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JULY 1829.

mi Kinner's Executors

M'Kinney's

dmrs.

without leaving him any thing, and if any thing was left him, he might have released his interest. But if this was so, the plaintiff who expected to be benefitted by his testimony, should have been prepared to have shewn it. Could his competency be restored by a release, it was for the plaintiff to procure it; was he advanced on marriage, or disinherited by will; it is manifest, the plaintiff, who was the executor of his father-in-law, and had the possession of the will, could have produced it with more convenience, and more in accordance with the rules of evidence than the defendant, who, if required to shew such facts, would have had to have shewn the most, if not all of them, br negative proof. Again, we must proceed on general principles, and as defendants could not usually in such cases know of the intention to introduce the witness till the tri. al, if called on for a stronger shewing of interest than was required in the present case, they would be surprised, or compelled to rely on the voir dire of the witness himself, which would often be an unsafe resort. The fact of the testators dying in Virginia, does not vary the aspect of this question. It is so universally true, throughout the States of the Union, that children are all concerned in the distribution of estates, that we conceive the Circuit Court were right in permitting it to have the influence it had on their decision; and that Smith was to be presumed interested till the contrary was shewn.*

Judgment affirmed.

a SeeStrong's
Exr.v. Finch
Minor's Alo.
Rep. 256.

2s 21 96 5:22

ALLEN V. BOOKER.

1. Assumpsit lies to recover back money paid on a parol purchase of land;

such contract being void by the statute of frauds. 2. The payment of part of the purchase money, does not take the casc out of

the statute.

DRURY M. ALLEN brought an action of assumpsit in Madison Circuit Court, against Parham N. Booker, to recover back one hundred and twenty-five dollars paid by him as a partial payment on a purchase of land.

*Note. This cause was at July 'Term, 1828, affirmed on argument; and the Court having consented to reconsider the cause, it was re-argued at this: term, and again allirineda

JULY 1820

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6, 561.

I Marsh. 553

At the trial in May, 1827, the plaintiff proved that he

paid the money on account of a purchase of land made by Allen

him of Booker; that the contract was by parol; and that Booker. the land lay in the Arkansas Territory. The Court char.,

ged the jury, that the part payment of the consideration money by the plaintiff to the defendant, took the contract out of the operation of the statute of frauds; and that as the plaintiff could compel the performance of the contract on the part of the defendant, provided he complied with his agreement to pay the money, that he could not abandon the contract, and recover back in this action the amount paid, Under this charge, the jury found for the defendant. The plaintiff exceptel; and assigns for error, in this Court, that

those instructions given to the jury, were incorrect. 27 John. 206-7 THORNTON, for the appellant, argued: 1st. That by the 1 Pibh 204-5. correct construction of the statute of frauds, all actions are 3Bibh.

prohibited, which are founded on, and tend to enforce a parol 4 Bibb 58. contract for land.a And if this be correct, then that it fol14 Joho. 29. lows as a necessary consequence, that the action to recover 15 John. 504. back money paid on such a contract is well founded.b Huly v.

And, 2nd. That should this Court even be disposed to en-
large the statute to the extent to which the English au-

gone,
when
many

of their judges had regretses in error. ed it as an evil, that still, even according to their authori. BiCit. Plend ties, payment of purchase money is not enough to take marg. 41 3:2 a case out of the statute of frauds.c cSug.op Vene dors 86 to 92.

Kelly and M'Clung, for the defendant in error. In contracts for the sale of land, the lex loci rei sitae governs; and the statute of frauds of the Territory of Arkansas, if any such statute is in existence there, is the rule for the decision of the right of the parties; and as it does not appear

from the record that there is any such statute in force in Arkansas, there is no statute of frauds that is applicable. Although the reason assigned by the Court below for its eharge may not be sufficient, yetthecharge in itself is sound; and that is sufficient to sustain our judgment. The charge then in substance was, that the statute of frauds of Alabama did not apply, and this was correct.

Jf Allen had sue:l for a conveyance, or for damages for a breach of the contract, then Booker would have been required to prove that he had performed his contract according to the law of Arkansas. But it is not alleged hy Allen that Booker is unwilling to comply; his action assumes a

Brown.
1 Stewart
144.

2Chine's Ca- thorities had

Allen

Booker.

right in himself to refuse to allow a performance by Booker, and that he has a right to avoid the contract and claim the money. He asserts that the contract is void. At common law the contract is valid and binding; this is prima facie enough for the defendant to shew. Allen replies to this, the statute of frauds of Alabama; the force of which objection is destroyed by Booker, by the proof, that the land lies in Arkansas, and that it must abide the law of that country, where this Court presumes the common law alone to be in force, in the absence of proof of the existence of any statute. This takes from Allen his only objection to the validity of the contract. The onus is thus thrown upon Allen to shew the law of Arkansas; and he not having shewn any, must fail The Court will never presume that any thing was proved which does not appear, in order to reverse a judgment. Whoever assigns error, must shew by his bill of exceptions, that he did make all the proof he relies on.

Thornton, in reply. The locality of the land is im. material; that question was not the one reserved for revision here. There is no contest as to the existence of the statute of frauds in Arkənsas; nor as to what statute of frauds should govern the cause, that of Alabama or that of Arkansas. The proof produced in the Court below is not set out; nor is it necessary it should be, for the purpose of revising the only point reserved, which is, whether or not the payment of part of the purchase money will take a case out of the statute; and if under the statute, the plaintiff could abandon the contract and recover back money so paid, or whether the plaintiff was compelled to claim or receive a conveyance as his only remedy.

The cause was argued at July term, 1828, and reversed and remanded. A re-hearing having been granted, the case was again argued at this term, when the opinion of the Court was delivered

By JUDGE TAYLOR. It is considered unnecessary to enter into a minute investigation of the doctrine which governs parol contracts for the sale of land, under the statute of frauds. Our statute is in the precise language of that of England, and of a majority of the States. The constructions given to the statute by the Courts of Westminster, are well known. They have determined many cases to form exceptions, notwithstanding the comprehensive terms of the statute; and numerous decrees have been made by

JULY 1930.

The reaa

v.

the Chancellors of that country by which the specific per

formance of such contracts has been enforced. Allen

sons for this departure from the letter of the statute, given Booker. in those decisions is, that in the several cases in which the

decisions have been made, the defendants were endeavoring to use the statute to effect a fraud upon the plaintiffs; and that it could never have been the intention of the Legislature, that a statute made to prevent fraud, should be so expounded as to give a reward to him who practiced fraud.

It has been much questioned, even in England, whether the most correct course for the Courts to have adopted, would not have been rigidly to execute the statute in accordance with its words; and many of the most enlightener Judges of that country have expressed great regret that it has ever been departed from, except in cases of a most extraordinary nature. In modern times, there is a much greater indisposition to decree the specific performance of a contract of this description than formerly; and the Courts manifest a great inclination again to take shelter under the wings of the statute, from which they had so greatly de

parted. The observations of Lord Redesdale, in Lindsay & 2. Schoales v. Lynch,a indicate this in strong terms. and Lefroy 5. In the United States, the cases uniformly shew, that the

Courts are rather inclined to restrict than to enlarge the

cases of exception to the strict execution of the statute. In 34 Cran. 235. the ease of Grant v. Naylor, that distinguished Judge,

Chief Justice Marshall, observes, “already have so many cases been taken out of the statute of frauds which seem to be within its letter, that it may well be doubted whether the exceptions do not let in many of the mischiefs against which the rule was intended to guard. The best Judges in England have been of opinion, that this relaxing construction of the statute ought not to be extended further than it has already been carried, and the Court entirely concurs in that opinion.”

In some of the States it has been determined, that the

statute must be rigidly construed, and that no case whatel Bibb R 204. ever thecircumstances may be, willauthorize an exception.c 3 Bibh2. I

am not prepared to go the length of the cases last cited. Ale the case Our statute was enacted long after the construction given Patten, late to that of England by their Courts, was known in this the Court of country; and we cannot suppose that the enlightened body App. of Ten which enacted it, was ignorant of the course pursued by the yessee. English Courts. If it had been intended to preclude the

JULY 1829.

Allen

Pooker.

Courts from departing from the letter of the law, words to ihai effect might easily have been inserted. But in the variety of decisions on this subject, I do not now recollect one which determines that the payment of part of the purchəse money authorizes a decree of specific performance; !:or can I conceive any good reason for such a decision. To authorize a departure from the statute in any case, the party asking it should be so situated, that no other remedy which the law can afford him, would place him in as good a situation as he was before the contract was made; in fact it must satisfactorily appear that the opposite party is using the statute as an engine of oppression. This would often be the case where possession had been given, and extensive improvements made by the purchaser. But in the present case, the defendant is the vendor, and the repayment of the money by him, wiil merely place him where he was before the contract was made, which would always be the case, in all instances, where there was nothing done by the parties to the contract, but simply the payment and receipt of the purchase money.

I am therefore clearly of opinion, that neither the payment by the purchaser of a part or even the whole of the purchase money in such case, would of itself, take the case out of the sta ute. Therefore, the Court erred in the ins structions given to the jury.

But it is objecteci, thai even should there have been errorin this respect, yet the judgment cannot be reversed, for two reasons: 1st, By the terms of the statute, no suit is author. izer! to recover back the purchase money which has been paid; and 2d. The land which was the subject of the contract, is situated in the Arkansas Territory, and the contract must be governed by the laws of that Territory; and it does not appear to have been proved on the trial of the cause, that any such law has been enacted, in that Territory, as our statute of frauds.

The statute of frauds enacts, "that no action shall be brought whereby to charge the defendant upon any contracı for the sale of lanus, tenemenis or hereditaments, or the making any lease thereof, for a larger terin than one year.” The clear object is to prohibit any suit to recover damages for the breach of, or to enforce the agreement. But the present is not brought for either of these purposes, but is to recover money which the plaintiff alleges he has paid without consideration. The object is not to charge the defendant upon a contract by parol for the sale of lands,

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