#### *Frances Cox*vs. *Peter Cox.*

Defendant agreed, by parol, with H. 0., his brother, who was infirm, and whose land was about to be sold at sheriff’s sale, to purchase the land for the accommodation of his brother, and to secure a home to his helpless family, and, when it suited him to refund the money, he should have the benefit of what was dono: defendant announced the agreement at the sale, bid off the land for a nominal price, and paid the bid: H. 0. remained in possession until his death, and then the defendant took a sheriff’s deed for the land, and brought an action at law to dispossess the plaintiff, the widow and heir of H. 0.:— *Held)*that defendant’s conduct was fraudulent, and that he could not avail himself of the statute of frauds to defeat the plaintiff’s claim to have the sheriff’s deed cancel-led. *(a)*

*Before*Dunkin, Ch., *at Horry, February,*1852.’

DuNKiht, Ch. This was an application for an injunction to stay proceedings at law, in an action of trespass to try title.

The facts, which for the purposes of this motion, are assumed to exist, are substantially these :

Herman Cox, deceased, the husband of the complainant, and the brother of the defendant, was, in his life time, seized and possessed of two tracts of land, one called Cox’s Ferry, with about twelve hundred acres attached to it, and the other called Savannah Bluff. Being embarrassed in his pecuniary affairs, both these tracts of land were advertised for sale by the sheriff of Horry district, for October sales, 1842. It is charged, that the defendant attended the sale with his brother, Herman Cox, deceased, and announced to the bystanders, that “he was desirous of purchasing the plantation, called Cox’s Ferry, for the benefit and accommodation of the said Herman, and a home for him and his family, which was then helpless, and he, the said Herman, infirm ; and that he desired no benefit to himself in said purchase, but that as soon as the said Herman refunded him the purchase money, he should have the said plantation absolutely, all of which he had promised the said Herman; who assented thereto.” That Herman, and all others, believed *366the declaration to be made in good faith, and the land was knocked off to the defendant at fifty dollars, being less than one-tenth the value thereof. These allegations are very well sustained; and the affiant, Benjamin E. Sessions, moreover states, that in January, 1844, the defendant told him that he had bought the land called Cox’s Ferry, as well as another tract called Savannah Bluff, on sale day in October previous, for Herman’s benefit. The latter tract was knocked off to him for ninety-three dollars, and Herman had agreed to sell this tract to the affiant for four' hundred dollars. The defendant told Sessions that he recognized this transaction, and at first gave him a bond to make titles, but there was some dispute with the person in possession, and the defendant made a quit claim to Herman, who sued for the land, and then sold it to Sessions for four hundred dollars, the money being paid to Herman, or to his agent. At the time of the sale, in October, 1842, Herman Cox and his family were residing on the Cox’s Ferry tract, where he continued to reside until his decease, some five years afterwards, (1847.) In the meantime, as it is alleged, the defendant had taken no title from the sheriff of the Cox’s .Ferry tract.

The statement of the Rev, James L. Belin is important, not only from his excellent character, but from the position which he occupied towards the parties, and the distinctness of his narrative.

Herman Cox being in infirm health, as well as involved in pecuniary difficulties, Mr. Belin, early in 1844, undertook to act as his attorney in fact, in discharging his debts. Herman Cox gave him a memorandum of his liabilities, and among othei^ requested him to refund his brother, Peter Cox, (the defendant,) the money which he had paid to the sheriff of Horry district for his plantation at Cox’s Ferry, which had been purchased by Peter at sheriff’s sale, for his accommodation, for some fifty-odd dollars. A few days afterwards, Mr. Belin met the defendant, and had a free and full conversation with him on the subject; on which occasion, the defendant confirmed what his brother *367Herman had stated, and told Mr. Belin, that he would make Herman Cox titles to the land as soon as the money he had paid the sheriff was refunded ; and closed his remarks by saying, that “ what he had done was for the accommodation of his brother,”

Mr. Belin told him the amount should be refunded to him. Many of Herman Cox’s creditors were pressing him, and Mr. Belin inquired of the defendant, whether he was disposed to wait until they could refund at a more convenient time: and he agreed to do so. Mr. Belin says, that, when he was in funds for that purpose, he offered to pay the defendant what his brother was indebted to him. Perhaps this was after his brother’s death, for Mr. Belin says, the defendant refused, and claimed his brother’s whole estate, refusing to let his sister-in-law (the complainant) have any share of it. It seems that Herman Cox died intestate, and his heirs at law were his widow, (the complainant,) and his brother, (the defendant.)

*Josiah G.*Waller, was present at the sheriff sales in October, 1842, when Herman Cox’s lands, to wit, Savannah Bluff and the Cox’s Ferry tracts were sold; he heard the conversation between Herman Cox and the defendant. The defendant *“*was to bid off the lands of Herman Cox£ and when Herman paid him, he was to have the title.” He is certain this was well understood by the bystanders at the sale, as he thinks no other bid than that of the defendant was made. He says that Herman was much attached to the Cox’s Ferry tract, valued it highly, and would not have taken $1,000 for it. After the death of the complainant’s husband, in 1847, she still continued in pos-sesion of the Cox’s Ferry tract.

Some time in 1850, the defendant, it is alleged, attempted to take possession of a portion of the land, and did actually take possession, by cutting turpentine boxes and tending them, and that in March, 1851, he instituted an action of trespass to try title against the complainant, relying on a deed which he had obtained from the sheriff. The prayer of this bill is, that this deed may be set aside ; that the suit at law may be enjoined, *368and that a writ of partition may issue to divide the land between the complainant and the defendant, as the heirs at law of Herman Cox, deceased.

The defendant has interposed the plea of the statute of frauds, and on this ground, resists the motion for injunction. The case has been discussed, as if Peter Cox, the defendant, was the original owner of the land, which, in October, 1842, he agreed to sell to his brother, Herman Cox, for fifty dollars, and that this- is merely an attempt to enforce the performance of that parol agreement. But the land belonged, it is conceded, to the complainant’s intestate. The foundation of her bill is, that the defendant procured the title (if any he has) by fraud, and she seeks to set aside the conveyance thus fraudulently obtained-In October, 1842, Herman Cox was in possession of the premises, holding the same in fee. He valued them at $1,000, and they had a marketable value for the payment of his debts, or other purposes, of $500. He was in danger of being summarily dispossessed by a sheriff’s sale. Although the witnesses differ as to the words, the substance of the agreement with the defendant was, that, “ for the accommodation of his infirm brother, and to secure a home to his helpless family,” he would bid off the land, and pay the bid, by which the lien would be discharged; and that, when it suited his brother to refund the money, he should have the benefit of what had been done. This being declared to the bystanders, good feeling to Herman Cox and family, prevented competition, and the defendant became the nominal purchaser, at fifty dollars. It is charged, and it is assumed to be true, that this was a fraudulent contrivance on the part of the defendant to obtain his brother’s land for one-tenth of its value. That he continued the deceit and misrepresentation by his conduct, in taking no title, and by his repeated assurances to others-during his brother’s life time ; and that his!fraud was consummated by his subsequently obtaining the sheriff’s title, and attempting to dispossess his brother’s widow and heir. The complainant occupies the position of her husband. The ground of his claim to relief would be, that the legal title to his land *369had been obtained by his brother by fraud, and he would seek that the deed, thus fraudulently obtained, should be cancelled. *J.*This Court has often repeated, that’the statute of frauds should ; never be perverted into an instrument of fraud. Thus, in case/ of an agreement, such as the statute plainly declares void if not reduced to writing; yet, if this was omitted by fraud, the defendant would not be permitted to avail himself of the statute. In *Whitchurch*vs. *Bevis, 2*Bro. C.C. 565, Lord Thurlow says, “ if you *interpose the medium of fraud,*by which the agreement is prevented from being put in writing, I agree the statute is inapplicable.” See *Keith*vs. *Purvis,*4 Dess. 114.

The necessity of a prompt decision upon this motion is urgent, as the Court of Common Pleas for Horry district is at hand.

The Court has not been able to give to the subject the mature deliberation to which it is entitled, and will doubtless hereafter receive.

For the same reason, the Court has not .fully considered another aspect of the case. Assuming it to be a proceeding to carry into effect a parol agreement, the transactions in regard to Savannah Bluff may demand a fuller development.

It is ordered, that an injunction issue according to the prayer of the bill, until the hearing of the cause, and the further order of the Court thereon. ■

The defendant appealed on the ground :

Because it is submitted, that upon the case as made by complainant’s bill, his Honor, the Chancellor, should have sustained the defendant’s plea of the statute of frauds.

*Munro,*for appellant.

*Harllee,*contra.

(a)

 Vide *Kinard*vs. *Hiers,*3 Kich. Eq. 423.

*Per*Curiam.

This Court concur in the decree of the Chancellor, and the appeal is dismissed.

Dunkin, Dargan and Wardlaw, CC., concurring.

Johnston, Ch., absent at the hearing.

*Appeal dismissed.*