Duvall v. Peach , 1 Gill 172 ( 1843 )

Spence, J.,

delivered the opinion of this-court..

After a careful examination of the several legal propositions decided by the county court and brought up to- this court for revision, we are prepared to say, that in them wefind no-error..

The first and second propositions under the first bill of exceptions appear to us so manifestly clear, that we find great difficulty in suggesting argumenis or reasons which will render their correctness more conclusive.

The third proposition arising under the first bill of exceptions, raises the question, whether the agreement set out in the declaration and relied on by the plaintiff, is such an agreement as is within the statute of frauds. The parol agreement, or rather that part of the agreement relied on, to charge the defendant as set out in the plaintiff’s declaration, is as follows, viz: “At which said sale, the said Charles then and there became the purchaser, upon the express promise and undertaking of him the said Samuel, that if he- the said Charles would purchase the lands as aforesaid, he the said Samuel would invalidate the deed for said lands, which had been before that time executed by the said JSIatkan to a certain JYalhanJ. Waters and a certain Samuel Radcliffe, under which the said JYathanJ. and Samuel Radcliffe claimed to hold the same as their property, and would put the said Charles in possession of said lands so-as aforesaid purchased by him ; that the said Charles confiding in the promise and agreement of the said Samuel, so as aforesaid, then and there made, then and there became the purchaser, &c.”

We are fully persuaded that this agreement fidls entirely within that class of cases which the authorities determine to be agreements within the statute of frauds, and in principle almost identical with Lamborn vs. Watson, 6 H. & J. 252.

The second exception presented a question under the statute of limitations. The court instructed the jury, “that if they should find from the evidence that the agreement was made and the purchase money paid on the SOth December 1826, and that the original writ in this cause did not issue until the 1st day of March 1840, that then this- action was barred by limitations, unless they should find some subsequent assumption or promise by the defendant, either to re-pay the money or perform the said contract.” In Maryland, to remove the bar raised by the statute of limitations, there must be such an acknowledgment of a subsisting debt, as is equivalent to an express or implied assumpsit or promise to pay.

This court cannot decide whether the county court erred in refusing to let the record of the proceedings in the Court of Appeals, on an appeal from Chancery, wherein Charles Duvall was complainant and Nathan Waters and others were defendants, go to the jury, because that record is not made a part of the third bill of exceptions, nor is it in the record; but we think the county court did not err in refusing to let the testimony of Thomas F. Bowie go to the jury, because that was parol evidence of facts of which the plaintiff had record evidence, and therefore was not the best evidence in legal contemplation. JUDGMENT AFFIRMED.