Bayard’s Notebook, 190.[*]
Court of Common Pleas of Delaware, Sussex County.
May, 1797.
The declaration in this cause stated that on the 6th May, A. D. 1785, the plaintiff sold to the defendant a lot of ground in Lewis town in consideration of the sum of £40; one moiety of which was paid and the other agreed to be secured to the plaintiff by bond on conveyance of the lot. That the lot was conveyed to defendant, and that he was in possession, but that the bond was refused. There were other counts in different forms but to same effect.
The plaintiff showed an indenture dated 6th of May, 1785, of Margaret Kollock (suggested to be a trustee for plaintiff) to Turner for a lot in Lewis, consideration £40. The counsel were then proceeding to prove the agreement as stated in the declaration by parol evidence.
Upon which it was objected by the counsel for the defendant that parol evidence was incompetent to prove the agreement. They contended that the case was within the Act of Assembly page [—][1] which required that the contract should be in writing as it related to land and which declared that no action should lie unless the agreement was in writing. They cited the case of Horsey’s Executor v. More[2] in the Supreme Court of the county, October Term, 1796, in which it was ruled that a book
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of accounts could not be given in evidence to prove payments of purchase money upon an agreement relative to joint purchase of lands.
The counsel on the other side said that the Act of Assembly and the Statute of Frauds stood on the same ground in regard to the present question as well in courts of law as in courts of equity. That in this case there had been part execution of the agreement by payment of parcel of the purchase money and by the defendant’s going into possession. And that it had been often held that a part execution of a contract as to lands took it out of the Statute of Frauds. They cited Pow.Con. 291-9, 301, 304-8; 1 Bac.Abr. 74; 3 Atk. 1; 1 Esp.N.P. 103-4; 1 Atk. 13, 15.
BASSETT, C. J.,
said that a majority of the Court were of opinion that the evidence was incompetent. He differed however in opinion from them. He did not consider that the Act of Assembly extended to any case, even respecting lands, which was to be performed within a year and of consequence as the present agreement was to be performed within that time he did not consider it as contemplated by the Act. Upon the ground also of the agreement being part executed he conceived that if originally within, it was taken out of the Act.
JOHNS and RODNEY, JUSTICES,
being of a different opinion, the evidence was rejected, and the plaintiff suffered a nonsuit.
Miller and Ridgely for plaintiff. Wilson an Bayard for defendant.