Wilde v. Fox

A pdf ole agreement for land, followed by part performance, enforced in a court of equity.

This was an appeal from the Richmond chancery court. John Fox and Maria his wife, (the latter of whom was daughter and devisee of Esme Smock deceased,) the said Fox as executor of Esme Smock, and Heathen Smock his widow, filed their bill in chancery against William Wilde, and Thomas Watson. The case, as extracted from the original and amended bills, is, in substance, as follows: that Esme Smock, in his lifetime, being indebted to Miles Selden, gave him a mortgage on a tract of land near Richmond, called Fairfield, to secure the payment of the money: that Smock being unable to pay, the mortgage was foreclosed, and the land exposed to sale: that on the day of sale, William Wilde became the purchaser; an agreement having beers previously made between him and Smock, that Wilde was to bid the amount to be raised under the decree, to have half the land, and to pay six thousand dollars for the said moiety; and the said Smock was to have the other half: that in consequence of this agreement being known, there was no bidder but the said Wilde: that since the death of the said Smock, the said Wilde has applied to the complainant Heathee, (who, he seemed to suppose, had a title to the half of Esme Smock,) and offered a like sum of six thousand dollars for her moiety; observing at the same time, that he had made the same offer to Esme Smock in his lifetime, but the conclusion of the bargain was prevented by Smock’s death ; and that he owed a balance on accourt of his purchase of the moiety, which he was then ready to pay: that after the purchase at the sale aforesaid, the said .Esme Smock remained in possession of the said land,, and accounted with the said Wilde for his part of the rent, and after-wards determining to rent it out, the said Smock and Wilde advertized it to be rented, and Thomas Watson became their tenant: that no conveyance has yet been made by the commissioners under the decree, which delay is supposed to arise from the said agreement prior to the sale: that the complainants are ready and willing to carry the agreement into effect, between Smock and Wilde, either by getting the one half, and releasing any interest or claim to the other, upon receiving a like release from the said Wilde $ or, if that is not the agreement, by paying whatever the court shall adjudge they ought to pay under the said agreement. They therefore pray, that the said Wilde may deliver up a moiety of the said land, or such greater quantity as the court shall adjudge them entitled to, and account for the profits in such manner as the court shall deem equitable. The defendant Wilde, pleaded the statute of frauds and perjuries in bar of the claim of the complainants, because no note or memorandum in writing, containing the agreement set forth in the bill, was ever written or signed by him or by any other person for him. In answer to the bills, he says, that he attended the sale under the decree, for the purpose of bidding on his own account, he being desirous of purchasing the property ? that there Were several other bidders at the sale$ that the said land was set up in separate lots, and the defendant became the purchaser on his own separate account of the first lot that was sold; that after this purchase, a conversation took place between the defendant and Smock, when the defendant told Smock that he might be one half interested in his purchase, on his advancing half the purchase money ; that the other part of the land was then set up, and the defendant became the purchaser thereof; that Smock being unable to pay one moiety of the purchase money, an 'agreement was entered into between him and the defendant, that the latter should become the purchaser of Smock’s part, at the price of six thousand dollars, out of which was to be deducted the moiety of the purchase money paid by the defendant, and the balance was to be paid to the said Smock ; that this contract would have been immediately carried into effect, but for a question that was started, respecting the right of dower of the said Smock’s wife ; and before this difficulty could be removed, Smock died, which prevented the compleie execution of the contract, on the part of the defendant $ that Smock continued in possession after the purchase, as the defendant was unwilling to turn him out by force, and being willing that ho should have a moiety of the land, on re-paying him a moiety of the purchase money with interest ; in which event, Smock was to allow rent at the rate of one thousand dollars for the whole $ that there never has been any writing signed by the defendant, in relation to any rent of the said property, received or paid by the said Smock. The answer of Thomas Watson admits, that he is still in possession of the land in question, under a contract with the defendant Wilde, and considers himself bound to him only for the rent, and submits to such decree as the court may think proper to make in the premises. Depositions were taken, going to establish the nature of the parole agreement between Smock and Wilde, and to prove declarations of the parties, respecting it. But, the most important exhibit is a receipt from Wilde to Smock, dated the 1st of June 1811, for one hundred dollars, expressed to be in full for one quarter’s rent of Wilde’s part of Fairfield, ending on the 18th of May preceding. This receipt is signed “ William Wilde.” Smock is admitted to have continued in possession of the land for some time after the sale under the decree. The chancellor decreed, “ that it is not competent to the te said Wilde, to oppose the act against frauds and per-iS juries, to the execution of the parole agreement made u with the said Smock, in his lifetime, for the land in the « bill mentioned, and at the same time, to insist upon the «benefit of a like agreement with the said Smock, for same land, which, in fact, on the part of the said « Wilde, is asking the performance of the first agreement, «the execution whereof, in part, by the parties thereto, «is proved, by leaving Smock in possession of the land, « and afterwards receiving and receipting of him for one « hundred dollars in full of a quarter’s rent due to the «said Wilde, on account of their said agreement: and «now to ailow Wilde, to refuse a performance of that « agreement, by any construction of the act for the pre- « vention of frauds and perjuries, when most dearly it «was designed against both.” He therefore decreed, «that upon payment by the plaintiff Fox to the defendant Wilde, or in case of his refusal to receive the same, upon placing to his credit in the Bank of Virginia, one «half of the purchase money, paid by the said defendant « Wilde, for the Fairfield tract of land, in the bill and «proceedings mentioned, at the sale thereof made by the « commissioners of this court, in pursuance of the decree «in the suit Selden against Smock, an exemplification of «the record of which suit is amongst the exhibits afore«said, after deducting therefrom one half of the rents and profits of the said tract, from the time that the said «Thomas Watson became the tenant thereof, and also the «amount of so much money as was left with the said «Wilde, by the commissioners of sale under SeJden’s mortgage, for the benefit of the said plaintiff Maria, as well as any surplus due to the said Smock and left in «the hands of the said Wilde, by the said commissioners, with interest on these sums respectively, that the said «defendant Wilde do, by a good and sufficient deed, re~ «lease to the plaintiff Heathee, the widow and relict of « Esme Smock deceased, for her natural.life, one third « of a moiety of the said Fairfield tract of land, and the «inheritance of the said third and residue of the said «moiety, to the plaintiff Maria the devisee and heiress *>< of the said Esme, subject to the said John Fox, for so (C much of the purchase money advanced by him as afore«said: and that the said plaintiffs John Fox and Maria « his wife, do thereupon, by like good and sufficient deed, “ release to the said Wilde, all claims upon the other « moiety of the said tract. And the court doth further « order an account to be taken by one of the commission- « ers of the court of the sum decreed to the said Wilde as « aforesaid, as also of the rents and profits of the said « Fairfield estate, from the period aforesaid, who is di- « rected to examine, state and report the same to the « court, with any matters specially stated, deemed perti«nent by himself, or which may be required to be so « stated.” From this decree, Wilde appealed.