BROOK et al. versus COOK et al., 3 Port. 464

Collier, J. The defendants in error filed their' bill iu the Circuit Court of Madison, iu May, 1828, for the specific performance of a contract for the sale and conveyance of lands. In their bill, they set forth, that in the year 1815, or perhaps earlier, the husband of the plaintiff in error, (Elizabeth,) sold to Isaac Sadler and Sons, the laud iu question, and delivered to them, the possession thereof, and received from1 them, payment of the entire purchase money. That Messrs Sadler & Sons made improvements, in clearing laud and building houses.

It is further alleged, that, the land had been conveyed iu trust, for the payment of debts; and, under a power of sale, in the deed, had been sold by the trustee, and purchased by Ezra Patch and 1 he defendant, in error, (Henry Cook;) that Ezra Patch had sold his interest in the land, to the defendants in error, (Hodah Horton,) and Wrn. M. Wofford. The deeds from Sadler & Sous to their trustee, from the trustee to Patch and Cook, and from Patch to Horton and Wolford, accompany the bill, as exhibís, and appear to have been regularly proven, or acknowledged and recorded.

The plaintiff in error, Elizabeth, denies every allegation in the bill — not, positively, however, but argumentatively — and insisto upon the statute of frauds, and every statute of limitations which may lie thought, available. The other plaintiffs in error disclaim all knowledge of the matters, and refer to the answer of Elizabeth ; and insist that the allegations of the bill shall be made good, by proof.

The bill is fully sustained by the depositions in the cause: not only such portions of the bill as are here recited, are proved, but two of the witnesses state, that a deed was actually made and executed, to Messrs Sadler & Sons, or some one of them, at the time oi the purchase, according to their recollection. Further, it. appears, that Sadler & Sons had sold portions of the laud to different persons, and incumbered if, with the knowledge, and without the dissent of their seller. And, lastly, that the vendor had purchased of them, and paid for, {at least partially,) a small portion of it.

The question, presented for our consideration, is, whether the facts of this case, take it out of the statute of frauds. In the great contrariety of decision, as to what circumstances will relieve a parol agreement, for the sale of lands, from the operation of the statute of frauds, it would be difficult, (if not improper,) to prescribe rules, to guide us, in the determination of cases, (unlike the present, in their facts,) which may hereafter arise. We shall, therefore, be content to inquire, whether the proofs, in this case, do not entitle the defendants in error, to a specific performance.

In some of the English decisions, (and, perhaps,, in American, also,) it has been decided, that a part payment of the purchase money, upon the fooling of a parol agreement, took a case without the statute of frands. While, in other cases, it has been held, to be competent for the vendor to avail himself of the statute, though he has received a part of the purchase money.

The former.class of cases, are founded upon the that equity will not allow a statute, intended to suppress fraud, to become the instrument of its perpetration : and, as it would be a fraud, in the seller, after having received the purchase money, to disclaim the contract, he should be refused aid.

In the latter class, it is maintained, that to allow such equivocal acts, of part performance, to put aside the stalute, would be productive of all the danger which the statute proposed to avoid : hence, it was safer to refuse the removal of the inhibition imposed upon parol agreements, unless some act had been done, which tells, in itself, that a sale has been made. In Allen vs Bonker, the question, as to the effect of a payment of part of the purchase money, upon a parol agreement, came directly before the Court, and it was determined that such payment did not take the case out of the statule. In Davenport vs.

Mason, the purchaser received possession, and it was decided, that a parol agreement for the sale of lands, is not absolutely void, by the statute, of frauds; but, if any act has been done, in part execution of tho contract, which would not have been done, baton account thereof — which was done, with a view to 1 lie agreement, and which is prejudicial to the party doing it, the parties are not permitted to treat ihe agreement as a nullity. Similar, in principle, are the cases of Ricker et al vs. Kelly et al. — Parkhurst et al. vs. Van Cortlundt — Downey vs. Hotchkiss. In Wetmore vs.

White et al. it was held, that the payment of the consideration money, possession, and making improvements take a case out of the of frauds, and will entitle to a decree, for a specific performance. In all the States of the Union, with the exception of Kentucky and, perhaps; Tennessee, it has been determined, that a parol agreement, for the' sale of lands, is not, absolutely void ; but may be enforced in equity, if there have been acts of performance, so definite and unequivocal, as to furnish, in themselves, convincing proof, that an agreement had been made.

If it could be ascertained, what were the settled •course of decision, when our statute, against trauds and perjuries was enacted, it would be our duty to follow it. In enacting the provision we are considering, our legislature have copied almost verbatim, from the statutes of the Stales and of England, on this subject. In adopting the statute, vve must, be understood to have adopted, with it, the decisions of the English and American Courls — they, so far as then published, being supposed to be in the contemplation of the legislature—See Allen vs. Booker, and Downy vs.

Hotchkiss, (before referred to.) But, it is a task almost impracticable, to adduce from the mass of varying decision, any settled rules; nor do we consider it necessary, in ibis case, to attempt. i", as the decisions which adhere most, closely to the statule, save those ave have already excepted, recognise a case such as this, as not coming within its provisions. For, let, it be remembered, that here, there appears a sale, delivery of possession, improvements made, uninterrupted occupancy for twelve or fifleen years, and a repeated recognition, by the seller, both by words and acts, of the right of his ven-dee.

We lay no stress on a purchase of a small part, made by the seller from his vendee; for, though proved, it is not staled in the bill. We may add our regret, to thax which has been so often expressed by others, that the letter of the statute should ever have been departed from. But, with Lord Kenyon, we disclaim the power of legislation ; and, with him, are content to move super anliquas vias. and to administer ihe law, as we may ascertain it, by our industry and research.

In regard to the statutes of limitations, insisted on, in the answer of Elizabeth Brock, it is entirely enough to say, that there are none which are available for her. Let the decree be affirmed. Hopkins, J., having been of counsel below, did not sit. 1 Vern 472 3 Atkl. ; 4 Ves. 720 Pre. in Eq. ca. ab. 46; Lefroy, 22 2 Stew 21 15 Mass 85 Greeni’f, 117 14 John. 15 2 Days's C. 225 2 Caine's Ca. in Er. 87 MBibb, 204.5 6,564; 3 ib. 2 ; 4 ih. 58; 1 Mai shall. 553; 3 ib. 445; M’Cinre •v Potter, in the Supreme Court of Tennessee, and cited in Allen v Booker, 2 .Stewart,2J.