| Ark. | Jul 15, 1842
By the Court,
The decree in this case is evidently erroneous. Whatever parol agreement may have, existed between James and John Sorrell, in regard to the trust, is wholly nugatory as to Hutchinson, who sets up the statute of frauds in his defence. .If the defendant, by his answer, admits a parol agreement, and relies upon the statute, he is fully entitled to the benefit of it. iStory,s Eq. Pl. 590. Reeve vs. Teed, 15 Fes. 375. If a defendant denies an agreement, he need not insist upon the statute. The complainant, in such . case, must produce legal evidence of it. Corine vs. Graham, 2 Paige, 180. Ontario Bank vs. Root, 3 Paige, 481.
It was a good defence for Hutchinson, that he was an innocent-purchaser, for a valuable consideration, without notice. The bill , charges, that he purchased with notice, which the answer expressly contradicts. An innocent purchaser is always protected. Story’s Eq. Pl. 462. 1 Story’s Eq. 75. Whittick vs. Kane, 1 Paige Ch., 202" date_filed="1828-10-07" court="None" case_name="Whittick v. Kane">1 Paige, 202. Garland vs. Rives, 4 Rand. 283. It is clear that the decree was, therefore, erroneous as to Hutchinson.
The answer of James Sorrell admits the statement in the bill, but denies that he was to re-convey. It also admits the trust as charged, and states that ho is ready to account to John’s estate for one-half of the amount of the money for which he sold the land; and such should have been the decree. Hutchinson’s being an innocent purchaser does not discharge James from his liability for the one-half of the amount of the sale to Hutchinson, which he admits to be in his hands.
Decree reversed, and case remanded.