Jackson ex dem. Smith v. Pierce

April, 1796, Smith agreed to sell to Pierce, “ all tbs lands bought of Samuel Rust, (except five or six acres sold to Hicks, some time ago) and to give a deed,” <fcc. Immediately after making this agreement, the defendant entered and took possession of all the land described in the deed from Rush to Smith, excepting 5 acres and 67 rods, before conveyed by Smith to Hicks, and has re. mained in possession ever since. In a conversation between Smith, Pierce and _White, and another, Smith offered to purchase the farm bought by White under the sheriff’s sale, but afterwards relinquished the.design, and told Pierce that he might purchase the farm he lived: on with safety, as he would never hurt him, alluding, as was then understood by the witness, to a claim Smith had.

A motion was made at the last term to set aside the verdict, and for a new trial.

1. Should it be said that the conversation respecting the purchase under the sheriff’s sale, amounts to an agreement on the part of Smith, to relinquish all claim to the premises, and so must estop the plaintiff, I answer that the agreement was verbal; and that there has been no part-performance so as to take it out of the statute of frauds. It is not every act that will amount to a part-performance.^[11]

[Kent, Ch. J, The cases to this point are in the court of equity.^[7] It seems never to have been decided in a court of law, that a part-performance of a parol agreement will take it out of the statute.]

2. But admitting this agreement not to be within the statute of frauds, still it is such a one as can be enforced only in a court of equity. It furnishes no ground of legal defence in an action of ejectment. The decision in the case of Weakley, ex dem. Yea, v. Bucknel,^[8] has been since questioned,^[4] and was strongly doubted by the

Lord Chancellor, in Lowther v. Andover.^[9] In ejectment, the question of title is matter of law, and no act in pais, or a parol agreement, can be set up against the legal title. That the plaintiff stood by. and saw the defendant purchase without giving him notice, may be a defence in equity, on the ground of fraud; but cannot avail in a court of law. ' In fact, as appears from, the evidence, Pierce had notice, and therefore theré could be no fraud.

The construction of the statute of frauds, as to a part-performance, is the same in a court of law as in equity.

(Kent, Ch. J. There is such á dictum of Justice Puller,^[11] while sitting, in the court of chancery, but it has never been received as law.)

The principle on which this court will protect the possession of the defendant, though the agreement is not sufficient to pass the legal title, does not proceed so much on the ground of part-performance, as on equitable principles adopted by the courts of law. Thus in Yea v. Bucknel,^[7] the courts of King’s Bench would mot permit a tenant who had been in possession eighteen years, under an agreement for a lease, to Returned out of possession, merely that the parties might go into a court of equity for relief. In that case an equitable defence was admitted against a clear legal title in ejectment. Again; the plaintiff cannot recover in ejectment, against his own covenant or agreement.^[8] He is .estopped by his own consent. The language of the plaintiff to the defendant relative to the purchase of the land under the sheriff’s

sale, must be considered as referring to the whole contained in the sheriff’s deed, which included the lot in question. In Jackson v. Dysling,^[9] this court considered a parol agreement to abide by a certain boundary line, though it would not pass the land, as binding on the parties, so as to prevent their claiming against such agreement in ejectment. On a similar principle, it has been often ruled at Nisi Prius, that where the vendor located the premises on the sale, he was stopped from asserting any title to the contrary. In these cases, the court do not require the defendant to show a legal title by deed ; but they admit the equitable defence to overrule, or prevent the assertion of plaintiff’s title against equity and justice. This case rests on stronger'grounds than that of Jackson v. Dy sling; for the defendant took possession, under the agreement to convey, and has been in quiet possession near ten years. The defence here, is not a technical trust, or of that species which peculiarly belongs to a court of chancery. The separation of the legal and equitable jurisdiction is peculiar to the English system of jurisprudence, and has not been adopted in all the American states. How far this court are bound strictly to adhere to this system, it is not. perhaps, necessary at this time to inquire ; but should the doctrine now contended for, be received, it would be a much slighter innovation on existing rules, than is often to be met- within the history of the English law. Before the reign of Henry VII. the specific recovery of a term, was held to be exclusively of equitable jurisdiction, and relief was to be found only in a court of chancery; but the courts of law, in the fourteenth year of Henry VII. adopted the same equitable remedy, and permitted the plaintiff in ejectment, to recover possession of his term. It is true, that in 1788,^[11] the court of King’s Bench, disclaimed all cognizance of trusts or equitable titles, as exclusively belonging to the court of chancery, but Butter was of a different opinion, and considered it contrary to the whole

current of decisions for thirty years past. The cases ad- , , • , -I. , 1 • , 1 • 1 verse to this doctrine have all been decided since the revolution, and have not, therefore, a binding authority on this court.

The possession of the defendant was antecedent to the parol agreement, the true construction of which is, that the defendant might safely purchase the land, actually bound by the judgment against Schaeffer.— The words of the plaintiff must be taken iii reference to the subject matter, the judgment on which the execution issued. The defendant could not be mistaken, for he knew of the parcel excepted. To purchase the title u'nder the sheriff’s sale, was an act of prudence, as the defendant had only a quit-claim from Smith, whose title had been defeated by the judgment. ■

" Again', none of the cases cited go beyond that, of a covenant to convey, where the purchase money having been paid, ■ the covenantor is considered as standing seized to the use of the bargainee, or where part being performed, a court ofequity will decree a specific conveyance. Parol agreements are held to conclude parties jn ejectment, only where they explain some doubtful fact about boundaries; not because they prove an. equitable title, but because they -furnish the best evidence of a disputed fact. When resort can be had to the title-deeds, the terms of which are clear.and explicit, no parol agreements, or declarations of the parties, will be received.^[11]