#### Samuel Dark v. Joab Bagley and Britton Harris,

From Chatham.

Equity will decree a specific execution of a parol contractforthesaleand purchase of lands, although there has been no partial performance, if the contract be proved by such evidence as affords to the mind a conviction no less satisfactory than that which arises from a contract in writing.

It is no objection to such a decree, that the purchase money was to be paid in the fall. That is a period sufficiently certain.

Samuel Dark filed Ms bill in tlie Court of Equity for Chatham county, against Joab Bagley and Britton Harris, and therein charged, that Joab Bagley being seised of a tract of land containing five hundred acres, situate in the county of Chatham, in the month of September, A. D. 1810, contracted and agreed to sell the same to the complainant upon the following terms, to wit, “ that complainant should tc pay to him the sum of four hundred and fifty dollars in “ the fall of 1811; other four hundred and fifty dollars in “ the fall of 1812, and other four hundred and fifty dollars “ in the fall of 1813; making in all the sum of thirteen “ hundred and fifty dollars.” And to secure the payment of these respective sums, complainant agreed to execute to Bagley, within some short time, his bonds with security ; and upon the execution of these bonds, Bagley was to convey the land to complainant, with general warranty. The hill then charged that in pursuance of this agreement, complainant within some short, time, executed bonds with good security, and tendered them to Bagley, at the same time requesting Bagley to convey to him the land : That Bagley refused to accept the bonds or convey the land : And that Britton Harris having notice of the agreement which had been entered into between complainant and Bagley for the sale and purchase of the land, agreed with Bagley to purchase the land, at the price of twelve hundred and fifty dollars, and to make payment thereof within a time wliich *34Bagley alleged would better suit Ms convenience : That in pursuance of this agreement, Bagley conveyed the land to Harris, who entered and took possession : That Harris having taken a deed for the land with notice of complain* ant’s equity, was a trustee of the legal title for complainant, who prayed that Harris might be decreed to convey to him such title to the land as he had acquired from Bagley, and that an account for the rents and profits might be taken; and that Bagley might be decreed to accept the bonds which had been tendered to Mm, and convey the land with general warranty.

Harris put in Ms answer, and denied that he had any notice of the agreement charged in the bill before he purchased the land from Bagley, paid the purchase money and received a conveyance. He alleged that he had purchased the land for a valuable consideration, and he prayed the benefit of this fact and his want of notice, in the same way as if he had relied upon them by way of plea. Complainant replied to the answer, and depositions having been taken by the parties, the cause came on to be heard at. March Term, 1818, (the bill having been filed iri February, A. D. 1811) when the following issues were submitted to a jury, to wit:

1. Was the agreement charged in the bill relative to the sale and purchase of the land therein described, entered into between Samuel Dark and Joab Bagley ?

2. Was the defendant, Britton Harris, a purchaser for a valuable consideration, without notice of Samuel Dark’s claim to the land under the agreement charged ?

3. If the agreement charged was entered into, did Samuel Dark perform his part of the said agreement as far forth as by the terms thereof, he was bound to do ?

The jury found in favor of the complainant upon each of the issues ; and the counsel for complainant having moved for a decree according to the prayer of the bill, the motion was opposed upon two grounds , 1st, That the bill sought to enforce a parol contract relative to the sale of *35lands, where there had been no partial performance of the contract: 2d, That the contract was too vague and indeterminate, there being no days appointed on which the purchase money was to be paid. The case was ordered to be sent to the Supreme Court, where it was argued by Muffin for the complainant, and Norwood for the defendant; and at this term,

Taylor, Chief-Justice,

delivered the opinion of the Court:

The object of this bill is to compel the specific execution of a parol agreement made between Bagley and the complainant for the sale of a tract of land lying in Chatham County. The contract set forth in the bill has been established by the verdict of a jury ; and it is admitted that the bonds which were to be given by the complainant, were executed by him and tendered to the defendant, according to the terms of the agreement; or to speak with more precision, the bonds are admitted to have been tendered,*' and the jury have found that the complainant has performed his part of the agreement. All the facts necessary to a decree for the complainant have been established, and the case is ripe for a final determination, if the Court has authority to make one, under all the circumstances. Its authority to do so, has been contested upon two grounds ; 1st, Because the contract was made by parol, and it is alleged there has been no partial performance. 2d, Because no days were appointed on which the money was to be paid ,• the agreement being merely, that the several payments were to be made in the fall of the respective years when they became due.

"With respect to the first objection, it might be sufficient to answer, that the practice of decreeing the specific exe*36cution of parol agreements for the conveyance of land, ^as ^eGn ^00 l°nS’ established in this state, and too uniformly persevered in by the Courts of Equity, to be now abolished, because the propriety of its origin may be doubted. It is not easy to arrive at a certain conclusion one way or the other, as to the practice in England before the Statute of Frauds and Perjuries. There are authorities both ways, and the more ancient ones are in favor of the jurisdiction. In 1467, it is said by a Judge, “ that if I promise to build you a house and do not perform my promise, you have your subpoena,’” and in 1505, Fineux, Chief-Justice, speaking of the different remedies given in the Courts for the non-performance of contracts, observes, “ that if a man bargain with another that he shall have his land for 101. and that he will make him an estate therein by such a day, and he does not make the estate, an action upon the case lies ; but in that he shall only recover damages ,• but by subpoena, the Chancellor may compel him to execute the estate, or imprison him.”* On principle too, it would seem that such a jurisdiction might have been correctly exercised. Before the statute of frauds and perjuries in England, the only contracts and dispositions of property, real or personal, which were necessary to be put in writing, were of property lying in grant, as lights and future interests, and that species of real property to which the name of incorporeal heredita-ments applies. These were always authenticated by a deed ; and the statute of 32 Hen. 8, ch. 1, which gave to the owners of land a partial power of disposing of their estates by will, directed such will to be declared in writing; some contracts were also required by customary laws to be in writing : but as a general rule, no writing was necessary ; for even estates in land might be completely transferred by a symbolical delivery in the presence of neighbors, however useful the precaution might be of s’ecording the transaction by a charter of feoffment.† It *37. . And as seems indeed that Courts of Equity were cautious in former times, as they ought always to be, of relieving bare parol agreements for lands, where the agreement has not been signed by the parties, nor any money paid.* this branch of their jurisdiction is governed in a peculiar degree by sound discretion, cases may be found where they have refused relief for the want of a part performance. The subject is examined in the late edition of “ Sugden’s Law of Vendors,” 101, 114. “ There are four cases in Tothill which are previous to the statute, of frauds, and appear to be applicable to the point under consideration ; for equity, even before the statute, would - not execute a mere parol agreement not in part performed. In the first case, which was heard in the 38th Eliz. relief was denied, because it was but a preparation for an action on the case.† In the two next cases, which came on in 9th Jac. 1, parol agreements were enforced, apparently on-account of the payment of very trifling parts of the purchase money ; but the particular circumstances of these cases do not appear.”‡

The subject is left by tills writer nearly in the same obscurity in which it was before, not from any defect in him, but from the intrinsic difficulty of the question. Enough has been cited to shew that the jurisdiction is fairly applicable to the case before the Court. While, however, no doubt is entertained of the jurisdiction, the Court is fully impressed with the xmportandf and necessity of an extremely guarded and cautious exercise of it. As men cannot by law part with their freeholds without deed, so Equity should follow the law as nearly as may be, and require complete and satisfactory proofs that a contract for the sale of land was deliberately made. There should be not only full evidence, but a decided preponderance in favor of the existence of the contract; affording to the mind a conviction not less satisfactory than that which arises from a contract in wiiting. Loose conversations, inadvertent assertions and inchoate agreements, ought to be carefully guarded *38against ; and where it is understood that a Court of Equity AY*11 no^ ^en<^ ^d eidbrcc a parol agreement, unless it be established by plenary evidence, a salutary caution will inspired in those, who, in good faith, make such contracts in future.

As to the second objection, though no day was fixed for the payment of the bonds, yet it was agreed that the complainant should pay at the fall: he consequently had until the last day of the fall to do so. As where a man is bound to pay money on a certain day, or in a certain year, he has to the last minute of the first, and the last minute of the last day of the last, to make the payment. The same rea-' son applies to a certain season. But if it were otherwise, as no objection was made on that ground when the bonds were tendered, it is to be intended that the days of payment were fixed according to the seller’s wish.

The substance of the decree agreed upon by the Courtis, that a reference bo made to the Master to compute the sums due by the contract, w7ith interest from the times they respectively became due, until a day to be prescribed by the Court of Equity for Chatham, for the payment of the money. That he also take an account of the rents and profits from the last day of November, 1811, when the complainant was to have been put into possession, until the aforesaid day ; which latter sums, when ascertained, are to be deducted from those due on the bonds ffand the residue, if any, is to be paid to the Defendant Bagley; upon which, Harris should be decreed to convey the land described in the bill, to the complainant, with covenants against his own incum-brances, and a covenant against all claiming under him ; in which deed Bagley should join and enter into a general warranty ; the deed to be approved of by the Master.

*

In making up the issues in this case, the allegation of the bill that the bonds had been executed and tendered, was omitted to be submitted to the jury. The case was amended in this Court by the counsel, by having the allegation of the bill as to the execution and tender of the bonds, admitted as true.

*

1 Maddock, 287.

†

Roberts on Frauds 2.

*

1 Fonb. 175,

†

Tothill 135.

‡

Ibid. 206, 228.