#### *Frances Cox*vs. *Peter Cox.*

Defendant purchased the land of plaintiff’s ancestor, in October, 1842, at sheriff’s sale, and received titles from the sheriff in October, 1843. In March, 1851, defendant brought trespass to try title against the plaintiff to recover possession of the land; and thereupon, plaintiff filed her bill for an injunction, and to havo the sheriff’s deed cancelled, alleging the purchase to have been fraudulent: *Held,*that plaintiff’s bill was barred by the statute of limitations.

*Before*Dargan, Oh., *at*Horry, *February,*1853.

Except that the statute of limitations was ihterposed by the defendant in his answer by way of plea, everything necessary to a full understanding of this case appears in the circuit decree, which is as follows :

*276DargaN, Ch. Harmon Cox, the deceased husband of the plaintiff, was the owner of a tract of land situate in Horry district, known as Cox’s Ferry. It contained about 950 acres, and was worth 800 or 900 dollars. The ferry is said to have yielded an annual income of $ 100.

Harmon Cox became embarrassed in his pecuniary circumstances ; and there were executions against him. The sheriff levied upon the Cox’s Ferry tract, and on the 3d of October, 1842, it was sold by the sheriff, and bid off for $>50 by the defendant, Peter Cox, Harmon’s brother. Harmon Cox continued to live on the place till 1849, when he died, and his widow has lived on it from the day of his death up to the present time. Peter Cox received titles from the sheriff for the land on the 5th Oct. 1843. He at the same time received titles for another tract of Harmon’s, called Savannah Bluff, which he bid off at the same time. The latter tract is not in dispute. The facts relative to it have only been elicited on account of their supposed bearing upon the controversy relative to “ Cox’s Ferry.”

In March, 1851, Peter Cox brought against the plaintiff in this’cause an action of trespass to try the title of the Cox’s Ferry tract, and the plaintiff has filed this bill for a perpetual injunction to restrain the said action at law; and to set aside and cancel the sheriff’s deed, on certain grounds of Equity which she states in her bill; and for a partition of the said tract of land between herself and the defendant, they being the only heirs at law and distributees of Harmon Cox.

The plaintiff charges in her bill, that previous to the sale of the said land, there was a parol agreement between Peter Cox and Harmon, by which the former was to bid off the property for the benefit of the latter. She alleges that on the third day of “ October of that year, (1842) which was the sale day, the said plantation was offered for sale by the said sheriff, to satisfy a judgment and execution in favor of Charles .1. Gore against the said Harmon Cox, in the presence of a considerable crowd, when Peter Cox, the brother of the said Harmon, pretending and stating that he was desirous of purchasing the said planta*277tion for the benefit and accommodation of the said Harmon, and as a home for him and his family, which was then helpless, and he, the said Harmon, infirm, and that he desired no benefit to himself in said purchase; but on the contrary, as soon as the said Harmon refunded the purchase money that he should have the said plantation absolutely all of which he had promised the said Harmon who was there assenting to the statement made by the said Peter, made, as he and all others believed, in good faith at the time ; he, the said Peter, bid oif the said plantation at the sum of fifty dollars, and it was knocked off to him at that sum, which your oratrix avers is less than one-tenth of the real value of the said plantation.

*“*And your oratrix charges, from what she has heard and believes of the said sale by the said sheriff, that it was purely on account of the objects expressed by the said Peter at the time, that he was enabled to bid off the said land at that sum; as many of the friends, as well as creditors of the said Harmon were present, interested in the said sale, and well aware of the embarrassments of the said Harmon, but who, as she has been informed and believes, desisted from competition on account of the avowed ostensible humane purposes of the said Peter Cox,” &c.

To this bill the defendant pleaded the statute of frauds. At this stage there was an application made before Chancellor DunkiN for an injunction to stay the action of trespass to tiy the title. The case was heard on the bill and affidavits, and the plea.

The following order was made : *“*It is ordered that an in junction issue according to the prayer of the bill, until the heav. ing of the case, and the further order of the Court.”

From this order an appeal was taken by the defendant. The Court of Appeals affirmed the order, and the appeal was dismissed.(a)

The defendant had leave to file an answer, which he did on the *17*February, 1853. In his answer, *“*he admits that the Cox’s Ferry tract was offered for sale at the time stated in com*278plainant’s bill, and that for the purpose of relieving his brother Harmon, this defendant purchased the said tract of land for the sum of fifty dollars, stating at the time that he would make titles to the same to the said Harmon, whenever he the said Harmon should refund the purchase money, provided it was done in the lifetime of the said Harmon. And this defendant avers, that at no time during his life did the said Harmon pay, or offer to pay the purchase money aforesaid.”

It will be perceived that the plaintiff and the defendant have given a very different version of the transaction.

The evidence on this part of the case is as follows : J'osias G. Waller, who was a step son of Harmon Cox, says, *“*that he was present at the *sale;*it was on a *Monday;*there was a large crowd present; it was conducted as sheriff sales are usually conducted ; there was no other bid than that of Peter Cox.” He testified to no declarations of Peter Cox made at the sale, as to the terms on which he was to bid. But after the sale he heard Peter Cox say *“*that he had bid off the land for the benefit of his brother, and with the intention of befriending him. He wanted to help him. He said that Harmon was to have back the land when he paid him back his bid.”

The affidavit of Benjamin E. Sessions was admitted as evidence. The?! affiant states, “ that in a conversation between Harmon and Peter Cox in January, 1844, after the sale of Harmon Cox’s land, Peter Cox stated that he had bought the land called Cox’s Ferry, as well as another tract called Savannah Bluff, on sale day in October, 1842, for Harmon’s benefit, and that he would recognize the sale made to the affiant by Harmon Cox of Savannah Bluff, at $400. He asked Harmon to pay him when convenient, for what be had paid for Cox’s Ferry, which he promised to do.”

The Rev. James E. Belin said that in the Spring of 1844, from motives of friendship and compassion, he became Harmon Cox’s agent, to examine into the state of his affairs and to settle and pay his debts. He made a memorandum from Harmon’s statement of his liabilities, and the names of his credi*279tors. The name of Peter Cox was among the creditors. It thus appeared that Harmon owed Peter two debts ; one of $50, the bid on the Ferry tract, and another debt, amounting to $300 or more, which was in judgment.

Shortly after he had undertaken this agency, the witness met Peter Cox: he told him of his agency, and spoke to-him about the bid of $50 for the Cox’s Ferry land. Witness said to him that the other creditors of Harmon were pressing, and asked whether he required immediate payment. The defendant said that what he had done, was done for his brother’s accommodation, and that as soon as the money which he had paid for the land was refunded, he would make his brother titles for it; he agreed to wait for his money, but no time was fixed for its payment. The arrangement was, that he was to be paid when the more pressing demands were satisfied. Before all the debts were paid, Harmon Cox died. The first money which witness tendered to Peter Cox, was the amount due on the judgment. He declined to receive it on the ground that his brother’s death changed the whole aspect of affairs. He said that he was his brother’s sole heir, and that the money which witness offered him was his own as his brother’s sole heir. The witness paid it to the sheriff. The defendant forbid the sheriff to receive it. The witness supposed from this that he would not receive the bid of $50 on the land, and did not then offer it; but about three years after Harmon’s death, as near as he can recollect, the witness, acting, as he says, in behalf of the estate, offered Peter Cox the amount of his bid, $50, with interest thereon, which was refused.

I have thus, with a good deal of minuteness, stated the evidence that bears upon the principal question in the case. It falls short of sustaining the allegations of the bill in a material particular. The bill states a case in which the defendant had damped and depressed the sale of the land by a public declaration made to the crowd at the time, that he was bidding off’ the land for the benefit of his brother Harmon, and that when the bid was refunded, the latter was to have his land re-con*280veyed to him. This statement, if true, would put the case on a parallel with *Kmard vs.*Hiers, 3 Rich. Eq. 423. It was upon the aspect thus presented, that the Court of Appeals affirmed the order of Chancellor Dunkin granting the injunction. But when the defendant’s answer came in denying the most material allegations of the bill, and still insisting upon the statute of frauds, and the plaintiff was required to make out her case by proof, she fell short of the mark, and failed in proving such facts as would exempt the contract from the operation of the statute. No witness has testified that Peter Cox, at the time of the sale, or before, made any declaration calculated to depress the price, or to prevent competition in the bidding. The proof of the contract or arrangement between the two brothers, arises from the subsequent declarations and admissions of Peter Cox,, that he had bid off the land for the benefit and accommodation of his brother, and not that any declaration to this effect had been made at thé time of the sale. So far as the witnesses have spoken, nothing was said by Peter Cox, or by any other person at the time of the sale, calculated to prevent competition. ' And it does not appear that any person was prevented from bidding. The case made by the evidence, is simply that the defendant has fraudulently refused to execute a parol trust. But a fraud of this character occurs in every instance where a party avails himself of the statute for the purpose of evading the performance of a parol trust. To grant relief in a case like this, would be to repeal the statute. Something more is necessary, where there is a fraud beyond that of refusing to execute the parol trust, or to perform the parol contract. Where the contract or trust is obtained by fraud or misrepresentation, the Court will interfere, and not permit a statute which was intended for the preventation of fraud to become an instrument for its perpetration. Upon principles of high public policy, it has been settled that where a party by artful combination and representations, has stifled competition at a judical sale, and has purchased the property at less than its value, he will not be suffered to retain his unconscientious advantage. The sale will *281be set aside at the instance of any person who has been aggrieved.

The refusal to perform a parol trust, however immoral and unconscientious such refusal may be, is not such a fraud as would authorise the Court to- interfere. But where to this is superadded another fraud by which the party has been enabled to get the advantage, and to thrust himself into the position of a trustee under a void agreement, this Court will afford relief. Thus where a purchaser at a sheriff’s sale, represents himself to the bystanders as bidding for the benefit of the debtor, inducing them, from motives of sympathy and compassion, not to compete in the bidding, and obtains the property at less than its value, he will not be suffered to appropriate to himself the benefit of his bargain. And this will be the result whether he was or was not authorised to make the declarations. If an agreement did actually exist, that the purchaser should buy for the benefit of the debtor (who, under these circumstances, is generally a facile victim) it would be a fraud as well as a great hardship, for the purchaser, suppressing all competition, to purchase the property at a nominal price, and then refuse to perform the contract. If no such arrangement existed, the fraud and falsehood would be still more aggravated. Neither case would be within the statute of frauds. *(Meador*vs. *Jackson,*Mss. Col. May, 1847.) The Court would interfere, but not by affording a relief that would be in the face of the statute. The Court would not set up and enforce a parol trust, but would decree a vacation of the sale, and restore the parties to their former condition. But the case made by the plaintiff against the defendant, does not come within these principles. It is simply a case (as has already been explained) where the defendant refuses to perform a parol trust or agreement, which is void by the statute of frauds. That is not a fraud, in a legal sense, which the law itself allows. And there is in this case no other, or additional fraud by which this Court could take jurisdiction, as there was in *Kinard*vs. Hiers; and as there would have been in *Me-**282*Donald*vs. *May,*1 Rich. Eq. *95,*but for the interposition of the statute of limitations.

But it is said that the admissions of the answer furnish evidence of the facts that are necessary to bring the case within the doctrine of *Kinard*vs. *JSiers,*namely, a public declaration at the sale that the defendant was bidding for the benefit of his brother Harmon. The admissions of the answer in this respect, have been already fully quoted in a preceding page. It is admitted, that a statement was made at the sale, of the arrangement between the defendant and his brother ; but it does not distinctly appear that it was a public declaration, nor to whom the statement was made. Be this as it may, the agreement set forth in the answer which the defendant admits to have been stated is very different in an important feature from that stated in the bill. The defendant admits that he did, in performance of a previous agreement, “ bid off the land for the benefit and accommodation of his brother, and that he was to make titles to Harmon Cox whenever he, the said- Harmon, should refund the purchase money, *provided*it was done in the lifetime of the said Harmon.” He further says, “ that at no time during his life did the said Harmon pay the purchase money aforesaid.” Inasmuch as there is no proof contradicting the answer in this respect, (this admission being all the evidence afforded as to what passed at the time of the sale) and inasmuch as the plaintiff relies upon the admission to fix a liability upon the defendant, it is ■ but fair to allow to the latter the benefit of his *whole*statement of the contract.

If the answer in this particular is true, and in this view of the case I must assume it to be true, the defendant has committed no fraud upon. Harmon Cox, though competition at the sale was checked or prevented in consequence of the arrangement and the publicity that was given to it. The creditors of Harmon Cox (if there be any that are unsatisfied) might have some ground of complaint, but Harmon Cox himself could have none. He was not to have a re-conveyance of the property, un*283less it was redeemed in his lifetime. The defendant now holds on to his bargain in accordance with the very terms of the contract. He says that the purchase money was not paid, nor was there any offer to pay it during the life of Harmon. And there is no evidence that payment was made, or tendered until after his death.

The bill must be dismissed, and it is so ordered and decreed.

The complainant appealed, and now moved this Court to reverse the Circuit decree upon the grounds :

1. Because his Honor refused on the trial to allow defendant to insist upon the statute of frauds in his answer, as the same had been previously overruled in the same cause, and at the same time sustained the defence on the plea of the same statute.

2. Because the answer of defendant, that he stated at the sale, he was bidding for the benefit of his brother, was calculated to stifle competition, and was such an act as should deprive him of all benefit from the sale, as he bid off the land far below its value.

3. Because the continued possession of Harmon Cox during his life, and his widow after his death, under the understanding that, upon paying the bid, he was to have the title, and the repeated promises and admissions of the defendant to that effect during the continuance of the possession, entitled the complainant to the relief prayed for.

*Harllee*for appellant.

*Simonton,*contra.

(a)

5 Rich. Eq. 365.

*Per Curiam.*

We are of opinion, that, without considering or approving any other ground, the plaintiff’s right to a decree was barred by the statute of limitations, which began to run against the alleged fraud from the defendant’s purchase ; (see *Thrower*vs. *Cureton,*4 Strob. Eq. 155, and *McDonald*vs. *May,*1 Rich. Eq., 91), and that the bill was rightly dismissed.

JohnstoN, Dunkin, Dargan and Wardi,aw, CC., concurring.

*Appeal dismissed.*