Gilmore v. Johnston

¶1By the Court.

¶2delivering the opinion.

¶3'There are two questions in this caso :

¶41. Is the suit barred by the Statute of Frauds ?

¶52. ’Ought Johnston, the husband, to have been a party ?

¶6As to the first ques+ien. Let it be admitted that the agreement partly concerned land ; and that it was neither in writing, or “ manifested and proved” by a writing.

¶7The agreement, however, only in part concerned land. It ¡also concerned personalty and personal acts. In respect to this latter part, the Statute of Frauds cannot affect it. Does the Statute affect the agreement, as to the part ‘ which concerns land?

¶8[1.] Sir Edward -Sugden says: “ Where 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, Lo he guilty of fraud”. (1 Sug. Ven. Pur. 200.) This proposition is well -supported by the authorities to -which he refers, and by others. For one party to refuse to perform, after the other has performed, is, itself, a fraud.

¶9Now, the agreement stated in the bill, wras fully performed on one.side. Johnston, the husband, actually did all that he *686.promised to do. He let Gilmore get possession of the land and negroes in the manner in which it was agreed he should get possession of them. He did not object to Gilmore’s getting that possession at nominal prices. In addition to this, he supplied Gilmore with other means, to be applied to the purposes of the agreement, from which Gilmore “ realized” over three thousand dollars.

¶10And the agreement was partly performed on the other side. Gilmore attended the Sheriff’s sale — bid in the property; told the by-stahders that he was buying it in for Mrs. Johnston and .her children.

¶11Afterwards, he sold the land, having previously worked it and the negroes. He also hired out the negroes. ’

¶12He also took from Johnston other means, to be applied to the payment of the debts. Erom these he realized over ¡$3,000. He realized from the land over $>1,000. From those two sources, therefore, he realized money enough to pay off- the debts.— Nothing, therefore, was.left for him to do, under the agreement, except merely to apply money which he had in hand to the payment of the debts, if already he had not paid them, and then to deliver the rest of the property, with a proper conveyance, to a trustee, for Mrs. Johnston and her children. Little, ;-therefore, was wanting to a full performance of the whole 1 agreement.

¶13After the performance of so much of the agreement as this, if the Statute should allow Gilmore to refuse to perform the rest, it would allow him to be guilty of a fraud — a fraud by which he would acquire many thousands of dollars’ worth of property, without having paid anything for it. The Statute, however, was made to prevent fraud; and, therefore, it will not, in such a ca.se, allow a refusal to perform.

¶14There is, therefore, notwithstanding the Statute of Frauds, equity in the bill.

¶15This equity is not affected by the release which Johnston, the husband, executed to Gilmore. The rights of the complainants, Mrs. Johnston and her children, had vested, before that release *687was made, and those rights could not be divested by the act of Johnston, the husband, a stranger.

¶16The demurrpr, therefore, as far as it is founded upon the ground of a Court of Equity, was properly over-ruled.

¶172. Should Johnston have been a party to the bill ?

¶18It was a part of the agreement that his debts were to be paid before the property should be conveyed, in trust, for his wife and children. It is not certain, from what appears on the bill, whether that has been done or not. If it has not been done, he has the right to object to the making of the conveyance, until it shall have been done.

¶19[2.] It is safest, therefore, that he should be a party to the bill, unless the complainants can amend it, by alleging what will show that he no longer can have any interest in the property. As the bill stands, he ought to be a party to, it. He must, therefore, be made one, or the bill must be so amended as to show that he has no interest in being such a party.

¶20On this point, therefore, the judgment of the Court below reversed; on the other, it is affirmed.