#### Hopkins Howell, *vs.*Joseph Howell, Jun. *and others, representatives of Wolfe.*

*Bill to enforce ’performance of a parol, agreement, allcdged to have been made with defendants testator vn*1815, *and performed on the part of Complainant, that testator should bid off the land of complainant at sheriff ’s sale and reconvey a part-Bill dismissed; the agreement being insufficiently proved, being within the statute of frauds, and the presumption being against complainant from, the lapse of time.*

The bill states that the complainant, on or about the 6th 4ay of March, 1815, was seized in fee of a tract of land, containing about 723 acres, lying in Barnwell district, *on*Edisto river, whereon the complainant then did and still does reside, and was indebted, by two seperate judgments, to David Crum and Jacob Ott, in about $ 770, including interest and cost, on which judgments executions bad issued and were levied on the said premises. That complainant finding he could not pay off those judgments without selling a part or the whole of his land,, and thinking he could support his family upon 223 acres, part of his land, including his dwelling house, plantation and improvements, offered the remaining five hundred acres for sale, in order to raise money to paj' off the executions. That John Wolfe offered to purchase, and finally agreed for .the purchase of the said 500 acres at the price of *‡ 2*per acre, being less than the real valúe; and it was agreed by complainant and John Wolfe, that as the land was then under levy, it should be sold at sheriff’s sale, at which sale John Wolfe should become the purchaser, whatever the price might be, receive sheriff’s titles for the whole tract, pay off the executions, and pay the balance of the price agreed on for the 500 acres to the complainant; and would also convey to the complainant, or to such person or persons as he might appoint, the 223 acres aforesaid, including the plantation and other improvements.

That pursuant to this *agreement, the whole*premises were sold by the sheriff of Barnwell district; that persons disposed to bid, being apprized of the agreement, declined doing so, and the complainant relying on the agreement and being perfectly indifferent as to the sale, left the same entirely to the management of John Wolfe, so that he was enabled to become the *157purchaser without competition, at the nominal price of $510, and received sheriff’s titles accordingly. That John Wolfe soon after died,'- having first executed his will, whereby he gave the whole of his estate to the defendants, his children, Sic.

The bill prays fortt specific performance of this agreement.

The children of John Wolfe were minors, and answered by guardian, denying any knowledge of the agreement; al-ledging- as their belief that no such agreement was made; insisting on the lapse of time, and that no memorandum of the. agreement was made in writing. _

The complainant called witnesses:

JP. *Trotti*was sheriff at the time the land was sold, and sold it as sheriff. Wolfe bought it. At the sale, witness told Wolfe, “you have made a groat bargain.” Wolfe said, “no, ■I .am to re-convey all except 500 acres to Mi. Howell’s children; this is the agreement between us.” Wolfe was the owner of the executions under which the land was sold. It appeared to witness as if it was of no consequence to Howell or Wolfe what the land sold for, because the}' were to abide by their agreement. Wolfe paid no money hut the costs.

*Crum.*Wolfe told the witness that he was to have Howell’s land sold and buy it in; that all except 6Ó0 acres he was t»' convey *back to Howell’s*children; that if lie got more for the 500 acres than he gave for it, he ivas to give the balance back to Howell. -¥/olfe paid the money to witness, who was plaintiff in one of the executions, about six months after the sale.

*Jlntlay*heard Wolfe speak of selling the land, and understood him to speak of the 500 acres only; witness beard Wolfe say that he‘intended to give the other part of the land to Howell’s children, but did not recollect that he said any thing about an agreement.

*Lt. E. Cooner.*Wolfe offered the 500 acres to witness at $2 per acre, and Wolfe said he was to make titles to Howell’s ■children for the balance. Witness understood, from what Wolfe said, that there was a contract between him and Howell, that he (Wolfe) was to have but 500 acres. Witness heard *158Wolfe offer the 500 acres to one Cox, and thinks he asked $300 for it.

Chancellor *Thompson.*

The bill in this case is filed t® compel a specific performance óf a pretended parol agreement, specified therein.

From the testimony adduced to the court, it does not appear that the contract relied on has ever been entered into. The amount of the evidence is to this effect^ that after John Wolfe had become the purchaser of the land at sheriffs sale, he told several persons that'lie thought he could indemnify himself out of the sale of 500 acres of the land, and after doing so, he intended to give the surplus, 223 acres, to the children of complainant. The pro of is entirely deficient to establish a specific contract, and had it done so, the defendant interposes, the statute of frauds, which must'prevail.

It will he further observed that John Wolfe lived five or six years after the purchase, and the complainant never once suggested an idea of the claim set forth in the bill.

The defendants in this case comes into court and tells the complainants, pay back the money with the interest, and we will immediately reconvey the land to you; but no says the complainant, the value of land is not now as great by- 50 per cent as it Was when the purchase was made, and therefore I insist ox> having the amount of the purchase money, and the excess of the land under the pretended parol gift.

This pretention is so unjust, that admitting the statute of frauds was not in the way, the court would not sanction it.

It is ordered and decreed that the bill be dismissed with costs.

The complainant moved the court of appeals to reverse the decree of the circuit court, on the ground that the contract was clearly proved, and not within the statute of frauds:

1st. Because there was an entire performance' of the contract on the part of the complainants:

2d. Because the refusal to comply with the contract is *&■*fraud on the complainant, and the statute was intended to prevent and not protect fraud;

*159Patterson, for the motion,

contended that the contract was sufficiently proved. That the statute of frauds does not apply to such a case, where one of the parties has performed fully and is bound. *Sitgden Law of vend.*83. The facts shew clearly *that there*will be a fraud on complainant, if the agreement is not enforced. The lapse of time can have no effect against the complainant, but is rather favorable to his claim. The complainant has remained in possession ever since the sale. The defendant can have acquired no title by the statute of limitations, and the lapse of time can only be considered as evidence of acquiescence. But it is the defendants and their intestate who have acquiesced in the possession of the complainant; by forbearing to enforce their claims on the land, they have recognized his rights, and afforded additional presumptive evidence of the agreement. 1 *Bridg, Big.*60/ *Rob. on frauds,*i48/ *Sugden,*93.

*Felder,*contra.

The complainant comes after a lapse of eight years, to enforce a parol contract respecting lands, after the death of the person with whom the contract is alledged *to*have been made. The evidence by which the agreement is sought to be established is loose and uncertain, and consists altogether of declarations made after the sale. If established, it is within the statute of frauds; which can operate no fraud or injury to complainant. It is in his power to put himself in the same situation that he was before the agreement, as the defendants offer to,reconvey, upon being repaid the money advanced- and interest. *'No*acquiescence can be imputed to defendants; who are minors; but the presumption is of force against the complainant, who has so long rested contented, knowing the legal title to be in them.

3d. Because the title, as to the 223 acres, having been transferred to Wolfe without any consideration, a trust results in favor of complainant.

Decree affirmed;

Chancellors *Thompson, Desaussure, ffaWard,*and James, concurring.