28 S.C. Eq. 378 | S.C. Ct. App. | 1855
The opinion of the Court was delivered by
The doctrines of the decree in this case are neither so novel nor difficult as to require further support; yet as it is always satisfactory to a litigant to be enabled to know that his claim or defence has been deliberately considered by the tribunal determining his rights, we shall add to the Chancellor’s reasoning, some remarks to show the appellant here, that we have not simply ignored the grounds of appeal.
The Statute of Erauds provides, that no action shall be brought to charge any person upon any contract or sale of lands, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, signed by the party, or his lawful agent, to be charged therewith. The first ground of appeal insists that this requisi
The provision of the Statute of Frauds, previously recited, governs a court of equity, as much as a court of law, although exceptions have been introduced into both courts, some special to equity, adjudged to justify departure from the letter of the statute. It is settled that the required signing of an agreement is satisfied by the signing of the party to be charged, when the other party affirms the agreement by suit; and it is
It is against principle that a contract should rest partly in writing and partly in the memory of witnesses. All the purpose of the statute against perjury and mistaken memory would he defeated by admission of such extending testimony in parol. But if we granted the admissibility of such evidence, it is inadequate in this case to ascertain the agreement. Mr. Legg understood from the plaintiff that a lot from one-half to three-fourths of an acre was to be conveyed. Mr. Irvin states that in a stroll with Mr. Henry, after the agreement, the latter by waving his hand and mentioning certain undergrowth indicated an acre or more. Mr. McCullough, the proposed rector of the church, testifies that Mr. Henry, a few days before his death, expressed his desire that the extent of the lot should be ascertained by survey which was not made, and that the witness then inquired as to the extent of the lot; nothing was fixed, and every thing left open as to Mr. H.’s purposes concerning the church and parsonage. That all this evidence is inadequate to define the subject to be conveyed, and the purposes and estate for which any portion of it was to be conveyed, needs no argument and little authority. Story, Eq. 761, 767 ; Clinan vs. Cooke, 1 Sch. & Lef. 22; Lindsay vs. Lynch, 2 Sch. & Lef. 1; Harnett vs. Yielding, 2 Ib. 549.
It is urged, however, in the second ground of appeal, that acts of part performance on part of the plaintiff take this case out of the Statute of Frauds. No act in execution of the agreement was performed by either party in the life-time of Mr. Henry, and it is not pretended that his devisee is bound by her own independent acts in execution of the testator’s agreement. It is admitted, however, that the plaintiff is now proceeding to erect a church partly on land of the defendant, and partly on land purchased by plaintiff from Mr. Leitner. It would be difficult to maintain that the defendant who has the fee, Mrs. Farrow, and who can part with it only in a mode
Besides, if the plaintiff had proved sufficiently an agreement, the suit is an application to the extraordinary jurisdiction of the court where discretion is tolerated and absolute right cannot be claimed. With every disposition to limit discretion, we should hardly be disposed to afford relief to plaintiff when the enforcement of defendants’ contract (essentially voluntary although supported by the consideration of co-subscriptions) will be attended with inequitable loss to defendants, in impairing the value of adjoining lands.
It is ordered and decreed that the appeal be dismissed.
Appeal dismissed.