#### *Wilde, &c. v. Fox, &c.

April, 1822.

Specific Execution — Parole Agreement for *Land.******— A parole agreement for land, followed by part performance, enforced in a court of canity.

This was an appeal from the Richmond chancery court.

John Fox and Maria his wife, (the latter of whom was daughter and devisee of Esme Smock deceased,) the said Fox as executor of Esme Smock, and Heathee Smock his widow, filed their bill in chancery against William Wilde and Thomas Watson. The case, as extracted from the *68original and amended bills, is, in substance, as follows: that Esme Smock, in his lifetime, being indebted to Miles Selden, gave him a mortgage on a tract of land near Richmond, called Fairfield, to secure the payment of the money: that Smock being unable to pay, the mortgage was foreclosed, and the land exposed to sale: that on the day of sale, William Wilde became the purchaser; an agreement having been previously made between him and Smock, that Wilde was to bid the amount to be raised under the decree, to have half the land, and to pay six thousand dollars for the said moiety; and the said Smock was to have the other half: that in consequence of this agreement being known, there was no bidder but the said Wilde: that since the death of the said Smock, the said ■Wilde has applied to the complainant Heathee, (who, he seemed to suppose, had a title to the half of Esme Smock,) and offered a like sum of six thousand dollars for her moiety; observing at the same time, that he had made the same offer to Esme Smock in his lifetime, but the conclusion of the bargain was prevented by Smock's death; and that he owed a balance on account of his purchase of the moiety, which he was then ready to pay: that after the purchase at the sale aforesaid, the said Esme Smock remained in possession of the said land, and accounted *with the said Wilde for his part of the rent, and afterwards determining to rent it out, the said Smock and Wilde advertized it to be rented, and Thomas Watson became their tenant: that no conveyance has yet been made by the commissioners under the decree, which delay is supposed to1 arise from the said agreement prior to the sale: that the complainants are ready and willing to carry the agreement into effect, between Smock and Wilde, either by getting the one half, and releasing any interest or claim to the other, upon receiving a like release from the said Wilde; or, if that is not the agreement, by paying whatever the court shall adjudge they ought to1 pay under the said agreement. They therefore pray, that the said Wilde may deliver up a moiety of the said land, or such greater quantity as the court shall adjudge them entitled to, and account for the profits in such manner as the court shall deem equitable.

The defendant Wilde, pleaded the statute of frauds and perjuries in bar of the claim of the complainants, because no note or memorandum in writing, containing the agreement set forth in the bill, was ever written or signed by him or by any other person for him. In answer to the bills, he says, that he attended the sale under the decree, for the purpose of bidding on his own account, he being desirous of purchasing the property; that there were several other bidders at the sale; that the said land was set up in separate lots, and the defendant became the purchaser on his own separate account of the first lot that was sold; that after this purchase, a conversation took place between the defendant and Smock, when the defendant told Smock that he might be one half interested in his purchase, on his advancing half the purchase money; that the other part of the land was then set up, and the defendant became the purchaser thereof; that Smock being unable to pay one moiety of the purchase money, an agreement was entered into between him and the defendant, that the latter should become the purchaser of *Smock’s part, at the price of six thousand dollars, out of which was to be deducted the moiety of the purchase money paid by the defendant, and the balance was to be paid to the said *Smock;*that this contract would have been immediately carried into effect, but for a question that was started, respecting the right of dower of the said Smock’s wife; and before this difficulty could be removed, Smock died, which prevented the complete execution of the contract, on the part of the defendant; that Smock continued in possession after the purchase, as the defendant was unwilling to turn him out by force, and being willing that he should have a moiety of the land, on re-paying him a moiety of the purchase money with interest; in which event, Smock was to allow rent at the rate of one thousand dollars for the whole;_ that there never has been any writing signed by the defendant, in relation to any rent of the said property, received or paid by the said Smock.

The answer of Thomas Watson admits, that he is still in possession of the land in question, under a contract with the defendant Wilde, and considers himself bound to him only for the rent, and submits to such decree as the court may think proper to make in the premises.

Depositions were taken, going to establish the nature of the parole agreement between Smock and Wilde, and to prove declarations of the parties, respecting it. But, the most important exhibit is a receipt from Wilde to Smock, dated the 1st of June 1811, for one hundred dollars, expressed to be in full for one quarter’s rent of Wilde’s part of Fairfield, ending on the ISth of May preceding. This receipt is signed “William Wilde.” Smock is admitted to have continued in possession of the land for some time after the sale under the decree.

The chancellor decreed, “that it is not competent to the said Wilde, to oppose the act against frauds and perjuries, to the execution of the parole agreement made with the said Smock, in his lifetime, for the land in the *bill mentioned, and at the same time, to insist upon the benefit of a like agreement with the said Smock, for the same land, which, in fact, on the part of the said Wilde, is asking the performance of the first agreement, the execution whereof, in part, by the parties thereto, is proved, by leaving Smock in possession of the land, and afterwards receiving and receipting of him for one hundred dollars in full of a quarter’s rent due to the said Wilde, on account of their said agreement; and now to allow Wilde, to refuse a performance of that agreement, by any construction of the act for the prevention of frauds and *69perjuries, when most clearly it was designed against both.” lie therefore decreed, that upon payment by the plaintiff i'ox to the defendant Wilde, or in case of liis refusal to receive the same, upon placing to his credit in the Bank of Virginia, one half of the purchase money, paid by the said defendant Wilde, for the Fairfield tract of land, in the bill and proceedings mentioned, at the sale thereof made by the commissioners of this court, in pursuance of the decree in the suit Selden against Smock, an exemplification of the record of which suit is amongst the exhibits aforesaid, after deducting therefrom one half oí the rents and profits of the said tract, from the time that the said Thomas Watson became the tenant thereof, and also the amount of so much money as was left with the said Wilde, by the commissioners of sale under Selden’s mortgage, for the benefit of the said plaintiff Maria, as well as any surplus due to the said Smock and left in the hands of the said Wilde, by the said commissioners, with interest on these sums respectively, that the said defendant Wilde do, by a good and sufficient deed, release to the plaintiff Heathee, the widow and relict of Esme Smock deceased, for her natural life, one third of a moiety of the said Fairfield tract of land, and the inheritance of the said third and residue of the said moiety, to the plaintiff Maria the devisee and heiress *of the said Esme, subject to the said John Fox, for so much of the purchase money advanced by him as aforesaid: and that the said plaintiffs John Fox and Maria his wife, Flo thereupon, by like good and sufficient deed, release to the said Wilde, all claims upon the other moiety of the said tract. And the court doth further order an account to be taken by one of the commissioners of the court of the sum decreed to the said Wilde as aforesaid, as also of the rents and profits of the said Fairfield estate, from the period aforesaid, who is directed to examine, state and report the same to the court, with any matters specially stated, deemed pertinent by himself, or which may be required to be so stated.”

From this decree, Wilde appealed.

The case was argued in this court by Wickham for the appellant, and W. Hay, jun. and Eeigh for the appellees.

For the appellant it was contended, that the statute of frauds afforded a complete bar to the claim of Fox; and the case of Henderson v. Hudson(a) was cited in support of this position. The plea of the statute of frauds is not overruled by the answer, where the statute is expressly relied on.(b) In this case there was no part performance. Smock was originally in possession, and merely continued that possession after the sale. He remained merely by the permission of Wilde, who did not think proper to turn him out. The rule is, that unless the act alledged to be in part performance," is clearly in execution of the parole agreement, it will not take the case out of the statute of frauds, (c) But, if the statute does not afford the appellant protection, the second agreement, stated in the answer, is established by the evidence, and is the one *which ought to be enforced. It is at least competent to. rebut the claim of the appellees, although it may not be sufficient to establish a new contract in favor of the appellant, (d) A defendant may set aside or modify even a written agreement by a parole contract. A fortiori, one parole contract may rescind another.(e)

The counsel for the appellees contended, that the agreement set forth in the amended bill was distinctly admitted by Wilde, and clearly proved by the evidence. The plea of the statute of frauds was properly over-ruled, because the agreement was in part performed. The rule in such cases is, that the plaintiff, after shewing the act of part performance, may go on to prove the agreement, either by the confession of the defendant, or by evidence aliunde, (f) Possession under the contract and which can be referred to nothing else, has ever been held, to be a sufficient act of part performance. Such was the possession of Smock. It is proved, that after the sale, he remained in possession of the whole tract, and paid Wilde for a moiety of it, *only; an act*which is utterly inconsistent with Wilde’s ownership of the whole tract. That he was originally in possession at the time of the sale under the decree, is not material. Even the possession of a tenant who makes a parole contract for a new lease, by which he pays additional rent, and who holds over at the expiration of his old term, has been held a sufficient act of part performance, (g)

The subsequent agreement admits the first under which Fox claims, and has for its basis a right in Smock to a moiety of the land; and if it be not such a one as a court of equity will execute, there is an end of the cause. It was not of that character. It was a new and substantive agreement by parole, in execution of which no act was performed. It is true, that a defendant is, in some *respects, in a better situation than a plaintiff, in a bill for the specific execution of a contract, as *to the*admissibility of parole evidence. An agreement may be abandoned by the parties: therefore, a defendant may shew a parole agreement to that effect, by which there is a complete dissolution of the contract, restoring the parties to their former situation. He may also, to rebut the plaintiffs’ equity, shew fraud, surprise, mistake. But, whenever a new and substantive agreement, as in this case, is set up in bar to the execution of one in writing, or what is equivalent, of one which has been in part performed, which is not intended as a dissolution or abandonment of the first, but which is founded upon it, as a subsisting, valid agreement, it will not be a bar, unless it be such a contract, as a court of equity would execute, if the defendant *70were a plaintiff asking its aid. (h) Such was the case of Legal and Miller cited by-Mr. Wickham. The other authorities cited by him, will be found on examination, to fall within some of the exceptions above stated, as to the admissibility of parole evidence.

As to the alledged variance between the contract set forth and that proved, it may be admitted that there is some want of precision in this respect. But the objection is a merely formal one, which the court always strives to get over. It is sufficient if the contract be substantially proved as laid, which has been done in this case.

Wickham replied.

*

*i'oot-note.*to Parrill v. McKinley, 9 Gratt. 1, contains an extract from Miller v. Lorentz, 39 W. Va. 172, 19 S. E. Rep. 395, in which the Virginia and West Virginia cases on the subject of part performance of parol contracts for sale of land are collected: among others, the principal case is cited.

(a)

 1 Mun. 510.

(b)

 6 Vez. jun. 89. Couth v. Jackson; 12 Vez. jun. 466; Sugd. 68. 69.

(c)

 Sugd. 78, 74; 1 Set. & Lefr. 22.

(d)

 7 Vez. jun. 21!, Newland on contracts. 209.

(e)

 2 Vez. sen. 299.

(f)

 1 Fonb. 172, Rowton v. Rowton; 1 H. & M. 99, Judge Roane’s opinion.

(g)

 Wills v. Straddling, 3 Vez. jun. 878.

(h)

 Price v. Dyer, 17 Vez. jr. 356.

JUDGE BROOKE*

delivered the opinion of the court, that the decree of the chancellor should be affirmed.

*

Jtjdge Roane, absent from indisposition.