Opinion
November Term, 1816.
The right of pre-emption and occupancy in lands south of French Broad and Holston rivers, is a mere equity, not embraced in the Act of 1801, 25, 1 (statute of frauds), and may be sold by parol. (Acc. Tipton v. Davis, 5 Hay., 278; Cook v. Shute, Cooke, 68. But see 4 Y., 98, where this case is said to be unsatisfactory as an authority on the construction of the statute of frauds, even in reference to these occupant claims.)
The terms "lands, tenements, and hereditaments," in the Act of 1801, 25, 1, statute of frauds (Code, 1758), do not comprehend an equitable estate. (Overruled by Dunlap v. Gibbs, 4 Y., 98, where it is said that this is a "loose assertion," "at variance with the best settled definitions of the foregoing legal terms, and not sound," citing Newman v. Carroll, 3 Y., 18. But see Cox v. Cox, Peck, 457; Thompson v. Thompson, 1 Y., 100; Smith v. Brooks, 3 Hay., 248; 10 Y., 133; 4 Hay., 296; 4 Sn., 706; 1 Cold., 154; 2 Cold., 120; 1 Head, 207.)
ARCHIBALD ROANE, ROBERT WHYTE, JOHN HAYWOOD, JUDGES.
The facts stated, and which are either admitted or proved, are these. The plaintiff purchased an occupancy or pre-emption on the south side of French Broad and Holston, in the county of Blount, in the year 1802, of Herd, who purchased of Franklin, who was in possession on the sixth of February, 1796. In 1807, he procured a survey to be made, for three hundred and forty-two acres, two roods and five chains. The defendants entered a caveat claiming under a purchase at execution sale at the instance of Sheril against Drew and Danforth. In August, 1811, a verdict was rendered; and in August, 1812, a judgment was rendered for the defendants. The verdict stated that the sheriff sold to the caveators by virtue of a judgment and order of sale for sixteen dollars and fifty cents, and on the third of June, 1806, that he executed a deed to them for the same. After the sale, Lowry said that he purchased for the complainant, if he would refund what he, Lowry, had advanced for the land, and also fifty dollars due by book account. Waugh and Lowry were partners. At another time, he said that his purchase would be an advantage to Danforth. The plaintiff sent by Maclin fifty dollars to Lowry, being the principal of the judgment; Maclin carried the money to Lowry, who received part, perhaps twenty-eight dollars, and lent the balance to Maclin. The receipt of twenty dollars is admitted in the answer, which does not deny, nor does it admit, that this receipt was for the fifty dollars due by the judgment. But the answer states that what he did receive was not equal to the balance of Sheril's judgment. The inference is, that the fifty dollars were considered by Lowry to be for the principal of that judgment. The costs were paid, as the plaintiff says, by him, and the answer does not respond at all to this part of the bill. The plaintiff afterwards paid one hundred dollars to Caldwell, who passed it to the credit of the defendants and informed them of it. The fair inference is this, that the defendants purchased without any previous agreement, before the day of sale, with Danforth, but intending to receive from him the purchase-money, and to let the lands remain with him as before the sale; and after the sale, promised to receive the amount of the judgment and the book debt from the plaintiff, and to return him the lands, and actually did receive the same. The promise is well enough stated in the bill; the land is of the value of $1,000 at least. This is not a case within the words used in the Act of 1801. c. 25, sec. 1: "No action shall be brought whereby to charge any person upon any contract for the sale of lands, tenements, or hereditaments, unless the promise or agreement, c., or some memorandum, shall be in writing," c. The term, lands, tenements, and hereditaments does not comprehend an equitable estate, unless brought within it by some statute; therefore it was that the assembly passed the Act of 1794, c. 5, sec. 7, rendering entries liable to be sold by execution, which, before that time, issued against lands and tenements. For the same reason, an equity of redemption (which is in truth a title to the land as much as a right of pre-emption is) is not comprehended within the same words used in an execution. For the same reason, the assignment of an occupancy in the case of Cook and Shute was decided to be good, though not reduced into writing. Cook, 68. For the same reason, the same words in an elegit did not extend to trust estates till made to do so by statute; and there is not a single instance, where, under the British statute of frauds, these words have been extended to any but legal estates. As to the caveat, it is believed, that what the bill calls a judgment in August, 1812, was meant of a verdict, and on advisare in August, 1811; but consider it a judgment rendered in August, 1812, in favor of the caveators. Is the plaintiff bound to apply to equity as to every right which, though not actually litigated in the caveat, might have been insisted on in it? However this be, it may, we think, be assumed that a right which could not lawfully be heard and completely remedied in this form of action, could not be bound by it. Could the plaintiff then, as defendant on the caveat, have a full and clear and complete remedy for the right now claimed in this bill by any defence he could set up under the caveat? The first answer to this question is, that if he really had such remedy it is a doubtful one, for it is generally understood that the rights examined in a caveat are such as are derived under the acts of assembly for the appropriation of vacant lands, which are both of an equitable and legal kind; but not mere equitable rights, existing only in the contemplation of and by the rules of equity; such as contracts which are in equity specifically performable, but in law are the foundations of claims for damages. The jury may inquire of an actual transfer of a pre-emption right, not whether a promise to transfer is equal to a transfer itself. If doubtful, we will no more compel a defendant to bring forward and risk his cause there, than we will compel a plaintiff to risk his cause in a court of law where we see that there it is questionable whether he can obtain complete redress. How in a court of law, upon the trial of a caveat, shall we get from the defendant a confession of twenty dollars paid under circumstances whence it may be inferred that it was by way of reimbursement, where by the proof alone it can not be established? We are of opinion that the plaintiff is not barred by the caveat. Suppose the lands to be sold by the defendant; still if the plaintiff is entitled to them, and obtain them by the default of the defendants, they ought to render an equivalent for the value of the lands. This conveyance to a third person is only stated in the answer, which is denied in the replication, and the fact is not proved. Ought we then, setting aside the objections we have noticed, to give relief to the complainant in this cause? A promise has been made; he has complied on his part by payment of the sums required. He would, if this were a purchase of lands and tenements, have been relievable before the statute of frauds. Equity would, in times precedent to that act, enforce a specific performance of parol agreements. It can do that which is equivalent in cases not within the statute, Wherever in conscience a thing ought to be done, and there is no adequate remedy at law, this court will interfere and cause it to be done. This is the ground upon which specific performance in general proceeds. Such is the principle upon which the Court ordered an ancient altar-piece to be specifically delivered to the owner, he not being able to compel such delivery at law. Such is the principle upon which the Court ordered the not ringing of a church-bell till a certain time of the day. The church-wardens had agreed for a valuable consideration, not to do so, as it disturbed the plaintiff, whose lodgings were near. This court can also prevent the effects of an unjust judgment. This court can interfere to settle rights which are merely equitable. The power of this court is adequate to the relief asked of it. Is there a case entitled to call for its exercise? Shall the defendants keep the lands after engaging to return them if the plaintiff would do certain acts for their benefit, which he has done and they have accepted? We think the answer is plain, that they ought not to retain these lands, and then it follows that we ought not, under such circumstances, to suffer the defendants to keep them if so disposed. They must therefore give them up.
Decree that the defendants be perpetually enjoined from any further proceedings to be had upon the caveat in the bill of complaint mentioned, or upon the verdict or judgment rendered in that cause, and that the defendants, on or before the expiration of three months from this day, shall deliver the sheriff's deed mentioned in said bill to be cancelled, and retained in his office; and that the defendants shall be examined on oath before the master respecting all such conveyances as have been made of said lands in the bill mentioned, or of any part thereof, whether made by themselves or either of them, or by any person claiming under them or either of them; and that said defendants shall pay the value of said lands to the complainant, if, on or before the expiration of the said three months, they, together with all those into whose hands the said lands or any part of them have come by transfer or assignment, either verbal or written, do not execute, in the presence of the clerk and master, a release and quitclaim to all right, title, and claim which they and each of them have, or pretend to have, or set up under the said sheriff's sale, and deed mentioned in said bill, to the lands described in said deed. Such value the clerk and master shall proceed to ascertain immediatley after the expiration of the said three months, should the said release be not executed as aforesaid within that time. And the said value, so to be ascertained, he shall report to the next term of this court. The costs of this suit shall be paid by the defendants.
The counsel for the defendants filed a petition for a rehearing; notice thereof was given to the adverse counsel in due time; and on the day appointed by the rules of court for the hearing such petitions, the parties on both sides were heard by their counsel at great length, and on the next day the Court gave their opinion.
Upon this petition for rehearing, the principal matter insisted on is, that the agreement by the defendants to take back the purchase-money and a book debt due to them, and to give up the purchase they made at execution sale was within the Act of 1801. c. 25, sec. 1, and being not reduced into writing was void. "No action shall be brought whereby to charge any person upon any contract for the sale of lands, tenements, or hereditaments, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith or some other person by him thereunto lawfully authorized." It is said the defendants had a legal title to lands', tenements, and hereditaments which they agreed to sell to the plaintiff, and that their agreement ought therefore to have been in writing. It is urged that the words of this act ought not to be reduced by construction to narrower limits than otherwise they would occupy. Let this rule be our guide, at present not saying anything of part-performance. In executions, the term lands and tenements does not comprehend equitable estates unless by force of some statute. The Act of 1715, c. 38, concerning conveyances of land, which says that all deeds so done and executed shall be valid and pass estates in lands,c., does not extend to the conveyance of a trust or equitable estate which may be by parol. 2 Hay. 131. To avoid this difficulty it is contended that the right of preemption and occupancy which Danforth had at the time of the execution sale, was a legal estate. Indeed if it were so, still a purchase, at sheriff's sale, of a legal estate, and payment of the purchase-money, without receiving a deed, would not be a legal estate in the purchaser, and might be transferred or relinquished by a parol agreement or transfer, as by a verbal direction to the sheriff to convey to a third person; and by parity of reason by an agreement with the defendant in the execution to relinquish the benefit of the purchase to him upon payment of a certain sum, which afterwards is actually paid; much less would be the interest of the purchaser be a legal estate if the right of pre-emption and occupancy which he purchased was not so. What then is the nature of the interest which the people south of French Broad and Holston have in lands to which they have a right of pre-emption by the law? 1783, c. sec.; 1789, c. 3. sec. 1; 1791, the treaty of Holston; 1796, by the constitution sec. 31, schedule thereto sec. 8; 1803, c. 2, secs. 1, 2; 1805, cc. 39, 72; 1806, c. 2, sec. 20. After a careful attention to the arguments which have been pressed with great force and ingenuity, we think it may be said at the outset that there is one thing which it is not; and that is, that it is not a legal estate for the life of the occupant; for if so, how comes it that it descends to heirs, is devisable and alienable, and subject to dower and partition? Are these the qualities of a life estate? By no means. The estate which has all these attributes must be an estate in fee; and if only an equitable estate in fee, are not the owners as safe and as sure of protection as if it were a legal one? How can it be a legal estate in fee, if still the legal estate in fee is to pass to the owner by grant? To have a legal estate in fee already, and then another legal estate in fee by the grant, seems to be more than is requisite. Say that, before the grant, the occupant has an equitable one, and that the estate by grant is a legal one; and all is consistency and harmony. But say that the legal estate exists before the grant issues, and the symmetry of legal rules is destroyed. This is an estate of the same nature that an entry is which is allowed to be equitable. Every argument adduced to prove that a right of pre-emption and occupancy, such as we now speak of, is a legal estate, will also prove that an entry is a legal estate. Let us try them. Here is an estate inheritable; so is an entry. Here is an estate alienable; so is an entry. Here is an estate devisable; so is an entry. Here is an estate partible amongst the heirs; so is an entry. Here is an estate subject to dower, which, by the law of 1784, must be taken out of lands, tenements, and hereditaments. The contrary has been lately decided, and the lawyers who resided upon that tract of country acquiesced. A trust or equitable estate is subject, in all respects, to all the same rules that a legal estate is, except dower; and in England that exception is founded on precedents and authority, as the judges acknowledged, and not an analogy or reason, which, in all things else, has conformed the trust estate to legal rules. If popular practice or legal precedents have established a different rule with, respect to dower in equitable estates, what judge will try to escape from a series of domestic precedents, if such there be, which has effected the change. We ought rather to rejoice that the rule is established both with respect to occupancies and entries. But then the rule should be referred to the sanction of practice and precedent, and not to the nature of the estate. The arguments then to prove this a legal estate would also prove an entry to be such. And we all know that the latter is not a legal estate. An occupant is entitled to the possession; so is an enterer. An occupant may maintain trespass; so may an enterer. An occupant may maintain an ejectment by the Act of 1805, c. 39, which proves that, like an enterer, he could not do it before. A bill of sale of such lands was admitted to registration by 1805, c. 72. What need of that if, under the law of 1754, c. 6, sec. 2, for registering deeds for the conveyance of lands, tenements, and hereditaments, occupancies were within these words and the registration act? Will it be said that all transfers after the 6th of February, 1796, which were verbally made were void? Yet they certainly were so, if within the meaning of the words, lands, tenements, and hereditaments, used in the registration laws of 1715, c. 3, sec. 5; 1751, c. 6, sec. 2. Being not, however, within these statutes, because not embraced by this term, a special law was provided for their registration by 1805. c. 72. The description of a right of pre-emption and occupancy is this: a right to obtain a grant hereafter upon payment of the purchase money at a future day. The description of an entry is this: a right to obtain a grant hereafter, the purchase-money being already paid. Can it be that the former interest is so much preferable to the latter that it shall be considered a present legal estate in fee, whilst the latter is but an equitable estate, not entitled to the privileges of a legal estate in any respect? Will not reason give more pre-eminence to a claim founded upon money actually paid, than to one founded upon the expectation of money which may never be paid? The Court can not but think so. And therefore it still adheres to the belief that the right we are contemplating is not a legal estate, but an equitable one, partaking of the qualities of an entry in most instances, but of an inferior grade in some instances; though so well secured by the law and the Constitution that it can never be lost to the owners, or those legally claiming under them, if they will but take care not to incur a default which in law will take it from them.
Dismiss the petition for a rehearing.