#### JAMES DUNN vs. HENRY MOORE AND AL.

The Court will not, on a bill for the execution of a parol contract for the sale of land, hear proof of such contract, when it is denied by the defendant and he relies upon the act, (Revised Statutes, ch. 50, sec. 8,) making void all parol contracts for the sale of land.

Part performance, as by paying part of the purchase money, taking possession &e., will not take the case out of the Statute; but in case of such part performance, if the defendant admits the contract, as stated by theplaintiff, and the part performance, but relies on the Statute, the Court will order an account to be taken and decree a compensation to the plaintiff for his payments and expenditures.

But if the contract is denied, the Court can grant no relief, because it can go into no proof of a contract, variant from that stated in the answer.

The cases of Ellis v. Ellis, 1 Dev. Eq. 340, Baker v. Carson, 2 Dev. and Bat. Eq. 381, and Alieav. Griffin, 2 Dev. and Bat. Eq. 9, cited and approved.

This cause, havingbeen set for hearing, on the bill, answers, exhibits, and proofs, at the Fall Term, 1844, of Sampson Court of Equity, was then removed by consent to the Supreme Court.

The plaintiff complains, that he purchased from the defendant, Moore, by parol, in the year 1836, the tract of land set forth in his bill, containing one hundred and thirty-five acres, at five dollars per acre ; that he paid him, at the time of making the contract, one hundred dollars, and agreed to pay a *365discharge, a note for about five hundred dollars, due from said Moore to one Daniel Kornegay; that the defendant put him in possession of the land, upon which he made valuable improvements, and paid off the note to Kornegay, which left a small balance due to the said MoOre, which he was ready and desirous to pay. He further states, that Moore, becoming dissatisfied with his bargain, refused to complete the contract by conveying the land to him, and had instituted a suit against him in the County Court of Sampson, to turn him out of possession, and that he had sold and conveyed the land, to the other defendant, Hicks, who, at the time of his purchase, well knew of his equitable claim, and therefore held the land in trust for him. He then prays, that the defendant may be decreed to convey the land to him; or, if the court will not give him such relief, that they compel the defendants to come to an account with him, for the money paid by him, and the value of the improvements he has put upon the land, and that the land may be held as security for what may be justly due to him,

The defendant, Moore, by his answer, denies the contract, asset forth in complainant’s bill, but states, that he owned a tract of land containing about two hundred andj sixty-two acres, which he agreed to sell to the plaintiff and one James P. Beck, at the rate of five dollars per acre; that it was understood between the parties at the time, that the plaintiff and Beck were to divide the land between them, in such portions as they might think proper, it being a matter that did not concern him, so that between them, they should make the land average to him five dollars per acre ; that, accordingly, they did agree upon a division line, and the plaintiff paid the sum of one hundred dollars, and was to take up a note defendant owed to Daniel Kornegay ; but he denies that he put the plaintiff in possession of the land, but admits he took possession.. In a few days thereafter, Beck refused to give him five dollars per acre for the land, which had fallen to him in the division with the plaintiff, alleging, as is the fact, that his was the less valuable part of the land, and that he immediately apprised *366the plaintiff of the fact; and tendered to him not ofily the money which he had received from him, but also the money the plaintiff had paid to Kornegay, if he had paid it; that this ten- ^ was ma(je j^y an agent of the defendant’s, before the plaintiff had taken possession of the land, and before he had made any payment to Kornegay; and his agent was directed to tell the plaintiff, and did tell him, at the time of the tender, if he had not paid Kornegay, not to do so •, and alleges, that if the plaintiff has made improvements and paid Kornegay, he made the former and paid the latter in his own wrong, after being apprised that the defendant would not convey to him the portion of the land claimed by him, unless they would take the whole j this defendant’s object being to sell the whole of the land, or none of it. This defendant then prays the benefit of the act of the General Assembly, making void all parol contracts for the sale of land. He admits be brought an action of ejectment against the plaintiff to turn him out of possession of the land, and admits the sale by him to the defendant, Hicks.

It is not necessary to set forth the answer of the defendant, Hicks, as it is not noticed by the court in delivering their opinion.

Strange and W. Winslow for the plaintiff.

Henry for the defendants.

Nash, J.

The object of the bill is two fold — either to compel the defendants to convey the land to the plaintiff, or that a decree for an account may be made of the value of the plaintiff’s improvements, and for the money paid by him, and the land be held as security for such sum as may be decreed. We do not think the plaintiff entitled to either relief. The ground upon which he seeks the former is, that of part performance of a parol contract. He alleges he has paid part of the purchase money, and been put into possession by the defendant ■Moore. In his bill, the plaintiff sets forth that he had purchased by parol, from- the defendant, Moore, a tract of land containing, one hundred and thirty-five acres, at five dollars *367per acre. The defendant, in his answer, denies that he ever made with the plaintiff the contract set forth by him, and alleges that the contract made by him, was with the plaintiff and James P. Beck, and not for the sale of the hundred and thirty-five acres, but of a larger tract of which that was a part. Can the court hear parol evidence to establish which is the true contract ? We are saved all labor in investigating this question; it has already been decided by this court. The case of Ellis and Ellis came before the court in 1828. 1 Dev. Eq. 180. The plaintiff claimed the execution of the contract, which was in parol and which had been made in 1821, on the ground of part execution. The contract, as set forth in the bill, was denied by the defendant, and he claimed the benefit of the statute passed in 1819, making void such contract; and setting forth in his answer what was the true agreement. The court decreed the execution of the contract, and the case came before the court again the next year, (1 Dev. 340) on a petition to rehear the former decree. The decree was reheard and reversed. In pronouncing their opinion, the court say— <! The plaintiff sets forth one contract, which the defendant denies, and sets forth another, both in parol. To go into testimony, whether any, and what contract the parties did enter into, would be laying aside the act of assembly altogether.’) A case more in point with this, cannot well be imagined. And the court were well sustained in so deciding. Lord Thur-now, in the case of Whitchurch and Bevis, 2 Bro. Rep. 566, expresses the opinion that the only effect of the statute of frauds on this subject, is to preclude the plaintiff from going into evidence aliunde for the purpose ofsubstantiatingaparol agreement denied by the defendant. The plaintiff is not entitled to any decree for the conveyance of the land claimed, neither is he entitled to an account, and that the land should be held as security for what might be due to him. If the defendant, Moore, had admitted the contract, as set forth in the bill, and that he had put the plaintiff into possession, on the authority of Baker and Wife against Carson, 2 Dev. & Bat. Eq. 381, and of Albea against Griffin, 2 Dev. & Bat. Eq. 9, *368we should, upon the plaintiff’s substantiating by evidence his-payments and improvements, have referred the case to the master for a report; and this upon the ground, not that this courí; coui(jj jn a case 0f this kind, give the plaintiff anything by the way of damages for the violation of a contract — but because the defendant, after making the contract, and putting the plaintiff into possession, ought not to be allowed to put him out, without returning the money he had received, and compensating him for his improvements. It would be against conscience, that he should be enriched by gains, thus acquired, to the injury of the plaintiff'. But in this case, Moore, the defendant, denies the contract set forth by the plaintiff) and under which he alleges his payments were made, and the improvements were put on the land. If the proofs cannot be heard to establish the contract, of which the plaintiff claims a specific performance, it cannot be heard to prove a contract, variant from that stated in the answer, for any purpose; and if so, then the plaintiff has put the improvements on the land, and paid the money to Kornegay, in his own wrong, and cannot ask this court to keep the defendant, Moore, out of his land, until he has settled with him. If he has any claim upon Moore for the money advanced, this is not the forum in which it is to be litigated. In addition to this, the defendant, Moore, denies he put the plaintiff into possession of the land, but says that he took possession and paid the money to Kornegay, after he, Moore, had notified him, that he would not go on with the contract, and after he had made a tender to him of the money he had paid him. And in these respects, the answer is fully supported by proof. Relief is further claimed, upon the ground that the plaintiff paid his money and put the improvements upon the land, under the full belief he could compel Moore to execute the contract. We do not, however, perceive that this ignorance of the law did exist on the part of the plaintiff. He does not make it one of the grounds, upon which he seeks relief, either in compelling the defendants to convey to him the laud, or that the land shall be held as a security to indemnify him for his improvements and money *369paid. And we are more confirmed in this opinion, that he is not entitled to the second relief, from the statements in the answer and the proofs, that he took possession of the land, and paid the money to Kornegay, after he had been notified not to do so.

Per Curiam, Bill dismissed with costs.