FEBRUARY 1811.

case xpr.

#### Sebbe Sebben, and others, *vs.*Peter Trezevant, Escheator, and George Gibbes.

mckee,

The Couri not d®* fic execution “^c^fo^the sale of laud 5 voi<i the ef~ anT^¿ personal es~ thedebtsjm! land to > esciiGat.

(Tried before Chancellor Desaussure,

February, 1811.]

IN this case the complainants allege themselves to be the nearest relations of the late Sebbe Sebben, deceased, to wit, one of them the father, and the others the thers and sisters of the said Sebbe Sebben. .

The case made by the bill is, that the late Sebbe Seb-ben was a native of *the*electorate, of Hanover, and coming to this country, settled in Charleston, and became a naturalized citizen. Ho purchased a house and lot land in Charleston, situate in Church street, and received a title in fee simple for the same.

The bill alleges that the said Sebbe Sebben in his time made a verbal contract with George Gibbes for the sale of the said house and lot, in fee simple, for the sum of 8001. payable one half in cash, and the remainder at a future period, not specified in the bilí. That a *few*days after entering into this contract Sebbe Sebben departed this life, on the 16th or 17th February, 1803, without having consummated the same,' and without either party having signed or executed any writing expressive of the said contract. And that the said Sebbe Sebben died intestate, leaving the complainants his only legal heirs and representatives. That the said George Gibbes is willing to complete the said contract, and carry the same into effect j but that he is prevented from doing so by a claim made to the land by P. Trezevant, the escheator, who insisted, that as the complainants are aliens, and the said Sebbe Sebben had died without leaving any relations competent to take and hold the estate, the same had escheated, and he had taken mea? sures to enforce the same.

The complainants pray relief generally.

Another question was made by the bill, upon a suppo*214sition that Hanover was, at the time of the death of Sebbe, Sebben, under the dominion of the king of Prussia *;*and that the inhabitants of that electorate, as subjects of the king of Prussia, are entitled, by treaty with thisgovcrn-to hold real estate in this country, or to sell the same -n cage 0£ any ¿evoiving on them. This, however, was given up on the trial, because it was found upon enquiry that Hanover was not at that time under the dominion of the king of Prussia.

The defendant, George Gibbes, admitted that he did bargain with Sebbe Sebben, deceased, a few days before his death, and did agree to purchase from him the house and lot in the bill described, for the sum and on the terms mentioned, but without specifying those *terms;*that his death prevented the immediate execution or consummation of the contract; that the said George Gibbes is willing still to execute on his part the said agreement, notwithstanding there is no evidence in writing of the terms thereof to render it obligatory on him, provided he can obtain a good and legal title thereto. >

The defendpit, P. Trezevant, the escheator, states that he is 'entirely unacquainted with the facts charged in the complainants’ bill of complaint, and can neither admit nor deny the same *;*except that he believes Sebbe Sebben was a native of the electorate of Hanover. That the defendant, believing that the house and lot of Sebbe Sebben had escheated in consequence of his death, without leaving any heirs competent to take according to law, has proceeded, according to the provisions of the escheat law, to give notice, and to take other legal steps for evidencing the right of the state to the said property under the escheat law. This defendant also pleads the statute of frauds, and claims the benefit of it to protect, the right of the state against such an alleged parol contract ; of which, however, this defendant is totally uninformed.

On the trial no evidence was given as to the relationship of the complainants to the deceased Spbbe Sebben^ *215uor was there any proof offered relative to the parol agreement, or any of its terms, as charged hy the hill to have been made between Sebbe Sebben and George Gibbes, the defendant. But the complainants relied upon the admission, made by George Gibbes, of the, existence of such_ parol agreement between himself and Sebbe Sebben. No proof was given that any money was paid, or possession given, or any instructions given for drawing up any agreement. The argument," therefore, turned upon the question, Whether this was such a contract as was obligatory on the parties, and as would be enforced specifically in this Court ? also, Whether under the circumstances stated, the escheator could set up and avail himself of the plea of the statute of frauds ?

. Mr. Giiimice, for complainants.

There is no doubt that the contract was obligatory on George Gibbes, unless he pleaded the statute of frauds. lie has not done pretended contract to elude the effect of the escheat law. The escheator cannot admit or deny the agreement; he knows nothing of it. The statute was made for the benefit of the parties contracting *;*not of third persons, who have a derivative interest like this, as an escheator. The contract is to bo decreed nunc pro tunc, and will have relation to the time it was entered into. George Gibbes affirms the contract: the escheator says, negatively, that lie knows nothing about it. Suppose a le~ gal heir of Sebbe Sebben had been here, and George Gibbes had filed a bill against him, Would ho not he obliged to carry the contract into effect ? Escheat if; allowed merely to prevent litigation, where heirs fail. *216gee Yiner’s abr. title escheat. Vcsey, junior, p. *A.*devise of land will prevent the land escheating, though devisee is not entitled till the death of the testator still the devise takes effect to prevent escheat. The case Nelson’s reports seems to be against the complain* ants | but is distinguishable, inasmuch as George Gibbes here is the living contractor, and admits the contract, and is willing to go on and complete it.

Mr. Gadsdeít, for the escheator.

The real question is, whether this be money or land? It is not pretended that there was any execution of this agreement, nor any reason for the delay. The statute bars the claim.

Is there a confession in this case ? Where there is a confession of the parol agreement, it is, in fact, where both parties are existing and still consenting to the agreement. It is in fact a confirmation of the agreement *; or*a new one even. But the original parties are not before the Court. Only one of them is living, and he Confesses the agreement: the other party is dead j he is no claimant to have the agreement executed. But persons, calling themselves heirs, insist on the completion of the agreement. As aliens they cannot be heirs. The escheator stands in the place of the heir, and he knows nothing of this parol agreement, or its terms, and sets up the statute as a bar'. In a confession there is a waver of the statute; in this case a denial of it, ty the-escheator. There is no appearance of any attempt to reduce the contract in writing, or of any part being executed. There would be great danger of defeating all escheats, if such loose, pretended agreement of sale, were allowed to be set up. The defendant, Gibbes, is in reality a complainant, seeking,to have the benefit of this parol *agreement;*and he takes this-’method of setting it up, to defeat the escheator. Personal representatives could use this mode of defeating heirs,

Mr. Gmmkb, in reply.

It is contended that even in case of a suit by the heir or representative of Sebbe Sebben, (and no case of the escheator) against Giblscs, the confession of Gibbes is sufficient to set up the agree-*217incut; for the heir coming’ in, and claiming’ the execn-tionof the contract is a confirmation of it on one side and the confession by the other party completes it. The es-cheator is merely the grantee of the king, or of the state, and is not favored. The escheator seized the property as escheated, therefore the complainants were obliged to make him defendant. The contractor, Gibbes, is a purchaser ; the escheator, a volunteer.

deche..

This contract was certainly in a most imperfect state at the time of the death of Sebbe Sebben. It was not reduced to writing, nor signed by the parties, nor any . instructions given to reduce it to writing : no money was paid, to bind the contract; no possession was given by one party, or taken by the other; and no part execution of any kind took place. It was so incomplete that the locus penitentise was still left to either of the parties, and it could have been revoked by either of them. It was a mere imperfect parol agreement, and was not binding on either party, or the representatives of either. Neither could have enforced it against the other, or the representatives of either. The very text of Fonblanque shews how absolutely necessary it is that a contract should be perfect to be obligatory. He says, « The agreement ought also to be complete and perfect; for pacta cdntractuum preparatoria are not binding in law or in equity therefore going to counsel and giving the heads of the agreement is not obligatory, for the terms might have been afterwards altered, or entirely broken off. ’ So, too, *“*the agreement must also be fixed and settled, and not wavering and revocable; or else the representative will not be bound by it, if not perfected before the party’s death.” The agreement must be made perfect in the life time of the parties, else it will not bind: for the lien never vesting in the ancestor or testator, cannot descend upon the heir or devolve to'the executor. Against this it is alleged, that although under the circumstances stated, neither party was bound by this parol contract, yet it was in their power to car* *218ry it into effect if they pleased. And their representatives were equally free to complete the contract, however imperfectly left by the ancestor. That in fact the re-presCi!-tatives of Sebbe Sebben, one of the contracting parlies, having filed a bill to carry the contract into ex-ecu^onj an¿ thereby expressed their confirmation thereof; and Georg'e Gibbes, the other contracting party, having, in his answer, admitted the contract and consented to the execution of it, the Court cannot hesitate to give its aid to carry It into specific execution.

JLt may be here asked, if the representatives of one contracting party, who is dead, and the other contracting party, who is living, are agreed to give effect to the 'contract, why do they come to the Court to enforce a specific execution? The answer is, that the heirs of the party who "had agreed to sell, being'aliens, are incapablo *to*take this property by'iuheritañce,- consequently they cannot, upon the death of Sebbe Sebben, cdhvey a good "title to the defendant. The legál title devolved somewhere, on Sebbe Sebben’s death, but not on thoin : they were alien's, and could not take. It devolved then *on*the escheator. In what capacity then do these complainants sue ? They státe themselves to be heirs, and they sue as heirs. But the law of this country denies them tliis character. At the instáht of the death of Sebbe Sebben, without heirs capable of taking the estate, the rights of the state by escheat attached : and they cannot aslieirs niake good title to the land, nor carry this contract into execution. Nor would they have 'been entitled, as administrators, (if they had administered) to compel the execution of this contract; for their ‘Claim would still have been to sanction the contract, and 'authorise their conveyance of the land to George Gibbes and to compel the payment of the mone,y agreed to be paid for it. But they cannot convey a good title; and the Court will neither make good a defective title nor oblige George Gibbes to pay the money, as these claimants cannot make him a good title.

It was attempted to assimilate this case to that of a* *219pwner of land devising it to another, both of them he-ing citizens capable of holding land; but the heir of the devisor bejng an alien; such de-vise is said to be good, though the devise cannot take effect till the testator’s death though it might have been argued that eo instan-ti, the escheat would attach, so that the devise could not. be supported.. Yet such devises are supported.. There-, fore it was argued that such, a.contract as this could be. supported and would be enforced.. It is enough to say that this case does not apply to the one under consideration. The devisor is authorized by law to devise,,, and. the devisee being a citizen is capable of taking; and, the will of the testator, though it does not take effect until the death of the testator, takes effect eo instan ti,.. and prevents the application.of the doctrine of escheat.. So, too, where a testator,, who. has no heirs, devises to a. person capable of taking, such devise will he effectual though if he had not made such devise, the land would have escheated for defect of heritable blood..

But these cases have no application-to the one under consideration. It was argued that if a legal heir of. Sebbe Sebben had appeared, and George Gibbes had filed a bill for the specific execution of this contract, it. would have been enforced. To this I answer, that if such an heir had chosen to admit the agreement, he could have done *so;*as he might have made a like agreement de novo with the other party. But he w.ould, have been at liberty to plead the statute ; and.if he had it would have protected him. This shews how imperfect and incomplete the contract was. I cannot consent to set up and enforce such a contract under such circumstances.

The escheator representing the state was made a dc-. fendant in this case, and he has pleaded the statute of frauds. But it is said he cannot, avail hims'elf of that statute, which was made to protect the immediate contracting parties and their heirs against parol agreements respecting lands, and not other persons, claiming in any other character than heirs. I do not perceive any such: *220limitations in the statute of frauds. It certainly would Protec^ a residuary devisee, though a stranger, from any attempt, either by the heir or the executor, to set up a unexecuted, parol agreement, relative to part the real estate, which would otherwise pass to him im(|er the residuary clause ; and so, I apprehend, it will protect any person, claiming any legal title to the land, on the death of the former owner. The escheator comes in by law to the legal title, either as the ultimus hieres, and therefore taking by descent, in a kind of caducary succession, or by purchase ; for the law-writers are not perfectly agreed in which character he takes. See 2 Black. Com. 244. But he takes in one or the other character, for our law knows only of those two methods of taking real estate. Now either as purchaser, or as heir, he is, in my opinion, perfectly at liberty to avail himself of the statute of frauds to protect the estate from such a parol *contract;*and he having pleaded the statute, I think it is a complete bar in this case. This contract has not one feature of a perfect agreement, which can be carried into execution against the will of either party, or the legal representatives of either party. If Mr. George Gibbes had filed a bill for the specific execution of this contract, the escheator, as a necessary defendant and claimant, would have been at liberty to plead the statute $ the form of tile suit cannot make any difference.

This Court has narrowed the doctrine of specific execution of contracts within the scope of the statute of frauds. In the important case of Givens vs. Calder, decided in May, 1803, which was twice fully argued, the Court declared that great mischiefs and uncertainty had resulted from relaxing the operation of the statute, and professed a determination to he more cautious in *future;*especially in cases where one of the parties was dead, when the danger of frauds and perjuries was greatly increased. And the Court in that case refused to carry the agreement into effect under much stronger circumstances to shew a regular and formal contract than the present.

*221I will not dwell on the dangers of fraud and perjury, ■which the statute meant to guard against: they are plain. Great evils must have existed or the statute would not have been passed. Where one of the parties is dead those dangers are increased. Heirs and others claiming by law might be totally defeated if the statute is refined away.

It is therefore ordered and decreed that the bill be dismissed. But as the complainants had certainly reasonable ground to come into this Court to enquire into their rights, and know why they are cut off from the inheritance of their relation, I do not think they ought to be made to pay costs : and as there is no blame on them, I am of opinion that they ought not to be made to pay the costs: and as the defendant, George Gibbes, could not prevent Ms being brought into Court, and there is no blame in him, I am of opinion that he ought not to pay any costs. Let the costs be paid out of the escheated property.

From this decree there was an appeal on the following grounds:

First — The escheator has no equity to entitle him to favor. 1. From the reason of escheat. 2. Because not even a volunteer. 3. Not favored in England, much less therefore here. 4. Not on a footing with the heir.

Second — Complainants have strong and various equitable grounds.

Third — The existence of the agreement, the terms, their fairness and equality are sufficiently proved by George Gibbes, a disinterested, if not an indifferent witness. The reason is also given why the contract remained unexecuted. As then between George Gibbes and complainants there is ground enough to warrant a specific performance; to rebut this equity the escheator must raise a still greater. The confession is amply sufficient, when we consider that the reason of the statute is not strictly applicable : that the absence of mutuality of consent is supplied by the relation of the parties *222and the merits of their respective claims : that the face' of an agreement so fair and distinct implies consent: that the very change contemplated evidences an inten-£}on favorable to his relations *;*and vice versa, from the fact of their inability to inherit, the existence of jnfeil¿ecj oxecution of such a plan is presumcable : that they are unquestionably entitled to more favor than the escheator, on the strongest grounds of equity, policy, and law. In fine, that we do not deprive a third person of an equitable right, nor charge him with an unequita-ble burthen: and surely a technical right, founded on the pre-supposed non-existence of every other, should never prevail over equity so various and substantial.

NoRthkof, appellants’ solicitor,.

The appeal came to a hearing, and Mr. Grimke argued in support of it.

Even in England escheats are not favored, and technical objections aroused in favor of other claimants : 10 Yincr. A devisee shall take in preference of the escheat- or, though devisor dies without legal heirs, capable of' inheriting. 2 Yesey, jun. 170, Walker vs. Denn; 3 P. Wms. 52, Williams vs. *Lonsdale;*1 Fonbl. 7, note (w.} The contract preceded the right of escheat, and must be decided separately and previously. The question then is, is this such a contract as is obligatory on the parties, and will be enforced by this Court? The contract is proved, or rather confessed, and there must be evidence of fraud or perj ury to prevent its enforcement. Sob erts oh frauds, 124. Only the party to be charged is necessary to have signed, or to confess .by his answer. The time of the payment of one half not being fixed at any period is *immaterial;*the Court will fix a reasonable time. Examines the case of Givens and Caldcr, decided in this Court, and thinks it inapplicable.

JVPPefds> consisting of Chancellors jAMES> Thompson, Desaussure, and Gajeiard, una-*223■famously affirmed tlie decree of the Circuit Court, for 'the reasons given in the decree.

T. S. Grimke, for complainants,

sk Gadsden, for defendant, the escheator.