Thomson v. Scott

6 S.C. Eq. 32 | S.C. Ct. App. | 1825

Lead Opinion

Cuma, per

Nott, J.

That land acquired after the execution of a will does not pass under it is a position not denied by the defendants. It is conceded, on the other side, that lands to which a testator has only equitable title may be devised. Langford v. Pitt, 2 Wms, 630. M’Kinnon v. Thompson, 3 John. Cha. Rep. 307. So that the only question is, whether the testator 1 . - . . , TIT- • 1-such an equitable title to the land in question as qualified it to pass under the residuary clause of his will 1 By the statute of frauds it is declared, that no parol contract, for the sale of land, &c. shall convey any greater estate therein than an estate at will; nor shall any action be brought upon any agreement for the sale of lands, &c. unless the same be in writing, &c. But it is contended that, in equity, where a parol contract has been partly executed on one side, the performance of it, on the other, will be enforced. And that as the testator went into possession of the land in this case, it was such a part performance, on his part, as would have authorized him to compel a specific performance on the other side. And therefore he had such an equitable title as rendered the land capable of passing by devise. I do not know that it has ever been held that a parol agree-men t for the sale of land, even when it had been so far executed that a Court of Equity would decree a specific performance of it, would convey a devisable interest, Neither do I think it necessary to look into the question, as I do not consider this case as coming within the principle. I admit that it is now a settled equity doctrine, that when the parol contract is admitted or proved, and has been carried into execution, on one part, as far as the party claiming the benefit of it can carry it into effect, that a Court of Equity may compel a performance 0f ¡t on the other side. But this doctrine is directly in ^e ^ace °f statute of frauds, and ought not to be extended by judicial legislation. I concur in the opinions expressed by Lord Eldon and Lord Redesdale, that we ought not to go further on that subject than we are compelled by former decisions. Cooth v. Jackson, 6 Vesey, Jun. 37. Lyndsay v. Lynch, 2 Scho. & Lefr. 4. The ground upon which Courts of Equity thought themselves authorized to compel the performance of a parol contract for the sale of lands is, that the object of the statute was to prevent fraud, and. they would not give it such a construction as to enable a person to effect the very object which the statute was intended to prevent. The cases on this subject are somewhat contradictory, and do not appear to me to define, with the Prec's‘on which is desirable, the rule by which the Courts ought to be governed. But I think from the spirit of them, as far as they have come within my observation> the following requisites will be found necessary to authorize the interposition of a Court of Equity to compel a specific performance,

^ specific peí'-parol** contract for the sale of be clearly ve agreement was. That it has carried ^into execution on with° the S'ap-’ Another of who comesto formanceP6r" must shew that he has performed on tha/he’has been able and still was ready part^f0 the”8 contract.

That it must be clearly shewn what the agreement was.

2d. That it has been partly carried into execution on one side, with the approbation of the other. And

3d. That the party, who comes to compel a perform-anee, must shew that he has performed on his part, or ^at ^as keen, and still is, able and willing to perform his part of, the contract. 1 Maddock’s Ch. 377, ~ q

With regard to the first, we have only heard that a parol contract respecting the sale of the land had been made, but the terms of that contract we have not learn-e<^" We know not the price to have been given for the land, nor the terms of payment. We know not, ££ whether it was a lease for years, for life, or a fee.” With regard to the part execution of the contract, we must not be led away by the sound of words, without giving them some rational construction. By part execution must be understood that,by mutual consent, some part of the contract has been carried into efFect. Now it is proved, that the purchaser took possession ; but there is no evidence, that he was put into possession by the vendor, or that he went in by his consent. His entry, therefore, partook more of the nature of a trespass than a part execution of the contract. I admit that when a purchaser is suffered .to continue in possession, and to make improvements, with the knowledge of the vendor, consent may be inferred ; but the purchaser, in this case, was never in actual possession. It is said, he had a tenant there, who made one crop. Titles were afterwards made, but whether in pursuance of that contract or another does not appear.'

Part execution must be by mutual consent. where a purchaser is suffered to continue in possession and to make improvements with the knowledge of the vendor, consent may be inferred. It seems actual possession is necessary. The Court acts upon the ground of fraud in refusing to perform, after performance by the other party. He who asks equity must shew that he has done equity. Performance will be compelled when the vendee has performed his part, and gone into possession with consent of vendor.

Lastly, we have no evidence, that any part of the contract was performed on the part of the purchaser. How then could he ask performance on the other side. The ground, Mr Maddock observes, on which the Court acts, in these cases, is fraud, in refusing to perform, after performance by the other party. 1 Mad. 379.

He, who asks equity, must shew, that he has done every thing, on his part, to entitle him to it. When the purchaser has done every thing, on his part, which, by the contract, he was bound to perform, and has gone into possession with the consent of the vendor, a Court of Equity will compel titles to be made, because a ven dor shall not be permitted to convert into a trespasser one who has gone into possession under a contract, and with his own consent. The case therefore is not such that the Court would have decreed a specific performance of the contract, if that were now the question before us. I do not say that such a case might not have been made out, if all the parties had been brought be-fore the Court for that purpose. But such a case has not been made out. , It must be a very strong case in-deed, which would induce the Court to determine the question in this collateral way. I do not think that the had any such title, either legal or equitable, at the time of making the will, as that the land would pass under it. He must be considered as having died intes-^ate, as to this land, and the heirs at law are entitled to 3 . a partition, according to the act. - ,

strong induce the termine the6" question of specific performance in a collateral way. Johnson, J. concurred.

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Dissenting Opinion

Colcock, J.

dissentiente. I am constrained, though with great reluctance, to differ from my brethren in this case. I had endeavoured to reconcile the decision on the ground that it is in accordance with the provision of the statute of frauds, which, I feel satisfied, never should have been departed from. But when I reflect that it is of more importance to a community that the rules of law should be settled than that they should be, in all respects, in accordance with the abstract principles of justice ; that in fact, the eátablished rule of law becomes, in such cases as the present, the rule of justice; I cannot subscribe to the opinion.

I take it to be the settled doctrine of the Court of Equity that possession, given with reference to a contract, is such part performance of it as will authorize the Court to compel a complete and specific performance. This doctrine is broadly laid down by Mr Mad-dock in his Treatise on Equity, p. 377, 80, and supported by cases almost innumerable. The case of Foxcrqft and Lyster is considered the leading case, but some other ground, it is said, was introduced into that case. The case, however, of the Earl of Aylesford, in Strange, 771, Geo. Í. rested solely on that ground, and it is recognized, in at least five cases, by Lord Redesdale, in the Reports of Schoales and Lefroy. And, in the case of Clinan and Cook, he goes into a parallel between possession and payment of the consideration money or part of it, in which he assigns some reasons why possession ought to be considered as more conclusive of part performance than the payment of money. But the state of our country, and the various changes which the law on the subject of real estate has undergone, as well as the fact, w'ell understood here, that personal property is as valuable as real, and that possession gives a title to the one almost as soon as to the other, furnish, in my judgment, strong additional reasons why it should be so considered. The Court of Equity, in the case of Boykin v. Cantey, took this ground and, on the possession alone, decreed a specific performance.

If then there was an absolute right in the testator at the time of making his will, what is there to prevent such right from passing under the will % I am aware of the old doctrine founded on the word “ having” in the British statute, and that the cotemporaneous expositors of that statute have said it means nothing less than being seised in fee; and this may be granted without affecting the case : for we have two statutes of our own on the subject; the latter of which, from its phraseology, was, as I believe, expressly intended to avoid all the difficulty which has arisen in England from the technical construction of their statute. But even in England the rigid rule of construction has been relaxed, and the later cases expressly say, an equitable interest may be devised; and in our own Court of Equity, in the case of Cmger and Heyward, the Judge says, that it is now agreed that a mere possibility may pass by will.

The words of the act of 1789 are, when any one has “ any right or title,” he may devise; meaning, beyond all doubt, something less than a fee simple estate. I would ask, can it be said that the devisor had no “right,” because he had no “title”1? Why did the legislature put the words in the disjunctive, if they did not mean a right without a title ? If Scott had died before the titles were made, could Watts or his heirs have taken the land ? Would they not have been compelled tó make titles; and what would then have become of the land, if Scott had not made a will*? Would it not have gone to his heirs ? It surely would. It was then a right, which might accrue to the benefit of his heirs, and could not pass to his devisees. With all the evils of having departed from the plain meaning of the statute of frauds staring me in the face, I cannot think of departing from the plain meaning of the act of 1798; and I am constrained to think that the testator had a right in this land which was devisable. If it were necessary to the support of this opinion, I think I am warranted, from the testimony, to conclude that the consideration money was paid when the possession was given; for the witness says, “ I do not know why the deed was not executed at that time.” Now, if he knew that the consideration money was not paid, he would have known why the deed was not made; and it was made in a short time after, and the title completed in the testator before he died.

Decree affirmed.