Graham against Donaldson, 5 Watts 451

The opinion of the Court was delivered by Sergeant, J. In this case the plaintiff seeks to recover back land formerly his, on the ground of a trust created by parol, in consequence of the agreement of the defendant’s father, who purchased it at sheriff’s sale on his own judgment, to buy it in at considerably less than its value, and permit the plaintiff to have it again on payment-of the amount of his judgment.

It is not a case to be favoured by a court of equity, because parol trusts are contrary to the letter and spirit of the act against frauds and perjuries, and are calculated to let in all the litigation, uncertainty and mischief which that act intended to prevent, when it required, that interests in land, whether legal or equitable, should be manifested by writing. It is true, the court has gone so far as to hold, that when one purchased at sheriff’s sale, in trust for another, and thereby prevented others from bidding, it was a trust arising ex maleficio, and was one of the cases excepted out of the act.

It would be a very different question, however, if such conduct of the purchaser and the defendant, led to a judicial sale, at less than the value of the premises, when there were other lien creditors whose debts were left unpaid by the arrangement. The rights of such lien creditors would not be defeated, and it might even be doubtful whether the parties could legally enforce a contract so contrary to the policy of the law, and the provisions of the statutes against fraud.

But taking this to have been originally such a trust as was valid, the question is, whether it is one which, under all the circumstances of the ease, a jury under the direction of the court, ought to enforce by ejectment? When it is said that in equity time is not of the essence of the contract, the meaning is that if a day be stipulated, performance at the appointed time is not indispensable. Equity does not regard that as essential, because many circumstances may incidentally occur to prevent it, and its failure may admit of compensation.

It is, therefore, not so material in the present case, whether a time was fixed by the parties, or not.

But it does not follow, because the time fixed is not essential, or none is fixed, that the cestui que trust may lie by for any length of time, and may permit a lapse of years without taking a single step; may allow the purchaser to enter into possession, make valuable improvements, use and consider the property as his own, die, and transmit it to his children, and then when it has greatly increased in value, may compel them to abandon their homes and surrender up the property at any time it may suit him to take it. He who asks equity must show that he has done equity.

He must have performed, or offered to perform his part of the contract in a reasonable time. Pie must not wait to speculate on events; so that if the land should fall in value, he might leave it in the hands of the other party, but if it should rise, demand it. It cannot be supposed that such was the understanding of the parties. If he had such right, there is no limit to it. It may be enforced at the end of twenty, thirty or fifty years; for no statute of limitations interposes between a trustee and the cestui que trust.

Property, under such circumstances, would lie unimproved, for few would be willing to build and improve a tract of land from which they could be dispossessed at any future period, at the option of another. The estate must be locked up in uncertainty of title, incapable of being employed for the.benefit of the possessor, or for the advancement of his children, or of being disposed of by will.

As between these parties, the arrangement was on the part of Donaldson a mere benevolence, not sought by him, but actively pressed on him by Graham., Donaldson waited a year before he took possession, allowing time for payment of the money, which he was anxious to receive. He afterwards went on and sold other land of the defendant’s for the balance of the judgment, the whole of which defendant was to pay before receiving his land: conduct inconsistent with the subsistence of the trust then, and no declarations of his, subsequently, show he considered the tru$t subsisting.

The plaintiff lay by for upwards of ten years without showing any disposition by payment or tender of money or otherwise, to perform his part of the contract, and permitted Donaldson to enter and continue in possession, make valuable improvements, die, and transmit it to his children; and the property is now stated to be worth more than twice as much, as at the time of sale; partly by the improvements placed on it by the defendants, and partly by. the general rise of real estate.

Surely such contracts must be understood as being intended to be performed within a short period — within a few years — when the circumstances are recent — before any very great change has occurred, and when the advantages of the parties continue mutual. Otherwise, one is bound, and the other loose, and there is no mutuality. In Reading v. Peebles, 8 Serg. & Rawle 484, a case in some of its features analagous to the present, Mr Justice Duncan refers to the authorities fully, and says, the strongest equity may be forfeited by laches, or abandoned by acquiescence.

When a contract has lain dormant and no step taken, and particularly where the property, by subsequent events, proves to be much more valuable than it was when the contract took place, when nothing has been done by either party, where it is a mere gratuitous one, and when there is no mutuality, this is not such an agreement as equity would enforce.

It is unnecessary, therefore, to enter into the question of tender, because we are of opinion, that even if the plaintiff had tendered in due season, the moneys due, and the full value of the permanent improvements placed on'the land, (which, at the least, he would have been equitably bound to do), yet the charge of the court and verdict must have been for the defendant, on the ground, that under all the circumstances of the case the plaintiff had no equity to take the pi’operty from the defendant at so late a period. Judgment affirmed.