Chancery.

#### Bohannon *against*Pace and Rowland.

[Mr. Cates for appellant: Mr. Owsley for appellees.]

From the Circuit Court eor Calloway County.

*April*10.

That clause of the statute of fi-auds and perjuries which declares that no action shall be bro’t upon any contract for the sale of lands &c. unless the promise or agreement is in writing, was designed for the security of vendors & those claiming under them; not for the benefit of adversary claimants; when the vendor admits the agreement, and consents to abide by it, no other person can take advantage of the want of a writing.

When a preemptive right has once accrued to a settler west of the Tenn. river, it is not lost by his leaving the land, or transferring his right to another.

The settler is a necessary party to the bill of his assignee, to enforce his preemption.

Judge Ewing

delivered the Opinion of the Court.

Bohannon filed his bill against Pace and Rowland, asserting his preemptive right to a quarter section of land on the west of the Tennessee river, claiming under a purchase from Shearing, who was a *settler on*the quarter at and anterior to the passage of the act of the 20th of February, 1'835, *(Sess. Acts of*1834, 182.)

The defendants answer,. controverting his right, and relying upon the statute of frauds and perjuries; and his bill was dismissed.

The only question involved in the case, that has not been settled in the cases of *Johnson vs. Gresham,*and *Burgess vs. Tipton,*decided at the last *term, [5 Dana, 542,*540,] and *Harrison vs. Woodruff,*just decided, is the plea of the statute relied on- in- the defendants’ answer.

This statute was made for the protection and security of vendors, and those claiming under them, and not for adversary claimants. It provides, that “ no *action*shall be brought to *charge*any person, *upon any contract,*for the sale of lands, tenements, or hereditaments,” unless the contract shall be in writing.

The person *charged*upon such contract, may object to its enforcement. But if *he*confess the contract, and be willing to abide by its terms, no other has a right to object.

Shearing, who sold to the complainant, if brought before the Court, might affirm his contract, or raise no objection to its enforcement. Pace and Rowland, claiming adversely to the complainant’s claim, have no right to object, provided the final decree secures them against a reinvestigation of the same matter.

But as the sale of Shearing was of a mere *equity,not made assignable by*law, he was a proper party, and should have *195been brought before the Court, as well to enable him to resist the equity of the complainant, if he desire it, as to render conclusive, between the 'parties, the final decree in the case.

As, therefore, there seems to be merits in the complainant’s claim, the Court erred in dismissing his bill absolutely. We do not deem it necessary for the settler to continue on the land after his equity accrues.— The statute makes no such requisition. He had the preemptive privilege, for nine months, conferred upon him by the act, if he was-a settler on the land, with an improvement, at its passage.

The decree of the Circuit Court is reversed, and cause remanded, that time may be allowed the complainant to make Shearing a party, and bring him before the Court. Each party to pay their own costs in this Court.