[Present, Chancellors Rutledge, Marshall and James.]

#### Philip Givens and wife, *vs.*Henry Calder.

A parol agreement for the sale of land will not be decreed specifically against the heir of the vendor, though he had given instructions in writing, stating the terms, to an attorney to draw the deeds of conveyance.

The deeds were drawn, and the vendor took them home and wrote to the vendee that the deeds were ready, and requested her to attend and settle the business, but he died before the parties met. This is not such an agreement in writing as will take the case out of the statute of frauds

The person contracting to purchase, having deposited part of the purchase money with her agent to pay the vendor as soon as he exe-*172cnted the deeds, and the i.gen.t informing the vendor ofit, is not such a part *perform-..nee*as takes the c.-se out ofthe statute.

JULY, 1803.

Nordoes the purc!i..ser L.king possession of the land, without any known permission of the vendor, make such part performance.

The defendant may have the benefit of the statute without pleading it.

THIS was a bill for the specific performance of a contract for a tract of land alleged to have been made *by*the complainant Philip Givens, as the agent of the late Mrs. Agnes Kelsal, with. Dr. Calder, since deceased.

The bill charged that Dr. William Calder of Edisto Island, being possessed of a tract of land in fee, in Prince William’s Parish, containing 818 acres, bounded north-wardly by lands belonging to the heirs of John Kelsal, deceased; westwardly, by lands of Ann Kelsal, deceased; southwardly, by a creek, separating Coosaw Island, and eastwardly, by lands called Kean’s Neck; and being desirous to sell said tract, complainant, as agent for Mrs. Ann Kelsal, abo,ut July, 1F97, (after frequent meetings for tliat purpose) agreed with said William Calder for Mrs. Kel-sal, to purchase the said land on the following conditions, viz. That she, Ann Kelsal, should pay for said tract 20 shillings per acre, in the following manner, i. e. 218/. cash, and the remainder in 1, 2 and 3 years from the date of *the*purchase: That for securing the said remainder, the said Ann Kelsal should execute bonds to that amount, and also a mortgage of the said land to said William Calder, who promised complainant to go to Charleston and have the deeds of conveyance of said land, and also the bonds and mortgages aforesaid, dra%vn, an,d conveyances executed by him, and deposit them all in the hands of Mr. John Rhodes, merchant, in Beaufort, to be delivered by him to Mrs. Kelsal or agent, whensoever she should have paid the sum of 218/. aforesaid, and execute the bonds and mortgage for the remainder. That in pursuance of this agreement, complainant as agent for Mrs. Kelsal, inform-. ed the said William Calder that the sum of 218/. was in Mr. Rhodes’s possession, who had been directed "to remit *173St to Mr. Bold, merchant in Charleston, there to be subject to the said William Calder’s order, when he should have delivered the said conveyances to said Ann Kelsal. To this proposal, William Calder assented, and further agreed that said Mrs. Kelsal should take possession of said land, and prepare for the next crop if she thought proper. That Mrs. Kelsal entered on said land without hindrance *•, and*that William Calder shortly after went to Charleston, where he directed an attorney to draw the conveyances and three bonds for 200/. each, being the remainder of the purchase money, and a mortgage, &c. securing the pay-, xnent of the same. That said Calder survived his return from Charleston but a few days, dying intestate, and with the deeds and mortgage aforesaid in his possession.

That said Ann Kelsal died in the month of January, leaving valid her will, wherein after other devises and bequests, she* gave, devised, and bequeathed all the remainder of her estates, real and personal, not before disposed of, to the complainant Sarah Givens, who was her niece, for the term of her natural life, and at her death to her issue, by Philip Givens. That complainant entered on said land as a part of the residuary estate, and now possesses it.

Bill further states, that complainant has long since paid the whole amount of the said purchase to Mr. Bold, to be paid to the representatives of said William Calder, when conveyances should be made by them to the devi-sees of said Ann Kelsal.

That one Henry Calder, the brother and pretended heir to said William Calder, hath since claimed said land. — ■ Complainant , having always been ready to perform the testatrix’s part of the aforesaid agreement, and having paid the purchase money to Mr. Bold as aforesaid, wishes to procure good titles from Henry Calder, the brother and pretended heir aforesaid ; but said Henry refuses to do it, alleging untruly, that his brother made no such agreement : that said H. Calder has applied to some gentlemen of th.e bar to issue a writ of ejectment to remove complainants from said land.

*174Bill prays that said Henry Calder may be compelled to answer particularly, whether he did ■ not know of such agreement, of the térms thereof, and of Mrs. Kelsal’s possessing; said land in conformity thereto ? Whether he did not find among his brothers papers, the conveyances spoken of here, the bonds and mortgage aforesaid, prepared for execution j and whether the purchase money of the said land hath not been offered him by complainant i Whe--ther he hath not been requested to execute the conveyances of said land, and perform said agreement ? Whether he hath not refused to do so, and for what reasons.

The bill prays that the said Henry Calder may be decreed to a specific performance of the said agreement ; and that complainants may continue in possession of the land, uninterrupted by the said Henry Calder.

The defendant Henry put in an answer to the bill.

The answer admits that Wm. Calder of Edisto owned the property described in *bill;*states that defendant is .entirely ignorant of all agreements made by said W. Calder and Mrs. Kelsal’s agent, and of the arrangements made for compleating the same. He therefore cannot admit the charges in bill, relative thereto. That said agreement stated in bill having been verbal, is void by the statute, 29th Chs. 2d, Chap. 3, of force in this state. That defendant is also ignorant of the agreement of said W, Calder, that Mrs. Kelsal should enter on and prepare said land for the next crop, and of her having entered thereon without hindrance.

That defendant has been informed that neither Mrs. Kelsal nor her agent entered on said land until some considerable time after said W. Calder’s *death;*and even then without the knowledge of his heirs or representatives, and therefore that said entry is only an act of trespass. That defendant knows nothing of said W. Calders having gone to Charleston for the purpose of procuring said titles, bond and mortgage mentioned in bill, and cannot admit that he did; but admits that he went to town in August, *175returned to Edisto, and then died of a fever very shortly after. That said W. Calder mentioned on his way to Charleston,, at the time above mentioned, that he was in 7 # *t*treaty with another person for said land, and if he did not decline, should have it.

Admits that defendant on his return from Scotland, found a number of blank papers, and among them deeds entirely unexecuted in his brothers possession, which he never even read, considering them useless. They were with other waste paper destroyed. That if they are to be produced as binding on defendant when he has no legal hold on complainants, then he must be at their mercy, and the terms must be their own. That Mrs. Kelsal died, as is stated in bill, and that the exhibit filed, is a copy of her will. Defendant thinks that a claim made under the residuary devising clause of a will, executed before the time it is said such purchase was made, is not maintainable *;*that from the circumstances mentioned, complainants claim should not be aided. That defendants cannot admit the asserted deposit of the amount of the purchase money with Mr. Bold to pay for said land, when proper conveyances should be made for it. Defendant denies that said money was ever tendered to him, or that they ever offered to fulfil their contract, until a considerable time after his arrival in this *country;*although the lands increased daily in value. That defendant, as an heir and brother of said William, has powers of attorney from the other heirs.— That he has administered on the personal estate of his brother who died intestate, and without issue. Admits that finding said Givens in possession of his land, he has bro’t an action at law to eject and recover damages against him. That said Givens applied to defendant for titles a length of time after defendants arrival here, under pretence of the said parol agreements, which defendant declines doing for the reasons before mentioned.

Denies all combination, &c.

The cause came to a hearing, and the evidence was gone into, and an argument ensued. But the complainant’s *176counsel being prevented by the court from giving any evidence of the contents of a letter .from Dr. Calder to Mr. GivenSi* which was alleged, but not proved to be lost, the complainants were suffered to withdraw the cause, in order to file a supplemental bill, charging the defendant with having seen the said letter, and with having possession of the title deeds, drawn by order of D. Calder, though not executed.

The complainant accordingly filed a supplemental bill, charging that the late Dr. Calder had, a short time before his death, written a letter to Mr. Givens, informing him that he had caused the deeds to be drawn to convey the lands he had sold him for Mrs. Kelsal, and requesting them to meet him to complete the business.

The bill also charged that the defendant, when he got possession of his brother D. Calder’s papers, had found among them the deeds drawn by his instructions for conveying said, lands to Mrs. Kelsal.

To the supplemental bill, the defendant put in his supplemental answer.

Answer admits that complainants filed their bill at the time mentioned in their supplemental bill, to which defendant filed an answer on the 30th day of September, 1801. — - Admits that complainants have since filed a supplemental bill, in answer to which defendant says : that after he arrived in this country, (in 1798,) the documents and papers'of' Dr. Calder were delivered to him, and he found among them the unexecuted deeds, bonds and mortgages, spoken of in the original answer: but solemnly declares he did not find among those papers any letters to or from Dr. Calder to Philip Givens, or Mrs. Kelsal, or to any other person relative to the lands in question : nor any memorandum or instruction in writing, except the unexecuted deeds, &c. aforesaid. That the knowledge of the letter from Dr. Calder to Philip Givens, defendant acquired from Givens *177himself under the following circumstances. On the death of Dr. Calder, defendant came to and arrived at Charleston in April, 1798. Soon after his arrival, defendant was at Fenwick’s Island where his brother’s negroes planted,. when P. Givens made himself known, -and informed defendant that there had been a treaty'on foot between Dr. Calder and himself, as agent for Mrs. Kelsal, for the purchase of the land which the doctor owned adjacent to her lands. P. Givens stated that the bargain had been nearly closed : that Dr. Calder had, by letter, invited him to settle the business, but the death of the doctor prevented the completion ; and Givens then presented to defendant .a copy of the letter which he believes was in the hand-writing of his brother, and was to the effect set forth by complainants. That P. Givens spoke at that time as of a bargain rendered incomplete by the death of the parties, and actually solicited defendant to sell- him the land : but defendant expressing a reluctance to do so, he solicited the refusal of it, and declared he had taken no possession of it.— That Givens so little valued the letter in question, that he offered to give it up, or a copy of it: upon which defen-. dant took a copy. Defendant knows not what has become of the letter, but supposes Givens being indifferent about thé matter, lost or destroyed it. That defendant hearing that Givens intended to demand an execution of the bargain, applied to counsel and shewed a copy of the letter, and to the best of his recollection, (for he lost it,) the opinion of the counsel was, that it was an incomplete contract, and not obligatory. That defendant heard no more on the subject until April, 1799, when Wm. Robertson requested by letter that defendant would make titles to Givens for the lands, which he declined under a conviction that the bargain was incomplete, ' The answer concludes as usual, and prays to be dismissed, &c.

The cause afterwards came to a hearing.

The following evidence was given on the part of complainant.

Mr. W. Robertson testified that Dr. Calder employed *178Mm to draw deeds of conveyance from himself to Mrsii Kelsal and W. Givens, to whom he had sold some land.— jn pjg instructions he stated it to be a tract of about 800 acres, at 20 shillings per aci-e *;*part of it to be cash, and the balance payable by instalments. He took the description of the land, and the terms from Dr. Calder’s own hand writing. He drew also a mortgage of the land to secure the purchase money. Dr. Calder spoke of it as an actual sale, having made the arrangements with Mr. Givens, and said that by the agreement, the money was to be lodged in Mr. Bolds’s hands till the titles were executed. He said he came to town expressly on that business, and was going out of town to meet the parties, and complete the business. The witness delivered all the papers drawn up, but not executed, to Dr. Calder, who left *town;*and as witness heard, died a few days after at his plantation.

The manner in which the cash part was to be settled or provided, was not mentioned in the instructions.

Mr. John Bolds testified that Mr. Rhodes sent down 260/. to pay the cash part of Mr. Givens’s purchase of land from' Dr. Calder, as soon as the titles were executed. Dr. Calder knew that this money was lodged with him, and asked if it was ready for him, and he answered yes.'— The money has lain in his hands ever since. If Calder had called for it, he would have paid it to him. Calder made no reply, but that he had got the papers from Mr. Robertson, and was going to the country to close the matter with Mr. Givens. Thinks he would have held the money for Calder till he heard from him *;*but if Mr. Rhodes had written to him to return the money, believes he should have done so.

Mr. Rhodes testified that he had, at the desire of Mr. Givens, sent down *2601.*to his partner in Charleston, Mr. Bolds, to pay Dr. Calder the cash part of a purchase W. Givens had made from Dr. Calder. It has never been withdrawn. Witness knew ■ that Mr. Givens and Mrs. Kelsal took possession of the land, and held it, and exercised acts-of ownership over it. Cannot say whether with *179the knowledge and consent of Dr. Calder, but presumes sO.

Mr. Hanaban and Mr. Seabrook testified that they had heard Dr. Calder say he had agreed to sell some land to Mr, Givens. It lay to the southward. They understood the bargain was compleated.

Mr. Fielding swore that he had a conversation with Dr. Calder about his selling land to Mr. Givens, and about giving possession to Givens *;*but cannot be positive that Dr. Calder said he gave Givens leave *to*take possession, or was present when he did.

Mr. W. Whaley testified on the part of the defendant, *that*Dr. Calder stayed a night at witness’s house on his way down to town in August, 1797, and informed him that he was going to town to see Mr. *W.*Simmons, to learn from him whether he had declined the purchase of a tract of land he had offered him, (that now in contest") for Gi-yens, the complainant, had informed him that Mr. Simmons had told him he had declined it. Dr. Calder ¿id-ded, that if Mr. Simmons chose it, he should have the land. Mr. Whaley said that he was with Dr. Calder during the greater part of his illness on his return from town, and at his death. He never saw Givens or Mr. Fielding *there,*and he does not believe they saw him after his return.

Mr. W. Simmons testified that he never told Givens that he had declined the purchase of the land from Dr, Calder, that he did not even know Givens.

Mr. Joseph Alston, Mr. Ward, and Mr. Pringle argued for the complainants,

that the contract in this case was very deliberate, and there was no uncertainty. The land sold was known and ascertained j the price was fixed ; the terms *arranged;*the deeds drawn by Dr. Calder’s qwn instructions, and found among his papers at his death; and in consequence of this agreement, and of these arrangements, certain acts were done, sufficient to take the case out of the operation of the statute of frauds. Thesq acts were, the depositing part of the purchase money, with *180the knowledge and approbation of Dr. Calder, in the hands of an agent, who was ready to pay it whenever the deeds should be executed. And then the purchaser had taken possession of the land and held it, under the impression that the bargain was compleated. It was true there was no positive evidence that the possession had been taken by Mr. Givens, with the consent op by the direction of Dr. Calder ; but tire circumstances arc strong- to support the presumption that it was with his consent. Some of the witnesses thought so. And indeed the instructions in. writing, given biv Dr. Calder to Mr. Robertson, to enable him to draw the deeds, amounts to such memorandum in writing, connected with the other circumstances, as would take the case out of the statute.

That in fact this was not an executory agreement, but executed. The letter of Dr. Calder to Mr. Givens, now-admitted by defendant in his supplementary answer, shews that he considered the bargain as closed; and there is a marked correspondence between the letter, and the evidence of Mr. Robertson and Mr. Bolds.

There was no room for they *us deliberandi*or *locus peni-*tenlice. The contract was perfected, and ought to be carried into specific execution. There is no danger of fraud or perjury in such a case, and it is to avoid that danger that the statute was enacted.

The counsel cited' 1 Vern. 364. Staples vs. Butcher; 2 Vern. 456. Pike vs. Williams *;*2 Stra. 783. 3 Bro. C. C. 162. Tawney vs. Crowther; 1 Fonbl. 165. 3 Ves. jun. 69G. Foster vs. Hale ; 3 Atk. 1, Lacón ys. Martins *; 3*Atk. Only vs. Walker; 3 Atk. 503. Welford vs. Beas*\y;*Powel. 291. 1 Fonbl. 171, (in note) 168, *182. 1*Atk. 8,13. 4 Ves. jun. 686.

Messrs. Desaussure and FbRD and Parker argued for ■the defendant.

They contended that this case ought to be examined on two grounds.

1st. Under the operation of the statute of frauds, 29th Car. 2, chap. 3.

*1812nd. Under its own circumstances, independent of the statute, on the ground of the incompleteness of the contract, and on the inadequacy of price.

1st. Under the statute of Charles, it has been decided that if an agreement be by parol, and not signed by the parties, or some body lawfully authorized by them, if such agreement be not'confessed in the answer, it cannot be carried into execution. But when in his answer, he allows the bargain to be complete, and does not insist on any fraud, there can be no danger of perjurybecause he himself takes away the necessity of proving it.

So, if carried into execution by one of the parties, as by delivering possession, and such execution be accepted by the other, he that accepts it must perform his part. 1 Fonb. 165, 6, 7, 8, 9.

The three important circumstances are:

1st. The signing by the parties.

2d. The confession in the answer that the bargain is complete.

3d. Or if possession has been delivered by one party, and accepted by the other as an execution of a complete agreement, or by such other acts as amount clearly to part performance.

In our case none of these are *to*be found.

Dr, Calder signed nothing. -

His brother and heir does not confess the agreement to be complete.

No possession was delivered,but was taken after the death of Dr. Calder, and the pay was equivocal. As to what the law construes a signing. See 1 Fonb. 165,178, (note C.) 1 P. Wins. 77Ó, also 618, Hawkins v. Holmes, and notes by Mr. Cox. Whaly v. Bagenal, 6 Bro. P. C. 45 to 55. Parol evidence inadmissible to prove the agreement. 1 Vesey jr. 326, 330,1, 3,4. Brodie v. St. Paul.

Parol evidence not admitted to prove variation of agree,ment, though it is acknowieged an agreement existed. *1*Yesey jr.402, Jordon v. Savbrien.

*182Parol evidence refas. d where complainant stated agreement and defendant admitting that an agreement existed, denied that it was as stated. 3 Vesey,jr. 34, 8,9,40. Pym Va Blackburn. See all tbe cases cited in the note to this case, p. 38, 9, 40.

The cases which upon equitable grounds have been ex-, empted from the operation of the statute of frauds are :

1st. Where in consequence of fraud the provisions of the act have not been complied with. See 1 Vern. 2,96. 1 P. Wm. 618. 1 Vesey 123. 2 Vern. 506. 2 Atk. 98. 3 Atk. 388. Ambler 67.

None such are pretended in this case.

2d. Where the agreement has been in part performed, either by delivery of possession, payment of money, &c. &c. see 1 Vern. 363, Butcher v. Stapely. 2 Vern. 455, Pike v. Williams. 1 Vesey, 82,218,297,437. 2 Bro. C. C. 559, 567, Whitechurch.v. Bevis. 3 Bro. C. C. 400. 1 Fonb. 165, 175. 1 Atk. 12, Clerk v. Wright. 3. Atk. Lacón v. Mertins. 6 Bro. P, C. 45, Whaly v. Baginal.

3d. Exception is where the answer admits an agreement. This has prevailed to the extent of binding the defendant by that admission. 2 .Vesey, jr. 243, Mortimer v, Orchand.

*u*It has never been pretended that the admission of arx agreement authorized the plaintiff to give (parol) evidence of the terms.” 3 Vesey, jr. 39.

The late cases shew that the judges think the court have gone too far in trenching on the statute of frauds.

In Mortimer v. Orchand, 2 Vesey, jr. 243, the Chancellor says, (in 1793,) the bent of my mind is strongly in favor of the wisdom of the statute. Therefore I am rather against the cases which have entrenched upon it.

The present Chancellor (1798) declared he thought that “ the Court has gone rather too far in permitting part performance, and other circumstances, to take cases out of the statute.” 3 Vesey, jr. 712.

Parol evidence not admitted to prove an 'agreement *183made upon purchase of an annuity, that it should be redeemable. 1 Vesey,jr. 241, Hare v. Sharewood.

The answer denies that the agreement is complete.

The confession of an agreement in the answer must be complete, to take it out of the statute of frauds.

So is the text of 1 Fonb. 167, 8, 9. But where in his answer he allows the bargain to be complete, and does not insist on any fraud.” And so are the cases cited.

In Moor v. Edwards, 4 Vesey, jr. 23, 4, the Lord Chancellor was of opinion, that “ though the agreement is admitted, the statute may be used asa defence to the suit, notwithstanding complainant alleges part performance, by-taking possession and improving. A case in Atkins misleads. people on this point.

“ Saving the benefit of the plea to the hearing gives a right to insist on the statute, as a defence to the suit, p.24.

As to part performance, taking the case out of the statute, we answer, there was no part performance here,. for the possession was taken, not given. It was taken after the death of Mr. Calder.

Now all the cases of part performance are made to turn upon the point, that one party permitted the other to act on the pai'ol agreement. See 1 P. Wms. 770:, 1, 2. Note (1.) See cases cited in 1 Fonb. 169, note 4, 171, note e.

The general rule is, (1 Fonb. 175,) that the acts must be such as could be done with no other view or design than to perform the agreement, and not such as are merely introductory or ancillary to it. Gunter v. Hals ay,. Ambler 586. Whitbread v. Brockhouse. 1 Bro. Rep. 412.

The giving possession is to be considered as an act of part performance. 1 Fonb. 175.

But giving directions for conveyances, and going ta view the estate, are not. Clerk v. Wright, 1 Atk. 12. Whaley v. Bagnel. 6 Bro. P. C. 45. 1 P. Wms. 770. 1 Fonb, 165, 6.

*184Paymentofmoneyispartperformance. Lacón v. Mertius, 3 Atk. 4. , See 1 Atk. p. 497'. But payment of earnest is not. 1 Fonb. 175. And there was no payment in this case.

Defendant not bound to confess or deny the agreement, as the statute affords a good defence against the performance of it 5 and it is immaterial whether the defence be set up in the shape of a plea, or by answer. The statute not having prescribed any mode in pai-ticular, by which a defendant must avail himself of such defence.

Seel Fonbl. 171. 2 Bro. Rep. 559, 566, 7, 9. Whit-church vs. Bevis. 1 Bro. Rep. 404, 9. Whitbread vs. Brockhurst. See particularly page 409.

By insisting in the answer on the statute, the party shall have the same advantage as upon a plea. 1 Eq. Cas. abr. 19, pi. 3.

2P.Wms. 144. 1 Yes. 298. 1 Bro. Rep. 413. 1

Lord Camden’s opinion in Cole vs. White. If *facts alleged*to be done in part performance of an agreement, are denied, it is immaterial whether such denial be by plea or answer. 1 Bro. Rep. 416, 418. 3 P. Wins. 244,

Even the cases most favoring the opinion, that Courts of Equity may compel the performance, and consequently the discovery of merely parol agreements, require, that the terms of the agreement should be clear, definite and conclusive *•,*and therefore if the court can collect the *jus deliberandi*or *locus penitentm*to have been reserved, the contract shall not be considered as complete till reduced into writing, or in part performed. 1 Fonbl. 171. Whaley vs. Bagnel. 6 Bro. P. C. 45. Whitechurch vs. Bevis. 2 Bro. Sep. 566.

We contend secondly, that under the circumstances of the case, and independently of the statute of frauds, it is in the discretion of the court to refuse to enforce this pretended agreement, on the ground of the incompleteness of the *agreement;*and the uncertainty, and on the inadequacy of price, and on alteration of circumstances.

*185That it is in the discretion of the court, see 1 Fonb. *1†8.*1 Vesey, jr. 565, Cooper v. Denne.

The agreement being incomplete, there was room for the locus penitentise. The letter of D. Calder to Givens, refers to a future meeting to compleat the business.

That uncertainty of terms is a good ground to refuse to decree specific execution. See 3 Vesey, jr. 184, 5.

Lord Chancellor says, “ I lay it down as a general proposition, to which I know no limitation, that all agreements in order to be executed in this court must be certain and defined, equal and fair, and proved as the law requires. 3 Vesey, jr. 420. Lord Walpole v. Lord Orford.

That inadequacy of price will induce the court to exercise its discretion in refusing to compel specific perfor--manee. See 1 Fonb. 116, &c. &c. 2 Bro. P. C. 396.

Slight circumstances will be laid hold of. 1 Bacon, 109, 117. Title agreement.

Alteration of circumstances also will induce the court not to enforce specific performances. 1 Fonb. 384. *5*Viner’sabr. 538, pi. 18. One of the parties was dead, who could explain the transaction. His heir is entirely ignorant. Meanwhile the land has' risen three fold in value.

With respect to the performance of a contract, the time is material. Therefore a bill for specific performance was on gross laches of plaintiff, dismissed with costs. 4 Vesey, jr. 686, 9. , Harrington v. Wheeler.

Lord Chancellor says, the case in 1 Amb. 12, Gibson V. Patterson, is fairly *reported;*time is material.

Agreements are not to be made out partly by parol and partly in writing. 1 Fonb. 174.

There is no instance of such an imperfect agreement decreed to be specifically executed against heirs of the supposed vendor. He certainly received no money and gave no possession; for he died immediately on his return from town without seeing Givens.

Dr. Calder’s not signing the deeds in presence of his at*186torney, nor before his death, proves that he thought the matter open till he should see Givens and Mrs. Kelsal, who were to execute on their part.

Mr. Givens is not entitled to any favor. He attempted to mislead Dr. Calder, with respect to Mr. Simmons. Dr. Calder not receiving the money, when Bold told him it was ready; but only desiring him to keep it; that he was going to meet Mrs. Kelsal and Givens, proves he did not consider it concluded.

*

 See 2 Henry Blacks, 263. 2 Atk. 72. 1 Vern.389. 1 Lord Raym. 731. 3 Term. Rep. 151. 4 Term. Rep. 263, Gilb. Ev. 71.

Chancellor Rutledge

afterwards delivered the decree of the court.

The complainant’s bill states, that he as the agent of a Mrs. Kelsal now deceased, in July, *1797,*entered into a parol agreement with Dr. W. Calder, now also deceased, for the purchase of a tract of land on the terms and conditions in bill set forth. It states further, as a part performance of the agreement, that the sum agreed to be paid down was deposited with the complainant’s agent, to be paid to Dr. Calder, when he should execute and deliver the titles to Mrs. Kelsal. Also, that Dr. Calder assented to Mrs. K’s taking possession of the land, (which she did) and preparing for the next crop, if she thought proper.— That Dr. Calder went soon afterwards to Charleston, had titles drawn, and shortly after he returned home, (viz. in the month of August,) and died without compleating his contract. . The bill therefore prays a specific performance by defendant as the representative of Dr. Calder.

The defendant in his answer says, he is entirely ignorant of any agreement made by Dr. Calder with complainant as agent of Mrs. Kelsal for the land, and therefore can neither admit or deny the charges in the bill. That being at any rate only a parol agreement, it is void by the statute of frauds. The defendant is ignorant of Dr. Calder’s agreeing to Mrs. Kelsal’s entering on the land previous to his making titles thereto : but has been informed that neither she nor her agent entered thereon till some dme after Dr. Calder’s death. He does not admit the de*187posit of the money as a part performance, and denies that it was ever tendered to him, or that complainant offered *to*fulfil his contract, till a considerable time after defendant arrived in this country. The defendant not having confessed the agreement, nor admitted the allegations of part performance, as stated in bill, either of which would have been sufficient to induce the court to decree a specific execution of the agreement, (because where defendant confesses the agreement,' or' acknowledges part performance, there is certainly no danger of fraud or perjury, which were .the objects contemplated by the statute) it was necessary for the complainant to support his case by proof. This he has attempted to do by the adduction of parol evidence as to the part performance; first, by payment; next, by delivering possession of the land, & thereby to take the case out of the statute. He also attempted to prove by pa-rol evidence, the contents of a letter written to him by Dr. Calder; but that not being admitted, the counsel on both sides went into the cause and argued the. case very fully. The complainant immediately after the first hearing, filed a supplemental bill, wherein he recites the letter alleged to have been written by Dr. Calder to complainant, and calls for an answer from the defendant, whether he has not seen such a letter in Dr. Calder’s hand writing. Defendant by his answer acknowledges that the complainant had shewn him a letter which he believed to be in the handwriting of his brother, though he had not seen or corresponded with him for many years. The letter in substance is to inform complainant that all the writings for the land he had bought were ready, and the sponer he came and settled the better ; and desired Mrs. Kelsal should go with complainant, and take her security. with her. The parol téstimony of Mr. Fickling was produced to, prove that he had seen the letter, and had a conversation with Dr. Calder about the sale of land, and giving possession to complainant ; but he does not positively swear that Dr. Calder told him that he had given possession to complainant, nor does he know if Dr. Calder was present when complain*188ant took possession, or that he gave complainant authority to take possession.

Mr. Whaley on the part of defendant, swore that Dr. Calder on his way to Charleston, in August, *1797,*slept at his house, and informed him that he was coming to town to see Mr. W. Simmons, and to learn from him whether he had declined the purchase of the land now in contest: complainant having informed Dr. Calder that Simmons had declined it : that if Simmons had not told complainant so, he should have the land if he thought proper: that Whaley was with Dr. Calder after his return, during the greater part of his illness, and whin hv died: he never saw either complainant or Fielding there, and does not believe they saw the doctor after his return.

Mr. Simmons swears that he not only had not made .such a declaration to complainant, but that he had not .seen nor ever heard of complainant. The cause has been re-ai-gued on the supplemental bill and letter, and the arguments ought to have been confined simply to the point, whether the letter written by Dr. Calder to complainant varied the case, without going into parol proof of possession. In determining on this case, we must reverse the .order of things, and take up the last question first, by disposing of the letter set forth in the .supplemental bill, and determining whether it varies the case.' According to adjudged cases, it is clearly held that in order to make a letter evidence of an agreement for the sale of lands to take •it out .of the statute, it ought distinctly to set forth the terms of the agreement, or at least refer to some written instrument in which the terms are .set forth, and that the party accepted such terms. Does the letter alluded to specify any thing ? It does not. It only informs complainant that the deeds were ready when Sirs. Kelsal was disposed to perform her part. There was no obligation on her to do it. No evidence has been offered to shew even that she authorized complainant to negotiate the business. There was therefore no mutuality of contract.— That letter then, though the contents are admitted, does *189not vary tbe case. As to the delivery of possession, there is no actual proof of it, for complainants own witness does not positively swear that Dr. Calder told him either that he had given or even authorized complainant to take possession. And from the evidence of Messrs. Whaley and Simmons, it is rather to be presumed that no possession was ever given or even authorized. The case therefore stands precisely on the same grounds it did upon the argument on the original bill and answer.

It is a singular case, and there is not one like it in the books, for the parties to the agreement, seller and purchaser, are both dead, and the person who now comes forward to claim a specific performance' of the agreement in his own right as the residuary legatee was the agent of the purchaser. It rests with him to make out such an agreement as best suits himself, and that too against a person who could not possibly know any thing of the transaction, being a total stranger in this country. We do not mean to charge complainant with suggesting in his bill any untruths ; but a case of this sort may occur, and it would be scarcely possible for a defendant circumstanced like the present, to controvert the facts, if parol evidence was to be admitted. If ever there was a case therefore in which the statute should be rigidly adhered to, and the party have the benefit of it in its greatest latitude, it is .the present.

, The judges of the court of Equity were formerly very astute in laying hold of circumstances, in order to enforce parol agreements, and to take them out of the statute, whereby it is problematical whether they have not done more injury than real good. For though by a strict adherence to the letter of the statute, a present inconvenience might have been sustained, the mischief would soon have worked its own cure, and the parties would have reduced their agreements to writing, agreeable to the directions of the law. There would not then have been so many cases on this subject, various in their circumstances, and the decisions on them (as has been observed by a very ingenious *190writer) not immediately reconeileabie. The-modern adjudications however are corrective of the former; and we fjn¿ judges of the present day, declaring the bent of their minds strongly in favor of the wisdom of the statute, and against the cases that have intrenched upon- it, and accordingly framing their decisions conformable to the intention as well as the letter of the statute. The question now before the court we believe has never been fully discussed. The present decision will therefore establish a precedent, and with it the law on the subject. The numerous cases that were cited have been carefully reviewed, and aftev mature consideration of them, we are clearly of opinion, that in the case of parol agreement, not tinctured with fraud, if the defendant chooses to avail himself of the statute, it is not necessary that he should by answer confess or deny the agreement, the law having declared it void. Neither ought he to be compelled *to*confess or deny part performance of it, although charged in the bill. That to permit parol proof of a parol agreement, would be in effect to repeal the statute, and introduce all the mischief, inconvenience & uncertainty it intended to prevent, That to admit parol proof of part performance of a parol agreement would be equally improper, and is not warranted by any of the cases in the books; for it is clearly held that if the part performance alleged be possession of land or the payment of money, the complainant must prove delivery of possession in the first case, or receipt or written evidence of payment in the other, to entitle him to a specific execution of the agreement. All the parol testimony th&rcfore which has been adduced in the case to prove the parol agreement or the part performance of it, is made inadmissible and must be laid aside.

The case thus standing without proof on the part of corn-, pluinanp the facts of part performance, namely, payment of part of the purchase money and delivery of possession, not being admitted, but denied by the answer as fully and explicitly as defendant could do so,

The bill must be dismissed with costs.