*Present*— Chancellors Hutsox, Mathews and Ruteedge.

#### James Denton *vs.*Alexander M'Kenzie.

JUNE, 1792.

CA3E *1.XXY1I,*

dechee hook, P- 6S-

a person a-laud for ¡mo-jjpjgaie^htil be bound and hold intrust though he ties inC his the statute of bauds mban had tender-h?TMhfch']"e charged his thTMdamount of the pur-cllascm0I'-°>-

The complainant’s bill charged, That on the 21st July, 1787, he purchased from the corporation of Charleston the lease of the Fish Market and of the premises ad-juining thereto with the right of collecting toll on fish, and with liberty to erect buildings on the premises for fourteen years, at 42k sterling per annum: That he laid out on the said premises in repairs and buildings 770k sterling, particularly in erecting a, house and kitchen on the same: That the said buildings being nearly finished he was applied to by defendant for a lease of the whole of the said premises, which the complainant accordingly let to defendant for three years at 2,00k per annum, payAble quarterly: That it was then agreed that defendant should pay down to complainant, at the expiration oi the first quarter 50?, in cash, which complainant wanted to pay a judgment obtained against him for 40k 8s, *9d.*and costs, and that the rent thereafter to grow due should ho applied towards finishing the dwelling house and kitchen, er to. reimburse defendant on that account, till the whole •was paid, and afterwards to be paid to complainant, which agreement more fully appears by a memorandum in writing at the foot of the lease between the said parties, dated 8th August) 1788: That at the expiration of the first quarter, complainant called on defendant for his *rent*in order to enable him to pay the judgment and costs abovementioned, and defendant promised to procure the money: hut failing in his promise, the complainant’s estate in the said leased premises was sold by the Sheriff on the 18th Nov. 1788, for 505k — That the purchaser not complying with the terms of sale, the Sheriff again advertised the .same for sale, and when the day of sale was near complainant aggjn applied to defendant for his rent, in order, to enable him to pay said judgment, inter*290est anti costs, which then amo anted to 63?. *5s. 9d,*— 'That defendant notwithstanding his promises still failing to procure the money, promised complainant, that if a re-Ki^e took place, that lie would buy in the property as a friend and trustee of the complainant and for his use:— That on the day of sale, the 11th Dec. 1788, as agreed upon, the defendant did attend as trustee for the complainant and bought the premises aforesaid for 66?. 6s. *9d.*which was only a nominal sum, and to cover the defendant and costs: That the defendant still neglecting to raise and pay the said debt and costs (although largely in arrear to complainant as well for rent as on account) complainant on 24th Feb. 1789, advanced defendant 35?. *4s. 6d.*towards making payment to the Sheriff, in order to prevent any after or other resale of the premises, for which sum complainant took defendant’s receipt as for cash lent, copy of which js filed with bill: That the Sheriff having executed titles to defendant for the premises, the defendant brought the same to complainant and saying he had cleared the complainant of all encumbrances on that property, asked complainant to release him from his lease, telling complainant that the rent of 200?. per annum was more than he could make, on which complainant expressed his unwillingness to hold defendant, whom lie considered as his friend, to a had bargain: That defendant left the premises, and complainant took possession thereof, as his own property, witli defendant’s consent. The complainant further charges that the defendant conscious of the trust before set forth, and that the premises were bought in by him in trust for complainant, afterwards and after the complainant had as aforesaid taken posses - sion of the premises, to wit, on the 15th May, 1789, delivered to complainant an account signed with defendants own hand and dated on the said 15th May, in which he hath not only charged complainant with the sum paid at the Sheriff’s sale as the price of the Fish Market and premises, but also with ten shillings for punch drank at the coffee house at the sale; and complainant refera to defendant’s account, a copy of which is fded, and alleges that, the same plainly proves that the *291said premises were bought in by defendant for and on account of complainant. Complainant further charges that, on or about the 1st January, 1790, he moved to Columbia, and left his said house in possession of Charles Snowden, and the market in possession of Joseph Pope, and that on Mr. Snowden’s advertising the said house, the defendant to the great surprise of the complainant, demanded the keys and claimed the house as his property, and on Mr. Snowden’s refusing to deliver up the keys the defendant forced the door and took possession of the said dwelling house and dispossessed Pope of the market; That defendant continued possessed until 1st March, 1790, when he rented the same to one Plunkett who gave-possession to the complainant, who lately had possession of the premises. Complainant further shews that defendant is considerably indebted to him on account of the said lease which is in full force and uncancelled, and notwithstanding repeated applications refuses to come to any liquidation or settlement of accounts with complainant, or to declare the trust, or assign and set over the premises to complainant, or for his use, as in justice and equity he ought to do. Complainant prays the defendant may be compelled to release and assign to complainant, for his own use the remainder of said lease, and deliver up all sales, titles, deeds and evidences thereto relating, and account, for the rents and profits thereof after deducting for finishing and repairing the premises, and that defendant may be decreed to pay costs, and that complainant may be further relieved, &c. he prays process of subpoena, and so forth.

The defendant Alexander M‘Kenzie as to so much of the complainant’s bill as seeks to compel defendant to release and assign to complainant the remainder of the lease of the premises jn bill mentioned, and to deliver up titles, &c. relative thereto pursuant to the pretended .agreement in bill mentioned, and as to any relief thereby prayed touching such agreement, *pleads in bar*and saith that by an act of parliament of 29 Car. 2d. and of force in this state; it is amongst other things enacted, “ That from ami after the 24th June, 1677, no action shall be *292brought to charge any person upon any contract of lands tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such. action shall be brought,' or some memorandum or note thereof shall be in writing, and signed by the party to bo charged therewith, or some other person thereunto by him lawfully authorised; and that from and after the said four and twentieth day of June, all declarations or creations of trust or confidences of any lands, tenements or hereditaments, shall ho manifested and proved by some writing signed by tho party who is by law enabled to declare such trust, or by his last will in writing, or else they shall be utterly void, and of none effect,” as by the said act may appear: And defendant avers that neither he, nor any person by him authorised, ever made or signed any contract to purchase the premises in trust for, or to the use of the complainant, and therefore pleads tho said act in bar as aforesaid.

The defendant also put in an answer, and therein admitted with some qualifications, many of the facts charged by the complainant: That on tho Sheriff’s making sale of tho premises, to satisfy a debt due by complainant, and the purchaser not complying with the terms of sale, the property was put up for sale a second time, after due advertisement, and it was knocked of to the defendant on the llth Dec. 1788, as the highest bidder, without any fraud or collusion, and he has received sufficient titles from the said Sheriff, and denies any such conversation or agreement respecting the purchase as is pretended by complainant. He also denies that he did attend at sale in pursuance of tho said pretended agreement, and as a trustee bid off the said Market and premises for tbe sum in bill mentioned, or that it was bid only as a nominal one, and to cover debt and costs. Defendant positively denies that complainant advanced 35L to pay said judgment, interest and costs, and to prevent a resale of the premises: That he recollects he did give complainant a receipt for *35l.*but it was not received in fine sum on the day of the receipt, hut at divers times and not to pay the judgment, but on the general account of *293'defendant against complainant, defendant having satis-lied the said judgment in January, except a small balance which he paid in February; or that he was at all in ar-rear to complainant. Defendant denies that he ever brought the Sheriff’s titles to complainant, and that thereupon such or any other conversation passed between them as in bill mentioned. Defendant in his amended answer, avers that both himself and complainant consi-d !rfd said lease vacated by Sheriffs sale. Defendant says that although complainant did take possession of the premises about 15th May, 1789, yet he denies Unit it was *in right,*or *any other circumstances, or in any manner*than is by defendant set forth. Defendant admits that he delivered to complainant the account marked B. exhibited with bill; but denies it was from any consciousness or as any evidence of the trust alleged by bill; bat that complainant having mannered at the low price *ten*which the lease was sold by the Sheriff, defendant told him that if he would reimburse and pay him all the monies he owed him in a certain time, to wit; in a few months thereafter, lie would convey to him the premises, to which proposition the complainant would not consent: That defendant mentioned the above to his solicitor in his instructions before he put in his answer, bat his solicitor did not think it material to insert, and he delivered the account to his solicitor hied with his answer including the *721.*paid to the sheriff for the premises. Defen - dant admits he removed from the premises, but on the 4th April and not May, and permitted complainant to take/ .possession, but as his tenant, and under the following circumstances: That sometime after the sale camplainant called on defendant and saying he was ruined *by*the sate of his property to complainant — complainant *let*defendant have the premises as tenant at will at *1501.*per an-num, which he in fact considered as nominal, not expecting complainant would be able to pay him: That on complainant removing to Columbia he did take upon himself to direct Mr. Snowden to let the house on his account, and did let the Market to Joseph Pope; and defendant admits that on Mr. Snowden’s advertising the house to *294let, he did claim and take possession of the same as his property, and did endeavour to dispossess the said Pope of the Market, which he conceived he was warranted to ^0: That defendant did exercise acts of ownership over the premises until the 1st March, 1790, when he let the same to a certain Plunkett, of whom complainant unduly procured possession. Defendant saith he is willing to come to a fair settlement of accounts with complainant as he is confident there will be a balance in his favour. He admits he claims the premises as his own by virtue of the Sheriff’s titles aforesaid, and denies that he ever agreed to purchase in trust for complainant. Defendant denies combination and prays dismission with costs.

That complainant hath also repeatedly since the sale asserted and acknowledged the defendant to be the purchaser and owner of the premises, particularly on the occasion of a suit being brought against him by the city corporation: That defendant by reason of complainant’s pretended trust has been prevented from deriving any advantage from the premises, while the ground rent is accumulating and the premises going out of repair and sinking in value.

The cause came on to be heard on the-June, 1792. The following testimony was given: — Mr. Kennedy the Sheriff swore, That at the sale of the premises he told Denton that if he could get any one to bid off the land so as to satisfy the debt and costs, he wanted no more. It was knocked off to M'Kenzie whom he considered as the friend of Denton, and in his opinion it was bought in for Denton.

Mr. Grant swore, That MtKenzie desired witness to go to the sale of the land, and bid for it; and he understood that if he had bought it, it was to be for Denton. He heard MeKenzie say he owed Denton 50Z. on the day of sale. After the sale he heard M‘Kenzie tell Denton he had got a good bargain, and if Denton would pay him back, for all the improvements he had made on the premises he would let him have the premises back again.

B. Cudworth swore, That M‘Kenzie told him he had Denton’s property so much at his command, that *hp**295might do what lie pleased with it, but he was not so great a, villain as to take such an advantage of him. But that if Denton would pay him all he owed him (for improvements) he would give it up to him. That on winding up the accounts there ivas hut a small balance due to M‘Kenzie, about 12?. But M'Kenzie said there was a great deal more due to him and he would avail himself of all the advantages he oóuld under the purchase of the land.

Wall swore, That he was joined with Cudwórth in adjusting the accounts between the parties, and there appeared to be a large balance due to M‘Kenzie; provided, he was not to be chargeable with the rent.

Mr. Holmes stated, That on his bringing a suit against Denton, he brought McKenzie to prove that the property belonged absolutely to M‘Kenzie, but he (Mr. Holmes) did not then believe it.

The cause was argued by Mr. Read and Gen. Pinck-ney for complainant, and Mr. Holmes and Mr. Pringle for defendant.

Mr. Read, said, That as to the plea in bar, the account rendered by the defendant and signed by him, in which he charges him with the money he paid for the pi’emises in question, is such a memorandum in writing as will take the case out of the statute of frauds, and consequently defeat the plea in bar. The merits were clearly with the complainant.

Mr. Holmes for defendant,

contended, That if an a-grcement is signed by only one of the parties, and there is nothing to bind the. other party, it is not such an agreement as will take the case out of the operation of the statute. Pow. on Con. 280, It is true that where the deed is drawn by one party and signed by the other it will bind both. 1 Vern. 271. 1 P. Wms. 282, 770. 1 Eq. Cas. abr. 49. If a man agrees with another by parol to purchase his house, and pays him part of the purchase money, and the other refuses to carry the agreement into execution a specific execution cannot be compelled. — > There is no other remedy hut an action at law for damages. If it be admitted that this is a fraudulent transac-*296tioii, yet the complainant can have no remedy, being' particeps fraudis; and the Sheriff’s titles to M'Kcnzie must be conclusive on the parties themselves, though it «üght have been different as to creditors.

decree.

JULY, 1792.

Mr. Pringle for defendant,

Overruling the plea in bar would not tend to set aside the conveyance by the Sheriff to M‘Kcnzie: The court will still decide, on the whole merits. 1 Atk. 13. 2 Eq. Cas. abr. 47, 50. 2 Vern. 627. 2 Atk. 283. 2 Com. Digest 124. The defendant having denied every thing in his answer, the plaintiff must prove every thing charged in the bill to entitle himself to relief. 2 P. Wms. 222.

If Mr. Kennedy thought, (as he swore) That M‘Ken-zie purchased in the property for Denton, why did he not then mention that there ought to be some clause in the deed stating the trust for Denton. Quoted 1 Powell 429, 434, 185.

Gen. Pinckney for complainant,

If one party by letter proposes terms of sale to another, and the party to whom the terms are so proposed, acts upon it, both parties are hound, the first by the letter, and the second by Ms act, which shews an assent on his part to the propo - sals. Taking possession by the proposed vendee is such an act. The statute of frauds was intended to prevent frauds, and not to cover them. 3 Atk. 388-9. It does not appear at this time that there was any intention to de > fraud creditors. See 2 Powel 149. 2 Ves. 281, 516. It is manifest from the facts proved in the case that the purchase was made by MTvcnzie foi\Dcnton: and if he were not to he held bound to convoy to Denton, would be protecting him in a gross fraud, and violation of a private confidence, by which he would be a great gainer at the expense of the man whom he pretended to befriend. This would be an abuse of the statute, and would bo intolerable. '' Justice is the great object of the court, and when it perceives that fraud would defeat its justice, it will not permit it to take sanctuary under a statute made expressly to prevent fraud.

The court first overruled the plea in bar; and after-wards

chancellor Mathews

delivered the decree of the *297coui't as follows: — >As this is a case of considerable importance tlie court would have taken longer time to consider it, had there been any difficulty in our minds with respect to the decision, we ought to give; but as we think it a very plain case, when stripped of all the extraneous matter that has been introduced, in tlie course of the arguments on it, we are as well prepared now as we should be at any future day to decide on it. The most important point in the case is, whether the purchase by Mr. McKenzie, of tlie land in question, and tlie titles from the Sheriff to him, vests in him such a right, as he cannot now be divested of. If the purchase was a fair bonafide and unconditional one, it then could admit of no doubt, because the titles are so drawn as to vest an absolute estate in M‘Kenzic, of the whole interest that was in Denton. The court must therefore proceed with great caution, when they are called on to divest a man of such a right; especially too, when the evidence offered for this' purpose, is one article in an account rendered fey defendant to complainant charging him with the purchase money for the land, and this is to be corroborated by parol testimony. With regard to the first point: The-words of the statute of frauds arc ie That no action shall be brought whereby to charge any person on any contract oi’ sale of lands, or any interest therein, unless the agreement on which such action shall be brought, or some'memorandum or note thereof shall be in writing, and signed by the party to be charged therewith/’ &c. Is the account then, signed and delivered by defendant, in which he has charged the complainant with the consideration money for the purchase of the land, such a memorandum or note in writing, signed by the party to be charged therewith, as will take this case out of the statute, and let the complainant into a full investigation of the whole transaction relative to the purchase by defendant? "Wo -have already by overruling the pica in bar, determined that the article in the account above mentioned, ought ie he considered as s„ich a note, as is sufficient to comply with the true intent and spirit of the law, which is meant to prevent, and not to protect fraud» This diffiorlty be*298ing removed, and the case standing on its intrinsic merits, we are next to consider, whether the parol evidence which has been admitted in corroboration of the written Evidence amounts to such a proof of an intended trust on the paid; of defendant for the benefit of complainant, as this court will enforce the execution of, notwithstanding the absolute conveyance to the defendant. The complainant by his bill expressly charges that such was the intention at the time of the sale. The defendant by his answer positively denies it; recourse must then be had to the evidence to see whether it is sufficient to invalidate the answer of defendant. That such was the intention of the parties originally, is strongly evinced by the charge made by defendant in his account against complainant. If it was not so, why charge him with the money, which if the purchase was on his own account, unconnected with complainant ought to have been paid by himself, and in which the complainant could have had no interest or concern ? But it was said the defendant was ultimately obliged to pay the money; and that the part that is said to have been paid by complainant was not on account of the purchase of the land, but for a debt then owing by com - plainant to defendant. But Kennedy swears that he received *101.*of the purchase money from complainant which is a strong circumstance that the purchase was not made by defendant on his own account. Yet lie charges complainant with the whole purchase money, and even the liquor drank at the sale, or at some other time, when the land was to have been sold. That he was obliged afterwards to pay the purchase money will not alter the nature of the original purchase, because defendant liad his remedy against complainant to compel him to a reimbursement; and his lien on the" land was such as he could not have been ousted of, until he had been satisfied for his debt out of it. We will now take a view of the parol evidence. Mr. Kennedy who may he said to have been the vendor, swears, that he told complainant previ- ■ ous to the sale, that if he could get any friend to purchase the land for him, so as it was bid up to the amount of debt and costs on the execution on which it was sold ho •would *299require no more. That it was accordingly bid off barely tor the debt and costs by the defendant whom he con-sideral as the confidential friend of complainant; and considered it as purchased by him for complainant. The next witness Mr. Parker, swears that he attended at the sale, as the friend of his brother, at whose suit the land was sold, and agreed also to the terms proposed by Kennedy to complainant; and that he was the next highest bidder to defendant, to whom it was knocked off; and that he considered the purchase to be on complainant’s account. The next witness Mr. Grant, swears defendant desired him to purchase the land at the sale: he did not positively say for whom; but he understood that had ho bought it, it was to have been on account of complainant. The next witness Mr. Cudworth, swears defendant told him he had complainant’s property, meaning that in question, so much at his command, that lie might do what lie pleased with it, but that he was not so great a villain as to take such an advantage of him; he would give it up to him. Here is a long train of violent presumptive evidence, that the purchase was made by defendant for account and use of complainant: but that of Cudworth goes further; to him the defendant acknowledges the property to he complainant’s and that he was not villain enough to defraud him of it. AYe do not consider the rules of evidence to go so great lengths as has been contended for? that is, that there must be two positive witnesses to contradict a fact denied by defendant in his answer: AYe think the rule is not so strict; but that if there is one positive witness and strong circumstantial evidence, amounting to violent presumption, especially in a case like the, present, it is sufficient to destroy the testimony of defendant’s answer. In one particular it is pointedly contra. dieted by two witnesses. He says it was at the first salo that the lease for ten years was produced by him: but Kennedy and another declared it was at the second; and we think if ever there was a case in which this court ought to be induced to give the most liberal construction to the above rule, it is in the present case, otherwise justice would become a mero ignus fatuas, it might he sought *300after, but would never be substantially obtained, What is the conduct of the defendant on the present occasion? After every appearance of an intention of purchasing a valuable property of another person, in order to befriend that person, and the company present at the sale being impressed with such an idea, decline bidding on the ostensible Mend of an unfortunate man, that he might get back his property at the easiest possible rate: That when he has so possessed himself of it, at a twelfth part of its real worth (as Neilson says he offered 600k for it and they asked 1200k) got the titles in his own name, in order to vest the property absolutely in himself, and now sets up this title to secure the same to himself and endea-vour to, shield himself under a statute intended to prevent such nefarious practices, is such a degree of hardiness, and such an attempt to pervert the true scope and beneficial effects of that law, as must ever receive the frowns of this court. Wo have been induced to admit evidence in this case, that in many others we must have rejected; And why? Because (we are sorry we are obliged to say so) there is such a badge of fraud imprinted on the very front of this transaction, as called loudly on us to give the latitude to the evidence produced on this occasion, which wre now do; for if we should not, true justice could not be come at. It is an observation that has been frequently made, that the rules of evidence at law, and in this court are the same. There was a time in which this observation would have applied, but we well know that even so long ago as the time of lord Harcourt, and since him that great luminary of the law of equity lord Hard-wicke, who was the first chancellor that reduced the principles of this court to a regular system, for the furtherance of justice, was obliged to declare, and so declaring to determine, that although at law fraud must he proved, yet in this court it will be presumed; and on this principle has this court ever since acted. If then fraud might he here presumed, how well warranted are we in saying, that in this case it is not only to be presumed from most part of the evidence before us, hut from some parts it has also been proved. Lord Harcourt goe3 still *301farther, and says either suppress» veri or suggest» falsi is each, of them a good reason to set aside any deed or conveyance. In the present case both of these reasons strongly apply; for here there is a suppress» veri, in the defendant’s attempting to conceal the purposes for which the purchase was made. There is also suggest» falsi, because his answer is positive that it was on his own account and no other that the purchase was made; both of which are contradicted by sufficient evidence. It is also well known to be laid down in many ol* the books, that this court will lay hold of almost any circumstance to prevent a fraud, so odious is every approach of such conduct viewed here.

The case of Olipliant and Singleton has been quoted, but we do not think it any ways analagous to the principal case, for in that there was not the least suggestion of fraud. The case of Dalzel *vs.*Timi-od, was where a deed of conveyance was made to Catharine MTnfuss; and parol evidence was brought to prove that the intention of the donor was to convey to Catharine MTufuss the elder; hut the donor being a minor and there not being the least appearauce of overreaching or fraud attempted, the donor too being dead, we thought it too much to set aside so solemn a deed on this parol evidence: That it was intended to one person, but by mistake was made in the name of another. As to the deed of the 5th of August, 1788, purporting to be a sale of complainant's lease for ten years to defendant of the premises in question, as little or no notice has been taken of it by the counsel in argument, but the whole stress has been laid on the Sheriff’s titles, it is unnecessary for us to say anymore on it, than that had the creditors of the complainant been before this court, to pray relief against this deed, we should then have thought it necessary to give some opinion on it; but as things are, let it sleep till called for, if any one should think it worth while to do so. From a full view and deep consideration of the whole case, we are of opinion that the attempt now made by the defendant to reserve to himself the absolute property in the land in question, deserves no other epithet than that of *302a gross fraud and imposition on a too credulous man; and were we to pursue the rigid rules of this court, we would make no other decree than a conveyance of the land to the complainant, and leave the defendant to his remedy at law for any demands he may have against the complainant: but as we do not consider complainant as blameless in some other parts of the transaction, we will proceed to consider the other pai'ts of the pleadings and evidence before us. ' The defendant’s account shews that there has been considerable dealings between him and complainant, and there appears to be a large balance due him on that account; so does his answer. The evidence of Grant and Cudworth also proves that the objection on the part of defendant to restore the complainant’s property, was that he might be indemnified out of it for what complainant owed him. We will not therefore deprive him of his lien on the property; hut let the accounts be referred to the master to enquire into and finally adjust and settle the same, and report accordingly. That the defendant in the mean time hold the land as a security for what might be found due to him, but as a trustee only for complainant until the further order of this court; and to enable the master more readily to adjust the accounts, we direct him to allow complainant the rent agreed for by the lease of the 8th of August, 1788, for the time therein specified.