#### William Crocker *v.*Robert M. Young.

Bill to enforce the specific performance of a parol agreement in relation to lands. A conveyance ordered under the circumstances of the case, upon certain conditions.

*Before DUNKIN, Chancellor, at Spartanburg, June,*1838.

The decree of his honor the chancellor, is as follows:

“ The object of this bill is to enforce the specific performance of a parol agreement in relation to lands. It is stated that the complainant was the owner of two tracts of land, situate on Pacolet river ; one on the west side containing 150 acres, the other on the east side containing two hundred and twenty-two acres — that the complainant being embari’assed, judgments were obtained against him, and these lands were levied on under executions and adver*31tised for sale by the sheriff of Spartanburg, on sale-day in August, 1831 — that one of the tracts, to wit: that on the.east side of the river was supposed to be valuable in consequence of a gold mine having been recently discovered on it — that under these circumstances, he applied to the defendant, and it was finally agreed, as the bill charges, that defendant should become the purchaser at sheriff’s sales and take the title in his own name : that he should work the mine at his own expense and risk, and allow to the complainant one-eighth of the gold found, which was to be applied to the’ reimbursement of the money advanced by the defendant, and whenever the complainant should make up to him the amount, with interest, the lands were to be reconveyed to the complainant. It being agreed, that after the said reconveyance, the defendant should be permitted to work the mine as long as he pleased, paying to the complainant, as toll, one-eighth of the gold received.— The bill charges that the land was bid off by the defendant, who worked the mine — that complainant made him some payments, and had also required from him an account of the gold received, his proportion of which, he alleges, would more than pay any amount due, but the defendant has refused to render an account, and has since sold the land.

The answer of the defendant denies the agreement as set forth by the bill, but admits that the defendant agreed to purchase the land at sheriff’s sales, and that if the complainant repaid him the amount with interest, in the fall ensuing, he would reconvey the land to him. That in the meantime the defendant was to test the value of the mine on his own account, and at his own risk and expense, and whenever the complainant should have repaid him the purchase money and interest, he, the defendant, was to become the lessee of the mine, paying to the complainant as rent, or toll, one-eighth of the gold .recovered. The answer expressly denies that the complainant was to have any interest or charge in the experiment of working the mine, until he had entitled himself to a reconveyance.

On the hearing of the the case, court was well satisfied of the truth of the statement madé in the answer of the defendant. It was impugned by two witnesses, the father and brother-in-law of *32the complainant; but the testimony as to their entire want of credit for veracity, was not only full, but uncontradicted. The judgment of the court is formed on the admissions of the defendant and the testimony not inconsistent with those admissions.

•It appeared that the two tracts of land were bid off by the defendant at the sheriff’s sales in August, 1831, at less than half the amount for which they would have probably been sold, but for the agreement between him and the complainant. The tract on the west side of the river has always remained in the possession of the complainant or his agents. ■ The defendant, in pursuance of his plan, undertook, in company with a Mr. Rossiter, who, it seems, had experience in mining, to work the gold mine on the tract lying on the east side of the river. After working it for five or six months at considerable expense, the mine proved worthless and was abandoned, the defendant having lost in the experiment between two and three hundred dollars. It was proved by B. Foster, that he was present at a conversation between complainant and defendant, three or four years after the sale by the sheriff, in which the defendant told fire complainant that he was in want of money and must have it, and that unless he cpuld reimburse him the amount which was due to him, he must sell the land. ' The complainant replied, that he could not blame him — that he had waited a long time on him to redeem the land: and requested the defendant, if he did .sell, to sell the gold mine tract first, and give him a chance to redeem the other ; he did not pretend that he had any claim on account of gold, or for any payment he had made to him; said that defendant had acted like a gentleman, that he, (complainant,) was not able to redeem the land, and advised defendant to sell it — that this conversation took place a short time before the defendant sold the gold mine tract.

The complainant having refused to surrender possession to the vendee of the defendant, the contract of sale was rescinded, and an action at law was instituted against the complainant, .in the name of the defendant. Whereupon this bill was filed to enjoin the proceedings at law, and to compel an account and specific performance.

It does not appear to me that the complainant is entitled to any *33favor. If after the sale of the gold mine tract by the defendant, he had applied to him for the surplus of the purchase money, (if any,) after deducting the balance due to the defendant, I think he would have been entitled to it, as also to a reconveyance of the tract on the west side of the river, which had always remained in the complainant’s possession. But it is not alleged, nor was it proved on the trial, for what amount the land was sold by the defendant. It is simply alleged that it was sold, without the complainant’s knowledge or consent, to one Spencer, whose entry he had resisted: and the principal cause of complaint is, that he was entitled to an account of the gold. It is very satisfactorily proved, that he expressly consented to the sale by the defendant, and it is perhaps quite as clear, that he was not entitled to any part of the gold found during the progress of the experiment, as to the value of the mine.

On the case made by the bill and the testimony, I should doubt if the complainant was entitled to relief — some facts were, however, set forth in the answer, which may render it desirable for all parties that a final disposition of the matter should be now made. Since the filing of the bill, the defendant has recovered in his action of trespass to try title against the complainant, and has sold the gold mine tract to one Tracy, at $2 per acre. It was also proved that the complainant was equitably entitled to a credit of $50 — ■ being the value of a horse sold by his son, Simon Crocker, to H. C. Rosseter, for which the defendant agreed, substantially, to become responsible. It is therefore ordered and decreed, that it be referred to the commissioner, to ascertain the amount due to the defendant on account of his advances at the sheriff’s sales, on the 1st August, 1831, calculating interest thereon to the time of the sale of the gold mine tract, by the defendant, to Nathaniel Tracy, and deducting from the .amount $50, being the value of the horse sold to Rosseter. That the defendant pay to the complainant, the difference between this balance and the sum for which the land was sold to Tracy, and that he execute a conveyance to the complainant, of the' tract on the west side of the river, now in the possession of the complainant’s son, Simon Crocker. The costs of the suit to be paid by the complainant.” '

*34Curia, per Dunkin, Ch.

The decree of the circuit court is affirmed. It has been suggested that the complainant, who has been directed to pay the costs, is utterly insolvént. It is, therefore, ordered that the conveyance of the land on the west side of the river, to be executed by the defendant, be deposited in the hands of the commissioner, not to be delivered to the complainant until the costs are fully paid.

Johnson, Harper and Johnston, Chancellors, concurred.