#### *Jarrett v. Johnson.

July Term, 1854.

Lewisburg.

Absent Allen and Daniel, Js.

1. Land — Joiiat Purchase — interest of Vendees.*—Where there is a joint purchase of land by two, to whom it is conveyed, and who give their bond for the purchase money :'in the absence of proof of any agreement between them to the contrary, they are entitled to the land in equal proportions.

2. Same—Same—Same—Case at Bar.—One of the purchasers having previously made a conditional contract for the purchase of the land, agreed in writing with the other, that if the contract was completed this other should have a specified part of the land ; but the contract was not completed. This agreement between the purchasers was then at an end. and cannot affect their rights under their joint purchase.

3. Same—Same—Same—Parol Evidence.—In such case of a joint purchase parol evidence is not admissible to prove an agreement between them for an unequal division of the land.

4. Same—Same—Partitions.†—In such a case the purchaser claiming to be entitled under an agreement between them, to the largest portion of the land, files a bill for a specific performance of the agreement, and for partition accordingly : Though he fails in this, the court may go on to make a partition according to the legal rights of the parties.

By an agreement under their hands and seals, between James McDowell of Rock-bridge and Barnabas Johnson, bearing date the 8th day of September 1849, McDowell contracted to sell to Johnson a tract of land containing about eight hundred acres, lying in the county of Monroe, upon the Greenbrier river and Wolf creek, for the sum of nine thousand dollars; to be paid one-third by the 10th of October 1849, and the balance in two equal annual payments, with interest from this last date. But it was provided that this agreement should not be absolute and conclusive upon either of them before the 1st of October 1849; up to which time each of them should have the right to ^withdraw from it, by giving to the other a written notice to that effect. But if McDowell withdrew from it because some higher price was offered him for the land, than that contracted to be given, he should in that case first offer the refusal of it to Johnson, before he should have the right to sell to any other person.

On the 26th of September 1849 an agreement, also under the seals of the parties, was entered into between Barnabas Johnson and James Jarrett, by which they agreed to divide the land that Johnson had conditionally purchased of McDowell. If Johnson should get the land, Jarrett was to have the river end of the land; the dividing line to be the middle of the turnpike commencing at the river near to Newman’s canal landing opposite the turn of the turnpike; thence with the turnpike through the land; and he was to pay his proportion of the purchase money according to the number of acres he should get.

Within the time prescribed in the agreement between McDowell and Johnson, McDowell declined to execute the contract, and gave notice thereof to Johnson; and he was not induced to this course by the offer of a better price for the land by any other person. Having declined to execute the contract with Johnson, McDowell, on the 15th of October 1849, executed a power of attorney, whereby he authorized Robert J. Taylor to investigate and settle, as he might think just, a certain claim or obligation in writing which James Jarrett alleged that he held upon McDowell for the sale to him, upon specified terms and conditions, of his land in Monroe county, on Greenbrier river and Wolf creek. And he also authorized his said attorney to enter into a written contract with said Jarrett, or with any other person, for the full and complete sale to him, or any of them, of the said land; upon certain terms as to the purchase money, which was not to be less than nine thousand *five hundred dollars. Taylor states, That in October 1849 he carried a letter from McDowell to Jarrett, and told him that the land was up again for sale, and made to him a proposition for the sale of it to him; but he declined making any offer until Taylor had seen or was done with Mr. Johnson. That he went to see Johnson and made him several propositions; but he declined all the offers made to him. That the next day Jarrett, Johnson and himself all met on the land. Johnson was asked if he was done, and declared he had gone as far as he could go, in the conditional purchase he had made of McDowell. That several propositions then passed between Taylor and Jarrett, all of which were declined, and Jarrett said he was off. Jarrett and Johnson then held a private conference between *144them; and after it was over Johnson came up to Taylor and said that he and Jarrett would take the land at nine thousand five hundred dollars. This proposition was accepted ; and by am agreement bearing date the 20th day of October 1849, executed by the three, McDowell by his said attorney sold to Jarrett and Johnson the tract of land aforesaid for the sum of nine thousand five hundred dollars, for the deferred payments of which Jarrett and Johnson agreed to execute their bonds. And by deed bearing date the 5th of November 1849, McDowell conveyed the land to Johnson and Jarrett.

Immediately upon the purchase of the land there was a controversy between Johnson and Jarrett as to how the land should be divided between them: Johnson insisted that Jarrett was to have only that part lying north of the turnpike road, which he was to have under the first agreement between them; and Jarrett insisted that he was entitled to one-half of the land. In July 1850 Johnson instituted a suit in the Circuit court of Greenbrier county against Jarrett for a partition of the land. In his bill he set out his first *contract with McDowell and his agreement with Jarrett. And he stated that he proceeded to close his contract with McDowell through Taylor the agent of McDowell, by adding something to the price. That relying upon the agreement between himself and Jarrett, he took from McDowell a title bond binding him to convey the land jointly to Jarrett and himself. That he never dreamed of any o.ther partition than that indicated by the article between Jarrett and himself; nor did Jarrett utter a syllable to show that he looked to any other arrangement. But that notwithstanding all this Jarrett had taken possession of and held a part of the land which, by the terms of the agreement, was to be allotted to the plaintiff. That McDowell had conveyed the land to Jarrett and the plaintiff; but that though Jarrett is thus vested with an undivided moiety of the land, he must be considered as the owner of only that part of the land which under their written agreement he was to have, and as to all over that he held it in trust for the plaintiff. He asks for a partition of the land according to the agreement, an account of the profits, and for general relief.

Jarrett answered the bill. He insisted that Johnson’s conditional purchase of the land had been set aside. That afterwards McDowell had authorized Taylor to sell the land to the defendant or any other persons. That under this authority Taylor had sold to the plaintiff and defendant. He denied that the conditional contract between McDowell and Johnson had been carried into effect; or that the plaintiff made any purchase for himself; or that the agent of McDowell sold to him individually. He said that the plaintiff did not propose to purchase the land on his individual account; nor did he assert any right whatever to take the land for himself at the higher price demanded by McDowell. That the price of the land and terms of sale were adjusted by the agent of McDowell, the ^plaintiff and defendant; and that the purchase was a joint one in which the plaintiff and defendant had an equal interest, each entitled to a moiety. And he denied that there was anything in his language or conduct' which could induce the plaintiff to suppose that he regarded the written agreement between himself and the plaintiff as in force, or as regulating in any manner whatever their interest in the land purchased by them.

In October 1851 the court made an order directing Commissioner Cary, among other things, to ascertain and report to the court what was the agreement between the plaintiff and defendant in regard to the purchase of the land in controversy, and especially the interest which each was to have in said land. And the parties were directed to appear before the commissioner and answer upon oath such interrogatories as the commissioner should propound touching the question in controversy.

In November 1851 the plaintiff filed an amended and supplemental bill, in which he charged, that at the time the plaintiff and defendant were making the purchase of the land from Taylor, they held a conference, in which the defendant desired to have more land than he was to have under the agreement of the 26th of September 1849; he desired to run up to a ditch. That the plaintiff positively dissented from the proposition or to vary the said agreement in any way so as to let the defendant cross the turnpike. That with this understanding the parties went into the contract. That the plaintiff believed that he was to have the benefit of that agreement, or he would not have engaged in the purchase. That the defendant left plaintiff so to understand ; and he charges that if the defendant designed at the time to set up a claim to an equal moiety of the land, he suppressed and concealed his design, and was thereby guilty of a fraud, *knowing as he did, that the plaintiff understood him differently.

Jarrett answered, admitting the conference, but denying explicitly that he made the proposition as stated in the amended bill, or that he finally assented to the alleged dissent of the plaintiff; or that they went into the contract with the understanding that the land was to be divided by the turnpike as prescribed in the agreement aforesaid. He denied that he had said or done anything to excite any such belief or expectation on the part of the plaintiff; and alleged that on the contrary his language was explicit, and could have had no other effect than to lead the plaintiff to a directly opposite conclusion. That it was not true that he committed a fraud upon the plaintiff by suppressing his design to assert his claim to an equal moiety of the land; but that he distinctly informed the plaintiff that he would have half the land; and he stated to the plaintiff at their conference that the agreement aforesaid *145was no longer binding upon them ; and that they ought to agree upon a division of the land and reduce their agreement to writing. And he told the plaintiff expressly that if the defendant bound himself for the whole of the purchase money he would have half of the land.

The parties were examined on oath by the commissioner, but their statements differed as widely as did their allegations in the bill and answer. There were also many witnesses examined by both parties, among whom was the agent Taylor, whose statement is hereinbefore given. The commissioner reported that he was unable to state what was the agreement between the parties as to the division of the land; and .referred the question to the court; and returned with his report the evidence which had been taken before him.

It is impossible to state the evidence bearing on the question whether there was an agreement between ^Johnson and Jarrett at the time of their purchase of the land, as to how it should be divided between them. The only fact that is certain is, that from the moment of the sale they disputed as to how the land should be divided; Johnson insisting that Jarrett should be limited to the land north of the turnpike road, which he was to have had under their agreement of September 26th, 1849, and Jarrett insisting that he was entitled to more land. The nature of the evidence is referred to by Judge Moncure in his opinion.

The cause came on to be heard in May 1852, when the Circuit court sustained the pretensions of the plaintiff, and directed an enquiry to ascertain the portion of the purchase money which each should have paid. And from this decree Jarrett applied to this court for an appeal, which was allowed.

William Smith and Fry, for the appellant.

Price and Caperton, for the appellee.

*

Land—Joint Purchase—Interest of Vendees.—See principal case approved in Livesay v. Beard, 22 W. Va. 595.

†

Chancery Practice—Partition.—In Royston v. Miller, 76 Fed. Rep. 58, the court, citing among others the principal case, says : “In cases of equitable titles in suits for the partition of lands, it seems now to be the settled practice tor courts of equity to take jurisdiction of the whole matter or grant full relief.” On the subject of “Partition,” see *also, footnote*to Howery v. Helms. 20 Gratt. 1.

MONCURE, J.

Johnson and Jarrett contracted jointly for the purchase of the land in controversy. It was conveyed to them jointly, and they executed their joint and several bonds for the purchase money. They are, therefore, entitled to the land in .equal proportions, unless it can be shown that their relative rights have been changed by some valid agreement or other transaction between them. It is contended, in behalf of the appellee Johnson, that they have been so changed. And

First. It is contended that the agreement of the 26th of September 1849 is still in force, and that the land should be divided accordinglj'. That agreement depended entirely upon the contract between McDowell and Johnson of the 8th of September 1849. By the express terms of that contract it was not to be absolute and conclusive upon either of the contracting *parties before the first of October 1849; up to which time either had the right to withdraw from it, by giving the other a written notice to that effect. McDowell did withdraw from it, and the contract was then at an end. It is true there was a stipulation in it, that if McDowell should withdraw because of some higher price being offered to him for the land, he should in that case offer the refusal of it to Johnson before he should have the right to sell it to any other person. But it is not pretended that he -withdrew from the contract for that cause. The said agreement, being dependent on the said contract, ceased to have any effect when the latter ceased to have effect; which was oil or before the first of October 1849. After that daj', McDowell was at liberty to sell the land without being affected by the contract; and Johnson and Jarrett were at liberty to purchase it, jointly or severally, without being affected by the agreement. Accordingly, on the 15th of October 1849, McDowell empowered Taylor to contract with Jarrett or any other person for the sale of the land. On the 19th of the same month Taylor, Johnson and Jarrett met upon the land; and Taylor endeavored to effect a sale, first to one and then to the other. After several propositions had been made, each declined to purchase. They then held a private conference and concluded to purchase jointly at the price of nine thousand five hundred dollars, being five hundred dollars more than the price which had been stipulated for in the said conditional contract between Johnson and McDowell, and on the next day the joint contract was executed. If Johnson or Jarrett had severally purchased the land, the one so purchasing would have been entitled to the whole in exclusion of the other. Having purchased it jointly, they are entitled to it equally; notwithstanding the agreement of the 26th of September 1849. But

Secondly. It is contended that even if that agreement, *proprio vigore, be not still in force, yet Johnson and Jarrett made the joint purchase with an express or tacit understanding that the land should be divided in the manner and on the terms prescribed by the said agreement ; and that this understanding, though by parol, is binding on the parties.

If there had been such an understanding, I think it would have been void by the statute of frauds and perjuries. Henderson v. Hudson, 1 Munf. 510; Parker’s heirs v. Bodley, 4 Bibb’s R. 102; Davis v. Symonds, 1 Cox’s Cas. 402. There is a well settled distinction, in regard to the admission of parol evidence; between seeking, and resisting, the specific performance of an agreement. A suit for specific performance is addressed to the sound discretion of the court, upon all the circumstances. And any evidence which shows that it would be inequitable to enforce the agreement as stated in the bill, is admissible as matter of defence. As was well said in the case of Osborn v. Phelps, 19 Conn. R. 63, 73, “It was not the object of the statute to give any greater efficacy to written contracts *146for the sale of lands than they possessed at the common law; but merely to require such contracts to be made in writing, in order to lay the foundation of a suit at law or in equity.” Or, as Hord Redesdale expresses the same idea in Clinan v. Cooke, 1 Sch. & Lef. 39, “The statute does not say that a written agreement shall bind, but that an unwritten agreement shall not bind.” When parol evidence is offered in resistance of a suit for specific performance, it does not contravene the statute; and though it may contravene the rule of law which forbids the introduction of parol evidence to vary a written agreement, it may sometimes be admissible on account of the peculiar nature of the suit. But when it is offered in support of such a suit, it generally contravenes the statute, and is rarely admissible. For the doctrine on this subject I *need only refer to the case of Woollam v. Hearn, and the notes thereto appended in Hare & Wallace’s edition of White & Tudor’s Heading Cases in Equity, published in the Law Library, vol. 71, p. 540, 596. There are some exceptions to the general rule excluding parol evidence in support of a suit for specific performance, but it is unnecessary to enumerate them, as they do not embrace this case. The cases of Ross v. Norvell, 1 Wash. 14, and the Bank of the United States v. Carrington, 7 Leigh 566, cited by the counsel for the appellee, fall within the exceptions; the former being the case of an absolute deed intended to operate as a mortgage, and the latter a case of resulting trust. The case of Ambler & wife v. Norton, 4 Hen. & Munf. 23, also cited by the counsel, depended on the construction of the word “averment,” in our statute concerning dower, and does not affect this case. This being a suit for’ specific performance, falling under the general rule, and not within any of the exceptions to it, parol evidence is therefore inadmissible to prove the agreement, or any part of it.

But suppose the evidence were admissible ; does it prove that there was any such understanding between the parties? Jarrett, in his answer, positively denies that there was; and on the contrary avers that when the purchase was made he distinctly informed Johnson that he would have a moiety of the land. The evidence does not overthrow, nor contradict,, but rather tends to sustain, the answer. No witness testifies to any such understanding. The evidence relied on to prove it consists entirely of mere repetition of oral statements; which kind of evidence, as has been well said, “is subject to much imperfection and mistake ; the party himself either being misinformed, or not having clearly expressed his own meaning, or the witness having misunderstood him. It frequently happens also that the witness, by unintentionally altering *a few of the expressions really used, gives an effect to the statement completely at variance with what the partjr actually did say." Greenl. on Evi. § 200. The remarks of Judge Fleming on the evidence . in the case of Henderson v. Hudson, before cited, are strongly applicable to this case; and he concludes them bjr saying, “Such evidence as this (were the statute of frauds and perjuries out of the way) is in my mind too slight and feeble to deprive any one of his freehold and inheritance, or any part thereof.” Three witnesses were introduced and relied on by Johnson to prove the alleged understanding, viz: Hinchman, Hines and Humphreys, not one of whom was present at the time of the joint purchase, and all of whom testify only to admissions said to have been made by Jarrett some time thereafter. On the other hand, three of the witnesses introduced by Jarrett, to wit, Ellis, Burdett, and Taylor the agent of McDowell, were present when the joint purchase was made, and heard nothing of any such understanding. Without reviewing the testimony of the different witnesses, suffice it to say, that on the most favorable view of the evidence which can be taken for Johnson, it shows that no agreement was ever made in regard to the division of the land between him and Jarrett, except the agreement of the 26th of September 1849, which expired by its terms as aforesaid; that they made the joint purchase without coming to any understanding about the division ; Johnson insisting that Jarrett should have no more of the land than that agreement would have given him, and Jarrett insisting that he would have more, or a moiety of the land; and that their subsequent acts and declarations have been entirely consistent with this view of the manner in which the3' made the purchase. In this state of the case, whatever may have been the expectation of the parties, they must stand upon their legal rights under the *joint purchase, and each is entitled to an individed moiety of the land.

Thirdly and lastly. It is contended that Johnson entered into the joint contract with the expectation that the land would be divided in the manner indicated by the agreement of the 26th of September 1849; and that Jarrett knew that fact, and did not inform Johnson of his intention to claim any more of the land than that agreement would have given him; which was a fraud on the part of Jarrett, who can take no advantage of it, but must make good the expectation of Johnson. The doctrine referred to in Roberts on Frauds 130, and Roberts on Conveyances 529, is relied on to support this position. But it is unnecessary to investigate this doctrine, or to enquire whether, if the facts were as stated in the proposition, Johnson would be entitled to the relief which he claims? Fraud is positively denied by the answer, and is wholly unsustained by the evidence. The only testimony tending in any way to prove it is that of Hinchman relating to some admissions said to have been made by Jarrett some time after the joint purchase ; and this would be altogether too vague and indefinite to establish so grave a charge, even if it were undenied by the *147answer. The charge is improbable in itself, and inconsistent with the other testimony in the cause, as I have already sufficiently shown.

The views I have taken of this case render it unnecessary to express any opinion on the questions referred to in the argument, as to the propriety of allowing the amended bill to be filed, and of making the order of the 22d of October 1851, and of the proceedings under that order. Giving the appellee the full benefit of all these proceedings, my conclusion is that the decree is erroneous and ought to be reversed with costs; and the cause remanded, in order that there may be an equal division of the land between the parties, and '"'that the payments respectively made by them of the purchase money, if unequal, and their receipt of the rents and profits, may be equalized. I had some doubt whether, as the bill only seeks the specific performance of an alleged agreement, and has not been sustained in that respect, it ought not to be dismissed with costs, without prejudice to another bill for the equal division of the land. That course was pursued by Sir William Grant in a somewhat similar case. Woollam v. Hearn, 1 Ves. jr. 211. But as the object of the parties is to have the land divided according to their rights, which can as well be done in this suit as another, it will be for the benefit of both of them to remand the cause for further proceedings, as before indicated. But at all events the costs occasioned by the assertion of the claim of the appellee to an unequal division of the land should be paid by him.

LEE and SAMUELS, Js., concurred in the opinion of Moncure, J.

Decree reversed.