#### NICHOLAS MASSEY *vs.*JAMES HOLLAND.

December 1842.

A„ being indebted to B., agreed by parol to sell to the latter his equitable interest in a tract of land, which B. was to re-scll, and, after retaining the amount due to him, was to pay to A, the surplus of price he might beyond such debt. A. accordingly conveyed, and B. re-sold at an advance, and then refused to account with A. for such advance. *Held*that this contract of B. was not one that came within the provisions of the act, Bev. Stat. c. 50, s. 8, making void parol contracts for the sale of lands.

The case of *Choate*v *Wright,*2 Dev. 289, cited and approved.

Appeal from the Superior Court of Law of Haywood County, at Spring- Term, 1842, his Honor Judge Bailey presiding.

This was an action of Assumpsit. The facts were, that the plaintiff was indebted to the defendant in the sum of one hundred dollars, and, being desirous of paying this debt, agreed with the defendant to sell him a tract of land — that the defendant agreed to re-sell the said land, and whatever he obtained for it over and above the' one hundred dollars as aforesaid, he promised to pay to the plaintiff. The defendant sold the land to one Ephraim Christopher, who gave him one hundred dollars in cash, with notes and surety for one hundred dollars more. The defendant sold the notes, so received from Christopher, before they were due and before this action was brought, and Christopher paid part of the notes before and part after this suit was brought. It was further in evidence that the plaintiff did not have a legal title to the said land, but a bond for title only — that he gave up •the bond to the defendant, and that the obligors in the bond made title to the defendant instead of to the plaintiff. The defendant’s counsel objected to the plaintiff’s recovery, first. *198l!Pori the ground that the contract was about land, and should have been reduced to writing, and that parol evidence could not be received, because it would^contradict the deed given to defendant: and secondly, that the action was premature, for the notes were not due at the time they were sold by the defendant. The court was of opinion this was not one of those contracts, which the law required to be reduced to writing j and instructed the jury, that the plaintiff was entitled to recover whatever the defendant received over and above one hundred dollars, and that there was evidence, if believed, from which they would have a right to infer that he received something.

The jury found a verdict for the plaintiff. A new trial was moved for and refused, and, judgment having been rendered according to the verdict, the defendant appealed.

*Francis*for the plaintiff.

No counsel for the defendant.

Gaston, J.

The court does not find any error in the instructions given to the jury. In the construction of the act of 1819, (Rev. Stat. e, 50, s. 8,) to avoid parol contracts for the sale of lands and slaves, it has been settled that the act has no effect upon executed contracts, but operates only to avoid every executory contract to sell or convey lands'or slaves, unless there be a written memorandum thereof, sigu-ed by the party sought to he charged thereby. *Choate*v *Wright,*2 Dev. 289. If a parol agreement be - made for the sale of a slave, neither party can'sue the other fora breach thereof. The vendor cannot sue for the price, nor the vendee for non-performance of the agreement to convey. But after a sale, completed by delivery .or otherwise, tlie vendor may sue for the purchase money, or the vendee, because the vendor has re-taken the slave. The plaintiff has not brought his action upon the agreement. He treats the agreement as having been executed, and claims the money, which, in consequence of the execution of that agreement, became due to him. The case states the facts to be, that the *199plaintiff, being the equitable owner of the land, agreed to sell it to the defendant, and the defendant engaged to it, and, retaining a part of the purchase-money to satisfy the debt which the plaintiff owed him, to pay over the residue to the plaintiff. Now if the *legal character*<¡f the agreement was for a sale and re-sale, such sale and re-sale have been effectually made. The sale of the plaintiff was completed by the conveyance of the title to the defendant by the plaintiff’s trustees, who had bound themselves to make title as they should be required by the plaintiff — and the re-sale was completed by the defendant’s conveyance. to the purchaser from him. It would be repugnant to the plainest principles of justice, to allow him to pocket that part of the purchase money, which was to be paid to the plaintiff as the consideration for his sale. But the *legal character*of the transaction would rather seem to be, notwithstanding the terms which the paities used, or the forms in which the transaction was conducted, that the defendant sold the plaintiff’s land for him, upon the agreement of the plaintiff that the defendant might deduct from the proceeds the amount of the debt due to himself. The delivery of the bond for title by the plaintiff to the defendant, and the conveyance to the defendant, by the plaintiff’s trustees, may fairly be regarded as but the means employed to enable the defendant to sell the plaintiff’s land. If this view can be sustained, then clearly all the money received by the defendant in consequence of this sale, over the sum which he liad a right to retain for his own demand, was money received for the use of the plaintiff

On the other point made, the only doubt was, whether the defendant had received the price of the land before suit was brought. This was a question of fact fit for the jury. There certainly was evidence tending to establish it, and the effect of that evidence was properly submitted to them.

.Pee Curiáis. Judgment affirmed.