Opinion
03-08-1809
Vance v. Walker
Wickham, for the appellant, Call, for the appellee, Wickham in reply.
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On the 5th day of July, 1802, John Vance exhibited to the Judge of the Superior Court of Chancery, holden at Staunton, a bill against Francis Walker, stating, in substance, that a number of years ago a certain John Huston settled upon a tract of land lying in the County of Washington, included within the limits of a grant made to Dr. Thomas Walker, generally denominated the " Wolfhill tract; " that the said Huston settled upon the said land on the faith of proposals then published by the said Dr. Walker, inviting persons to settle within the limits of his grant, and that they should have a fee-simple in the lands settled, on payment of 111. for every hundred acres by them desired; that, after Huston had made some improvements on the said land, the complainant purchased of him his right, subject to the payment of the money due Dr. Walker, which had not been paid, took possession of the land, and remained possessed thereof. That several years afterwards, Dr. Walker, who resided in Albemarle, came to the County of Washington, and being informed of the circumstances aforesaid by the complainant, appeared well satisfied, and agreed that he should have all the land lying within certain designated bounds, not claimed by or surveyed for any other person, at the established rate of 111. with interest thereon from the time of actual settlement; but, as the land had never been surveyed, and lay between the claims of a number of other persons, the complainant and the said Walker could not then ascertain the actual quantity comprehended within the limits agreed on by them, but estimated it at 300 acres; that, thereupon, the complainant delivered to Walker a horse at the price of 651. and received of him 251. (the price of 300 acres of land, at 111. per hundred acres, together with the interest thereon, amounting to the sum of 401.) it being expressly agreed between them, that the complainant's receiving the said surplus of 251. should not prejudice his right to the residue of the land within the designated limits; but that he should have whatever that quantity might be, when ascertained, on paying the said consideration of 111. per hundred acres, and interest thereon from the time of actual settlement; that Walker promised to have the land surveyed in a short time; that, afterwards, he appointed a certain Daniel Smith his agent respecting those lands, to whom the complainant made frequent applications to come and survey the land, which he always failed to do; that the said Smith removed out of the State, and, after his removal, the said Thomas Walker had no agent in the County of Washington.
The bill further stated that Thomas Walker departed this life, having devised the lands comprehended within the " Wolfhill tract," to his son Francis Walker, who about two years before the filing of the bill, came to the County of Washington to settle the matters relative to the said tract of land; that the complainant then made application to him, stated the circumstances aforesaid, and requested that the land he had purchased might be laid off, and the quantity ascertained, and that he would, on the complainant's paying according to his contract, make him a title: that, accordingly, the land was surveyed, and discovered to contain 773 acres; whereupon the said Francis Walker refused to let him have any greater quantity than 300 acres, unless he would pay at the rate of twenty shillings for each acre exceeding that quantity, and threatened, in case of refusal, to sell the quantity exceeding three hundred acres; that the complainant being ignorant in law, and not knowing, at that time, that he could prove the contract with Thomas Walker; and " being much intimidated by the threats of the said Francis Walker; not knowing as no part of the land had ever been laid off, but the said Francis Walker would compel him to take the 300 acres in some part of the tract the least valuable, and take away the valuable improvements which he had made with much expense and labour for many years; " consented to pay the sum demanded; and gave two bonds for 2181. each, as the consideration money for the quantity of land exceeding 300 acres; but that it was expressly agreed between the said Francis Walker and him, that, if he could thereafter prove any agreement with the said Thomas Walker, deceased, he should have the benefit thereof, whatever it might be; that he had since discovered, from a reputable person who was present at the time when the said Thomas Walker contracted with him, that he could by his testimony fully prove the said contract; but that Francis Walker had, nevertheless, instituted suits on the said two bonds in the District Court of Washington and recovered judgments. The bill concluded with praying an injunction to the said judgments, or so much thereof as exceeded 111. for each hundred acres, with the interest thereupon; which was granted.
The answer of Francis Walker admitted that Thomas Walker had a patent for the tract of land called Wolfhill, a part of which he sold to sundry persons; but alleged that a considerable part was settled by individuals without any contract whatever; that the respondent knew nothing of any contract with Huston relative to the land in question, and finding no mention of any transactions with him in the books of Thomas Walker, supposed that, if Huston ever was in possession of the said land, he became so by an unlawful entry, and was never legally entitled thereto. The respondent also denied any knowledge of the proposals alleged in the bill to have been made by Thomas Walker; observing that, if ever made, they must have appeared in the public prints of that day, and might easily now be produced; but that he had often required the persons in that neighbourhood to produce the proposals under which many of them pretended to set up claims to the land, and none of them ever shewed any such; that, probably, those proposals related to the lands of the Loyal Company, of which Thomas Walker was a member, manager, and director, and not to those belonging to himself; the respondent having always understood that such proposals were made by him relative to lands belonging to the said Company, which were near and adjoining his own.
The answer farther stated that the respondent when he visited the Western Country, invited all who had made any contracts with Thomas Walker, to come forward and produce them; averring that he was ready to make, and did actually make deeds to all who called upon him properly authorised to demand a conveyance; that, accordingly, he made a conveyance to the complainant for 300 acres, in consequence of the contract which appeared to have been made with him, and also for 473 acres more which he purchased of the respondent, and for which he executed the bonds in the bill mentioned; that on the books of Thomas Walker, the complainant is charged with 300 acres of land sold him, and is credited by 401. in part of principal and interest due for the same; that the respondent offered to lay off the lands to which the complainant was entitled in such manner as he should direct, and so as to include his improvements; and never used any threats to induce him to execute the bonds, which were given in pursuance of a fair, just, and honest contract made with a view to accommodate him in many respects, particularly, as the land was sold by the respondent for less than he could have got from other purchasers; that the complainant did not, and, as the respondent believes, could not, shew a title even to the 300 acres, (which the respondent was willing to convey to him in consequence of the entry made in Thomas Walker's book,) much less to any other portion of the land, and (so far from pretending to establish a claim for more than 300 acres) in a conversation with the defendant about the time of making the purchase, expressed his regret that he had not purchased the whole of the lands of Dr. Walker, as he might then have got them for 111. per hundred acres.
A number of depositions were taken, of which (as the Judges of this Court differed in opinion) the following abridged abstract may be proper.
John Campbell deposed that, in the fall of the year 1768, he came, for the first time, to the western parts of Virginia, now comprehended within the limits of Washington County; that, on his way, he overtook a number of persons who informed him that they were coming to see a tract of land owned by Doctor Walker, which the deponent understood was the Wolfhill tract, which they said he offered to settlers and emigrants at 111. per hundred acres; that the deponent saw Doctor Walker in Staunton, the following summer, and asked him on what terms he sold the lands within the survey called the Wolfhills; that he answered, at 111. per hundred acres, and observed that he had published fully his terms and conditions in advertisements dispersed in the Western Country, and that the deponent would see one at Col. Inglis's, and be fully informed. The deponent accordingly called and conversed with Col. Inglis, who confirmed the terms as mentioned; but the deponent could not say whether he saw the advertisement or not, nor that he ever saw one, but " thinks he did; " that, perhaps, at this period, there are none of them to be had; and he never heard of any being set up, except at Fort Chiswell and Inglis's ferry, few persons at that time being settled on the waters of Holstein; but it was a general report and belief, and never contradicted in any instance within his knowledge, that the terms on which the said Wolfhill tract was sold were at 111. per hundred acres. A few years afterwards, Doctor Walker came to that country, and the deponent asked him whether he then continued to sell the said land at 111. per hundred acres; that he answered yes, but had established a uniform period from which interest should be paid. Afterwards Robert Doake came as his agent, and surveyed lands for settlers: he told the deponent his instructions were not to suffer any " strips" of land lying between surveys made for settlers, or the original patent line, but that they must join, unless there was sufficient between to make a plantation.
Alexander Breckenridge deposed that, some time in the year 1769, a certain Robert Doake informed him that he was agent for Dr. Thomas Walker to settle and lay off a tract of land on Holstein river, known by the name of the Wolfhill survey, and to sell said lands out at 111. per hundred acres; and the deponent agreed with said Doake to take a part of said lands, provided he should like it when he saw it; that he made choice of a part of the said land, and built a cabin thereon, to which he moved in September, 1770; that, in the year 1772, the said Doake laid off part of said lands to the settlers who were then upon it, and informed the deponent that his instructions from Walker were, that the purchasers must join two sides of the patent lines and one of a purchaser; or one side to the patent line, and two sides to the purchasers' lines; so that no vacant lands should be left between them: and, in the year 1773, the said Doake and Walker came and appointed the settlers to meet at Samuel Brigg's, on the 21st day of April, to execute bonds for payment of the purchase-money, and take Walker's bonds for conveyances; and Walker said they should pay interest on the purchase-money until the whole should be paid, and then he would make them titles. Alexander Breckenridge, on being asked whether he was interested in this controversy, said that he was in nowise interested; and also swore positively that John Huston improved part of the land, and sold his claim to John Vance.
Josias Gamble deposed that, in the year 1769, on his way to Holstein, he met with an advertisement at Col. Inglis's on New river, stating to all emigrants who wanted to settle on the Wolfhill tract, that they should have the land at 111. per hundred acres; in consequence of which advertisement, the deponent made a settlement on the said tract, and paid for it at the rate of 111. per hundred acres; that no time was limited when the 111. should be paid, but settlers were at liberty to pay interest as long as they pleased; that he paid interest from one year after he gave his bond; that he knew of Huston's making an improvement on the same proposals, and that Huston told him that John Vance had bought of him.
James Piper swore that, he settled on part of the Wolfhill tract, under certain proposals, which he understood had been made by Thomas Walker, that settlers should have as much as they wanted at 111. 10s. 0d. or 111. per hundred acres; for as to the sum he was not positive; that he lived thereon about two years, and then made payment at the rate aforesaid, and pursuant to the proposals he had heard, and obtained a title for the quantity claimed according to those proposals.
Christopher Acklin (between whom and Francis Walker an appeal concerning part of the Wolfhill tract is now pending) deposed that, as well as he recollected, some time in the year 1771, John Huston made an improvement on the land which the deponent understood he afterwards sold to John Vance; that he recollected a grey horse which Huston got from Vance, which he understood and believed was given as part of the price of the land; that Huston claimed and sold to Vance more land than Vance ultimately obtained; for that in settling a controversy between Vance and the deponent concerning their boundaries, the arbitrators ran the line between them so that Vance lost a part of what he claimed.
James Crow deposed that, in April, 1778, he applied to Thomas Walker to purchase a part of the Wolfhill tract, and was told by him that his price was 111. per hundred acres, but that, as money then was not as good as it had been, if the deponent would pay him in horses and cattle, at the old rates, the price of the land should be as usual; for he did not raise the price of his land; that, moreover, he heard him say that he charged interest from the time of the settlement made, and no farther back, as the settler ought not to pay interest until he received a benefit.
Joseph Black deposed that, in 1778, John Vance and Thomas Walker were both at his house, and he saw John Vance pay Thomas Walker for 300 acres of land in a horse, and said Walker pay the difference between the price of the horse and the land, in cash, to the said Vance; that Vance desired him to keep the money until the land was surveyed, but Walker chose to pay it: the deponent was told by both parties that Vance was to have the balance of the land he then claimed, by paying 111. per hundred; and Walker said his intention was to give good measure, for he allowed his surveyors to throw in five acres to every hundred. The deponent was told more than once by Daniel Smith, agent for Walker, that he had John Vance's land to run: he knew of no limited time within which the 111. per hundred was to be paid; and (being asked from what time the settlers paid interest) said that, one year after he gave his own bond, which was in 1772, he paid interest.
William Y. Conn described the improvements made on the land held by Vance, saying that about 100 acres were cleared, and several settlements made, separated by pieces of woodland; and, in the deponent's opinion, 300 acres could not be laid off so as to include all the improvements, without great inconvenience, and, perhaps, not at all, without leaving spaces between it and the " adjoining neighbouring" lines.
Michael Deckart's testimony is to the same effect. Joseph Acklin made oath that, when his father, Christopher Acklin, was about executing a deed of trust to Francis Walker, to secure the payment of the purchase-money for a part of the Wolfhill tract, the deponent asked Francis Walker if executing the deed of trust would not preclude his father from the benefit of his contract with Thomas Walker, in case he could prove any; and Francis Walker replied, that any contracts made with his father should stand good, though the deed of trust was executed. The deponent understood this expression as applying generally to all persons having claims to any part of the Wolfhill tract. This witness also swore that Francis Walker threatened to sell Christopher Acklin's land if he did not comply with his terms, which were twenty shillings per acre.
Benjamin Spencer deposed that, when Francis Walker was in the Western Country settling his affairs respecting the Wolfhill tract of land, he was at the house of John M'Cormick, in Abingdon, with a number of persons who had given their bonds, and to some of whom he had executed conveyances, when it was mentioned by some person that, as the bonds were executed, they would be deprived of the benefit of contracts made with Thomas Walker, deceased, to which Francis Walker replied that, if any person claiming lands in the said tract, could thereafter prove having made a contract with his father, they should, notwithstanding their having given bonds, have the benefit of such contract, and that he would be bound thereby and carry it into effect; and called on the deponent and some other person to bear testimony; that, moreover, the deponent heard Vance tell Francis Walker that, if he had paid his father a trifle more, he would have got his deed, and that he could prove his contract with Thomas Walker by some person in Frenchboard, in Tennessee.
James Vance swore that he heard John Vance complain to Francis Walker that he conceived it hard to pay 20s. per acre for the land he claimed, when by his contract he was to have had it at 111. per hundred acres; and that John Vance would not have complied with Francis Walker's terms, had he not been afraid that Walker would sell the land to other persons; particularly, as it was understood that, if he refused to comply, a certain Capt. White was to have it.
The cause came on to be finally heard, by consent of parties, on the 9th of July 1803, when the Chancellor dissolved the injunction and dismissed the bill, whereupon Vance appealed.
Decree affirmed.
Wickham, for the appellant, considered the testimony sufficient to authorise a decree in his favour, insisting especially on Francis Walker's public declaration that, if any person so circumstanced, could prove the contract with Doctor Walker, his father, he would grant him the benefit of it; and on the coercion under which Vance executed the bonds.
Call, for the appellee, commented, 1. On the depositions of Joseph Black and others, and endeavoured to shew that the evidence did not prove the contract contended for. He said the answer sufficiently contradicted the bill; and the testimony produced, was not competent to outweigh the answer. He remarked the great improbability of such extensive credit being given (as it was pretended it was given by Dr. Walker) where the consideration was only 111. per hundred acres.
2. He relied on the principle of law that parol evidence of conversations previous to the execution of a deed, is not to be received to introduce any stipulation not contained in it; in support of which he quoted 1 Fonb. 200, and the cases there cited. He observed, that to this rule there were only two exceptions; 1st. Where by fraud some material part of the agreement was omitted; and, 2dly. Where the drawer of the deed by mistake omits a part; but there is no instance in which parol evidence is admissible where the parties understand the whole subject, and designedly fail to insert a part.
Wirt, on the same side. If ever there was a case, in which the salutary provisions of the statute of frauds ought to apply, this is one. It is attempted by parol evidence to get nearly 800 acres of land, instead of 300. If the evidence be now obscure, it is Vance's own fault: he might, thirty years ago, have brought his suit in chancery, to compel Doctor Walker to make a title. Why did he not pay up the money, and demand a conveyance? But he seems to have been of the same opinion, as to the paying of money, which Falstaff expressed concerning Death: --" If Death did not call on him, why should he call on Death to pay him his debt?"
The testimony of Christopher Acklin, a party at present contending with Francis Walker, and of a number of interested witnesses, is set up, in opposition to the answer, which has the utmost verisimilitude. The only memorandum in writing by Doctor Walker, is the entry in his book of 300 acres sold to Vance, with a credit of 401. in part. How strangely improbable is it that Francis Walker went out on purpose to settle these matters, yet issued a proclamation, giving unlimited indulgence to bring forward parol evidence at any time thereafter against himself and his heirs! Yet it does not appear, that the bonds were induced even by that declaration. James Vance's deposition shews no such thing; but only that John Vance complained to Walker, that he thought it hard to pay 20s. per acre, & c.
Wickham in reply. Three grounds are relied on by the counsel on the other side; 1. The improbability of the contract; 2. The statute of frauds; and, 3. The objection to parol testimony.
1. As to the first point. This contract was very probable. Doctor Walker was a great proprietor, interested in having his lands settled. Settlement itself was a part performance; and the settler had a right to call on the proprietor to perform his part. Doctor Walker ought to have had the lands surveyed; or, at any rate, it should have been a joint business. The testimony comes in aid of the probability. Gentlemen have not a right to discredit the testimony. Joseph Black is not interested; and his evidence is confirmed by that of James Crow. Neither is there any thing improbable in Francis Walker's making the agreement alleged; his anxiety to settle the business as far as practicable, with all possible speed, that he might the sooner get home again, was a sufficient inducement. No survey took place until after Doctor Walker's death, and the business could not have been settled before the survey; the only boundaries being those reputed, by which Vance held.
2. As to the statute of frauds. It is strange that gentlemen who take such high grounds should fly to that statute. We claim under the contract with Doctor Walker. The statute was not then in force. Besides, there was part performance, and a payment of money.
But was the statute pleaded? In Rowton v. Rowton, though not formally pleaded, it was relied upon in the answer: but here the statute has neither been pleaded nor relied upon, and it has never been decided by this Court, that, in such case, it can avail the party. But Francis Walker could not have relied upon it: we should have repelled him by saying, he obtained the bonds of Vance by means of the fraudulent promise by which he induced him to sign them.
1 Hen. & Munf. 92.
3. With respect to the objection to parol testimony, what is this but setting up the broad principle, that in no case will parol evidence be received after a deed is executed, even where an agreement is made, that all errors shall be corrected; which is a common case?
Judge Tucker. Judge Roane. Judge Fleming.
OPINION
Friday, March 17. The Judges gave their opinions.
JUDGE TUCKER declared himself satisfied with the opinion to be delivered by the President, which perfectly accorded with his ideas on the points in this cause.
JUDGE ROANE. About the year 1768 and 1769, Doctor Thomas Walker, who had a large tract of vacant land in the County of Washington, and wished to sell it out to settlers, published his price and terms therefor, in advertisements stuck up at two or three places in the Western Country. In consequence of these proposals, many persons went out and actually settled on the lands; and among others, James Piper, Joseph Black, Christopher Acklin, Josias Gamble, Alexander Breckenridge, and John Campbell, (who have all given depositions in this cause,) and John Huston, under whom the appellant claims. One of these advertisements was seen by Gamble, at Inglis's ferry, which also John Campbell thinks he saw; but none of them are exhibited in the cause; and John Campbell, who professes to have a general acquaintance in the Western Country thinks that none of them are now in existence. It is not strange that this should be the case; for they were perhaps only in writing, and not printed, and being intended for general information, it would have been improper for any particular settler to have taken them down, and appropriated them to his own individual use: they, however, as we are told by John Campbell, had produced a general opinion and belief, that the lands in question were sold at 111. per hundred acres. As, however, the act of frauds was not then in force, (nor in 1778, when a recognition of the terms of this proposal was made by Dr. Walker to the appellant,) we are at liberty to give evidence of their contents. It is agreed on all hands that these proposals stated that the lands in question, the Wolfhill tract, were to be sold at 111. per hundred acres; which, also, Dr. Walker told John Campbell was the price, in the summer of 1769; and Josias Gamble says there was no limited time for the payment of the money, but that the settlers were at liberty to pay interest as long as they pleased, commencing one year after their settlement. While the settlers were in some cases compellable to take more land than they wished, for they were to adjoin the lines of the neighbouring tracts, and leave no vacant spaces between. [See the depositions of Breckenridge and John Campbell.] It is not shewn or pretended that they were restricted in the quantity they were at liberty to procure. Indeed, when we consider that persons of that description, who alone were invited to purchase, were not in a condition to monopolize large quantities of land, there was no necessity for such a restriction on the part of Dr. Walker: and besides, as there was a large quantity of other lands at market in that Country at the same time, the interest of the proprietor would not have induced him to establish such a condition: he undoubtedly wished to sell as much of his own lands as he could. There is therefore not only no restriction in relation to quantity proved to have existed; but on the contrary, it is highly improbable that any such should have been contemplated: on the other hand, James Piper proves that it was understood that the proposals permitted settlers to acquire " as much land as they wanted."
Under these proposals thus unrestrained in this particular, John Huston made a settlement and improvement on the land in controversy. Christopher Acklin proves that Huston claimed and sold to Vance more land than Vance ultimately got, (that is, more than 300 acres,) and that he (Huston) claimed up to his (Acklin's) lines, and to certain lines to the north and west. This testimony I understand to go to this; that Huston's claim was commensurate with the whole tract since conveyed to Vance by Francis Walker. Such was the extent of Huston's claim which he sold to Vance, and consequently such was the extent of Vance's claim; and it is proved by Black, that in 1778, Vance having paid Dr. Walker for 300 acres, it was understood and agreed that he should have the balance of the land he then claimed under Huston, (that is, the land now in controversy,) at the same price of 111. per hundred acres.
This then is a solemn recognition and continuation of the right derived from Huston, as to the land in question. It is besides corroborated and supported by the following circumstances: 1st. Dr. Walker told Crow at the same time, (that is, in April, 1778,) that he sold his land on the Wolfhill tract at 111. per hundred acres, payable in horses or cattle at the old prices; and 2dly. Huston (and under him the appellant) and Acklin always considered that their lands adjoined; a line was run, by arbitration, between them after Vance purchased; and Vance cleared the land in so many places that it is proved that a 300 acre survey, would not comprehend all the improvements. [See Conn's and Deckart's depositions.] It is not credible that Huston and Vance would have done this except under a belief that their title to the whole land could be sustained. When we add to this the evidence in the cause that the lines of adjacent settlers were to join, and leave no vacant spaces between, it is clear that both by the original contract between Dr. Walker and Huston, and by that proved by Black to have taken place in 1778, Vance was entitled to the whole land now in controversy.
Considerable aid is derived to this idea from the terms of the entry in Dr. Walker's books stated in the answer. That answer states that Vance " was charged in the books of Dr. Walker with 300 acres of land sold him," and " is credited with 401. in part of principal and interest due for the same." Now, when it is recollected that it is proved that 300 acres were fully paid for, this expression " in part" amounts to an admission that it was supposed or admitted that there were other lands to which the appellant was entitled; and which were not paid for: the number of 300 acres was charged undoubtedly, because, and only because, that quantity was known and admitted to be in the tract, and there was no other specific number by which Walker could charge it with certainty on his books.
It remains next to inquire whether the appellant has waived or forfeited this right thus clearly established, or not. I will inquire, 1st. Whether this is done by reason of the lapse of time; and 2dly. Whether the settlement with Francis Walker, when Vance got his deed and gave the bonds now enjoined, operated such a waiver.
As to the first, it is proved that settlers were to pay interest as long as they pleased; [See Gamble's deposition; ] and it is proved by Breckenridge that they were to pay interest till the whole was paid, when the conveyances would be executed. The settler was in the enjoyment of the land, and Walker was to receive interest on his money: it was in Walker's power to accelerate the final payment by surveying the land, and making conveyances; and this perhaps was not in the power of the settlers. It is in proof that he had surveyors for that purpose residing in that country; and it was their laches that the surveys were not made, and the business completed. As to injury from length of time, it would have operated to the prejudice of Vance, but not at all of Walker; for if Black, in the present instance, had died, he would have lost his testimony, and with it this cause, whereas Walker stood firm on the ground of his patent, and could sustain no injury as it related to the claim of the land. It is probable therefore, if not clear, that those delays, which too, by being general, exempt Vance from any suspicion of culpability, arose from the neglect of the agents of Walker, or from their inability to survey so many tracts in a shorter time; and that the settlers were undoubtedly desirous to close their titles and get conveyances for lands, which the progress of events in that country had rendered it so important for them to acquire on such cheap terms. I cannot believe therefore that delay was wished or caused by any settler.
Secondly, did Vance waive his right to this land by giving the bond and receiving the deed from Francis Walker? The answer of Francis Walker says that Vance, so far from attempting to establish his claim for more than 300 acres, regretted that he had not " purchased more from Dr. Walker, at 111. per hundred. As to Vance's not attempting to establish this claim, this might well be, because Francis Walker had come suddenly into the country, and his witness was not present: but he certainly mentioned his claim, and complained that it was not allowed. [See the depositions of James Vance and Specker.] Being thus unprepared at the time, it would have been vain to have attempted to establish his claim, and would only have tended to irritate Francis Walker, and perhaps prevent him from letting Vance have the land. It is in proof that it was understood that Capt. White stood by, ready to purchase the land from Walker, and that Walker threatened to sell Acklin's land, if he did not comply with his terms. As to Vance's regretting he had not purchased more land at 111. the testimony of James Vance and Specker shew that Francis Walker is mistaken; unless we understand " purchase" here to mean paying for the land, and purchasing it so effectually as to put an end to the controversy. If we regard those depositions, and yet believe the answer, we must understand it in this qualified sense; for both these witnesses say that Vance in conversation with Francis Walker relied on his purchase from Dr. Walker; and Specker says that Vance told him " if he had paid Dr. Walker a trifle more, he would have got his deed, and that he could prove his purchase by some one in Frenchbroad." These two witnesses therefore taken in connection with the other circumstances in the cause, outweigh the answer in this particular, unless it be taken in the sense in which I have endeavoured to explain it.
But Vance was induced by the declarations of Francis Walker to forbear to press his claim (now in question) at the time of giving his bonds. He declared publicly that any person who could thereafter establish contracts with his father should have the benefit of them, and even called witnesses to attest this declaration. Nothing could be more just than this declaration, or more convenient for a party acting with a numerous body of men standing on a common foundation, than to act by general rules and declarations; particular communications with every individual being unnecessary and inconvenient in such cases. Francis Walker was as much at liberty to annex a condition to the settlements in question by such general declarations as those now proved, as his father was to contract, by means of his general advertisements aforesaid, with settlers whom he had never seen, and with whom he had no particular communication. Francis Walker in particular is estopped from making the objection; for he tells us in his answer that he invited all who had claims to bring them in, and declared that he was ready to grant conveyances to all who were authorised to receive them. After thus adopting this general mode of acting with these people, it does not lie in his mouth to make the present objection. These declarations induced, or may have induced, Vance and others to suspend, or forbear to press their claims at that time; to wait till they were more ready for the purpose; and in the mean time, to get their deeds; and it would be highly unjust to permit Francis Walker to withdraw himself from the effects produced thereby: such permission would sanction and produce the highest iniquity and injustice. As to Vance, there is no iota of testimony shewing that he ever waived or gave up this claim to the land in question. On the other hand, the general declarations above mentioned amounted to an agreement on the part of Walker that the settlements which then took place should not be final, if contracts with his father could thereafter be established; in other words, if equity and justice forbade that they should be final.
I am for holding Walker to his offer: I will not agree that Vance should thus be taken in; and am of opinion now to establish that contract, which, independently of the transactions of that day, is proved beyond possibility of contradiction, and was not on that day abandoned.
It is said that the contract with Dr. Walker charged in the bill is not admitted by the answer. True; but neither is it denied. It could not be admitted or denied, as it did not rest within the knowledge of Francis Walker; but it is proved by the testimony. Again, it is said that the agreement charged on Francis Walker at the time of the settlement is denied by him, and not proved. I admit it is denied and not proved, taken in a particular view, as being made, or not, to Vance himself: but it is not denied, and is proved to have been made in general, and thus made to Vance himself under the doctrine I have now contended for.
As to the application of the act of frauds in this case, both the contracts on which the appellant relies were anterior to its existence. Besides, the contracts were in part performed, and therefore would meet the provisions of the statute had it been in force and relied on. The bonds and deed now in question, it is true, were posterior to the enaction of the statute; but they do not form the contract which the appellant seeks to avail himself of; but only the consummation of it. If it be said that a reliance on the parol proofs in this case is dangerous, I answer that the act of frauds does not apply to the two points of time embraced by them, and that it was not for Courts but the Legislature to adopt the rules of that statute. Independent of it, we must decide this case, as others, by the general doctrines of evidence. The parol testimony in this case of what passed at the time of giving the deed is not received to shew what the contract for the land was; but to shew a collateral matter, i. e. that the settlement as to the price was not intended to be final. It may be said that it is desirable to settle controversies and put an end to litigation: while this is agreed to, it is perhaps more expedient that right and justice should take place. As to the doctrine of confirmation or waiver, there can be none unless it appear, either expressly, or by plain and necessary implication, that the party, with a full knowledge of his rights, and under a perfect freedom as to his course of proceeding, had waived them. In the case before us, the appellant had such strong inducements to get his deed, and ran such risks of losing his land by a course of opposition, that he stands excused from insisting on his right at that time, even if he had been certain of being thereafter able to establish it. I see nothing in this case on the point of waiver which does not apply to cases in general; and it is too much to say that the giving bond and taking a conveyance shuts out all equitable claims or discounts in all cases whatsoever. On the contrary, as I have already said, the appellee himself has repeatedly disclaimed the character of a final and irrevocable settlement as applicable to the transaction in question; and we ought to permit him to construe his own proceedings.
The right of the appellant to the land in question, therefore, not having been abandoned through lapse of time, (the delay in this case being well accounted for,) nor waived at the time of the settlement, or at any other time, either expressly, or by necessary implication, I am of opinion to reverse the decree, and let the appellant have the benefit of his purchase, at the rate of 111. per hundred acres, with interest, & c.
JUDGE FLEMING. The bill charges, that the complainant had agreed with Dr. Walker, for all the land within certain bounds at 111. per hundred acres, supposed to contain about 300 acres, for which he paid him: the remainder, if any, to be ascertained by survey, which was not done in Dr. Walker's life-time. That about the year 1800, Francis Walker had the land surveyed, which was found to be 773 acres,) and demanded twenty shillings per acre for the surplus of 473 acres. And being intimidated by threats of the said Francis Walker, and fearing he would take away his valuable improvements, he consented to give twenty shillings per acre, and executed two bonds for the amount. But it was expressly agreed between Walker and himself, that, if he could thereafter prove any agreement or contract with Dr. Walker, the complainant should have the benefit thereof.
The defendant in his answer, says that he was ready and willing to make, and did make, deeds to all who called on him properly authorised to demand a conveyance, and was ready and willing to make a conveyance to Vance for all, and any lands to which he had a claim, under a contract with Dr. Walker, and made a conveyance to him of 300 acres, in consequence of the contract, which it appeared his testator had made with the said Vance, and also of 473 acres more, which Vance purchased of him, and for which he executed the bonds in the bill mentioned. That on Dr. Walker's books, Vance is charged with 300 acres sold him, and is credited with 401. in part of the principal and interest due for the same. That the defendant offered to lay off the lands of said Vance to which he was entitled, in such manner as he should direct, and so as to include the improvements thereon. The defendant never used any threats or menaces to induce the complainant to execute the bonds, but was willing and ready to make him a right to all the lands to which the semblance of a claim appeared to exist in him. That Vance did not, and as the defendant believes, could not, shew even a title to the 300 acres, which defendant was willing to convey to him in consequence of the entry made in his testator's books; much less to any other portion of the lands to which he now pretends to set up a title. That the contract for the 473 acres was a fair, just and honest contract, made with a view to accommodate Vance, in many respects; particularly as the defendant sold the land to him for less than he could have gotten from other purchasers. That Vance, so far from pretending to establish a claim for more than 300 acres, expressed his regret that he had not purchased the whole of Dr. Walker, as he might then have gotten them for 111. per hundred acres.
Thus the principal charges in the will are expressly denied by the defendant's answer, and I consider the execution of the deed of conveyance by Walker, and the acceptance of it by Vance, and his executing bonds, for payment of the purchase-money, in the year 1800, long after the statute of frauds, as an adjustment of the business, and a consummation of their contract, and completely binding between the parties: and not to be shaken or disturbed by oral testimony; especially that of witnesses, who appear to me to be interested, having disputes themselves of a similar nature with the defendant, and a strong bias on their minds in favour of the complainant; and speaking of loose conversations about the time of executing the contract. The admission of such evidence, on this occasion, would, in my conception, be opening a wide door to the very mischiefs contemplated, and so wisely guarded against, in our act to prevent frauds and perjuries.
Had the parties not considered the business as finally closed at the time of executing the contract, how easy would it have been to have made a short memorandum in writing on the back of each bond, expressive of any future expectation or intention of the parties; or a note or memorandum in writing on a separate paper signed by Walker, to that effect; neither of which having been done, I am of opinion that the decree is correct, and ought to be affirmed, which is the opinion of a majority of the Court.
The following was entered as the decree of the Court.
" A majority of the Court is of opinion, that an agreement, concerning the purchase of lands, perfected by the execution of a conveyance on the part of the seller, and by the acceptance thereof, and the payment of the purchase-money, or execution of a bond or bonds for the same, on the part of the purchaser, is final and conclusive, between the parties and their heirs, in law; and ought not to be disturbed in equity, unless fraud, or some manifest mistake in such conveyance, or bond, be shewn and proved; or unless some note or memorandum in writing be made, pursuant to the statute of frauds and perjuries, (if subsequent to that statute,) at the time, or after the execution, of such conveyance or bond, whereby it may appear that the parties had agreed to some further explanation or modification of the terms of agreement as therein expressed. Upon these grounds, the Court is of opinion that the said decree is right," & c. Decree affirmed.