#### Lavicia Cornwell, *vs.*Patrick Spence.

*Complainant had sold to defendant a tract of land and tooTe !iM> two promissory notes for the purchase money. On complainants application, defendant agreed by parol to rescind the contract, if she would permit him to occupy the land, rent free, for a year, and pay him $ 15; which she did. Defendant received his notes and delivered up the title deeds, representing to complainant that this would be effectual as a conveyance to re-vest the title. Plea of statute of frauds overruled and specific*per-*formdnce decreed.*

The complainant sold to the defendant a tract of land, *for*which he agreed to give her *‡ 400,*in two promissory notes, of *‡*200 each, payable at different times. The bill alleges that soon after the sale, the complainant, being dissatisfied with it, applied to the defendant to have it rescinded; to which he agreed, on the condition that she would permit him to reside on the land one year, free of rent, and pay him $15 for a cupboard *259which had passed with the dwelling house: that in pursuance of this agreement he gave up the title deed which he had received from her, and she had returned him his two notes and paid him the *‡*15 agreed on. ■

The defendant denies any agreement to rescind the sale, although he admits that he had given up the title deed to the complainant, and received back his two notes; but he alleges that this was done to soothe her mind íor a time, as she then had the appearance of being deranged, which he believes was feigned for the purpose of getting back the land; he further insists on the statute of frauds, because the alledged agreement was not in writing.

Ghancellor *Waties*

:AU the facts stated in the bill have been fully established, and there is no doubt but the defendant considered the agreement as absolute, for he immediately tore off his signature to the notes on receiving them, and afterwards demanded and received the $15 agreed on. It has been further proved that when he delivered up the title deed to the complainant, he had assured her that this was equivalent to a re-conveyance from him of the land, as the deed had not been recorded, and that she, trusting to this assurance, had executed on her part the agreement as before stated, and has allowed him to keep possession of the land for a year, free from any demand of rent.

I should regret exceedingly if a case of this nature was without redress, not only on account of the unfair advantage taken of the complainant, hut because it appears that her mind has been seriously destroyed by her grief at selling the land, which ought to be a motive with the court to afford all the relief in its power. But I am satisfied that the statute of frauds is not in the way. It is. plain from the evidence, that the complainant has been guilty of ill faith towards the complainant, and it has been fully settled that where a party sets up the statute of frauds as the means of eluding the performance of an agreement, the complete execution of which has been prevented by his own fraudulent conduct, he shall not be allowed *t&*shelter himself under the statutes 1 *P. W.*620; *New on*
      *260
      *Con.*179. It is contended however that the defendant, being willing now to pay the amount of his notes, takes away, the complainant’s equity. I am aware that there are cases to this effect, but they proceed on the ground that there has been no fraud, and that no prejudice has been done to the party complaining. But both of these appear to me to exist in the present case. The defendant imposes on the complainant by representing that his surrender of the title to the land was as. effectual as a re* conveyance from him by deed, and she was induced by it to divest herself of all the legal evidence of her demand for the consideration of the sale. She might indeed have called on him in this court to acknowledge the debt, but he might have denied it, as he has done the facts which have been proved in contradiction to his answer. It appears to me then, that the complainant- has been prejudiced by the ill faith of the defendant, and this is a sufficient ground for requiring of him a specific performance of his agreement, although a parol one.

On appeal, *Williams*for appellant,,

cited Givens, vs. *Colder,2 Eq. Rep.*189;. 1 *Madd.*383; 1 *Sch.*& *Lef.*40,41-,

It is therefore ordered and decreed that the defendant do deliver up, to the complainant, the possession of the land which he purchased and afterwards agreed to re~convey to her, and that he be perpetually enjoined from, prosecuting the action brought by him for the recovery of the title deeds which he. surrendered her, and from any other action or claim for the recovery of the said land-

Decree affirmed by the whole court.