#### JAMES TRICE v. WILLIAM PRATT, et al.

Where several persons agreed to purchase land at a sale by the clerk and master, and one of them bids it off, the act of 1819, (1 Rev. Stat. 290,) avoiding parol agreements for the sale ofland, does not bar the claim of his associates ; neither is it a defence to a bill by them that they had a remedy by petition.

The allegations of this bill were, that under an order of the Court of Equity for the county of Orange, upon the petition of the heirs of William Dilliard, the clerk and master (a defendant) was directed to sell a tract of land described in the bill: that the plaintiff and defendant, with William E. Anderson, (also a defendant) became the purchasers thereof as tenants in common, the defendant bidding for and in behalf of them all, in pursuance of a previous agreement for that purpose: that the plaintiff and the defendants Pratt and Anderson gave joint bonds for the purchase-money to the clerk and master: that Anderson afterwards transferred his interest in the purchase to the plaintiff: that the purchase-money had been wholly paid, viz. two-thirds by the plaintiff, and one-third by the defendant Pratt: that the plaintiff had required a deed for his undivided two-thirds from the clerk and master, but had been refused, because the defendant Pratt had forbidden its execution, and had demanded a conveyance of the whole *627"to him, as the sole purchaser thereof. The prayer was for a conveyance, and for general relief.

Dec. 1837.

The clerk and master permitted the bill tó be taken pro tonfesso against him; and the defendant Anderson in his answer admitted its allegations to be true. Pratt in his answer admitted that he had demanded from the clerk and master a conveyance of the whole land; and had forbidden him to execute a deed for any part of it to the plaintiff; and insisted that he had a right to do so, because he did not make the purchase in pursuance of the agreement charged in the bill, but in his own name, and on his own account; because he never agreed to let the plaintiff and Anderson have any share in the land — and if he did, such agreement was by parol, and therefore void, under the act of 1819 avoiding parol contracts for the sale of land and slaves; because, although the plaintiff had paid two-thirds of the purchase-money, it was done without his, Pratt’s consent, who could not prevent such payment, as the plaintiff and Anderson were his sureties to the bond for the purchase-money ; because the plaintiff, if entitled to the relief sought by his bill might have obtained it by a motion or petition to the Court; and further, that he had understood, that the payment made by the plaintiff was not in cash ; but by receipting to the clerk and master for so much money on account of the shares of the land belonging to the wife of the plaintiff, who was an heir of William Dilliard, and to other heirs of said Dilliard, to whom the plaintiff was guardian ; and therefore that he, Pratt, was apprehensive that those shares being thus received, without being duly secured and settled, the purchase-money might, in equity, be held not to have been fully paid, and that he might be made liable for some part thereof.

TP. A. Graham, for the plaintiff

W. H. Haywood, for the defendant Pratt.

Gaston, Judge,,

after stating the case as above, proceeded : — All these objections are unfounded. The proof is satisfactory, that the purchase was made by Pratt, Trice and Anderson, in pursuance of previous agreement, through Pratt, who was appointed to bid for that purpose. *628The act of 1819 has no bearing on the transaction; for ¡t js not a parol contract for a sale of land from Pratt to his co-purchasers; but a contract for a sale, and a judicial sale, which may be by parol between the clerk and master on the one hand, and the joint purchasers on the other. If the parol evidence of the joint purchase needed any confirmation, it is put beyond all doubt by a petition for partition filed by the defendant Pratt against the plaintiff, in which the plaintiff is stated to be the owner of two undivided] two-third parts of the land, and the petitioner, of the other third; and by a written agreement between the ¿said defendant and the plaintiff, and an award thereupon by persons chosen for that purpose, providing for the temporary occupation of the land until a, final partition should be made.

Whether a summary remedy might have been had by motion or petition, it is needless to inquire.- Certainly the Court might, and in case of serious controversy, probably would have declined acting in a summary way, and-required a formal bill to be filed. But it cannot be an objection to the formal and solemn mode of proceeding, that it is formal and solemn, and affords to the defendant the most ample opportunity of vindicating his supposed rights.

The defendant has offered no evidence to support, the truth of what he has “ understood” respecting the mode of payment which was pursued by the plaintiff; and therefore we cannot find the allegation true. The payment of the whole purchase-money is expressly proved by the deposition of the clerk and master, which has been taken by order of the Court; and no interrogatory has been put to him on the part of the defendant as to the mode of payment. Upon the admitted ground, that the whole purchase-money has been duly paid, the defendant has required a conveyance of the entire trust to himself; and the plaintiff asks for a conveyance of two-thirds to him; and the clerk and inaster stands ready to convey, as soon as it shall be judiéially ascertained whether the purchase was made solely by Pratt, or jointly by him and his alleged associates in the transaction.

*629The plaintiff is entitled, we think, to the decree he asks for ; and the costs of the suit must be wholly paid by the defendant Pratt.

Per Curiam. Decree accordingly.