions, and is, I have no doubt, correct. N ow, the sum and substance of it is, that the agreement made between these parties creates a trust, and not being consummated in Walton’s life time, will be enforced upon his representatives. That is the specific demand made by the complainants. The agreement, as charged, was fully proven, by the deed to the land from Robinson to Walton, and by parol. The parol testimony was objected to and admitted, and exception taken thereto. As the case stood by the pleadings, the complainants clearly relied upon the the agreement as declaring a trust of these lands, and they went for the execution of the trust. Does the bill, as I have represented it, go upon the idea of fraud — does it make any charge of fraud, or is there any issue of fraud made by it ? I think not. And ■none can be implied from the charges made, because it goes upon other and distinct grounds of equitable relief. I cannot consider it a case involving the principles upon which relief, in the execution of a parol trust, is granted upon the ground of fraud. The pleadings do not warrant the judgment, so far as the land is concerned.
The rule is, that every material fact to which the plaintiff means to offer evidence, must be distinctly stated in the bill; or otherwise, he will not be permitted to offer or require evidence of that fact. No facts are properly in issue, unless charged in the bill. Nor can relief be granted for matters not charged, although they
Fraud is a material fact — it is, of itself, a distinct head of Equity. Upon the view taken of this cause by the Court below, it is-that, without which the complainants have no right to recover. Now, as to the land, the ground upon which a parol trust will be enforced, is fraud. The evidence by parol is admitted to show it only in case of fraud. In the absence of' any charge of fraud, by what rule — on what authority — is parol evidence admissible? Vfhere there is no charge of fraud, and the trust cannot be proven by written evidence, the plea of the Statute of Frauds, requiring' trusts of land to be manifested in writing, must be conclusive. The?charge of fraud is necessary to let in the evidence,, and if so, necessary to the decree.
To sustain the rule of pleading I am now insisting upon, I refer particularly to the case of James vs. McKernon (6 Johns. R. 559.) In that case, a bill was filed for an account, and the defendant set up an agreement under seal between the parties. It was held, that the complainant could not prove the agreement fraudulent, as there was no allegation of fraud in the bill, Spencer, J. said, “ In my opinion the decree cannot be supported, if the evidence in the cause was ever so strong to prove fraud on the part of the appellant; and for this plain reason, that the Court cannot afford relief not sought for by the bill, and entertain the question of fraud, which is not so much as suggested by the complainant. It is an invariable and universal rule of the Court of Chancery, to found its decrees upon some matter put in issue between the parties by the bill and ansiver ; and the rules and practice of that Court require,
Chancellor Kent, in the same case, says, “ The good sense of pleading, as well as the language of the books, require that every material allegation of this kind should be put in issue by the pleadings, so that the parties may be duly apprised of the essential enquiry, and may be enabled to collect testimony and frame interrogatories to meet the question. Without the observance of this rule, the use of pleading becomes lost, and parties may be taken at. the hearing by surprise. As the pleadings stand, I am of opinion that the fact of fraud or no fraud in procuring the agreement, was not put in issue, and that the depositions, so far as they related to the point, ought not to have been read at the hearing. The general rule is, that no interrogatories can be put that do not arise from some fact charged in the issue.”
I refer, also, to the case of Lord Irnham vs. Child, (1 Brow. Ch. Rep. 93,) as strongly sustaining the rule. That was a bill to redeem an annuity. The bill alleged, that upon settling the terms of the annuity, it was agreed that it should be redeemable, but both parties agreeing that if that fact appeared on the face of the transaction, it would make it usurious, it was agreed that the grant should contain no clause of redemption. It was drawn and executed accordingly without such clause. Upon the trial parol evidence was offered to prove this agreement, and was rejected, because the bill contained no allegation that the agreement to redeem was left out by fraud.
Lord Thurlow, after adverting to the fact that there could be no purchase of an annuity out of lands but by deed, said, “ whether this question arises upon the Statute, or at Common Law, I do not see much difficulty. The rule is perfectly clear, that where there is a deed in writing, it will admit of no contract that is not part of the deed. Whether it adds to or deducts from the contract, it is impossible to introduce it on parol. It is contended, that it is the general authority of a Court of Equity to relieve in cases of fraud, trust, accident or mistake, and that this applies to agreements as well as to other subj ects. This must always clash with arguments drawn from the Statute. It is admitted that the deed will bind if no fraud is committed, but objected, that when fraud intervenes, then the evidence may be introduced. The ob
In the case in Brown, the fraud, as in this case, was claimed to be inferred from the facts stated. But the Chancellor held, that it must be charged. (For the rule as to charging fraud at law, see 6 Johns. R. 138.)
All the cases where parol testimony is admitted against a deed, to set up a parol trust as to land, so far as I am informed, go upon the idea of fraud in the beginning, and that must be distinctly charged.
It was said in the argument, that the bill makes a case of a life estate in Walton, with remainder to Mrs. Harwell by parol, and inasmuch as a remainder in personalty cannot be created by parol, it is void. This cannot be construed into an attempt to create a remainder in these negroes, &c. There is no life estate created at all. Walton is the owner of the negroes. Upon them he declares a trust, which was never revoked, to take effect at his death; and having made a trust out of his own property, and declared it in favor of Mrs. Harwell, he held it during his life as her trustee, and at his death it was hers. Here is no contest with creditors or purchasers. The question is, whether Equity will not, in favor of the cestui que trust, compel the administrator of the trustee to respond. The Statute of Frauds does not extend to personal property, and does not, therefore, lie in the way; and as the execution of this trust does not depend upon fraud, no averment as to fraud was necessary in the bill. This Court has determined, that a trust of personalty may be created and proven by parol, and I shall not, therefore, labor that point. Kirkpatrick, vs. Davidson, 2 Kelly, 297.
It is farther argued, that the contract in relation to the land and the personal property, is one entire contract, and if void by the Statute of Frauds in relation to the lands, it is also void in relation to the personalty.
It is true, that illegality of consideration, both by Statute and at Common Law, will destroy a contract, and the contract is void, although some part of the consideration be good. The illegal consideration taints the whole contract. In this case no part of the consideration is illegal. The consideration of Walton’s agreement to convey the property to Mrs. Harwell, was the conveyance to him of the Gum Hill tract. That was a lawful consideration.
It is also true, that if there be an entire promise to pay several sums in one and the same contract, and the promise to pay one of them is void by Statute, the whole is void at law. In that case the plaintiff must declare for the whole sum, and must go upon
It is laid down in some ancient cases, that if a contract be good in part, and void in part, by the Common Law, the part void will be repudiated, and the part good enforced, the Common Law being a nursing father; but a contract in part good, and in part void by Statute, is altogether void, the Statute being a tyrant. This distinction, however, between a Statute and the Common Law, seems to have been repudiated, and all such contracts are upon the same footing. Story on Contracts, §224.
The rule is, that whenever the contract is to perform legal and illegal acts, and they can be separated, it will be valid, in as far as it is legal, whether the other part be in violation of a Statute, or void at Common Law. A modification of this rule is this, to wit: when a Statute expressly enacts that all contracts containing any matter contrary thereto, shall be void, all contracts, however separable, which contain any thing repugnant to it are void. Moys vs. Leak, 8 T. R. 411. Kerrison vs. Cole, 8 East, 231. Doe vs. Pitcher, 6 Taunt. 359. 5 Taunt. 727. 4 M. & S. 56. 13 East, 87. 11 East, 165. 15 East, 440. 4 Taunt. 549. Ib. 105. Ib. 57. 1 Smith’s L. Cases, 284. 7 T. R. 200. Story on Contracts, 144. Chitty on Contracts, 693.
Now, I remark, first, that this case does not fall within the modification of the rule above stated. The Statute of Frauds contains no express enactment declaring that all contracts in relation to parol trusts of land, containing matter repugnant to it, shall be void — nor does it contain any thing equivalent thereto. It does not even declare a contract for a parol trust in lands void — it only declares, that unless trusts in lands are manifested and proven in Writing, they shall be void. Prince, 915. Hence
In this particular the seventh section of the Statute is essentially different from the fourth section, which requires agreements, &c. to be in writing and signed, and if not, void. The 7th section declares a rule of evidence only, and recognises a parol declaration of trusts in land to be legal, if it can be set up by written evidence subsequently furnished.
I remark, secondly, that this contract is separable. The stipulations of Walton are, that he will convey the land, and also the personal property, to Mrs. Harwell. It? is not like a promise to pay in one contract two sums of money, but it is to do two acts, to wit: convey the land, and convey the personalty. There are, in fact, two trusts declared, one of the lands, the other of the personalty. The subject matter is different, and the mode of conveying different. The one act does not depend upon the other. If Walton had chosen to do so, he could have executed this agreement as to one subject matter and not as to the other, and the execution would have been held good, pro tanto. The contract here is in all its parts a legal contract. It is legally sustained as to the personalty by the evidence, and not so sustained as to the reality.
Admit, however, that if Walton and Robinson, or their representatives, were litigating their rights under this agreement at Law, the rules of pleading, and the law regulating their rights, would make recovery there impracticable. Yet the rule is not necessarily the same in Equity. We are here in a Court of Equity — a decree may be so rendered as to protect the interests of all parties — a decree may be rendered to execute a contract in part — to enforce it so far as it is sustained by legal evidence, and to abstain from executing it so far as it is not. Besides, it is a third person who is in Chancery asking justice — the cestui que trust. Shall she be turned away because she can get only partial justice? Shall she be turned away, because she cannot prove the whole of her case by lawful evidence ? The decree in favor of the complainants as to the personalty, does not conflict with the policy of the Statute. That is not directed against parol trusts of
The case of Chatter vs. Beckett (7 T. R. 197.) is the strongest Common Law authority against the view I take of this subject. It is obvious to remark that, that was a contest at Law between the original parties, and the contract was entire. It was a promise to pay two sums ; one the debt of another, and the other an original undertaking of the promisor. It is clear, that in an action on this promise, the plaintiff must recover the whole or none. Again, part of that promise was in conflict with the 4th section of the Statute, which makes contracts to answer for the debt or default of another void, unless in writing, and therein differs from the 7th section, as I have shown. The same things are true of the case of Crawford vs. Morell, (8 J. R. 253,) and of the case of Loomis vs. Newhall, (15 Pick. 159.) All distinguishable from this case. Indeed, I find no case in the books where an agreement in part void, because in conflict with the 7th section, has been declared wholly void. I do not believe there is any such. And there are a number which sustain the judgment I render in this case. Thus, in Doe vs. Pitcher, (6 Taunt. 359,) a deed which contained several limitations, one of which was void, as being to charitable uses, in conflict with the Mortmain Act, (9 Geo. II. c. 36,) was held good as to all the other limitations. So also, where a deed contained provisions in violation of the Property Tax Acts, it was held valid as to other provisions contained in it. See Redshaw vs. Balders, 4 Taunt. 57, 105, 113, 553. How vs. Sage, 15 East, 440.
And farther, although a bill of sale for transferring property in a ship, may be void as such, for want of reciting the certificate of registry, as required by 26 Geo. III. yet the mortgagor may be sued on his personal covenant in the same instrument, for the repayment of the money lent. 8 East, 281. 5 Bing. N. C. 86. 6 Scott, 794, S. C. 1 B. & C. 327. 2 D. & R. 499, S. C. 4 B. & C. 120. 6 D. & R. 176, S. C.
In Lexington vs. Clarke, a woman, upon the death of her husband, promised orally to pay rent due upon a lease to her deceas
So where there was a verbal contract to sell a certain farm, and certain dead stock, and growing wheat at separate prices, it was held that the contracts were distinct; and, although the agreement as to the land was void under the Statute of Frauds, because oral, yet the agreement as to the wheat and dead stock, was binding. 3 B. & C. 361. S. C. 5 D. & R. 228. Also, 5 Taunt. 787. 13 East, 87. 11 Ibid, 165. Story on Contracts, section 225.
Mr. Smith, commenting upon this doctrine, sums it up with his accustomed perspicuity and precision as follows: “ If some of the conditions in a bond, or promises in a contract, are illegal, the illegality of those that are bad, does not communicate itself to, or contaminate those which are good — except, where from some peculiarity in the contract, its parts are inseparable or dependent upon one another. 1 Smith’s Lead. Cases, 285. The general rule then is, that the illegality of one promise in a contract, does not make void other promises — the exception is when the promises are inseparable, or dependent one upon another. In this case the promises of Waitón are not inseparable — are not dependent — and this case, therefore, is not within the exception.
It occurs to me, that the similitude between them is perfect iir every fact and feature. In truth, as far as I can perceive, no two' cases have been before us since our organization, where the facts bear a more striking resemblance, and the principles of law involved, are more indentically the same.
In that case, the bill charged that Ebenezer Duffy, being the owner of a certain tract of land, for certain reasons, (unnecessa
In this case, the bill charges that Liltleberry Robinson, being the owner of a certain tract of land, for certain reasons, conveyed the same, absolutely, to Isaac Walton, upon an agreement, by Walton, to enjoy the land during his life, and at his death to convey it, or cause it to be conveyed, to the child of the bargainer, (Mrs. Harwell,) and the bill is filed by the child, who had intermarried with L. T. P. Harwell for the purpose of enforcing the performance of this trust agreement.
Mutatis mutandis — and the decree sought in the one case might be entered on the bill filed in the other.
In that case, we say, “ After the most patient and careful inquiry, our conclusion is, that the design of this proceeding is the execution of a parol declaration of a trust in the remainder of this land, after the fruition and termination of the life-estate of Daniel Duffy. It addresses itself to the consciences of the defendants, viz : the legal representatives of Daniel and Jesse Duffy, to discover the trust agreement. It prays the performance of this agreement. In corroboration of this view, we may refer to the character and capacity in which the complainants come into Court. It is not as the heirs at law of Ebenezer Duffy, to whom this land would descend by operation of law, in the event of the deed from Ebenezer Duffy to Daniel Duffy being set aside on the ground of fraud. But they apply, as before stated, as remainder-men in trust, asking to have the secret trust between the father and the son executed in their behalf. So far from repudiating the deed of Daniel Duffy, on account of the fraud in its inception and procurement, they set up this conveyance : they concede, that under and by virtue of it, Daniel Duffy had a good estate for and during the term of his natural life, and they expressly waive calling upon his executors for an account of the rents, issues and profits which accrued previous to his death. They demand that, by a decree in Chancery) the parol trust may be executed.”
It is not as the heirs at law of Littleberry Robinson, to whom this land would descend by operation of law, in the event of the deed from Robinson to Walton being set aside, on the ground of fraud. But they apply as remainder-men in trust, under the parol agreement, asking to have the secret trust between Robinson and Walton executed in their behalf. So far from repudiating the deed from Robinson to Walton, on account of the fraud in its inception, they setup this conveyance : they concede, that under and by virtue of it, Isaac R. Walton had a good estate for and during the term of his natural life, and waive by their prayer calling his representatives to an account for the rents, issues and profits which accrued previous to his death. They demand that,, by a decree in Chancery, the parol trust may «be executed.”
The presiding Judge in the Court below, and the learned counsel for defendant in error, based the decision of the Court below, upon the ground of fraud, and this is the only feature distinguishing this case from Miller et al. vs. Gotten et al., sought to be drawn by the latter in the argument before this Court. Let us see if there is'any ground for this distinction.
From the bill of exceptions, (not having the transcript of the record,) I find the following synopsis of the bill, approved by the Judge below:
“ The bill charged that Martha S. Harwell, formerly Martha S. Robinson, was born in 1804, and at the age of 4 days was adopted by Isaac R. Walton, dec’d, as his child — that about the year 1818, the said Isaac R. being desirous to settle a plantation, was well
“ The bill farther charged, that in pursuance of said agreement, the said Isaac R., in good faith, did put twenty negro slaves upon said plantation, and did, purchase other lands adjoining said lot, and often during his lifetime told complainants and others, that the said plantation and all that was thereon, would belong to them at his death. The hill farther charged, that said Isaac R. Walton died without conveying, or causing to bo conveyed, the said property as agreed upon.”
Such is the bill in this case, and if there is a charge of fraud, or any intimation of a fraudulent intent on the part of Walton, at the time of procuring the deed, or at any other time, it is more than I have been able to see. In the case referred to, we held that “ thefacts upon which relief is prayed, on the ground of fraud, must he plainly, fully and distinctly alleged,” and this decision is there sustained by numerous authorities. I shall here repeat only one-paragraph of the decision of the Lord Chancellor in Irnham vs. Child, (1 Bro. C. C. 93.) “ If the hill afforded a proper allegation, it would be time enough to consider the evidence ; hut certainly there is nofraud stated on the face of the hill. The hill does not go to destroy, hut to affirm and reform the contract. It must be dismissed.”
But if the allegations in the bill made a case oí fraud, there is another objection fatal to the claims of these complainants. In the case above referred to, we say, “ No such case is made in this hill. The bill should not only have made a proper case, but have been brought by proper parties, viz : the heirs at law of Ebenezer Duffy.” So here, if the bill made a proper case, these are not the proper parties. The heirs at law of Littleberry Robinson, and not the complainants, are entitled to relief.
The distinction, then, sought to be drawn by the defendants in error between this case and the case of Miller and others vs. Cotten and others, not only does not exist in fact, hut if it did, would he fatal to their cause.
If then the decision of this Court in the case last named, be correct law, so far as the real estate is concerned in this case, the decisions of the Court below, in sustaining this bill and admitting parol evidence for the pm-pose of proving the trüst agreement alleged, were erroneous and must be reversed.
After the decision of this Court in the case referred to, cordially sanctioned by the whole Court, I had supposed the question settled and closed; hut I do not object to its revision. Indeed, I am quite willing that it shall be regarded, hereafter, as the rule of this tribunal, that its judgments are always open to discussion, either from the Bench or the Bar, when supposed to be erroneous ; and that our judicial authority shall rest alone upon the reason by which it is supported. Assuming, then, this to be the doc
First, I will consider these bills, (for I can draw no distinction between them,) as filed to enforce the specific execution of the alleged parol agreement, without any allegation of fraud; and, second, I will examine the effect that such allegations, if made, would have upon the rights of the parties.
That parol evidence is inadmissible to vary, add to or contradict a written contract, is a rule of law so long and so well established, that it would be pedantry to refer to authority in support of it. Upon this rule alone, how can evidence be admissible to curtail and cut down the fie simple granted by a deed, and convert it into a life estate? I might here inquire, how far such evidence is admissible to prove a different consideration from that expressed in a deed; but waiving this question, the above view is, to my mind, plain, simple and unanswerable. It may be replied, that the object is not to alter or change the deed, but to engraft upon it a trust. Though I might reply, that evidence of this trust, created at the time of the making of the deed, would be inadmissible without the Statute of Frauds, upon the principle above alluded to, yet I desire to meet the question, and inquire how far such evidence is admissible under the provisions of the 7th section 29 Car. II. c. 3.
In the face of this provision of the Statute, how can parol evidence be admissible to prove that which the Statute requires shall beproved by writing l The statement of the proposition is sufficient to refute it; and when I add, that the decision of no respectable Court can be found, (where the Statute has been adopted,) at variance with the position now taken, it seems to me that the argument on this view of the case is exhausted. There are few sections of this celebrated Statute, that have not been more or less frittered away by nice distinctions and encroachments of Courts of Equity, but I think I may safely say none less so than the one under consideration. There are cases of imperfectly ex
There is another exception, and that is where the transaction is infected or tainted with fraud; and this brings me to the second and last view of this portion of this cause necessary to be considered.
That Courts of Equity will not permit the Statute of Frauds to be used as a cover for fraud, is a position that no jurist will deny. It shall be my task to show, first, that there is no fraud charged in this bill, nor do the circumstances charged amount to a fraud ; and second, that if they did, the complainants are not entitled to the relief sought.
Without inquiring into the correctness of this ingenious exposition of the law at this time, how could it apply to a bill which charges, in terms, good faith on the part of Walton? That he never denied the trust to the hour of his death, but in good faith went on to execute it! A bill filed evidently under the idea that the part performance of the trust would take it out of the provisions of the Statute. But to return. Did the failure to convey constitute fraud ? Fraud, under the Civil Law, is defined to be “ any cunning, deception or artifice used to circumvent, cheat or deceive another.” And this definition Judge Story adopts as sufficiently descriptive of actual fraud. Story’s Eq. Jur. §§186, 187. 4 Peters, 297. Constructive frauds are such as “ by their tendency to deceive or mislead other persons, or to violate private or public confidence, or to impair or injure the public interests, are deemed equally reprehensible with positive frauds.” §258. “ But if there has been no fraud, and no agreement to reduce the settlement to writing, but the other party has placed reliance solely upon the honor, word or promise of the husband, no relief will be granted, for in such a case the party chooses to rest upon a parol agreement and must take the consequences.” 2 Story’s Eq. Jur. §768. So says Lord Hardwick, in Whitton vs. Russell, (1 Atk. 448,) “ Every breach of promise is not to be called a fraud.” So in the case of Moss vs. Riddle, (5 Cr. 351,) the plea of the defendantstated a promise on the part of the plaintiff which he had failed to comply with, by which the defendant alleged the writing sued on became void. This plea, it was insisted, contained sufficient allegations of fraud; but Ch. J. Marshall said, “ There is no allegation of fraud, and the circumstances pleaded do not, in themselves, amount to fraud. Fraud consists in intention, and that intention is a fact which ought to be averred.” So in Governeur vs. Elmendorf, (5 John. Ch. R. 82,) counsel for defendants insisted that, from the facts stated in the answer, a case of fraud was made out. But Ch. Kent says, “ I do not understand that any such charge exists in the answer or was intended by it, as a substantial ground of defence,
I am tempted, at the expense of being tedious, to insert here the cases referred to in Miller vs. Gotten upon this point, and more especially the case of Irnham vs. Child, (2 Pro. Ch. C. 93,) but I forbear, conceiving that the point is amply sustained by the authorities quoted and referred to.
Counsel for the defendant commented at some length upon the case of Kennedy’s Heirs and Executors vs. Kennedy’s Heirs, (2 Ala. N. S. 571,) as being an authority in point, to show that the charges in this bill were sufficient to amount to a charge of fraud. That was an application, by the children and sole heirs of William E. Kennedy, to set aside a deed made by their father to Joshua Kennedy. William E. Kennedy was a free drinker, gradually becoming more intemperate and subject to intoxication, and when intoxicated, or partially so, would make conveyances of his real estate to any one who would ask him. He lived in the house with Joshua Kennedy, his brother, who acted as his agent, and in whom he placed great confidence, and at his urgent solicitation, and that of other friends, William made the deed sought to be set aside, upon the assurance of Joshua, that he would hold it in trust for the benefit of complainants. Previous to Joshua’s death, he denied the trust, and set up title in himself. The Court held th&t these allegations amounted to a charge of fraud, and it is not necessary for me to attack the correctness of the decision; on the contrary, I think the confidential fiduciary relationship of the parties, of itself, would require a Court of Equity to look with suspicion upon such a transaction.
The rule I am contending for is not only the rule of the books, but it is the dictate of sound reason. Let the doctrine be once established, that a failure to comply with a parol promise made cotemporaneous with a deed, is ipso facto, a fraud and can be proved, and the promise decreed to be performed in Equity, on
2d. But if it did, would these complainants be entitled to the relief sought? I think not. First, because they are not the proper parties; and second, because, in cases of fraud, the relief sought can extend only to the property so fraudulently obtained.
These cases might be multiplied to any conceivable extent, but it is unnecessary. I need only add, that I have not been able to find a case where a Court of Equity has ever held the fraudulent grantee of land trustee for any person save the grantor and his heirs ; and that no such case exists, I may safely infer from the fact, that the able and indefatigable counsel for defendants in error produced none on the argument. The only case which seems to look that way, was the case of Sellack vs. Harris, reported in 5 Vin. Abr. 521, and referred to in 2 Story’s Eq. Jur. §768. In this case the father had purchased lands in fee with the money of his second son, and intended to devise them to him ; but the eldest son promised that he should enjoy them accordingly. The eldest son refused to comply after the death of the father, and it was decreed that he should. Not having this work, I do not know the reasons on which this decision went. I learn from 3 Woodes’ Laws of Eng. p. 438, that Lord Keeper Wright and the
I know there is a class of cases to be found in the books, where a person intending, most frequently by will, to confer a benefit upon a third person, has been hindered from so doing by the fraud of another, that such last person has been decreed to make good the injury thus inflicted; as where executors, residuary legatees or heirs have hindered the testator from bequeathing annuities or legacies, upon promises to pay them any how, such persons, after the death of the testator, have been forced by Equity to make good their promises; but upon examination, all such cases will be found to involve the right to personalty only. It is true, that in some of the cases legacies have been charged upon lands, because the testator was estopped from making such charge by the fraudulent promise of the heir. The reason of these cases is, that the descent to the heir was by the consent of. the testator, he failing to make the payment of the legacy a charge on the land. Such consent was obtained by fraud. The testator being dead, Equity cannot restore the parties as they were. The relief then granted by a Court of Equity, is to take away from the heir the benefit of this consent thus fraudulently obtained.
I think I may safely say, no precedent can be found where the fraudulent grantee in a deed to land has been held as a trustee for any one, save the grantor and his heirs. For them he certainly is trustee. It would be very curious that he is at one and the same time trustee for the deceived grantor, and trustee also for the person for whose benefit the promise was made. To illustrate: Walton here, according to this position, is liable as trustee for the grantor, Littleberry Robinson, or his heirs, and at the same time is liable to precisely the same extent as trustee for Mrs. Harwell. Would a judgment in favor of the grantor protect him against the claims of Mrs. Harwell, or will this decree protect him
These complainants are not the proper parties. No benefit to them is alleged to have been hindered or prevented by the fraudulent promise of Walton ; and weré it necessary, it might be a grave question whether or not they are not mere volunteers, in any view, in whose favor Equity never decrees a specific performance.
And it may be well to remark in all cases, that “ in order to make the acts such as a Court of Equity will deem part performance of an agreement within the Statute, it is essential that they
I will only add, that the same acts charged in this case, existed in the case of Miller et al. vs. Cotten et al. and were there considered as insufficient to take’ that case out of the Statute. There Daniel Duffy went in possession under the deed, and retained possession till his death. Here, Walton did precisely the same acts. I see no reason for changing my opinion as to the effects of them.
I have thus, at some length, investigated the principles on which my view of this case, as well as our decision in Miller and others vs. Cotten and others, are founded, and a farther examination of the authorities but strengthens my conviction of the correctness of that decision.
It remains to add but a few words in reference to the personalty included in this bill. If the ground of relief here is fraud in Walton, I think I have already shown that such fraud can give no right to recover anything but the land so fraudulently obtained, and that being the basis on which the Court below founded its decision, I might dismiss this part of the case without farther remarks.
But I forbear to discuss this branch of the case, or to examine how far this doctrine is applicable to the facts and circumstances embraced in this bill.
The complainants charge in their bill, that Robinson executed his part of the agreement, by making the conveyance of the land and stock to Walton, the latter paying him nothing therefor ; nor was he bound, by said agreement, to pay any other consideration than that set forth in said agreement for the land and stock so conveyed ; and that the said Walton, in pursuance of said agreement, did put twenty negro slaves upon said plantation, and went 'into possession of the same, and did purchase other lands adjoining the said Black Gum Hill lot, as the increase of said slaves made it necessary, so that said settlement of land, at the death of Walton, comprised five hundred acres; that Walton, in his lifetime, often told the complainants and other persons, that said plantation and all that was on it would, at his death, by virtue of his said agreement with said Robinson, be the property of complainants. The complainants also allege, that said Walton departed this life in the month of January, 1845, without making the conveyance as stipulated by said agreement, or giving any directions as to the delivery and conveyance of said property to the com
As we are not unanimous in our opinions in this case, I shall proceed to express my separate reasons for the judgment which I feel bound to render in favor of the complainants.
The main ground of objection to the complainants’ recovery, as urged by the counsel for the defendant, is the Statute of Frauds. Their position is, that the agreement to convey land is void by that Statute, and the agreement being void as to the land, is also void as to the personalty; that an agreement void in part is void as to the whole. As I am for affirming the judgment of the Court below as to the entire agreement, including the land as well as the personal property, I shall not discuss the question whether an agreement void in part is void as to the whole, but shall leave the discussion of that branch of the case entirely to my brethren.
By the 4th section of the Statute of Frauds, it is declared, “No action shall be brought upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised.” Prince, 915.
In a Court of Law, I concede the complainants could not enforce a specific execution of this agreement, although based upon a sufficient consideration, nor in a Court of Equity, unless there had been a part performance of it.
Whenever there has been a part performance of a parol agreement for the conveyance of land, a part execution of the substance of the agreement, acts done and performed, unequivocally referring to, and resulting from the agreement, and such that the party
The principle by which Courts of Equity are governed in decreeing a specific execution of parol contracts, within the Statute of Frauds, when there has been a part performance, is, that inasmuch as the Statute was- enacted to prevent fraud, a party will not be permitted to take shelter under the Statute and perpetrate fraud; or, as Mr. Justice Story states the principle, “ Where one party has executed his part of the agreement, in the confidence that the other party would do the same, it is obvious that if the latter should refuse, it would be a fraud upon the former to suffer this refusal to work to his prejudice.” Story’s Eq. 64. The rule, as stated by Mr. Fonblanque, is equally explicit and satisfactory — “ If the agreement be carried into execution by one of the parties, as by delivering possession, and such execution be accepted by the other, he that acceptsit must perform his part; for where there is a performance, the evidence of the bargain does not lie merely upon the words, but upon thefact performed, and it is unconscionable that the party that has received the advantage should be admitted to say, that such contract was never made.” Fonblanque’s Eq. 157.
In Buckmaster vs. Harrop, (7 Vesey, 346,) Lord Eldon states the ground of the interference of the Court to decree a specific performance of agreements within the Statute, to bo fraud in refusing to perform the agreement after performance by the other party. Niven vs. Belknap, 2 John. R. 587. Massey vs. McIlvrain, 2 Hill’s Ch. Rep. 425.
I have endeavored to establish the principle on which Courts of Equity proceed to decree a specific execution of agreements within the Statute of Frauds.
I place my judgment expressly upon the ground, that there was such a part execution of this agreement on the part of the contracting parties, according to the case made by the complainants’
The verdict of the Jury establishes the agreement, and the acts of part performance, as charged in the complainant’s bill, and the evidence, in my judgment, was amply sufficient for that purpose.
The testimony of John B. Walker, one of the several yvitnesses examined for the complainants, is very strong in support of the agreement, not only as to the declarations of Walton, but to his acts. In 1840, the witness drew a will for Isaac R. Walton, who gave the Black Gum Hill plantation, negroes, and every thing appertaining to it, horses, mules, stock, &c. to Mrs. Harwell, one of the complainants. When it was written and read to him, he said, “he had now done what he had promised Littleberry Robinson in his lifetime, to do.” The plantation was kept separate from his other plantations. Witness kept the will, and afterwards gave it back to Walton, who told him he intended to destroy it, and it was destroyed in 1842 — said one of his reasons for destroying the will was, that Doctor Harwell did not please him, and he wished to change that clause.
Taldng the whole of the testimony contained in the record, and in my judgment, there will be found but few cases in which parol agreements have been established by more convincing and irrefragable evidence. The counsel for the defendants have insisted, with some degree of zeal, that the principles settled by this Court, in the case of Miller vs. Cotten, (5 Ga. Rep. 341,) must control this case. I have not been able myself to perceive the analogy insisted on in the argument. In the judgment rendered in Miller vs. Cotten I concurred, and it now meets with my entire approbation. If I understand the questions involved in the judgment of the Court, in that case, it does not now stand in my way. In that case, the complainants claimed to be entitled as remainder-men in trust, under a deed made by Ebenezer Duffy to Daniel Duffy, which deed on its face, purported to have been made for a valuable consideration paid by the grantee to the grantor. The complainants claimed under this deed, and relied on it as part of their
The only object for alleging a conveyance of the land and stock to Walton by Robinson, was, to show the payment of the consideration oí tho agreement by Robinson, and that Walton had enjoyed the full hen-eft of the contract on his part, and then fraudu
In the consideration of a Court of Equity, the refusal of Walton to fully execute his part of the agreement, by making a conveyance of the property, amounts to fraud, and constitutes in this case, the gravamen of the complainants’ bill.
In Miller vs. Gotten, the parol evidence was offered to engraft a naked parol trust upon a deed for land, under which the complainants claimed title, without having laid any fo^endation, whatever, for the introduction of such evidence, by the allegation of any fact in their bill, from which a Court of Equity could even presume fraud, so as to take the case out of the 7th section of tbo Statute of Frauds. In this case the complainants seek to obtain the specific execution of an agreement for the conveyance of land, within the 4th section of the Statute of Frauds, not to engraft a mere nahedparol trust upon a deed, absolute upon its face, within the 7th section of the Statute.
In Miller vs. Cotten, there was no foundation laid in their bill for the introduction of parol evidence. In this case the complainants have laid the foundation for the introduction of parol evidence, to take the case out of the Statute, by alleging such a part execution of the agreement, by one of the contracting parties, and acceptance by the other, that to permit one of the parties to recede from the agreement, would, in view of a Court of Equity, operate as an injury to the complainants, for whose benefit the agreement was made, amounting to fraud; and that, in my judgment, constitutes a clear and marked distinction between this case and Miller vs. Cotten. The object of the agreement was to malte provision for Mrs. Harwell, who was the daughter of one of the contracting parties, and the adopted daughter of the other. The complainants are not mere volunteers. 2 Story’s Eq. 103, §793. Minturn vs. Seymour, 4 John. Ch. Rep. 500. Ellis vs. Nimmo, 10 Eng. Ch. Rep. 534.
The agreement was executed on the part of Robinson, in the confidence that it would be executed by Walton, for the purpose of making a suitable provision for his daughter, and his refusal to execute his part of the agreement is injurious to, and a fraud upon, the rights of that'daughter, now one of the complainants. “ Fraud, (says Mr. Justice Story,) in the sen^p oF ^
In every view ip which I-have been enabled to consider this case, I have an abiding confidence that, according to the fundamental principles by which Courts of Equity are governed in dispensing justice, the judgment of the Court below, decreeing a specific execution of the entire agreement, should be affirmed.