Keatts v. Rector, 1 Ark. 391 (1839)

James B. Keatts against Elias Rector.

Fowler, for the appellant:

Cummins & Pike, for the appellee:

Lacy, Judge,

delivered the opinion of the court:

The first question presented for our consideration is, was the appeal rightfully allowed ?

The right of appeal from an inferior to a superior Jurisdiction, is an absolute and unqualified right; provided the party taking up it brings himself within the provision of the law regulating the practice in such cases.

The question then recurs, when is a decree in chancery to be con* sidered- final? It is certainly conclusive and final, when the judgment of the court is pronounced, disposing of the whole matter in contro­versy, and the time at which the judgment was rendered has in reality, passed by. The law then aSixes to the decree the seal and sanctity of truth, and constitutes it a complete judicial record; which can neither be set aside, or in any manner altered, or obliterated, except for fraud, or for some clerical misprison, apparent upon the face of the decree; or some new equity which has been discovered since the trial, and which by due diligence the party could not have availed himself of, before the cause came on to be heard. After the time at which the decree is given has expired, neither the court that pronounced it, nor the parties .that are bound by it, have any right or authority to change, or in any manner alter, the record. The decree may be reversed by a superior tribunal, having competent jurisdiction of the matter; but the record itself stands entire a'nd perfect, as it was when it was first made, and must ever remain so, as long as the public documents of the country are preserved from mutilation or destruction.

By the 5th section of the act of the Legislature passed 22d of Janu­ary, 1816, it is declared, “ after a decree is made the party shall have till the third day of the next term, to show cause why it shall not Stand, at which time, if no cause is shown, it shall he considered final and ready for execution; but if the defendant will show cause, on or before the third day of the next term, he shall at least one month be­fore the commencement of the term, leave a copy of his objections with the opposite party, or his solicitor; and if the objections are al­lowed, the court shall correct the error, and enter the decree, or oth­erwise dispose of the cause at the same time.” See Arkansas Digest, p. 116

In the case now under consideration, it is evident that the exceptions were taken to the decree after it was entered, andonemonth beforethe commencement of the next succeeding term, at which they were re­turnable ; and that a copy of them was regularly served on the solici­tor of the defendant, agreeably to the requisitions of the Statute.— The exceptions upon the hearing were adjudged against the defend­ant, and he now claims the right of appeal from the decision. In ■ determining this point, we must look at the Statute, and be governed by it. We have found no little difficulty in endeavoring to reconcile their provisions with the well known and long established principles of chancery practice; and after all we are free to admit that there is much seeming contradiction in the matter.

That a judgment or decree is final when it concludes the whole matters of the cause, and the time at which it was pronounced, has ex­pired, is certainly and unquestionably trpe; and it must so be consid­ered as against the whole world, upon the clearest principles of reason and the highest weight of authority. But under our Statute, as against the party who is the defendant in the cause, it is not final or ready for execution, if he excep^d to the decree on or before the third day of the next term. Quoad hoc as to him, the right of appeal remains suspended till that time by the express words of the act, and the clear and manifest design and intention of the Legislature. To give to the Statute any othér rule of interpretation would be to abridge an in­valuable right, instead of enlarging it, and might be the means of not only deceiving and misleading the defendant, but seriously affecting his interest, without any fault or laches of his own. This court would not be warranted in putting a strict and rigid construction on the cause in question; for if they did, it might, and probably would ope­rate most prejudicially against the right of appeal; and besides, it is expressly declared in the act, that the party against whom the decree is entered shall have the right of exception at any time, on or before the third day of the next term, and at the term to which the exceptions are returnable they shall be heard, and the errors corrected, or the cause otherwise disposed of. These injunctions are clear and peremptory, and the court is bound (o obey them. The record shows that the de­fendant has complied strictly with the requisitions of the Statute; and consequently, as that does not consider the decree final and ready for execution, till the exceptions are disposed of, the defendant in this case is entitled to the full benefit of his appeal. -In prosecuting his ap­peal, the defendant will be confined to the exceptions taken to the de­cree below, and will not be permitted to travel out of them; for if there were any other errors in the decree, by not pointing them out, he is presumed to have waived them; and of course it is now too late to take advantage of them in this court. The exceptions that may be taken lo a decree are in their nature and consequence an argument for the rehearing of the cause, and they have for their design'and end the readjudication of the whole matter. While the party excepting in the court below will be confined strictly to his exceptions in this court; still those exceptions may go to the whole equity of the case; and if they do, we are bound to open the decree, and give such a judgment as the court below ought to have given. To restrict the de­fendant in his objections to errors upon the face of the decree, would be in effect to defeat the will of the Legislature, as well as the design and object of the exceptions themselves. A decree may be perfectly fair and just on its face, (and in fact most decrees are generally so), hut the errors complained of lie behind it, and it is the false conclusions and premises that produce it, that the defendant is generally desirous of correcting and remedying by his exceptions.

We will now examine the exceptions taken to the,.decree below, and dispose of them in the order they arc presented. ’ v

The first exception is, that the decree states the defendant failed to amend his answer after the complainant’s exceptions to its sufficiency were allowed; whereas, the exceptions only went to that part of the answer that set up the Statute of frauds and perjuries as a defence; and it was only that part of the answer that was adjudged insufficient', or to which the exceptions were sustained.

It is admitted that the record shows sucha state of case; buthovv does that establish the fact that the decree was erroneous or illegal? How does such a case affect the merits of the case? The decree only states by way of recital, that the defendant did not amend his answer. The record supports that fact; for although the exceptions were only taken to that part of the answer set up the Statute of frauds and perjur­ies as defence, and only to that extent allowed; still the defendant, so far as appears from the pleading, did not amend his answer in that particular.

The second exception taken is, that the cause came on for final hearing on the bill and depositions; whereas, it was never set down ibr final hearing at all, either on the bill, depositions, or other­wise.

In what manner does this exception controvert the justice or equity of the decree? The Circuit Court in rendering the decree, evi­dently proceeded on the ground, that if an answer was adjudged insuf­ficient as to a part, that the defect vitiated the whole answer; and therefore the cause is said to come up on the hill and depositions, and the hill is considered and taken as confessed; for it is imagined by the court below that there was no legitimate answer in the case. How far this opinion is right or wrong, this court will not at present deter­mine. But in the course of investigation there will be an opportunity afforded of testing the matter, and the question will then be decided.

It is very clear that the cause was never set down for hearing by ei­ther party.

The third section of the act regulating the practice in courts of chancery, contains this provision, “ after a cause is set for hearing, it shall not be heard till next term, and then it shall be heard, or as soon after as possible.” Sec Ark. Dig. p. 116.

What is the effect of this provision? Is it mandatory to the court to set the cause for hearing before the case be tried? and is such an or­der necessary for the purpose of giving them jurisdiction and author- ' ity to hear and determine the case ? The act does not declare how, or in what manner the cause shall bs set for hearing; nor does it define whose duty it is to set it down. To say that the direction to set the cause shall be absolutely binding on the court, and to make all its au­thority turn upon that simple point, would be manifestly inconsistent with the other provisions of the Statute, and absurd in itself; and there­fore such a rule of construction cannot be admitted or allowed. The true interpretation of the clause is, that it is intended to be directory to the parties themselves, in order to prepare for trial and prevent sur­prise. If the parties proceed to trial, and neither object in the court below that the cause was not set for hearing, it is too late when it comes here, for the first time, to raise the objection. Besides, having failed to object at the proper time, and before the proper tribunal, the pre­sumption is, that the objection was waived, and the parties by con­sent proceeded to the trial. The presumption becomes full and posi­tive when it is borne in mind, that the parties in this instance have expressly agreed in the record, that no advantage shall be taken for any informality or irregularity in the proceedings. This objection to the decree, we therefore consider wholly untenable.

The third exception impeaches the decree on the ground that it states that the complainant tendered to the defendant one half of the purchase money, with interest, and also orle half of tire value of the improvements put upon the land, and that that amount was deposited in the clerk's office; whereas, the record presents no such state of case. There is some slight mistake in the exception; for the bill states a tender, and one witness goes far to prove it. Besides the decree affirms on its face, that a deposite was made, and that is certainly a record of the fact; whether true or conclusive is a wholly different matter. Take the case, however, as it is intended to be presented by the exception, and what does it amount to? Why simply to this: that the complain­ant is not entitled to relief, unless he first make a tender or deposíte of one half of the purchase money, with interest, and a sufficient sum to cover one half of the improvements. We are by no means prepared to admit the truth of the proposition; but be that as it may, such an enquiry is wholly foreign to the question now before the court, and we shall of course pass it by.

The fourth exception questions the validity of the decree, in staling that the allegations of the hill wore fully proven by the depositions. This objection will betreatedin examining the proof. The faetthatthe court below considered that there was properly no answer in the cause; and that the bill was taken as confessed is a sufficient reply for fee present to the objection. Whether the record will justify such a con-­elusion or not, we shall see as we progress in the examination.

The fifth and sixth exceptions were the last that were assigned in relation fo the decree, and they embrace any question of law, or of fact that can be properly raised upon the record; and they present the subject in a wholly different light, from the one in which wc have ■been considering it.

Before the court proceed to take up, and dispose of these questions, it may not be amiss to state a few of the most prominent and general rules, that prevail in courts of equity in regard to the pleadings.

The entire jurisdiction of courts of equity is assumed upon the ground that when the common law, by reason of universality, cannot afford the injured party adequate and complete redress, courts of equity step in and supply the defect by administering such relief. They do not profess to'change or alter the rules of the common law, but to afibrd peculiar and appropriate remedies for each particular class of cases. The judgments or decrees of courts of equity are supposed to act on the conscience of the offending party, and to compel him to do what is right in the discharge of his obligations. Notwithstanding thisj still there is as much accuracy and precision required in their plead­ings as in courts of common law. The rules themselves are doubtless far more liberal and comprehensive in their character, and in many respects infinitely more just and equitable; but they are not on that account less obligatory upon the parties or the court. For if the rules of proceeding in courts of equity were mere arbitrary and capricious regulations, then indeed might it be said, that equity resides alone in the breast of the judge, and that it was not founded in those immutable principles of moral and original justice, which are declared to be its true origin and aim. Having stated these general principles, we will now endeavor to apply them to the case before the court.

When the complainant has filed his bill for relief and called on the defendant to answer, he may come in, and either demur, plead, or answer to the bill. It is best and most advisable to put in his whole de-­fence at one and the same time; but should the defendant not elect to do so, the court may give him leave to file his defence at different times, and so to amend his pleadings as will reach the truemerits of the case. If the defendant elects to demur, plead and answer to the same bill, care must be taken that the pica docs not cover the, ground of the demur­rer, or the answer that of the plea. The object in giving the defend­ant all these modes of defence, is, that his whole case may be brought fully and fairly before the court. A demurrer only extends to. the facts or charges made in the bill, as appears on its face, and admits them to be legally true, if rightly pleaded. A plea may also reach the same facts, and take issue on thém, or it may aver any other new matter in pais, and plead it in bar of the equity of the bill. An answer is a response to all the material allegations of the bill, and either admits or denies them in whole or in part; or it may set up any new matter by way of defence to defeat or avoid the complainant’s equity.

The defendant is always presumed to understand his own case, and to know in what manner it is best to insist on his defehce. When he has made his election, how and in what manner he will defend, he is concluded by his own acts, and will not be permitted to deny or tra­verse them, or avoid their legal consequence. And in this instance court's of equity and courts of law adopt the same rules of practice, and proceed upon the same reasoning.

If these positions be true — and that they are cannot be doubted, for they stand upon the highest ground, both of reason and 'authority— then it necessarily follows, that the decision of the court below, in sus­taining the exceptions to the defendant’s answer, was correct. The exceptions only went to the part of the answer which again set up the Statute of frauds and perjuries as a defence; and which, in the first instance, was pleaded in bar of the equity of the complainant’s bill.— The answer covered the exact ground that was occupied by the plea, so far as it attempted to bring the same subject matter before the court; and consequently that part of the answer was properly ordered to be stricken from the rolls.

But does it necssarily result that because an answer has been adjudged insufficient in part, that therefore the whole answer is vitiated and annulled? Tho court in entering up the decree evidently proceeded upon this principle, for the decree on its face shows that the court below considered that there was no legitimate answer re­maining on file. Is that opinion correct and in conformity to the prac­tice and proceedings in courts of chancery? It certainly is not: an answer may he good in part, and defective in part; and its insufficien­cy can never be made so to operate as to destroy' that portion of it which is valid in itself, and which, if true and properly pleaded, may be a complete response or denial of the equity of the bill. For what is an amended answer, but an answer appendant to the original'and connected with it, and forming a part of the original. Again — why put the party to the expense and costs of pleading the same matter over again in an amended answer, when, if it was properly set forth in the original answer, it fully met and controverted the allegations in the bill. The authorities upon this subject are, clear and explicit, and can neither be controverted or denied. Lord Redesdale remarks that a i! further answer is considered in many respects as similar to, and forming a part of the first answer. Again — that if the exceptions taken by the master to the answer for insufficiency be sustained,” then the defendant must answer again to those parts of the bill in which the master conceives the answer is insufficient; or he must except to the master’s report, and bring the question of the insufficiency of the' answer before the court: thereby clearly showing, that it is only to those parts which are deemed insufficient, that the defendant is com­pelled to amend his pleading. See Mitford Pl. 225; Story on Equity Pl. from p. 591 to 665, 6 & 7; Beams’ Treatise on Equity Pleading.

How far this mistake, or the error in the court, will affect the merits of the case, we shall in the sequel of this examination determine.

It will be seen from an inspection of the record, that the defend­ant first interposed his plea of the Statute of frauds and perjuries, and after that was adjudged against him, he then put in his answer, setting' up in part of it the same defence, which was ordered stricken from the roils; and fihally set up new matter in his answer by way of avoiding the equity of the bill. By pleading over in his answer, he took issue upon the equity of the bill, and staked his cause upon that point.

After voluntarily withdrawing his plea and answering over, he has no right to claim any benefit that he might otherwise have derived from the judgment of the court in overruling his plea. The court could not rightfully return and examine the question, either of law or of fact, put in issue by the plea; for the defendant himself had vol­untarily waived and withdrawn his plea. It necessarily results from these plain and important principles, that the defendant had no lon­ger any right to insist on the Statute of frauds and perjuries, as a defence to the complainant’s cause of action, in his answer. The case then properly stands on the mere equity of the bill, answer and depo­sitions; and this court might proceed to consider and determine it alone upon the questions presented by that state of pleadings.

Legitimately speaking, the plea ef the Statute of frauds and perju-­ríes is not before us, and therefore it would be entirely proper to de­termine the cause, independent of it. '

But as the question presented by the plea is of vital interest and importance to the whole commünity, we are disposed to consider and determine, whether a part performance of a parol contract on the sale of lands will take the cause out'of the Statute of frauds and perjuries. In deciding this question, we shall give the defendant the full benefit, not only'of his plea setting up the Statute, but also whatever advan­tage he can derive from the answer, and the proof in the case.

And when we have gone through the whole subject, we shall have disposed of the entire equity of the case.

The Statute declares “ no action shall be brought whereby to charge any executor or administrator, upon any special promise to an­swer for any debt or damage out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another; or to charge any person upon an agreement made in consideration of marriage; or upon any contract for the sale of lands) tenements, or hereditaments, or any interest in or concerning them; or any lease for a longer term than one year from the making thereof; unless the agreement upon which such action shall be brought, or some memorandum or note thereof shall be in writing, sign­ed by the party to be charged therewith; or by some other person by him thereunto properly authorized. See Arkansas Dig. p. 135, sec. 1.

This section is an exact and literal copy of the 4th Section of the celebrated Statute of 29 Charles II, C. 3; and therefore the decisions of the English courts upon it are entitled to great weight and author­ity.

At common law every contract for the sale 'and transfer of property where there was no actual delivery, was treated as a personal cove­nant; andas such, if it was not performed by the party making the agreement, no redress could be had except in damages. This was in effect to allow the party in all cases, either to perform his covenant, or pay damages for the breach of it. See Story's Commentaries on Equity, 21, sec, 714. The non-performance of an agreement upon a valid consideration, is a clear violation not only of a legal, but of a moral and equitable duty; and hence courts of equity have interposed their authority, and compelled the offending party to perform specifi­cally his contract. They proceed upon the principle, that whatever a Party stipulates to do, in good faith and conscience, he is bound to Per^orm j an<^ if fails to do so, he is guilty of injustice and wrong, for which an adequate and full compensation ought to be given. It is because courts of law cannot afford this relief, that the jurisdiction of courts of equity attaches; and that jurisdiction, if not coeval with the common law itself, extends to a very remote period of time, and is nowin daily and constant operation for the most useful and beneficial purposes. Story, 23; Madd. Ch. Pr. 287; Fonbl. Equity, B. 1, C. 1.

Where, therefore, the party wants the thing in specie, and he can­not be fully compensated at law in damages, courts of equity will grant him a specific performance. Bettsworth vs. Dean of St. Paul, Sel. Cas. in Ch. 68, 69. And this constitutes the true and leading distinction in the exercise of equity jurisdiction in decreeing a speci­fic performance; because damages at law, in the particular case, can­not afford complete and adequate redress. There can be no reason­able objections in allowing the party aggrieved by a breach of con­tract, to have an election, either to take damages at law, or to have a specific performance in Equity: si The remedies being concurrent, but not coextensive with each other.” It was so expressly ruled in Hasley vs. Grant (13 Ves. 76, 77); and Alley vs. Deschampa, (13 Ves 228.)— It is a general rule, that courts of equity will not decree a specific performance of a mere chattel interes.t. But when this is the case, the courts go upon the ground, that there is not a particular nor intrin­sic value attached t© the chattel, find of course the like article can be purchased'in the market; and if there is a breach of the contract, full and adequate compensation can be recovered in an action at law.— But whenever the thing itself possesses peculiar excellence or value, and'the owner'cannot at law be fully compensated; then the courts of equity interpose and decree a specific performance — such, forinstance, as a covenant for a lease, a contract for the sale of a valuable secret in trade. And' in like manner, covenants between landlord and ten­ant, when injunctions in the nature of a specific performance often are decreed to stay waste. Furnival vs. Crew, 3 Atkyns, 83, 87; Fulton vs. Foot, 2 Bro. Ch. R. 636; Buxton vs. Lister, 3 Atkyns, 381; 2 Ves. 629; Bricket vs. Bolling, 2 Munf. 442.

Even in regard to bank stock, a specific performance is sometimes decreed in equity. Forrest vs. Elwes, 4 Ves. 479.

In cases of covenants and other contracts where a specific execution is sought, it is often material to consider how far the obligations of the parties are mutual and reciprocal; and whether the party seeking relief has fairly and equitably performed his part of the agreement. All contracts to be binding must be mutual, 'though the obligations they impose may be independent of each other, and in some respects essentially different.-

Formerly it was the practice to send the party to law, for a breach of his contract; and if he recovered any thing by way of damage, then the courts of chancery entertained jurisdiction of the case; oth­erwise they dismissed the bill. 1 Fonbl. Eq. B. 1 C. & note 5; Dods­ley vs. Kinnersly, Ambler, R. 401; Normander vs. Duke of Devonshire, 2 Freem. 217; Jeremy on Eq. Juried. B. 3; Madd. Ch. Pr. 288.— Hence it was said, no suit could be maintained in equity, unless an action at law would lie for damages. This opinion was subsequently overruled in Carnal vs. Buche, and in that case Lord Macclesfield denied the existence of the rule altogether. And the doctrine may now be considered w'ell settled, that damages may sometimes be recov­ered ‘at law, where a court of equity would not decree a specific per­formance; and on the other hand, damages might not be recoverable at law, and yet equity might interpose and decree a specific execution. Weale vs. West, Mid. Waterw. Comp. 1 Jac. & Walk. R. 370.

“In truth,” says Justice Story, “the exercise of this whole tract'of equity jurisprudence, respecting the rescisión or the specific perform­ance of contracts, is not matter of right in either party, but a matter of sound and reasonable discretion in the court, which governs itself as far as it may by general rules and principles; but which at the same time withholds and grants relief, according to the circumstances of each particular case, when these rules and principles will not furnish any exact measure of justice between the parties.”

Courts of equity are in the habit of interposing to grant relief in cases of contracts respecting real property to a far greater extent than in cases respecting personal property. Not upon the ground, as as is sometimes alleged,of an intrinsic distinction betweenreal and per­sonal property, though that may be entitled to some consideration; but upon the* ground, that in contracts for personal chattels the injured party, if the covenant is not specifically performed, may generally-be amply compensated in damages. Whereas it often happens that the locality, character, and properties of the sale, give to real estate.a peculiar and special value; and therefore a compensation in -damages would furnish to the purchaserno adequate relief forthelossor depriva-­6on. Story 51; Aderley vs. Dickson, 1 Sim & Stu. 607. And in cases affecting real property courts of equity have administered relief to a party who has acted fairly, but negligently. Lennox vs. Napple, 1 Sch. & Lef. 684. “ They will never interfere to decree a specific perform­ance, except in cases where it would be strictly equitable to make such a decree.”

If in any case the parties should so deal/with each other in relation to the subject matter of the contract, that the intention of the one par­ty is defeated, while that of the other is carried into effect; and if the case itself shows that there issuch a state of case, as that one party may enforce, and the other cannot, courts of equity will decree a specific execution of the contract. With these general principles in view, we will now proceed to consider the object and intention of the Statute of frauds and perjuries/

The title of the act of 29 Charles, 11 C. 3; of which ours is a literal copy, declares it is to prevent the fraudulent setting up of pretended agreements, and then attempting to support them by perjury. Besides,, there is much wisdom and sound policy in that clause in the Statute, which requires all contracts in relation to the sale of land to be in writing. To trust so high and important an interest to the uncertain and fleeting memory of man, is in many, if not in most cases to put to hazard that interest, and to expose both witnessess and parties to greater temptation than human virtue can ordinarily resist.

It is greatly to be regretted that courts of equity ever interposed their power to take a particular class of cases, of part performance, out of the operation of the Statute; for in so doing, they have virtually repealed it, and have established a rule of construction, not in subor­dination to the act, but in direct conflict with its authority, and its most important and salutary provisions.

In this sentiment we are fully sustained by the whole judiciary of our own country, as well as that of Great Britain. But notwithstand­ing this, courts and judges have still gone on to decree specific execu-1 tion; for they consider themselves bound by the doctrine as established, and have yielded to it implicit obedience, though they have often expressed much solicitude to see the rule changed by those who are competent to do so. This court does not consider itself at liberty to disregard the whole current of English and American decisions that have been made upon the Statute, however much they may question the policy or the propriety of their adjudications. As the !aw is written and expounded, so they must take it, and it is their duty to follow its precepts, and obey its authorities; and not to setup íheir imper-­feet and solitary opinion against the deliberate opinion of centuries,

Courts of equity are as much bound by the Statute as courts of law, and therefore they are not at liberty ’to dispense with its provisions.— That they do interfere, and sometimes dispense with what may app'ear its plain and obvious meaning, cannot he disguised or controverted; hut then they do so on the ground of protecting the equities subser­vient to the Statute, and independent of it. For instance, courts of equity will never enforce the specific performance of a parol agree­ment, in relation to the sale of land, where the contract is set forth in the bill, and admitted by’the answer; and the reason given for the decision is, that the Statute wds designed to guard against fraud and perjury, and in such a case there is no danger of it. Another reason is, as the party has not thought proper to avail themselves of the ben­efit of the Statute, it may fairly be presumed, he intended to waive it. The case is then considered as taken entirely out of the mischief in­tended to be prevented, and of course out of the operation of the Statute. Story 755; Attorney General vs. Day, 1 Ves. 221; Lacon vs. Mertins, 3 Atk. 3. Courts of equity will enforce the specific per­formance of a contract within the Statute, when the parol agreement has been partly carried into effect. The distinct ground upon which they interpose in cases of this sort, is, that one party would be able to perpetrate a fraud upon the other; and it could never have been the intention of the Statute to suffer one party to commit a fraud on the other with impunity. Indeed in all cases fraud vitiates the most sol­emn acts and conveyances; and in the case of the Attorney General vs. .Day, it is said that the objects of the Statute are promoted instead of being suppressed by such a jurisdiction for discovery and relief. “And it is obvious, where.one party has executed his part off the agreement, in confidence that llic other party would do the same, if the latter should refuse, it would be a fraud on the former to suffer it to he done to hisprejudice.” Buckmaster vs. Harrop, 7 Ves. 247; Hawkins vs. Holmes, P. Wms. 770; Wells vs. Sahdling, 3 Ves. 378; Marpeth vs. Jones, Swanst. R. 181; Fonbl. Eq. B. 1 C. 38, and Gilb. Lex. Pretoria, p. 339, 240; Clinan vs. Cook, 1 Sch. & Lef. 22.

The enquiry, still remains, what constitutes such past performance of the agreement, as will take ihe case out of the reach of the Statute? la the application of 0m rule tin; difficulty fies, and h is that we shall-­now attempt to solve. Nothing can be considered as a part perform­ance, that does not put the party in such a situation that a fraud can be perpetrated upon him, unless the agreement can be specifically enforced. For instance, if, upon a parol agreement, a man is putin possession of land, he is made a trespasser and liable for damages as such, if there be no agreement valid in law or equity. In Foxcraft vs. Lester, (Prec. Ch. 71, 518,) and in Pengal vs. Ross, (Eq. Abr. 46, Pl. 12,) it is declared forihe purpose of the party defending himself against the charge as trespasser, and to account forihe profits in such a case, the evidence of a parol agreement is admissible for his protection; and if admissible for such a purpose, there seems to he no reason why it should not he admissible throughout. A case still more cogent might be put where a vendee, upon a parol agreement for a sale of land should proceed to build a Louse cn the premises in confidence,of the completion of the contract. In such a case there would be a man­ifest fraud, if the vendor was permitted to escape from a strict fulfilment of his contract.,. This doctrine is expressly recognized and established in Whitmore vs. White, Caines Cos. in Er. 87, and Parkhurst vs. Van Cortlandi, 14 John. Rep. 15— and in such a number and variety of other cases as put the question finally to rest, and beyond all dispute.

In order to make the acts such as a court of equity will deem part ■performance of a contract, it is essential that they should clearly ap­pear to be done solely with a view to the contract being performed. For if they are acts that might have been done with other views, they will not take the case out of the Statute. Gunter vs. Halsey, Ambler, 536; Phillips vs. Thompson, 1 John. Ch. R. 149; 2 Ves. 456. There­fore, giving an abstract of the tide, going to view the estate, making out deeds of conveyance, and the like, do not constitute such a part performance, as will take the case out. of the Statute; for they are acts of an equivocal and doubtful character. Eut acts that are dear, certain, and definite in the object and design, and which refer exclu­sively to-the. completion cf the agreement, of which they constitute a part execution, will take the case cut cf the operation of the Statute. Hawkins vs. Holmes, 1 P. Will. 770; Pembroke vs. Thorpe, 3 Swanst. 437; Clark vs. Wright, 1 Atk. 12; Cooth vs. Jackson, 6 Ves. 14; Sugden on Vendors, Ch. 2, p. 104, Stoke vs. More, 1 Cox. R. 219.

Mere possession of the land, if obtained wrongly, and wholly inde­pendent of the contract, will not be deemed part performance of the agreement. Eut if possession be delivered and obtained solely Wider the contract, and in reference exclusively to it,,then the possession will take the case out of the Statute; and especially will be held so to do, where the party has made repairs or improvements. And in such a case, not to decree specific performance would be to practice a fraud upon him. Butcher vs. Stapeley, 1 Vern. 365; Pyke vs. Williams, 2 Vern. 455.

Another class of cases is, where the party seeking relief has been placed by the contract in such a situation that he cannot he put in statu quo without injury, by reason of pci-forming his part of the agreement; and whenever that is the case, courts of equity will inter- ' fere for the purpose of preventing a fraud, and decree a specific exe­cution. If this was not the case, courts of equity would permit the forms of the law to be made instruments of injustice for the unconsci" entious purpose of committing a fraud upon a confiding and innocent person. Merideth vs. Wynn, 1 Eq. abr. 75, s. c. Prec. Ch. 312; Add­erly vs. Dickson, Sim. & Stu. 607; Story, 82, 351.

The application of the principles here stated will test the case now. under consideration.

By reference to the bill it will be seen that the plaintiff stakes his whole equity upon the following allegations: 1st, That he was the original purchaser of the land in controversy. 2nd, That the deeds were made out in his name, and subsequently changed and cancelled, and others executed by the Governor to the respondent, at his special instance and request. 3rd, That the deeds on their face, although ab­solute, were only to be considered as a mortgage or lien upon the prop­erty for bis part of the original parchase money and interest. 4th, That the defendant purchased from him, and that he took possession under, and by virtue of the sale made to him by the complainant, and went on and improved the property in consequence of such sale. 5th, That he always admitted and allowed that the land was the joint and equal partnership property of himself and the complainant, and so treated and spoke of it up to a short time previous to the institu­tion of this suit: all these allegations are folly and substantially proved by the depositions in the case.

F. A. McWilliams, who acted as auctioneer in the selling of the land,proves that it was bid off by Rector, and that the deeds and notes were drawn by him in Rector’s name, and afterwards cancelled, and other deeds executed to Keatts; and that Keatts agreed to take half of the purchase from Rector ^ and t© become equally interested in the uPon ^1C exPrei:iS condition that lie would pay in the first instance all the purchase money; and that Rector, Sot the advances thus made, should refund his part back with interest from the time of payments; and that Keatts, ■ on the execution of the contract, and the reception of the deeds to himself from the Governor, took possession of the land, and has held it ever since, and that the witness often heard both of the parties say, that they were joint and equal owners in the property •> and that Keatts always so treated and considered it, until a short tim'e before the beginning of ibis suit. Samuel M. Rutherford also proves the contract, possession, and the manner of taking it; and that both complainant and defendant always told him they were jointly interested in the land; and that the fact of their joint ownership was a matter of public notoriety; and the witness was present when the deeds were made to Keatts, and that they were changed at the sug" gestión and special request of Rector; and although absolute upon their face, it was expressly agreed between the parties that they should in no way affect or alter their joint and equal interest in the land, and they were only taken in Keatts’ name for the purpose of securing him in the payment of the purchase money he had advanced for Rector • The depositions of Field, Colter, Thom, and Gould establish all the essential parts of the contract as set forth in the bill; and the answer itself, although it denies it in terms, does, in effect and in substance, admit all the facts that are necessary for the complainant, if he is en­titled to relief. It considers the contract that the defendant made with the complainant, in the first instance, not binding; because the complainant did not pay one half of the purchase money; -and as the" defendant paid the whole amount, and the deeds were executed to him, he therefore claims to bo the sole purchaser from the Governor, and entitled to all and every interest in the purchase. This is a legal conclusion, and does not materially contradict the charges of the bill. Whether right or wrong will be shortly determined. The answer in express terms admits that, in the first place, Rector bid off the land, and of coarse was the lawful purchaser; that the parties agreed to take the land jointly and equally upon speculation; that the defend­ant went in possession, upon the execution of the deed, and has con­tinued his possession ever since, claiming it as his own property; and that it was not until the complainant failed to comply with his part o f the agreement, that the defendant deemed the purchase of the prop­erty no longer a joint purchase, but accruing and appertaining to him solely and alone in bis individual capacity. These facts are set up in the answer, and with the plea of frauds and perjuries constitute the respondent’s whole ground of defence.

The only remaining question now to be decided, is, do the facts and and circumstances of the case prove such a part performance of the parol agreement, as will take the case out of the Statute of frauds and peijurics? or is the plea of that Statute a complete bar to the com­plainant’s relief? The facts relied on in the answer, and urged in argument, that the case falls within the operation of the Statute, are, that the defendant paid all the purchase money, and the complainant, if he originally possessed any equity, has failed to assert it in a rea­sonable time. The last of these objections will be examined first.— It is true that courts of equity have regard to time, so far as respects good faith and diligence; but if circumstances of a reasonable na­ture have prevented a party from complying strictly with his contract; still if he has only acted negligently, and not culpably, his case will be treated with indulgence, and even with favor. In this case, time constituted nojparfof the contract; and if it did, the complainant has performed in the first place his part of the agreement; and the de­fendant being secured by a lien on the land for the payment of the purchase money, he will not be permitted to allege that the complain­ant has lost his rights by failing to prosecute them in due season.— Besides, as the defendant never until recently claimed the land to be exclusively his own property; but on the contrary always admitted it to be the joint and equal property of himself and the complainant; and that being the case, the complainant has used a proper diligence in asserting his claim. No adverse interest was setup to his right until August, 1835, so the bill alleges, and depositions prove; and hav­ing brought his suit the next succeeding year, certainly it cannot be contended he slept on his rights, or that time in this case is an essential and important enquiry in regard to the contract. Story, 88, sec. 776; More vs. Black, 1 B. & Beat. 68, 69; Newland on Contracts, Ch. 12, p. 42 to 48.

Much reliance is placed on the fact, that the purchase money was paid by the defendant; and the complainant’s bill must, therefore be dismissed. It was formerly held that the payment of the purchase money took the case out of the Statute; but this doctrine was for a long time in much controversy, and is now entirely overthrown, upon the ground that the money can be recovered back at law, and that the case admits of a fail and direct compensation in damages. Story, 65, 66. In Buck vs. Buck, Sir William Grant lays down the true rule on this subject. Sugden on Vendors, Ch. 353, p. 112.

The cases here cited are where the vendee is seeking for a specific execution, and as the contract is mutual, they certainly apply with as much force and conclusion in cases where the vendor is the injured or aggrieved party. If the vendee would not be entitled to a specific performance, merely on the ground that he bad paid the purchase money, certainly he cannot protect himself from performing his part-­of the contract, where the véndor has executed his part in good faith, and where the very agreement set up for relief is, that the vendee was bound to pay the purchase money, and that, was the moving considera­tion that induced the vendor to let him into the contract or purchase. Again — the defendant has full and adequate compensation tit law, for the payment of the purchase money he has advanced.

This view of the subject seems to the court to be conclusive upon this point, and leaves the case to be decided on other grounds or conside­rations. In reference to the Statute, it must be conceded that the .contract in this case is mutual, and that is equally binding on both parties, or it is obligatory up'on neither. The present position of the contracting parties cannot change or alter the nature or character of the agreement. We will now attempt to test this agreement by re­versing their situations; and see how far the Statute of frauds and per­juries would protect the complainant, if the deeds had been executed to him, and the defendant had still taken possession of the lands, and had erected valuable improvements. Suppose the complainant had brought his action of ejectment cr trespass, and had attempted to dis­tress him, or to have made him answerable in damages for the trespass, could he have succeeded in cither action, if the defendant had proved on the trial that he came lawfully into possession under their contract and agreement; and that he was the joint and equal owner of the property ? Would not a plea setting forth these facts bar the complainant’s right of recovery? or would the Statute of frauds and perjuries be a good replication to it? The authorities are clear and conclusive upon the question! For to allow the Statute to operate in favor of the complainant, would in effect and reality enable him to per­petrate a fraud which the Statute was intended to prevent.

To illustrate this view of the subject still further, suppose, in this case, the complainant hacl been clothed with a legal estate, and the. defendant bad brought bis bill for a specific execution, would a court of equity have enforced the parol agreement? Most -certainly they would. For the authorities conclude the question, and neither admit of contradiction or denial. They proceed upon the ground, that the possession and improvement are conclusive acts of part performance of the defendant’s agreement, and not specifically to enforce the contract, would be to commit manifest injustice by permitting the complain­ant at his own election to perpetrate a fraud. The object and design of the Statute, was to suppress, not encourage fraud; and that being admitted, the case does not fall within the mischief intended to be remedied, and consequently is without the operation of the Statute.— Again — if courts of equity did not decree specific performance of such agreements, then not only might the party commit a fraud on another with impunity, but the Statute would be so made to operate, that the forms of the law would become instruments of injustice for unjust and fraudulent purposes. -If Redor was vested with the legal title, and. Keatts could enforce a specific execution, certainly it will be con­ceded, when the.title is in Keatts, that Redor must have the same right to specific performance. Again — where did Keatts acquire possession, and under whom does he hold? Is bis possession lawful or unlawful? He certainly acquired possession by his purchase from Redor, and the nature and character of that possession was never changed or altered by any subsequent contract. Then his contract or purchase from Rector put him in possession. That his possession is lawful, is evident; for he held under a valid deed, and was put in possession by the original and rightful owner. He could not then be treated as a trespasser by Rec­tor, or any one else; neither could be in any manner be deprived of his possession. Tha fact that Rector admitted Keatts to take possession under the contract, and in virtue of it, and to continue that possession in an uninterrupted and peaceable manner up to the time of filing the bill, shows conclusively what was Rectors design and object in execu­ting bis part of the agreement. Is it to be supposed he would have Jet Keatts into the contract, or have suffered him to have taken the deeds in his {Keatts'1) name, unless he had confidently believed the de­fendant would in good faith have performed his part of the agreement, and have conveyed to him one undivided moiety of the land? Would Rector have ever agreed to cancel his deeds, and procure others to be executed ia Keaits, if Keatts had informed him at the time, that he did not consider the contract binding; and that while they seemed to bo j0inf, and equal partner;;, that be (Keatts) was the only lawful and (xue proprietor of the land? Had he disclosedlhi3 fact, would Rector ever have permitted Mm to take an equal interest in the purchase?

Had the Governor authority to execute the deeds to Keatts, if Reo> tor had not directed him so to do? Most assuredly not. The Gov­ernor possessed no such power for such a purpose. By the terms of the sale, all right and title had passed out of the grantor to the grantee. Neither had Keatts the right or authority to accept the deeds, but as coming through Rector, and acquired by him in virtue of his contract. Shall Keatts then he permitted to reap the reward and profits of Rec­tor's purchase, and not. render any adequate compensation for the ben­efit he may have received. Will a court of equity compel Rector to perform his part of the agreement, and at the same time deny him all manner of relief? How can he he placed in statu quo, in regard to the agreement, if he has no relief in equity, or the court refuses to decree him a specific performance? The land may possess a peculi­ar and intrinsic value in his eyes, and therefore he desires a specific performance. Be that as it may, if his acts of part performance take the case out of the Statute, ho is clearly entitled to it.

If Rector had failed to comply with his part of the agreement, still he was liable for damages on the contract, or for a specific execution of it; and Keatts' remedy in whatever. mode he might elect to prose­cute it, could not have been defeated by setting up the" Statute.— Suppose, for instance, the land had fallen, instead of having risen in value, and Keatts had sued Rector for his part of the purchase money, can it be contended that Rector would not be liable. If he is liable, then Keatts is equally so. Or suppose he had filed a hill to make Rector's part of the land liable for the purchase money he had advanced, would not the land be responsible for the debt and interest. Can Rector be bound in all these ways for his part of the purchase money, and Keatts be wholly exempted from all responsibility. How does it vary the case because Rector is now seeking relief. Is not the equity something stronger than if he was only a vendee in possession. He made the contract with the Governor, became the rightful owner of the property, put the defendant in possession, clothed him with the legal title, not for his own advantage, but for greater security to the defendant, always claiming to be part and joint owner with him, which was fully admitted and recognized. If all these dear, certain and definite acts, taken apart and collectively, do not conclusively demonstrate that Redor, in good faith and full confidence, executed his part of the agreement; then it is difficult to conceive' what con­stitutes such a part performance, as would take the case out of the Statute. Courts of equity have decreed over and over again, a spe­cific performance alone upon possession of the vendee where that was exclusively taken with reference to the contract; and in no instance have they refused to do so, when the party went on and improved. The case now before the court is infinitely Stronger than any one of the cases that have been cited, and in which a specific performance has been decreed. Sugden, in his excellent treatise upon Vendors, p. 78, says “ when agreements have been carried partly into execution, the court will decree the performance of them, in order that one side may not take advantage of the Statute, to be guilty of a fraud.”— This doctrine pervades all the authorities, and determines the class of cases in which a specific performance will be enforced. 2 Johnson's Rep. 578; McFerren vs. Taylor, 3 Cranch, 270, 281; Hepburn vs. Orr, 5 Cranch, 262; Davenport vs. Mason, 15 Mass. R. 92; Smith vs. Patton, Serg. & Raule, 80.

An agreement will not be considered partly executed, unless the acts done could have been performed with no other view than to the completion of the contract. Apply this principle to the case now un­der consideration, and what will be the result? Did Rector conceal his deeds and have others executed to Keatts with no other view than for the purpose of performing his part of the contract? Realleges, and proves that he did so, and the answer,''although not in express terms, does in effect admit it. it is said, if possession be merely de­livered that the agreement will be considered in part executed, and it will certainly be so treated, if the party go on improving according to the agreement; and that a parol contract in such case will not be within the Statute; for the Statute can never be so termed, construed, or used, as to protect, or be a means of fraud. The delivery of pos­session by a person having lawful possession to one claiming under the agreement, is held by all the authorities to be astrong and marked cir­cumstance, if not absolutely conclusive, that the agreement itself will be considered as partly executed, and be taken out of the Statute.— In the case now before us, such a delivery of possession is made. Tiro possession was in the complainant, and as it was passed from him, and was accepted by the defendant exclusively in reference to carrying the contract into execution; and a court of equity in such a case is bound 1:0 srant re^eA ana decree a specific performance. Sugden on Vend-­orSf 80 — note and authorities.

This is held to be conclusive of the case, especially when the pos­session so delivered continued for a number of years, both parties treat­ing the agreement as if it was actually executed In part by the com­plainant; and when the party who delivered the possession can never be put. in the same situation that he ivas in before he parted with it, and would be placed by the acts of the defendant in such a situation that a fraud could be readily perpetrated upon him with impunity, and when his remedy would be wholly incomplete and inadequate at law.

If each and all these equitable circumstances do not entitle the com­plainant to a specific execution, then the whole series of, decisions on the subject of part performance must be disregarded and overturned, and manifest injustice and wrong be done in the premises.

From an attentive examination of all the authorities upon the sub­j'ect, and of the principle upon which those decisions are based, this court is clearly of the opinion that the case made out is not within the Statute'of frauds and perjuries,; and consequently the defendant’s plea of that Statute, if he could have been permitted to avail himself of it, was no answer to the equity of the complainant’s bill.

In arriving at these conclusions, they confidently assert that they have fallen far short of many of the American and English decisions on the subject of part performance, and in the present case they are at least not chargeable with having extended or enlarged the rule be­yond the policy or equity of the Statute.

Having disposed of the plea and the Statute of frauds and perju­ries, the cause is then left standing on the bill, answer and depositions, and they clearly show that the complainant is entitled to one equal half or undivided moiety of the land; and after having first paid one half of the purchase money with interest, and one half of the value of the improvements put upon the land; and as the decree of the Cir­cuit Court allowed the defendant nothing for his improvements, in that particular, it is evidently erroneous, and must therefore be reversed and set aside with costs, and the cause remanded to be proceeded in agree­ably to the opinion here expressed; which is, that it be ordered, ad­judged, and decreed, that the defendant he compelled to execute a deed in ice simple, conveying to the complainant one equal half or undivided moiety of the land contained in lot number eight — being sixty-seven acres lying on the south side of the Arkansas river; and also one equal half or undivided moiety of the north east and south cast quarters of the north west fractional quarter of fractional section seven, in township one north of range eleven west, being eighty acres; and upon the signing, sealing, and delivery of the deeds, that it be further ordered, adjudged, and decreed, that the complainant pay to the defendant one half of the purchase money with interest, up to the commencement of this suit; and also that he pay one half of the per­manent improvements made upon the land up to the same time, to fae estimated and ascertained by an auditor appointed for the purpose,, and according to law. And that it be further ordered, adjudged, and decreed, that the defendant be charged with one equal half of the-­rents, or mense profits arising from the cultivation of the/and from the time that it came into his possession, qp to the final decree in the case, and delivery, of possession; tobe estimated and ascertained in the same manner as the value of the improvements are directed (to be; and that one half of the value of the rents or mense profits so ascer­tained, and fixed be ordered, be adjudged and decreed in favor of the complainant.

And that it be further ordered, adjudged, and decreed, that the writ of injunction heretofore granted, be continued until there be a partition or division of the land; and that the defendant pay all the costs in the court below that has already accrued, or that may accrue hereafter.