Jackson v. Gray , 9 Ga. 77 ( 1850 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Should the complainant’s bill have been dismissed for want of equity ? What are the facts in this case ? Henry Jackson, the complainant, was the owner of lot No. 165, in the 5th district of Houston County. One Henry Feagan, having some Justices’ Court fi. fas. against Jackson, caused them to be levied by Isaac Alger, a Constable, on the lot of land which was sold by the Sheriff, on the first Tuesday in May, 1843; and Charles H. Rice, being the highest bidder, the same was knocked off to him at the sum of f230. No money was paid at the time. Subsequent to the sale, an agreement was entered into between Rice and Jackson, by which the latter was to retain the property, provided he would pay Rice $450 in three weeks; and by virtue of this arrangement, Jackson remained in possession of the premises. Not having the money himself, Jackson applied to Benjamin H. Gray, a cash capitalist and money lender, who agreed to advance the $450 to Rice for Jackson, provided he would refund the amount, with 20 per cent, interest, on or before the 1st of January, 1844, and Gray was to take a deed to himself, as security for the loan. Gray paid the purchase money to Rice — Rice deducting $50 from the price, through kindness to Jackson, and a Sheriff’s deed was made to Gray. The bill charges that Gray had nothing to do in making the conrtact, but acted solely as the friend and trustee of Jackson in paying the money. Within the time specified,to wit: on the first of December ensuing, Jackson tendered to Gray principal and lawful interest and usury, and demanded titles. But Gray, in the month of October preceding, sold the land to Isaac Alger, the Constable, for $700, who ejected Jackson from tire premises. The bill charges that Alger had notice of all the equities between the parties, and that the land is worth $1000; and it seeks to cancel the deed from Gray to Alger, and to have a conveyance executed to the complainant, or to have the valúe of the land paid the complainant, together with the rents, issues and profits which have accrued since his eviction. Is this contract void by the Statute of frauds ?

Most clearly not. The parol agreement has been so far performed, that a Court of Equity will compel its execution. The price paid to Rice for the land, was the money of Jackson. Fie borrowed it of Gray for that purpose, giving him twenty per cent, on the loan, and a deed to the land, as security for its re-payment at a time designated. Re-payment was tendered within the time stipulated. Gray then held the title as trustee for Jackson.

But again, Jackson’s possession was neither wrongful nor independent of the contract with Rice, but under and by virtue of that contract. It was not by virtue of his original ownership or tenancy, but solely and exclusively under and by virtue of the subsequent agreement between Rice and himself. Under the facts alleged in this bill, could Rice, before payment, or Gray, afterwards, have treated Jackson as a trespasser, had he gone into possession under this contract ? Certainly, if this parol contract is to be deemed a nullity. And yet, if it can be established by clear and competent proof, a specific performance will undoubtedly be decreed, as upon every principle of justice it should be.

Cameron vs. Ward, (8 Geo. Rep. 245,) was a weaker case than this; and yet this Court, very properly holding that the Statute was enacted to prevent fraud, and not to protect it, determined that the bill made a proper case for Equity jurisdiction, and that the defendants who had there, as here, obtained the title as security for the money advanced by them for the complainant, should be held as trustees for the party defrauded, and should not be allowed to shelter themselves under the Statute.

And I would take occasion to remark, that while we renounce all claim to a latitude of jurisdiction in such cases, and do not feel at liberty to depart from the settled course of adjudications upon the Statute of frauds, yet, that under our Special Jury system, so far from construing the Statute strictly, we are rather inclined to give a liberal construction to the exceptions which have been established to withdraw cases from its operation, believing, as we do, that in this way we shall best subserve the purposes of justice and honesty.

And taking this view of the main question, it becomes unnecessary to decide any other made in the record.

Let the judgment be reversed.