#### *Lucretia Johnston*vs. *Thomas J. LaMotte and others.*

Plaintiff’s land, which she had mortgaged, was about to be sold under a decree for foreclosure. W. B. agreed, by parol, to buy it for the plaintiff, and re-convey it to her when reimbursed his outlay out of the rents. At the sale he succeeded in diminishing competition by representing that he was buying for the benefit of the plaintiff, and thus was enabled to purchase the land at a sacrifice. W. B. died, and this bill was filed against his executors and devisees for a re-conveyance of the *land:*— Held,

That plaintiff could not enforce the agreement, as her bill prayed, the same being void by the statute of frauds.

But that she was entitled to relief on the score of fraud, her bill being also framed with that aspect.

In such a case, if the bill aver a contract without more, the defendant may rely on the statute of frauds, and the bill must be dismissed. But plaintiff may aver a contract, and also charge fraud, in which case he may waive so much of the pleadings as relates to the contract, and prooeed entirely upon the fraud. It is better pleading, however, to file the bill upon the fraud alone.

*Before*Johnston, Ch., *at Richland, June,*1853.

Johnston, Ch. This is a bill in which the plaintiff, Lucretia Johnston, seeks for the re-conveyance of real estate, pur*348chased by the late Wm. Beard, as her property; and for an account of rents and profits ; and 'for general relief.

The plaintiff was the owner, for life, of the premises — being a house and lot in the town of Columbia, described in the bill, with remainder to certain of her relatives, and with a power to dispose of the premises, reinvesting the proceeds to the same uses. It appears that she mortgaged the premises, *in*fee, to Loomis & Davis for the expenses of some buildings, or repairs, which they had put upon them at her instance; and that they obtained a decree of this Court for the sale of the premises, in satisfaction of their demand against her. This sale was made by the commissioner on the first Monday in August, 1849, and Wm. Beard became the purchaser, at the sum of four hundred dollars. He satisfied the debt to Loomis & Davis, with the interest and costs of the proceeding, amounting in the whole to about three hundred and fifty dollars, and obtained the receipt of the plaintiff for about fifty dollars, which he produced to the commissioner, who, thereupon, conveyed the premises to him *in fee.*

Wm. Beard, with the legal title in him, devised his whole estate, including these premises, to the defendants, LaMotte and Peckham, his executors, on certain trusts for his children ; but, in the 12th clause of his will, directs that his executors, out of the rents of the house and lot purchased by him as stated, pay to the plaintiff forty-eight dollars per year, or four dollars per month, during her natural life. From certain receipts produced at the hearing, it also appears, that after his purchase, he was in the habit, while alive, of advancing her four dollars per month, to enable her to meet the rents of another house, to which, after the sale of this one, she resorted as a residence. Thus matters stood at his death. • After his death, the plaintiff instituted this suit, by bill filed the 7th May, 1853, against his executors and devisees.

The plaintiff takes two grounds in the bill.

1st. That Beard purchased the premises under an agreement *349to reconvey them to her, when re-imbursed his outlay out of the rents.

2. That by representing that he was buying for her benefit, and requesting others not to bid against him, he accomplished his purchase at a sacrifice.

The devisees of Wm. Beard put in a merely formal answer, demanding proof, <fcc. The executors deny any knowledge of the alleged agreement, and aver their disbelief of its existence, and rely on the statute of frauds.

At the hearing, it appeared that there was no written agreement. The only proof was as follows :

*Joshua Sowden*had frequent conversations with Beard about the time of the sale by the commissioner. The morning before the sale, Beard told him he was going to buy the property for Lucretia, the plaintiff. After the crying of the sale began, he asked witness not to bid. He said, whenever she, plaintiff, paid him what he should be obliged to give for this property and repairs, he would reconvey. He was to put the premises in repair, and rent them; and was to allow her the rents he should receive, as so much paid by her. He also said that he wanted to get her out of the neighborhood. He owned property, in the neighborhood, which was depreciated by the kind of house she kept. Witness went to the sale with an intention to bid ; conceived the fee of the premises was worth at least fifteen hundred dollars; and would have given more than Beard did for them, but desisted at his request.

*Michael Winstead*heard Beard tell Sowden that Loomis & Davis had a debt against Lucretia Johnston, and was going to sell her house. That his object in bidding was to break it up and that he was to hold it till he got back his bid, and to let her have a house elsewhere.

*Edward J Arthur*was the Commissioner who sold the property under a decree. After the sale, Beard settled with Loomis & Davis by giving them his note for the amount of their demand, paid costs and commissions to witness, and procured *350from the plaintiff the following receipt, which he handed to witness:

“ Loomis & Davis, } *vs.*> Lucretia Johnston. ’

Bid for house and lot, ... $400 00

Amount mortgage debt and interest, - 290 02

Costs and commissions, - - 57 05 — 347 07

$62 93

Received of E. J. Arthur fifty-two dollars and ninety-three cents, being the surplus of sales of mortgaged property in above case, after paying mortgage debt, costs and commissions.

6th August, 1249.

Her

LUCRETIA M JOHNSTON.”

Mark.

“ Test, WALTER YAN WERT.”

Mr. Arthur said he paid no money, nor did any pass into his hands beyond the costs, nor did he know whether Beard paid the plaintiff the sum she receipted for or not. The body of the receipt is in Mr. Arthur’s hand-writing; but all he recollects is, that it was handed in by Beard, as executed in discharge of so much on his bid ; and he gave him titles.

Looking at so much of the plaintiff’s bill as seeks to set up the alleged agreement, and to have it executed, I should feel bound to decree a specific perfomanee, were I at liberty to admit this evidence for that purpose. For, although it does, at first view, appear to be somewhat inconsistent that Mr. Beard should have undertaken to give the plaintiff a right to regain the property, when his object in bidding for it was to get her out of his neighborhood ; yet a close survey of the circumstances shows that there is no absolute inconsistency between that design and the agreement insisted on. He may have hoped that the rents of the premises purchased by him — when diminished by the *351yearly advance for the rent of the substituted residence of the plaintiff,' — might not, during her life, catch up with the amount of his bid, and the expenses of his repairs, with interest upon both; and so she might never be able to call for a reconveyance. Be that as it may, the evidence, that notwithstanding his desire to banish the plaintiff from his vicinity, he did enter into a bargain such as is alleged, is too explicit to be disregarded. The answer of the executors is not a positive denial of the agreement, but a mere affirmation that they know nothing of it, and do not believe in its existence. Such an answer does not require two witnesses to contradict it. But if it did, we have two witnesses. And (besides) the circumstances relied on to support the answer and contradict these witnesses, have rather a contrary effect. The receipts taken by Beard for the money advanced for the rent of another place, are unmeaning, unless taken with a view to a further account and settlement between the parties. If he was under no obligation to advance this money, then the advance of it was either a pure gratuity — in which case there was no necessity for a receipt — or it constituted an ordinary debt— in which case a common note of hand, and not a receipt, would have been the appropriate security. Then look at the provision in the will. Unless there was some obligation on Beard’s part, what induced him to appropriate four dollars per month, out of the rents of the purchased premises, for the benefit of the plaintiff ?

But it is needless to examine the evidence farther, with a view to execute the contract. The statute upon which the defendants rely, declares that parol evidence, however strong or clear, is not receivable for such a purpose ; and that any contract, relating to lands, resting on parol, is simply null and void; and so stringent is the law, that many authorities hold that though a party admit a parol contract, he may, nevertheless, successfully plead the statute, and thus get rid of it. If the bill were, therefore, confined to the agreement alleged and its execution, 1 should be obliged to dismiss it.

It is fortunate for the plaintiff that her bill presents another *352aspect; I refer to that part of it which states the representations by which Mr. Beard extinguished competition, and was enabled to purchase at an under rate.

The plaintiff’s statement, that there was an agreement, does not preclude her from relying on these representations, and having the same advantage from them as if she had never made such averment. The well settled law is that the statements of a bill are not evidence against the plaintiff, but are to be regarded as the mere suggestions of counsel; and though the averment of the agreement were admitted in the answer to be true, it is still competent for the plaintiff to waive that point at the hearing, and proceed upon the other issues made by the pleadings. She may refuse to read so much of the answer as relates to the point she wishes to waive, and read such other parts of the answer as she chooses, and as may serve her purpose. And the defendant cannot read any part of it but such as is responsive to the bill, on points upon which the plaintiff continues to insist — in which case only is it evidence for him ; or such parts as state independent facts for defence — in which case he must support the answer by proofs of his own. I proceed, therefore, to consider so much of the bill and the proofs as relate to Beard’s representations at the sale. This part of the bill is not denied, or even noticed, in the answers, and is well supported by the witnesses.

From the testimony, it appears: 1. That the purchase was at an under value. It has been suggested in the answers, that the purchase was of the plaintiff’s life estate, and not of the fee ; and it has been argued that as the fee was proved to be worth 1,500 dollars, the life estate (usually estimated at, it was said, one-sixth) was not worth the four hundred dollars, bid by Mr. Beard; and therefore there was no sacrifice of the property. This estimate is erroneous. One-sixth is the value assigned to *dower.*But that is a life estate, in one-third only of the land. According to the same rate, the plaintiff’s life estate in these premises, would have been $750, or one-half the value of the fee.

But, if it were necessary, I think Beard must be held to have *353purchased the fee. It was the estate mortgaged which was sold, and not merely the right of the mortgagor in it; and as between the mortgagor and the purchaser under her conveyance, the purchaser cannot dispute the validity and extent of the conveyance under which he holds.(a) This is not a case of a sale *in invitum*by a sheriff. In such case the creditor sells the mere right of the debtor, be it much or little. I will not say whether there may or may not be cases of that sort, in which the purchaser may in some after proceedings take exception to the amplitude of the title acquired by him. It is not necessary to conclude anything on that point, because, as I have said, a sale under a decree for the foreclosure of a mortgage, stands, in my opinion, upon different grounds.

Although a sale of the latter description be made *in*invitum, yet the decree by which it is effected is founded altogether upon the mortgage, which is the mortgagor’s conveyance, and therefore the title passes by a forensic circuity, from the mortgagor to the purchaser. The whole proceeding is a mere act of conveyancing ; and when the purchaser confronts the mortgagor, he confronts his own grantor, and cannot be allowed to dispute or abridge his title. This would be tolerably clear if this were an English mortgage, and the mortgagee had made a conveyance or assignment of his title. It may be said that Mrs. Johnston had only a life estate, and that though she had an express power to sell the fee, she had no power to mortgage it. That her assumption of a power to alienate the remainder for her own debt, was an abuse both of her implied trust, as life tenant and of her express power to sell. Granted. And her conveyance may be questioned by her *cestui que trusts. They*may impeach it, not only as against the trustee, but as against her alienee. But can the purchaser of the fee from the trustee, after taking a conveyance, aver, as against the trustee, thathe did not purchase the fee. I am not saying he might not be heard if he came for a decision, and complaining against the grantor *354for fraud in attempting to palm off upon him a title which she did not possess: though, after accepting a conveyance, he might encounter great difficulties. But what I mean to say, is, that where a trustee grantor is proceeding against his grantee, it is not competent for the latter to detract from the title he has received, on the ground that it arose from a breach of trust — when the *cestui que trusts*do not complain’ — ’may never complain; and may, in fact, have assented to the alienation : and, especially, when the decree sought is a restoration of the property to its original condition, thus curing the breach of trust, out of which the objection is raised. ,

2. The testimony shews that competition was diminished at the sale by Mr. Beard’s representations that he was buying for the benefit of' the plaintiff. Such representations (to the honor of our nature) being calculated, by their appeal to the generosity of the bystanders, to win them off from the free bidding to which their interests would otherwise impel them — a desire to produce that effect is fairly attributable to him who makes them. But the design; in this instance, is not left to mere inference. It is in proof that Mr. Beard solicited one who intended to bid, and who would have gone to an amount beyond that in which the sale resulted, not to bid against him, and succeeded in - his request.

Let it be admitted that the property brought its value or even more. Grant here that only the life estate was sold, and that Beard gave more for it than it was' intrinsically worth; he did not give what it would have brought; and, viewing the point now under discussion apart'from any agreement — which is the way I am bound to regard it — he was not justifiable in depriving her of the full amount that other persons, whether from error of taste, or of judgment, would have given. Contracts can be supported only when fairly made ; and if means are used from which an inference of unfairness arises, they cannot stand, though the injury be slight. There is nothing in the statute of frauds to exclude evidence of the circumstances under which Mr. Beard made his purchase. It is a mistake to suppose that *355the statute excludes all parol evidence relating to lands. It goes no further than to declare that all *contracts or agreements*relating to lands must be in writing. When these contracts are to be proved, parol must necessarily be received as to the execution and delivery of the instrument; and again, to shew the identity of the premises with those described in the instrument when the identity is doubtful. Other illustrations might be put. The statute is limited to the terms and nature of the contract. The question for consideration here has nothing to do with the agreement alleged to have been made between the plaintiff and Mr. Beard. It is neither whether such an agreement was made nor whether it should be executed. It relates simply to the means by which he acquired the title he holds. The inquiry is, were those means fair or unfair? which is neither more nor less than an inquiry whether he has a good title. Did he acquire his title by fraud ? If he- did, it is as liable to be set aside, as it would be in a case where no agreement had ever been mentioned or thought of. The inquiry whether the title acquired should be set aside for fraud, so far supersedes that with regard to the enforcement of-the agreement, that the very application to set aside the title is an application to put it out of the power of the purchaser to perform. This is the doctrine of *McDonald*vs. *May,**(a)**Schmidt*vs. *Gatewood.**(b)***In the latter case, it is said that where a purchaser at a forced sale effects his purchase by fraudulently destroying or reducing competition, it matters not whether there was a contract between him and the person whose land is sold or not. The brevity of the observation has perhaps subjected it to some obscurity, and led to misapprehension, (c) It is clear that if there be no agreement for the benefit of the debtor, the effect of such conduct is a fraud upon him, by diminishing the price of his property. If there was an agreement, cases may be imagined in which the conduct of the purchaser, attended with the same consequences, may be a fraud upon the agree*356ment, and if so, a fraud upon the debtor. This is the meaning intended in the passage referred to, which was uttered with too little attention to precision.

It is entirely conceivable that a party, under the obligation of a contract to purchase a debtor’s property for his benefit, may purchase it even at an under rate, and yet be liable to the imputation of no other fraud than a subsequent repudiation of the contract, and a refusal to carry it into effect; as, for instance, where the agreement is secret, and he is merely silent respecting it at the time of his . purchase, and is guilty of no attempt to extinguish competition. Here the sale is fair, and indeed, his contract has only added one more to the number of competitors. The only fraud of which he can be guilty, is in changing his mind, after his purchase, and refusing to perform what he had undertaken. He may have been willing to perform it, but may be prevented by death, and his executors and heirs not being conusant of the agreement, may not feel at liberty to execute it. Such may well be the case in the present instance. In all such cases, the imputation of fraud has no other basis than a mere refusal to perform the contract. Such fraud, whether intentional or unintentional, depends, as is said in *Schmidt*vs. *Gatewood,*(a) entirely upon the question whether there was in fact an agreement to be performed; and the statute will not allow that preliminary fact to be established by parol. It is elsewhere said,(b) I think justly, that if fraud, consisting in the *mere nonperformance*of an agreement, or the injury resulting from *nonperformance*be sufficient to take the agreement out of the statute, every case of non-performance is taken out of it, and the statute is a nulity. It seems to me inconclusive to answer this observation by replying that an *unconscientious*refusal to perform is such fraud, as should be held to displace the statute. The epithet *unconscientious*is applicable to every naked refusal to perform fair agreements. It adds, therefore, nothing to the fraud of mere repudiation, and if it be allowed to do so, and to *357take cases out of the statute, we are brought back to the original position, to wit: the holding a refusal to perform obviates the statute, must amount to a virtual abrogation of the statute itself.

All my reflections on this subject have satisfied me that it can be presented to the Court in only one or another of the following ways:

1. The bill may aver a contract without more. In such case, if the defendant deny it, and plead the statute, or, at the hearing, objects to parol proof, or if he admit the contract and plead the statute — the contract cannot be established by parol; the bill must be dismissed.

2. The bill may aver a contract, and may also charge and set out circumstances of fraud. In such case as I have said— whether the defendant admit or deny the contract, it is competent for the plaintiff to waive such portions of the pleadings as relate to it, and proceed entirely upon the fraud.

3. The plaintiff may file his bill upon the fraud alone, which is certainly the better method of pleading. In this case, the defendant has no resource but to deny the fraud and leave the issue to depend upon the proofs, unless he choose to set up the contract by way of exonerating himself from the fraud charged against him; in which case he must perform the contract.

Such, I conceive, to be * a summary of the law on this subject ; and I have taken some pains to set it forth with as much explicitness as I can, because I am of opinion some of the cases have been misconceived.

To conclude. The plaintiff in this case expresses in her bill the desire that the executors be allowed the amount expended by Mr. Beard and themselves, in the purchase and repairs, and in payments made to herself. This is just, because I suppose there would be no litigation if Beard were alive. I apprehend the executors defend this suit 'only because they suppose it to be their duty. It is ordered, that, as a preparation for a final decree, the commissioner take an account of the purchase money *358expended in the purchase, repairs and payments to the plaintiff, and all other just charges on the part of Beard’s estate,-and of the rents received by Beard and his executors, and all the just charges on that side of the account, and that he report the account with such balance as may be due on either side. Let the costs of the defendants be paid out of Beard’s estate. The plaintiff to pay her own costs.

The defendants appealed from so much of the decree as ’grants relief, and orders a reference preparatory to relief, and now moved this Court to reverse the same, on the grounds :

1. Because the complainant, having stated and proved no more than a case proper for specific performance, (if the agreement had been reduced to writing, or in part performed,) the Court ought not to grant relief in contravention of the statute of frauds; still less should relief be granted by carrying the alleged agreément fully and particularly into execution, which is the relief prayed for in the bill and indicated by the decree.

3. Because no fraud was alleged or proved other than not complying with the alleged agreement, or declarations and acts pursuant to that agreement.

. 3. Because the complainant had a plain and adequate remedy at law.

Failing in this motion, then they moved so to modify the decree and the order of reference as to reserve the question, whether the relief to be granted shall not be confined to awarding to the complainant the difference, if any, between $400, the amount paid by Beard, and the value of the premises at the time of the sale; or the difference between that bid and the' amount which Sowden or Winstead, being ' responsible, would have given: and also to reserve the question, whether, even if the premises be ordered to be reconveyed to the complainant, the testator’s estate is liable for rents and profits.

*Tradwell,*Bellinger, for appellants.

Talley, contra.

(a)

*Stoney*vs. *Shultz,*1 Hill, Ch. 465.

(a)

1 Rich. Eq. 95.

(b)

2 Rich. Eq. 177.

(c)

3 Rich. Eq. 428.

(a)

2 Rich. Eq. 175.

(b)

3 Rich. Eq. 430.

*359*Per*Curiam.

We are not able to discover any ground upon which the appeal should be sustained. It is, therefore, ordered that the appeal be dismissed, and the decree affirmed.

JohNstoN, Dunkin, Dargan and Wardlaw, CC., concurring.

*Appeal dismissed.*