#### Parrill v. McKinley.

July Term, 1852,

Lewisburg.

(Absent Daniel and Lee,* Js.)

[58 Am. Dec. 212.]

1. Contracts — Exchange of Land — Statute of Frauds— Memorandum† — Case at Bar. — Upon a contract for the exchange of land, a deed executed by one of the parties, conveying his land to the other, though not delivered, is a sufficient memorandum in writing to bind the grantor, under the statute of frauds.

2, Parol Contracts — Exchange of Land — Part Performance‡ — Specific Execution.§ — A parol contract for the exchange of lands, partly executed by delivery of possession, and acts of ownership over the lands so received into possession, will be specifically enforced in equity.

3. Chancery Practice — Specific Performance — Amending Bill.ǁ — Bill being filed for the specific execution *18of a contract for the exchange of lands, if it appears in the progress of the canse that the defendant cannot comply with his contract, the plaintiff may amend his hill and ask for arescission of the contract, and for such other relief as under the circumstances he is entitled to.

This was a suit for the specific execution of a contract for the exchange of land, brought in December *1845, in the Circuit court of Harrison county, by William Parrill against William McKinley. The bill charged that in 1843 > the plaintiff owned a tract of land then in the county of Marion, but afterwards in the county of Taylor, containing about one hundred and seventy-five acfes, on which he resided. That in March 1843 he entered into a parol contract with the defendant who was his brother in law, for the exchange of said land for an undivided interest in a tract of land on Buffalo creek in the county of Harrison, owned by the defendant. By this contract the defendant was to convey to the plaintiff his interest in the land on Buffalo creek, and pay to William Rogers, from whom plaintiff had purchased his land, 300 dollars; and the plaintiff was .to convey to the defendant his land in the' county of Marion. That in pursuance of this contract, the plaintiff in June 1843 gave up his farm to the defendant, who took it into his care and custody; and he then residing in Lewis county, employed hands to change the fencing upon the farm to suit his fancy. That soon after the contract was made the defendánt went to Rogefs and obtained from him time for the payment to him of the 300 dollars; and afterwards, desiring to raise money, offered to sell the land.

The bill further stated that in July 1843 the defendant and the other heirs of his father caused a partition of their lands on Buffalo creek to be made; that a plat of the land was made with the name of the owner of each lot written thereon. That the defendant joined with the other heirs in making deeds according to the said partition; and one of the deeds so made and signed by the defendant was a deed executed by himself and the other heirs to the plaintiff, for the lot so laid off for the defendant. This deed bore date the 4th of August 1843, and was signed by the defendant on the 28th of that month, and was acknowledged by him before two ~ justices of the peace, and by them certified according *to the statute. That this deed was left with the defendant’s mother for some time, and whilst it was in her possession the plaintiff and defendant went to Taylor county and had the land surveyed, to enable the plaintiff to execute a conveyance of the land to the defendant.

The bill further charged that in December 1843 the plaintiff took possession of the land oh Buffalo creek, being ninety-seven and a half acres, and still held possession of it, under his contract with the defendant. That the defendant having failed to pay^ Rogers the sum of 300 dollars, Rogers filed a bill against him and the plaintiff to subject the land to the payment of it; and thereupon, the defendant, in order to prevent the execution of the contract between himself and the plaintiff, got possession of the deed he had executed, and then had it in his possession, and would not deliver it to the plaintiff. That Rogers had obtained a decree for the sale of the land, and, that one hundred acres of the tract sold by the plaintiff to the defendant, had been sold under that decree for 350 dollars. That the plaintiff had always been ready and willing to convey the land to the defendant, but had delayed doing so at the request of the defendant, who then refused to accept the deed.

The prayer of the bill was for a specific performance of the contract, and for general relief.

The defendant in his answer admitted that there had been some conversation between the plaintiff and himself in relation to the exchange of land; but he denied that any contract was made: That, as he always stated to the plaintiff, depended upon his being able to make certain arrangements. He denied that he was to put the plaintiff into possession of the Buffalo land except upon the contingency of the contract being completed: and if plaintiff took possession of if, it was against the express direction of the defendant. He denied that *the plaintiff had given to the defendant the possession of the land in Taylor county, in June 1843, or that defendant had taken possession of it, or employed hands to change the fencing upon the farm. He denied he had made any promise to pay to Rogers the sum of 300 dollars, except upon the contingency upon which the contract was to be made. He said that he ascertained that complainant had given a deed of trust upon a part of his land, for a considerable amount, and that another part of it was covered by an older title; and that in consequence thereof the land could not be sold except at a great sacrifice ; and respondent having failed in obtaining a decree in Wood county which *19he expected, he went to the complainant and informed him that his representations about the said lands were not to be relied on ; and that respondent would have nothing to do with him upon the subject of the exchange of lands.

The defendant admitted that there had been a partition of the Buffalo land. He said that when apprised that the partition was completed, he went from his residence in Lewis county to the house of his mother on Buffalo, for the purpose of receiving a deed for his portion, and executing deeds to the other heirs. When he arrived there he found the parties with the deeds prepared and justices ready to take their acknowledgments. That being in a hurry to return home he signed in haste the deeds which were presented to him, without enquiring in whose favor they were, and when he was done he enquired for his deed, and A. M. Patton who had written the deeds, replied, that at the instance of the complainant he had written the deed for the respondent’s share of the land to the complainant. That he then expressly and openly declared that the complainant was entitled to no such deed, and had he known it was thus written he would not have signed it; and that it must be altered. That Patton said it *would be inconvenient to prepare another at that time; and that respondent could keep the deed, and if he saw fit to deliver it to the complainant at a future time he could do so; and if not the heirs could make him another deed. That he then delivered the deed to his brother Albert, with express instructions not to deliver it to the complainant, but to retain it for the respondent. That said Albert did accordingly retain it for some time, and then gave it to the respondent. This deed was signed some time in August 1843, at which time complainant had full notice that respondent did not consider him entitled to it, or that there was any binding contract between them. No suit had been then instituted by Rogers for the payment of the purchase money due to him; nor had the complainant, by his own showing, any possession of the land claimed by him; but he took possession thereof in the December following. And he relied upon the act to prevent frauds and perjuries.

It appears from the proofs in the cause, that a parol contract was made by the plaintiff and the defendant for the exchange of their lands, and that the terms were such as are stated in the bill. The plaintiff left the land in Taylor county in possession of a tenant who seems to have been recognized by McKinley as in possession for him. He made a contract with this tenant by which the tenant was employed to change some of the fences and shut up a lane on the place. He offered more than once to sell the land; applied to Rogers and obtained from him further time in which to pay the balance of the purchase money due to Rogers from Parrill, and which he had undertaken to pay; and he was present when the la nd was surveyed, and marked one of the lines himself.

At the time that the contract for the exchange was made the Buffalo lands were not .divided. This was done in August 1843, in the absence of Wm. McKinley; *and the deeds were prepared by A. Patton, and were executed at the same time by the different parties, of whom, there were eight. It appears that McKinley did make some objection to the deed for his portion being made to Parrill; but the ground of the objection seems to have been, that Parrill had not made him a deed for the land in Taylor county; and the suggestion in which he acquiesced was that he could hold up the deed until Parrill had executed his. And the deed was accordingly left with his brother Albert McKinley, but was afterwards mislaid or lost out of his possession. Soon after the division, Parrill went upon the land which had been allotted to Wm. McKinley, built a house, and cleared and cultivated a part of it; and -was in possession when this suit was instituted.

In the progress of this cause, the copy of the record of a cause which had been brought in the Circuit court of Bewis county by Hambleton & Denham against Wm. McKinley and Philip Cox jr. was filed. This was a bill to subject the lands of the defendants to satisfy a judgment for 1,449 dollars 64 cents, with interest and costs, which the plaintiffs had recovered against the defendants in September 1841, but which was' not docketed in the county of Harrison-until February 1844. In this case there had been a decree for the sale of the land of Wm. McKinley ; and a sale of the land on Buffalo creek was made, and the sale was confirmed.

The cause came on to be heard in- June 1847, when the court dismissed the bill with costs. Whereupon Parrill applied to this court for an appeal, which was allowed.

Fry, for the appellant.

No counsel for the appellee.

*

Judge Lee had been counsel in the cause.

†

[Contracts — Sale of Land — Statute of Frauds — fleraorandum. — A vendor of land prepares a deed and signs it, which describes the land, and states the amount and times of payment of the purchase money. This deed is never delivered, but is retained and preserved by the vendor. Upon a bill by the vendee for a specific performance of the contract, *held,*the deed is a sufficient memorandum in writing of the contract, to satisfy the requirement of the statute of frauds and perjuries. Bowles v. Woodson, 6 Gratt. 78. See also, the principal case cited In Cecil v. Clark, 44 W. Va. 689, 30 S. E. Rep. 228.

‡

Parol Contracts — Sale of Land — Part Performance.— In Miller v. Lorentz, 39 W. Va. 172, 19 S. E. Rep. 395, itis said: “Our cases on the subj ect of part performance of verbal contracts for the sale of land have been quite numerous. In Gallagher v. Gallagher, 31 W. Va. 9, 5 S. E. Rep. 297, Judge Snydkb has clearly and accurately summed up the doctrine, and placed it on its true foundation of estoppel against the commission of a fraud by the vendor, such estoppel to be affirmatively enforced in a court of equity in favor of the vendee. See also, 2 Minor, Inst. 854; Wright v. Pucket, 22 Gratt. 370. I have been at some trouble in gathering up our cases on the subject. Some of them are very instructive. (See the many discussions by Judge Carr and ,Judge Tugker, who had been judges of the old chancery-court. I give them here for convenient reference.) Rose v. Nicholas (1794), Wythe R. 59; Rowton v. Rowton (1806), 1 Hen. & M. 92: Argenbright v. Campbell (1808), 3 Hen. & M. 144; Henderson v. Hudson (1810), 1 Munf. 510; Jackson v. Cutright (1817), 5 Munf. 308; Zane v. Zane (1819), 6 Munf. 406; Wilde v. Fox (1822), 1 Rand. (Va.) 165; Anthony v. Leftwich (1825), 3 Rand. (Va.) 238 (a leading case); Vail v. Nelson (1826), 4 Rand. (Va.) 478; Heth v. Wooldridge (1828), 6 Rand. (Va.) 605; Darlington v. McCoole, 1 Leigh 36; Payne v. Graves, 5 Leigh 561; Williams v. Lewis (1834), *Id.*686. See Pigg v. Corder, 12 Leigh 69; *Parrill v. McKinley, 9 Gratt. 1;*Patrick v. Horton, 3 W. Va. 23; Parrill v. McKinley, 6 W. Va. 67; Vickers v. Sisson, 10 W. Va. 12; Fleming v. Holt, 12 W. Va. 144; Tracy v. Tracy’s Heirs, 14 W. Va. 243; Baldenberg v. Warden, *Id.*397; Oil Co. v. Vinal, *Id.*639; Lorentz v. Lorentz, *Id.*761; Snyder v. Martin, 17 W. Va. 276; Pack v. Hansbarger, *Id.*313; Lydick v. Railroad Co., *Id.*427; Middleton v. Selby, 19 W. Va. 167; Campbell v. Fetterman's Heirs, 20 W. Va. 398; Renick v. Ludington, *Id.*513; Ballard v. Ballard, 25 W. Va. 470; Westfall v. Cottrills, 24 W. Va. 763; Steenrod’s Adm’r v. Railroad Co., 27 W. Va. 1; Kimmins v. Oldham, *Id.*258; Gallagher v. Gallagher. 31 W. Va. 9, 5 S. E. Rep. 297; Blankenship v. Spencer, 31 W. Va. 510, 7 S. E. Rep. 433; Frame v. Frame, 32 W. Va. 463, 9 S. E. Rep. 901; Boggs v. Bodkin, 32 W. Va. 566, 9 S. E. Rep. 891; Harrison v. Harrison, 36 W. Va. 556, 15 S. E. Rep. 87.”

As to what three things must concur in order to justify the court in granting specific performance of a parol contract for the sale of land, see Wright v. Pucket, 22 Gratt. 370, and *foot-note.*

§

Specific Performance — When Denied — Laches.—In Rison v. Newberry, 90 Va. 519, 18 S. E. Rep. 916, Lacy, J., in delivering the opinion of the court, said: “All application to courts to decree a specific performance must depend upon the circumstances, governed by the esta dished principles of the court. If specific performance would work injustice, or be unreasonable, a parly will be left to his action for damages. It is generally essential that a party seeking a specific performance should not have been backward; that he should not have held off until circumstances may have changed; or kept himself aloof so as to enforce or abandon the contract as events might prove most advantageous. The case of Chilhowie Iron Co. v. Gardiner, 79 Va. 305, is very much in point. S. V. Railroad Co. v. Lewis, 76 Va. 833; Haskin v. Agricultural Insurance Co., 78 Va. 700; Ferry v. Clarke, 77 Va. 397; 2 Lomax Dig., p. 108; *Parrill v. McKinley, 9 Gratt. 1;*Robertson v. Hogsheads, 3 Leigh 667; 1 Story Eq., sec. 693; Graybill v. Brugh, 89 Va. 895, 17 S. E. Rep. 558; Ford v. Euker, 86 Va. 79, 9 S. E. Rep. 500; Dunsmore v. Lyle, 87 Va. 391, 12 S. E. Rep. 610; Reynolds v. Necessary, 88 Va. 125, 13 S. E. Rep. 348; Grizzle v. Sutherland, 88 Va. 584, 14 S. E. Rep. 332; Nalle v. *V.*M. Railroad Co., 88 Va. 948, 14 S. E. Rep. 759; Story, Eq.Jur., sec. 716; 3 Pars. Cont. 301; 2 Tuck. Comm. 426.”

ǁ

Chancery Practice — Amending Bill. — As a general rule, a court of equity will, at any time before the hearing, grant leave to amend where the bill is defective as to the parties, or in the mistake or *18omission of any fact or circumstance connected with the substance of the bill, or not repugnant thereto. This amendment may be made by common order, before answer or demurrer, and afterwards by leave of the court. Holland v. Trotter, 22 Gratt. 139, citing the principal case; Mason v. Nelson, 11 Leigh 227; Stephenson v. Taverners, 9 Gratt. 398; Smith v. Smith, 4 Rand. 95; Boykin v. Smith, 3 Munf. 102; Sillings v. Bumgardner, 9 Gratt. 273.

Thus, while the plaintiff will not be permitted to make a new case, he may so alter the frame and structure of his bill as to obtain an entirely different relief from that asked for originally. Belton v. Apperson, 26 Gratt. 217, citing as authority the principal case, and Anthony v. Leftwich, 3 Rand. 238.

See the principal case also cited on the subject of Amended Bills in Ferry v. Clarke, 77 Va. 407; Shen., etc., R. Co. v. Dunlop, 86 Va. 353, 10 S. E. Rep. 239; Tennant v. Dunlop, 97 Va. 239, 33 S. E. Rep. 620; Randall v. Jaques, 20 Fed. Cas. 233. For further information on this subject, see monographic *note*on “Amended Bills” appended to Belton v. Apperson, 26 Gratt. 207.

ALLEN, J.,

delivered the opinion of the court.

The court is of opinion, that the contract of exchange *in the bill mentioned is fully proved by the evidence in the record; and having been executed by the delivery of possession and acts of ownership by each party over the parcels of land exchanged, there is proof of sufficient part performance to take the case out of the ojjeration of the statute. And the court is further of opinion, that the making of the deed and the signing and acknowledgment thereof by the appellee Wm. McKinley was a sufficient memorandum in writing according to the authority of Bowles v. Woodson, 6 Gratt. 78. The court is therefore of opinion, that upon the proofs in the record the appellant would have been entitled to a decree for a specific execution of the contract of exchange set forth in the bill. But it furthermore appearing by the records and proceedings in suits of Hambleton and Denham, and of Keith and Camp against the said McKinley and others, filed as exhibits, that all the lands of said Wm. Mc*20Kinley were bound by a judgment lien prior in date to the time of said contract for exchange, and that a decree was rendered for the sale of his lands, and the same or portions thereof, have been sold, the court upon the facts disclosed upon said exhibits, should have directed an enquiry to ascertain whether any title to the Buffalo land in the bill mentioned could be made to the appellant, and if not, to have authorized him to amend his bill and seek for a rescission of the contract, and for such other and further relief as under the circumstances he might show himself entitled to.

Decree reversed with costs; and the cause remanded to be proceeded in according to the principles above declared.