Henderson v. Touchstone , 22 Ga. 1 ( 1857 )

By the Court.

McDonald, J.

delivering the opinion.

The demurrer admits the truth of the statements in the bill, and the defendant, so far, rests his rights on the complainant’s own account of his case. Upon the bill alone, therefore, we put the decision of the case. The complainant owed the defendant a sum of money, and when he came to settle, he paid all but eight hundred dollars, and the defendant agreed with him, that if be would let him have the negro boy Willis at that sum, he would obligate himself in writing to reconvey him on the payment of the eight hundred dollars, the labor of the boy to pay the interest. This was all one transaction and negates the idea of an absolute S'ale of the boy.

There was a sufficient consideration to support the contract. It is to be presumed that if the sale had been absolute, the complainant would have exacted a larger price, or why stipulate for a written obligation to reconvey on the ■payment of the eight hundred dollars ? If there was a contract of sale and a consideration to support it, there was equally a consideration for the contract to reconvey.

The complaint in the bill is, that if the contract for the reconveyance and delivery of Willis was not reduced to Avriting, it was defendant’s fault, for it was his agreement that it should be; and his having refused to commit it to writing after getting possession of the negro, is a fraud upon the complainant. The Act of 1837, Cobb 274, prohibits the admission of parol evidence, to show that a deed or bill of sale, absolute on the face was intended as a mortgage, unless .there is a charge of fraud in obtaining the same, in Avhich case oral evidence to shoAV fraud only, may be received. If the facts alleged in the bill, admitted to be true by the demurrer, amount to a fraud, the allegations are good as a charge of fraud, although the term “fraud,” may not be used in the bill. They so characterize the transaction as to admit parol proof. But the contract was to be in writing. It is not a case where the defeasance or condition was to rest in parol, but the party had been entrapped. The bargain was for a writing. He can now be compelled to execute that which he undertook to execute, and to perform it also.

The contract having been for a writing, we think that the statute of frauds had nothing to do with the case. But it does not appear that the contract was not to be executed within a year. It might have been executed within that time, and so the statute of fraud would not apply if it had been a parol contract. Fenton vs. Emblers, 3d Burrows, 1281.

We think the demurrer ought to have been over-ruled and the defendant ordered to answer.

Judgment reversed.