Walker v. Hill's Executors.

At that time all values were depressed by the war, commenced one year before, and when the large increase in prices of real estate in all localities had not yet taken place. At that time $28,000 was, no doubt, a much larger price for his farm, than $40,000 in the high prices of 1866 and 1869. There is no proof, and I do not believe, that this farm was then worth $30, subject to the encumbrances.

There may have been some sacrifices as to the personal property. But the live stock was much depreciated, in bad condition, nearly starved to death. The furniture was old and old-fashioned, and such as does not bring high prices on sale by auction or otherwise. The sale was well attended; few others besides Hill bought, because he bid at higher prices than others were disposed to give, and they knew or supposed that the amount of his debt made it his interest to buy at any price; there is no proof of any impression that he was buying for Walker. The books may have sold below their value; but books in a library of this kind, never bring, and are seldom worth their estimated value.

At the time of the foreclosure sale, George Walker owned the decree and the first mortgage, and also the third mortgage, on which there was then due over $25,000. Hill was his attorney and agent in these very matters, and attended the sale as such. There was due to Maria Walker, on the second mortgage, about $8000; in all about $34,000. This was, as I judge, about the value of the property at that time, if it was worth $40,000 three years later. There is no proof of its value in 1864. Hill, if acting as the agent of George, had no right to buy the property at that sale for himself, or any one else than George, at a price less than such as would secure the claim of George. Like a solicitor attending for his client, he would be held a trustee for his principal, and any written or properly declared trust for any other would be held subject to this first trust for his principal. I am satisfied from the proof that Hill intended to purchase, and actually did purchase for George Walker at the foreclosure sale, and not for the complainant.

Walker v. Hill's Executors.

Again: if I am mistaken in my view of the evidence of Walker, I am of opinion that he was not a competent witness; and as there is no testimony but his as to any agreement before the sales upon which his purchases were made, his case must fail without his testimony.

At common law he was clearly incompetent; and the statute of 1859, which permits a party to be sworn, expressly provides that a party shall not be sworn when the opposite party is sued in a representative capacity; a very wise and proper provision, as this very case exemplifies. When Walker was sworn Hill was dead, and his executors were defendants. Incompetency at the time when he was sworn, is the test of the admissibilty of his testimony, as was held in this court, and the Court of Appeals, in the case of Marlatt v. Warwick and Smith, 3 C. E. Green 108; 4 Ibid. 439. And he cannot be admitted under the provisions of the act of 1855, to disprove the responsive allegations in the answer, because here these allegations are no evidence, and therefore need not be disproved; or his testimony at most could be admitted to do away with the effect of such responsive allegations as proof, leaving the burden of proving his case upon the complainant.

It has been held, and must be taken as the established doctrine of this court, that if a plaintiff in execution make an agreement with the defendant, that he will buy the property at sheriff's sale and hold it for his benefit, and takes advantage of such agreement to buy in the property at prices lower than he otherwise could have done, he will be taken to hold in trust for the defendant, who will be allowed to redeem. Combs v. Little, 3 Green's Ch. 310; . Marlatt v. Warwick, 3 C. E. Green 108; S. C., on Appeal, 4 C. E. Green 443; Merritt v. Brown, Ibid. 286; S. C., on Appeal, June Term, 1869.

In this last case the opinion of the Court of Appeals delivered by the Chief Justice, shows the danger of extending any farther the doctrine of raising trusts by parol agreements, in derogation of the wise and wholesome provisions.

Walker v. Hill's Executors.

of the statute of frauds. It declares, in effect, that no mere parol agreement to purchase for the benefit of the defendant in execution will be carried into effect by a court of equity, unless it is accompanied by circumstances of fraud, or has been made use of by the purchaser to obtain the property for an inadequate consideration, or to oppress the defendant; and in such cases to overcome the protection of the statute, the fraud or mala fides should be proved by the clearest and most complete evidence. This is a most salutary and proper limitation of the doctrine, not inconsistent with the former decisions, and necessary to save the provisions of th statute of frauds as to parol trusts, and to make bidders at sheriff's sales secure. Without this limitation any defendant who, after the death of a purchaser, would testify that he promised before the sale to buy for him, or who could get one witness to testify with him to the fact, in the life of a purchaser, could convert the purchaser into a trustee, and take from him the property when it had increased in value.

In this case, if we admit Walker as a competent witness, and believe all that he has testified to, there is no proof of fraud in Hill, or that he has made use of the agreement to procure the property at inadequate prices, or to the oppression of Walker, or that he has done anything that at all savors of fraud or oppression. The mere non-performance of a beneficial parol agreement is not a fraud which will induce. a court of equity to compel performance, or else every mere parol contract for the sale of a farm or a chattel worth thirty dollars, would be enforced in equity on the ground of fraud. Walker's case, as shown by his evidence, is the case of a naked parol contract, now become beneficial for him to have performed; this the Court of Appeals has declared he is not entitled to have enforced by a court of equity.

Hill has not pleaded, or set up the statute of frauds in his answer as a defence. But this is not necessary when the answer denies the existence of any contract or agreement, as the answer of Hill does most fully. The settled doctrine of the courts is, that if the answer admits a contract, with

Walker v. Hill's Executors.

the

out stating that it was not in writing and setting up statute of frauds, the statute cannot be used as a defence. The admission will be held to be of a legal contract, that is, a written one, and no proof need be offered of it. But if the pleading or answer denies the existence of any agreement, the plaintiff will be obliged to prove one; and he must prove a legal agreement, which, in cases within the statute of frauds, is a written one. Browne on Stat. of Frauds, § 511; Buttemere v. Hayes, 5 M. & W. 456; Johnson v. Dodgson, 2 Ibid. 653; Leaf v. Tuton, [10 Ibid. 93; Eastwood v. Kenyon, 11 Ad. & Ell. 438; Cozine v. Graham, 2 Paige, 181; Ontario Bank v. Root, 3 Ibid, 478; Vaupell v. Woodward, 2 Sandf. Ch. 143.

And, on the other hand, if the agreement to buy and hold in trust for Walker had been clearly proved, I am satisfied, from the allegations in the bill and the evidence of Walker and of Cutler, his attorney, that the object of Walker in having his property sold, and procuring Hill to purchase it, was to hinder and delay his creditors, and have it secured for himself against their claims. Walker states his embarrassments by debts contracted as surety, in his bill, preparatory to stating the confession of judgments to Hill, and his arrangements with him about the purchases; and in his evidence, he says that the object of the sale of 1862 was to place his property in safe hands, so that he might go away and do his government business like a true patriot, and that his property might not be sacrificed by any thing that might occur in his absence.

Mr. Cutler says, as to the sale of 1862, "my impression is, that there were these subsequent judgments, and it became necessary to have the title of this personal property out of Mr. Walker." "It was the intention of that sale to vest the title in Mr. Hill, so that it could not be reached by other executions." If this was the object of making the sale, which was not necessary for the security of Hill, before effected by his levies, and the sale of property far exceeding in value the amount of his claims, was made to

Walker v. Hill's Executors.

effect that object, with the understanding that Hill should hold for Walker, it is a clear case of fraud against creditors, and Walker can have no relief in this court.

On the argument it was contended that the delivery of the sheriff's deed on the foreclosure sale, after the sheriff was out of office, and at a place out of the state, and after the lapse of so long a time after the sale that the sale should be presumed to be abandoned, made the delivery illegal and void; and that the sale of the personal property without a bill of sale, and without actual payment or delivery, rendered the sale of the personal property void.

These issues are not raised by the bill; that states the sale of the personal property, and the sale and conveyance of the real property by the sheriff, as actual existing sales and conveyances, and asks relief against them, by declaring the property so conveyed to be held in trust. If these were proper grounds for relief in equity, there are no facts stated in the bill on which such relief could be founded. There is no specific prayer for such relief; the only prayer besides the prayer for injunction and general relief is, that Hill and McAlpine may be declared to hold the property in trust for the complainant. Relief can be given under the general prayer, only when such relief is warranted by facts positively and clearly set forth in the bill. No facts stated in the bill, if the bill was expressly admitted to be true in all things, would warrant this relief. This is conclusive against

these matters.

The view I have taken of the case will make it unnecessary for me to consider whether McAlpine, who was a bona fide purchaser for value, had sufficient notice of Walker's claim to put him on inquiry as to it, or can in any way be affected by the trust for him.

The bill must be dismissed with costs as to all the defendants.