Chatham County NcArchives Court.....Bagley & Britton, Samuel Dark V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 23, 2009, 7:07 pm

Source: Nc Reports
Written: 1819

Samuel Dark v. Joab Bagley and Britton Harris

From Chatham

May Term 1819

Equity will decree a specific execution of a parol contract for the sale and 
purchase of lands, although there has been no partial performance, if the 
contract, be proved by such evidence as affords to the mind a conviction no 
less satisfactory than that which arises from a contract in writing.

It is no objection to such a decree, that the purchase money was to be paid in 
the fall. That, is a period sufficiently certain.

Samuel Dark filed his bill in the Court of Equity for Chatham county, against 
Joab Bagley and Britton Harris, and therein charged, that Joab Bagley being 
seised of a tract of hind containing 500 acres situate in the county of 
Chatham, in September, 1810, contracted and agreed to sell the same to the 
complainant upon the following terms, to-wit, "that complainant should pay to 
him the sum of $450 in the fall of 1811; other $450 in the fall of 1812, and 
other $450 in the fall of 1813; making in all the sum of $1,350." And to 
secure the payment of these respective sums, complainant agreed to execute to 
Bagley, within some short time, his bonds with security; and upon the 
execution of these bonds, Bagley was to convey the land to complainant, with 
general warranty. The bill then charged that in pursuance of this agreement, 
complainant within some short time, executed bonds with good security, and 
tendered them to Bagley, at the same time requesting Bagley to convey to him 
the land: That Bagley refused to accept the bonds or convey the land: And that 
Britton Harris having notice of the agreement which had been entered into 
between complainant and Bagley for the sale and purchase of the land, agreed 
with Bagley to purchase the land, at the price of twelve-hundred and fifty 
dollars, and to make payment thereof within a time which Bagley alleged would 
better suit his convenience: That in pursuance of this agreement, Bagley 
conveyed the land to Harris, who entered and took possession: That Harris 
having taken a deed for the land with notice of complainant's equity, was a 
trustee of the legal title for complainant, who prayed that Harris might be 
decreed to convey to hint such title to the land as he he had acquired from 
Bagley, and that an account for the rents and profits might be taken: and that 
Bagley might be decreed to accept the bonds which had been tendered to him, 
and convey the land with general warranty.

Harris put in his answer, and denied that he had any notice of the agreement 
charged in the bill before he purchased the land from Bagley, paid the 
purchase money and received a conveyance. He alleged that he had purchased the 
land for a valuable consideration, and he prayed the benefit of this fact and 
his want of notice, in the same way as if he had relied upon them by way of 
plea. Complainant replied to the answer, and depositions having been taken by 
the parties, the cause came to be heard at March Term, 1818, (the bill having 
been filed in February, 1811) when the following issues were submitted to a 
jury, to-wit:

1. Was the agreement charged in the bill relative to the sale and purchase of 
the land herein described, entered into between Samuel Dark and Joab Bagley?

2. Was the defendant, Britton Harris, a purchaser for a valuable 
consideration, without notice of Samuel Dark's claim to the land under the 
agreement charged?

3. If the agreement charged was entered into, did Samuel Dark perform his part 
of the said agreement as far forth as by the terms thereof, he was bound to do?

The jury found in favor of the complainant upon each of the issues; and the 
counsel for complainant having moved for a decree according to the prayer of 
the bill, the motion was opposed upon two grounds: lst, That the bill sought 
to enforce a parol contract relative to the sale of lands, where there had 
been no partial performance of the contract; 2d, That the contract was too 
vague and indeterminate, there being no days appointed on which the purchase 
money was to be paid. The case was ordered to be sent to the Supreme Court, 
where it was argued by Ruffin for the complainant, and Norwood for the 
defendant: and at this term,

Taylor, Chief-Justice: The object of this bill is to compel the specific 
execution of a parol agreement made between Bagley and the complainant for the 
sale of a tract of land lying in Chatham county. The contract set forth in the 
bill has been established by the verdict of a jury; and it is admitted that 
the bonds which were to be given by the complainant., were executed by him and 
tendered to the defendant, according to the terms of the agreement; or to 
speak with more precision, the bonds are admitted to have been tendered, and 
the jury have found that the complainant has performed his part of the 
agreement. All the facts necessary to a decree for the complainant have been 
established, and the case is ripe for a final determination, if the Court has 
authority to make one, under all the circumstances. Its authority to do so, 
has been contested upon two grounds; 1st, Because the contract was made by 
parol, and it is alleged there has been no partial performance. 2d, Because no 
days were appointed on which the money was to be paid; the agreement being 
merely, that the several payments were to be made in the fall of the 
respective years when they became due.

With respect to the first objection, it might be sufficient to answer, that 
the practice of decreeing the specific execution of parol agreements for the 
conveyance of land, has been too long established in this state, and too 
uniformly persevered in by the Courts of Equity, to be now abolished, because 
the propriety of its origin may be doubted. It is not easy to arrive at a 
certain conclusion one way or the other, as to the practice in England before 
the Statute of Frauds and Perjuries. There are authorities both ways, and the 
more ancient ones are in favor of the jurisdiction. In 1467, it is said by a 
Judge, "that if I promise to build you a house and do not perform my promise, 
you have your subpoena; and in 1505, Fineux, Chief-Justice, speaking of the 
different remedies given in the Courts for the non-performance of contracts, 
observes, "that if a man bargain with another that he shall have his land for 
101£ find that he will make him an estate therein by such a day, and he does 
not make the estate, an action upon the case lies; but in that lie shall only 
recover damages; but by subpoena, the Chancellor may compel him to execute the 
estate, or imprison him." (1 Maddock, 287.) On principle, too, it would seem 
that such a jurisdiction might have been correctly exercised. Before the 
statute of frauds and perjuries in England, the only contracts and 
dispositions of property, real or personal, which were necessary to be put in 
writing, were of property lying in grant, as rights end future interests, and 
that species of real property to which the name of incorporeal hereditaments 
applies. These were always authenticated by a deed; and the statute of 32 Hen. 
8, ch. 1, which gave to the owners of laud a partial power of disposing of 
their estates by will, directed such will to be declared in writing; some 
contracts were also required by customary laws to be in writing; but as a 
general rule, no writing was necessary; for even estates in land might be 
completely transferred by a symbolical delivery in the presence of neighbors, 
however useful the precaution might be of recording the transaction by a 
charter of feoffment. (Roberts on Frauds, 2.) It seems indeed that Courts of 
Equity were cautious in former times, as they ought always to be of relieving 
bare parol agreements for lands, where the agreement has not been signed by 
the parties, nor any money paid. (1 Fonb., 175.)   And as this branch of their 
jurisdiction is governed in a peculiar degree by sound discretion, cases may 
be found where they have refused relief for the want of a part performance. 
The subject is examined in the late edition of "Sugden Vendors," 101, 114. 

"There are four cases in Tothill which are previous to the statute of frauds, 
and appear to be applicable to the point under consideration; for equity, even 
before the statute, would not execute a mere parol agreement not in part 
performed. In the first case, which was heard in the 38th Eliz., relief was 
denied, because it was but a preparation for an action on the case. (Tothill, 
135.) In the two next cases, which came on in 9 Jac. 1, parol agreements were 
enforced, apparently on account of the payment of very trifling parts of the 
purchase money; but the particular circumstances of these cases do not 
appear." (Ibid, 206, 228.)

The subject is left by the writer nearly in the same obscurity in which it was 
before, not from any defect in him, but from the intrinsic difficulty of the 
question. Enough has been cited to shew that the jurisdiction is fairly 
applicable to the case before the Court. While, however, no doubt is 
entertained of the jurisdiction, the Court is fully impressed with the 
importance and necessity of an extremely guarded and cautious exercise of it. 
As men cannot by law part with their freeholds without deed, so Equity should 
follow the law as nearly as may lie, and require complete and satisfactory 
proofs that a contract for the sale of land was deliberately made. There 
should be not only full evidence, but a decided preponderance in favor of the 
existence of the contract; affording to the mind a conviction not less 
satisfactory than that which arises from a contract in writing. Loose 
conversations, inadvertent assertions and inchoate agreements, ought to be 
carefully guarded against; and where it is understood that a Court of Equity 
will not lend its aid to enforce a parol agreement, unless it be established 
by plenary evidence, a salutary caution will be inspired in those, who, in 
good faith, make such contracts in future.

As to the second objection, though no day was fixed for the payment of the 
bonds, yet it was agreed that the complainant should pay at the fall: he 
consequently had until the last day of the fall to do so. As where a man is 
bound to pay money on a certain day, or in a certain year, he has to the last 
minute of the first, and the last minute of the last day of the last, to make 
the payment. The same reason applies to a certain season. But if it were 
otherwise, as no objection was made on that ground when the bonds were 
tendered, it is to be intended that the days of payment were fixed according 
to the seller's wish.

The substance of the decree agreed upon by the Court is, that a reference be 
made to the Master to compute the sums due by the contract, with interest from 
the times they respectively became due, until a day to be prescribed by the 
Court of Equity for Chatham, for the payment of the money. That he also take 
an account of the rent and profits from the last day of November, 1811, when 
the complainant was to have been put into possession, until the aforesaid day; 
which latter sums, when ascertained, are to be deducted from those due on the 
bonds; and the residue, if any, is to be paid to the Defendant Bagley; upon 
which, Harris should be decreed to convey the land described in the bill, to 
the complainant, with covenants against his own incumbrances, and a covenant 
against all claiming under him; in which deed Bagley should join and enter 
into a general warranty; the deed to be approved by the Master.

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