Lamborn v. Watson , 6 H. & J. 252 ( 1824 )

/The opinion of the court was delivered by

Buchanan, Ch. J.

We must take this case, as we find it, which,' as presented by the declaration, and bill of ex-peptions taken at the trial, is substantially this; Sundry writs of fieri facias being sued out, upon judgments obtained by Buckler Bond against Daniel Lamborn, the plaintiff, and placed in the hands of Jason Moore, the sheriff ofMarford county, he levied them upon, the land and real estate of Larnborn, who attended at the time and place assigned by the sheriff in his advertisement for the sale of the property; and perceiving that it would not sell for its. real value at tíiat lime, entered into an agreement witli John Watson, the defendant, that be should bid it off, for and upon his, Lamborn’s, account, to enable him thereby to gain time, to raise the money to satisfy the executions.

Watson did accordingly bid off the properly at leas than Its value, but afterwards, conceiving the design of turning „the originally pretended purchase toáis advantage, entered into a fraudulent engagement with Moore, the sheriff, 'to retain it for their mutual benefit, and refused to relinquish it to Isaniborn, who had made an arrangement with Bond, the creditor at whose instance it was seized* for the pay-meat of the whole amount due to him, with all the accruing costs and charges.

For that violation by Ifnison of his agreement this suit was brought, and he rests his defence on the statute of frauds, whidi probably generales as many frauds as it prevents. The expedient resorted to by the plaintiff to prevent an actual sale, in order to gain time, may not be altogether free from exception; but looking at this case, as it appears in the record, more disgraceful conduct than that both of the defendant, and Moore the sheriff, has perhaps seldom found its way into a court of justice, and the de- - fence, set up is entirely of a piece with it; yet as the case is presented, we are constrained to sustain that defence. The eciion is not founded on deceit, misrepresent;»!ton or fraud, practised by the defendant, by which the plaintiff was tricked into a false confidence, and seduced in ¿o a contract by which, he has lost his property; but on a verbal agreement, respecting the sale of lands, not sought for, or moving from the defendant, but procured‘by the plaintiff himself for his own purposes, on which, without overturning the statute of frauds, an action at law will not lie, being clearly within the statute, from the operation of which the subsequent abuse by the defendant, in collusion with the sheriff, of the confidence reposed ia him, catmót have The effect to rescue it. If the plaintiff could be permitted to recover on this agreement, there is no case in which the statute could prevail, and it would become a dead letter.

Courts of law, as well as of equity, have Cognizance of fraud; but courts of Law relieve against it negatively, by inquiring into the circumstances, and not permitting plain-tyro to recover in actions brought on deeds or contracts fraudulently obtained, and thus virtually annúlling suck deeds or contracts as against the fraudulent parties.

But they cannot entertain actions upon verbal contracts within the statute, on the ground of fraud, in refusing to perform them; if they could, it would be to permit a plaintiff, in the shape of an action on the contract, to recover in damages, not for the breach of the contract as such, but for a fraud subsequently conceived, and on which the action was not founded, (as is attempted in this case,) which would be to annul the statute in relation to such contract»

• JUDGMENT ÁEEIIIMED.