Parkhurst v. Van Cortland , 14 Johns. 15 ( 1816 )

Thompson, Ch. J.

It was not pretended upon the argument, that this was a case coming within the statute of frauds, or that any note, or memorandum in writing, was necessary for the purpose of making out a valid and binding contract between the parties. The appellants, in the court of chancery, bottomed their claim to relief upon a part performance of an agreement alleged, by them, to have been made with the respondent, in relation to the lands in question. If any authority was necessary to show that such cases are not within the statute of frauds, we have it in the case of Brodie v. St. Paul. (1 Ves. jun. 333.,) where Buller, J., sitting for the lord chancellor, lays it down as a settled rule in equity, that part performance of a parol agreement takes it out of the statute of frauds. The object of the bill, in the case now before us, was a specific performance of an agreement. This necessarily presupposes the existence of such agreement, and the bill, therefore, as it must, in all cases of this description, sets out what that agreement was. It, accordingly, became necessary for the appellants to prove the agreement with all requisite certainty, or to furnish such evidence as to warrant the court in presuming the agreement which they claimed to be in force. In Forster v. Hale, (3 Ves. jun., 712.,) the lord chancellor observed, that he thought courts had gone too far in admitting part performance, and other circumstances, to take cases out of the statute of frauds. Part performance, said he, might be evidence of some agreement, but of what, must be left to parol proof. It would, he thought, have been better, in such cases, to have the money laid out, or repaid, than to consider part performance evidence of an unknown agreement. Here is a full recognition of the principle, that from the fact of part performance an agreement may be presumed. And the same lord chancellor, in another case, (3 Ves. jun. 320.,) observes, that the fact of some agreement may be implied from circumstances. If, then, from the fact of part performance, we are authorized to presume some agreement between those parties, in relation to the land, what that agreement was may be collected, with all reasonable certainty, from the parol proof.

I agree fully with the reasoning of the chancellor upon the insufficiency of the memorandum of April 179?, to ascertain and define the terms and nature of any contract. It is too vague and indefinite for that purpose ; nor, according to my understanding of it, was it ever intended for any such purpose. There is nothing in it which looks like fixing, or defining, a bargain as to the purchase or leasing of the lands. It purports only to give permission to the appellants to possess the lands subject to some future arrangement, as to the purchasing or leasing the same ; they, however, by such possession, gaining a preference, or what is usually called a refusal, of such bargain. If the appellant’s claim, therefore, rested upon this memorandum alone, as the evidence of the contract, I should have no hesitation in saying it could not be supported.

Nor is it to be disputed, that where it is necessary to make out a contract in writing, no parol evidence can be admitted to supply any defects in the writing. It is a sound and salutary rule, that a contract cannot rest partly in writing and partly in parol; but the case before us is not one falling within either of these rules. It was not necessary that the contract should be in writing; nor does it require that the memorandum in writing should be connected with the parol proof, for the purpose of making out the contract. If my construction of the memorandum is right, it does not profess to make any part of the agreement for the purchase or leasing of the premises. The principal object was, to show that the possession was taken with the assent of the owner of the land, and that the appellants were not intruders. That is all the purpose for which it is necessary to use this memorandum ; and if this permission had been given by parol, it would have been of equal force with the written memorandum. But if this memorandum is nugatory and void, for uncertainty, we may surely reject it altogether, and rest entirely upon the parol proof, as it is a case where no writing was necessary. There are not, however, wanting the opinions of very able chancellors in support of the position, and it is, perhaps, "the better opinion, that where part performance is made the basis of the claim for a specific execution of an agreement, parol proof may be connected with written evidence for the purpose of making out the contract.

The case of Allen v. Bower, (3 Bro. Ch. 149,) is directly in point on this question. That was a bill for specific perform.ance, and the evidence to establish the agreement was partly written and partly oral. The written promise of a lease was imperfect, and parol evidence was admitted, by direction of Lord Thurlow, (after it had been rejected by a master,) to supply the defects in the writing. Lord Redesdale, in commenting upon this case, and particularly upon the question, whether a defective writing can be supplied by parol, observes, that this cannot be done, when the writing is set up as the sole foundation of the agreement, nor unless it be a case of part performance. (1 Sch. & Lef. 37.) It is fairly tobe collected from his opinion, that in such cases, parol and written evidence may be let in, to make out the contract.

But laying aside the written memorandum altogether, let us examine the proofs in the case, and sec whether an agreement for a deed or a durable lease is not satisfactorily made out : and it ought here to be noticed, that the bill in chancery seems to be framed upon an agreement distinct and independent of the memorandum. We have not the bill set out at large in the case, but according to the statement given, it appears, that after setting out the memorandum, the bill alleges, that afterwards, that is, after the giving of the memorandum, the respondent, for the further security of the appellants, and to induce them to make permanent improvements, agreed, that in case of the sale of the land, under such agreement, (referring to the memorandum,) the price should be the actual value at the time of the agreement, superadding interest up to the time of the conveyance 5 and, in case of a lease, the same should be durable, or, in other words, a lease in fee, at the usual and customary rents of the country. This agreement, or any other than what is contained in the memorandum, the respondent denied in his answer in chancery. A recurrence to the evidence becomes necessary, then, to see how far it" will support the alleged agree- ' merit. The memorandum authorizing the appellants to take possession is dated in the year 1797 ; but it appears they had k®en in possession from the spring of 1794, under an assignment of a similar memorandum, which had been given by the respondent, to Benjamin Lawrence, This assignment was known to the respondent in the fall of-the year 1794, and he recognised the appellants, as standing in the place of Lawrence. The memorandum given in 1797 was a mere substitute for the other, and must have a retrospective effect, so as to sanction and make valid every thing done by the appellants, after they came into possession under the assignment from Lawrence. About this time it appears that the appellants became uneasy with respect to their situation, and by their agent applied to the respondent to give them more satisfactory or better security. To this, according to the testimony of Lawrence, the respondent replied, that he would give them a good title, as soon as he could obtain a release from Mr. Clark’s heirs; either by a durable lease, on good terms, or a sale of the lot to them, as they chose. The agent preferred a lease; but still urged to the respondent, that the appellants hesitated about erecting a barn and other buildings, on account of the security for the land not being satisfactory. The respondent replied, that they might go on, build, and occupy the lot, as if it were their own, and no advantage should be taken of their labour ; that they should have the lot as wild land was going in the country, at the time he should be able to give a title. This witness further proves, that in the year 1797, when, what he calls the former permit to Lawrence was surrendered up, and one given to the appellants themselves, the respondent again renewed his engagement, to sell or lease the land to the appellants, upon the terms before mentioned ; and told them they might go on and erect buildings, and make valuable improvements as if the land was their own. The same thing, substantially, was reiterated, over and over again, to divers witnesses, and at various times, down to a period as late as the year 1803. The appellants were continually expressing their fears and apprehensions, about making improvements, on account of the insecurity of their title; and these fears and apprehensions were allayed by assurances that a title would be given as soon as partition could be made with ■ Clark’s heirs. The respondent, at all times, declared that the want of this was the only impediment to his giving ^ deed or lease ; and he uniformly directs the appellants to go on, make improvements, use and occupy the land as their own, and that no advantage should be taken of them. The appellants, con-.tiding in these assurances, have continued to make improvements, and expend their money toan extent which,to them, is a pretty serious amount. Can it be possible, that all this, after such a lapse of time, furnishes no evidence of an agreement, either to sell or lease the land to the appellants ? To my mind, it affords the most conclusive and satisfactory evidence of such agreement. The use that is now attempted to be made of the short lease of 1803, to rebut the inference to be drawn from this testimony, opens a door to many animadversions that would not, to say the least of them, be very favourable to the respondent. Í shall dismiss it, however, with barely adverting to the testimony of Simeon Parkhurst, who swears, that before this lease was taken, assurances were made, both by the respondent and his agent, that such lease should not, in any degree, injure, the appellants, or affect their contract, but that they should have a lease or a deed, according to the former promise. After such assurances, this lease must be entirely put out of view.

Such being the leading facts with respect to the agreement,, and the circumstances under which the appellants have contina- „ ed to occupy the lands from the year 1794, and the encouragement held out to them, from time to time, to make improvements ; let us apply the law to this case, and see the light in which such cases have been viewed by courts of equity.

I do not think it necessary to take up the time of the court in travelling through the numerous reported cases on the subject. The substance of them, so far as is necessary to be noticed on the present occasion, is summed up, by Mr. Roberts, in his valuable Treatise on Frauds. “ the relief,’’ says he, (p. 131.,) “ against the statute, in these cases, of part performance, was originally founded on the fraud and deceit, usually characterising the circumstances. There is no satisfactory foundation for the doctrine of .part performance, without the intermixture of fraud ; (p. 132. ;) and, upon this" ground, where an owner of land has encouraged another to go on with his improvements upon the estate, under a false expectation of a conveyance, or a lease, and this expectation raised in him by the assurances of ' such owner, it is agreeable to the general course of equitable relief, to disappoint the contrivance, by compelling the deceiver to realize the expectation he has created-;” that is, by compelling him to give such deed, or lease. “ This protecting jurisdiction,’’ he says, “ has stretched itself to those cases where-the illusory hope has been raised, not only by words and assuranees, but simply by looking on in silence, whilst false impressions which we are able either to correct or verify, are inducing a fruitless expenditure on improvements. This equity is strong and salutary, and the jealousy of jurisdiction has shut out the statute of frauds where this principle of relief applies.’’ Again, he says, (p. 134.,) “ these instances of encouragement, either tacit or express, to make improvements, incur expense, &c. are not proper cases of part performance, but of actual fraud, which courts of equity have always been forward to relieve against.” <c And the court will supply an agreement out of fraudulent suppressions, as well as misrepresentations, of the party deceiving, who is considered as virtually agreeing to make good the expectation he has raised.’’

These are rules and principles flowing from the soundest morality, and sanctioned by the most weighty considerations of justice and equity, and are directly in point to the case before us. The testimony is strong and irresistible, to show that the respondent, from time to time, encouraged the appellants to go on and make improvements, not only under an expectation, but reiterated promises, that when he had made a division with, or obtained a release from, the heirs of Clark, he would give them a deed, or durable lease.

The decree, in the court of chancery admits, .that the appellants are entitled to relief, but that compensation for their improvements would be more fit and proper than a specific performance. Lord Redesdale, who thinks (2 Sch. & Lef., 552.) courts of equity have gone far enough, if not too far, in decreeing specific performance of agreements, says, the original foundation of such decrees was, that damages at law would not give ' the party the compensation to which he was entitled; that is, would not put him in a situation as beneficial to him as if the agreement was specifically performed. And, on this ground, he says, the court of chancery, in a variety of cases, has refused to interfere, where, from the nature of the case, the damages must, necessarily, be commensurate to the injury sustained; but the cases, (Davis v. Thorne, 2 Sch. Lefroy, 347.,) in which the court decrees specific performance of contracts are generally those where damages would not answer the intention of the parties in making the contract, and a specific performance is, therefore, essential to justice. Is not the case before us one of that description ? Would it be as beneficial to the appellants to be paid for their improvements as to have a specific performance ? Would compensation answer the intention of the parties in making the contract? Would they have gone into the wilderness, and spent the prime of their lives in clearing up a farm, and providing themselves with comfortable dwellings, under an expectation of being dispossessed, on barely receiving a compen* sation for their improvements? The earnest solicitude expressed by them, on a variety of occasions, with respect to further security of their title, and the repeated applications to the respondents for this purpose, show, beyond the possibility of a doubt, that their intention was to procure for themselves a permanent settlement. Such cannot be a case for compensation. A specific performance is, in the language of Lord Redesdale, essential to justice. Who is to reap the benefit of the appreciation of the lands, they who have encountered the hardships and privations of a new country, and whose labour must, in a great measure, have produced this appreciation, or he who has kept them under the delusive expectation of a title until the farm is subdued, and now seeks to deprive them of it? The answer is obvious.

No reasonable objection can be made to a specific execution, on account of any uncertainty in the agreement. The proof makes out a parol contract with all requisite certainty; to wit, either to sell the land as wild land was selling in that part of the country, in the year 1797, together with the interest, or to give a durable lease in fee, at the customary rent at that time, at the election of the appellants. In the case of Shannon v. Bradstreet, (1 Sch. Lefroy, 73.) Lord Redesdale, in answer to an objection as to the uncertainty of rent to be reserved, pursuant to an agreement, said he did not think it uncertain, for it was capable of being reduced to certainty. Every executory contract must contain this species of uncertainty; but if it contains all that leads to future certainty it is sufficient. If this rule be sound, the price or rent of the land can be easily ascertained by a reference to a master. I am, accordingly, of opinion, that this is a fit and proper case for a specific performance, and that the decree of the court of Chancery ought to be reversed,

Spencer, J., was of the same opinion.

Yates, J., and Platt, J., were absent.

Van Ness, J., was of opinion that the decree of the court of chancery ought to be affirmed.

Bates, Bicknell, Bloom, Clark, Crosby, Dayton, Elmendorf, Hager, Loomis, Keyes, Livingston, Ross, Stranahan, Swift, and Ver B'ryck, Senators, concurred in the opinion delivered by the chief justice.

Van Vechten, Senator. The appellants have filed their bill in the court of chancery, to obtain a specific performance of an agreement for the title to land in the Orislcany Patent, which belongs to the respondent.

The respondent, by his answer, denies the agreement', and insists upon the statute of frauds, against any parol agreement which might be proved.

From the bill, as well as the testimony in the cause, it appears that the appellants rely partly on an agreement by parol, and partly in writing. „

(Here he stated the memorandum, and the evidence of the witnesses.)

I shall consider the case as it stands-—1. Upon the written instrument ; and, 2. Upon the parol evidence.

1. What does the written instrument import ? Does it amount to a final bargain for the land in question upon any specific terms, of which this court can decree the performance 1

According to my understanding of its plain language, it is a mere permission for the appellants to occupy the land, \vith a promise to give them ¿he first offer to purchase or take a lease of it, when the respondent’s title in severalty should be perfected ; but it does not profess to fix either the terms of sale, or of the lease. Can this court execute such an instrument specifically. by decreeing either a conveyance in fee, or a lease 1 I presume not» A decree for a specific performance must operate upon, and according to, the terms of the agreement; and, therefore, if the instrument, f.oaiams no specific terms it is not susceptible of specific execution The office of enforcing performance can not be exercised when the matters to be per-farmed are left unsettled and uncertain, by the parties to an agreement.

Suppose the court decrees a conveyance, what price, according to the instrument, are the appellants to pay ? From what time are the payments to commence ? Ar'e they to be with or without interest ? or is the consideration to be paid at the delivery of the deed ; and in that case, what is the respondent to receive for the use and occupation of the land since 1794, when the appellants took possession ? or is he to receive no remuneration for upwards of twenty years’ enjoyment of his land, and to be compelled to part with the title at the present appraised value thereof, considering it as in a wild state ? Have the parties agreed, by the instrument before us, to this mode of fixing the price, and by whom it is to be done ? The instrument is totally silent upon all these points. Let me, ask, then, what are to be the terms of a decree for a deed, according to the stipulations of the parties as expressed in their written agreement ?

Again; should the court decree a lease, for what term is it to be; what is to be the annual rent; how, and when payable, and from what time is it to commence ? What covenants and conditions are to be inserted in it? for the written instrument is silent as to all these particulars. Will a decree, bottomed upon this instrument, either for a conveyance in fee, or a lease upon such terms as the court shall direct, comport with the legal meaning of a specific execution of an agreement made and settled between the parlies? In my opinion it will be repugnant to all established principles, (Roberts on Frauds, 135, 136.,) relative to specific performance; and that, in order to make such a decree, the court must first assume the office of bargainors for the parties, to lay the foundation for it.

It can hardly be necessary for me to detain the court by citing authorities on this point. I shall, therefore, mention only a few of the numerous cases to be found in the books in support of my positions.

In Blagden v. Bradbear, (12 Ves. jun. 466.,) the master of the rolls held, that to sustain a bill for specific performance of an agreement for the purchase of land, the agreement must express the price, or, by reference to something else, must show what it was. In Clinan v. Cooke, (1 Sch. & Lefroy, 22.,) the lord chancellor held that a bill for specific performance of a Written agreement for a lease for three lives, could not be sus,. tained, because the agreement did not mention the term, and did not refer to an advertisement of the defendant, offering to lease the land for three lives. So, in Clarke v. Wright, (1 Atk. 12.,) Lord Hardwicke declared the omission of the price in a letter, acknowledging a contract for the sale of land, to be fatal,

2. Is the parol evidence competent to explain and supply the defects of the written instrument ?

By the statute of frauds, all contracts concerning the title to lands, which are not reduced to writing, and signed by the parties, are declared to be invalid. The wise provisions of this statute would be wholly defeated, if parol evidence was admissible to enlarge and support a defective written agreement. But I need not dwell upon this point here. This court has recently decided, that in the case (Mann v. Mann,^*) even of a will, a patent ambiguity renders it void, and that parol evidence; to explain the intent of the testator, cannot be let in to establish it. If the law is so, in relation to wills, which are entitled to the greatest benignity, the reasons upon, which it is founded, apply with greater force to a case like the present.

But admitting,"for argument’s sake, that the parol evidence is competent, what does it prove ? According to my understanding, nothing more than that the respondent, in conversing about his Oriskany land, has repeatedly declared that it was his intention, when his title was completed, to sell, or lease it not only . to the appellants but to all the occupants thereof, as wild lands were going; and that he would take no advantage of their labour by enhancing his terms. I cannot collect from this evidence, that he intended, by such conversations, to make a final bargain relative to the terms of sale, or the conditions of a lease, or to give any assurance with respect to those terms or conditions, except that be did not mean to avail himself of the occupant’s labour. How then does the parol evidence ascertain the price to be paid for the land, or the terms of payment yi case of a sale, or the terms and condition of the lease if he should conclude to let it ? Indeed, the appellant’s principal witnesses, Lawrence and S. Parkhurst, differ essentially as to the price spoken of The former says, it was as wild land was going, when the responden' LkuAd he enabled to give a good title ; “ivj latter testifies tfi'cí í'i he price at which the land tea's going, when he should give the title, or the price it was selling for at the time of the conversation in April, 1797, with the addilion of interest from that time.

There is, however, another decisive objection to this evidence. The conversations to which it relates were prior to, or at the time when the written permission of 1793 to Lawrence was surrendered by S. Parkhurst, and he accepted the instrument of April, 1797, in lieu of it. The surrender was made, as Parkhurst deposes, to obtain a new contract. Why ? Can any other reason be imagined, except that he wanted a fuller and more satisfactory engagement from the respondent ? Did he receive such an one? No-?—why ? Because the'respondent declined to give it. Was there any deception used to impose the instrument of 1797 upon S. Parkhurst ? He does not allege that there was. Does he pretend that he did not understand its im? port ? No-—for he had, in the fall of 1794, informed the respondents that the appellants wished for better security than the instrument of 1793, which was of the same tenor. What then is the fair inference from this transaction ? Is it not, that the instrument of 1797 was the fullest which the respondent would give, and that the appellants’ agent accepted it understand? ingly ? I, therefore, consider all the previous parol conversations, testified to by the appellants’ witnesses, as merged in this instrument, And if they are, it results, conclusively, that the parol evidence can not aid the appellants.

If I understood the appellants’ counsel correctly, he disclaim? ed to rely upon part performance as ground for their relief in this case. It cannot, therefore, be necessary to consider that point; but if it was, the objection of total uncertainty in the alleged agreement would be decisive against the appellants. For, though part performance will, in certain cases, induce a court of equity to enforce a parol agreement for the purchase of land, it cannot make an agreement susceptible of specific execution, when its terms are not specifically ascertained nor ascertainable.

But it was strongly urged, in argument, that the appellants ar§ entitled to relief on the ground of fraud, because they were led on by the false verbal assurances of the respondent to make valuable permanent improvements on the land. In order .to try the strength, of this position, it must be examined with reference to the appellants’ bill, and the facts jn the case,

The scope and prayer of the bill are for the specific performance of an agreement. It sets forth the instrument of 1797 as the written contract relied on, and refers all the respondent’s verbal assurances to it; but does not contain a single allegation of fraud other than what is implied by the charge of the respondent’s refusal to fulfil his contract ? What, then, is the question of fraud arising upon the appellants’ bill ? None other than what the law can imply in every case of a bill for specific performance. I have already shown that in such cases the decision must turn upon the validity and sufficiency of the agreement set forth and proved. But 1 will here add, that to entitle a party to relief upon the ground of fraud, the fraud must be specifically and expressly charged, and put in issue.

This point has been determined by this court in M'Kernon v. James, (6 Johns. Rep. 560, 561. 564, 565.) in which the present chancellor and Mr. Justice Spencer delivered the opinion of the court. The same rule is laid down in the English books. (Mitf. Pl. 19. 255. Gilb. For. Romanum, 218. Clarke v. Turton, 11 Ves. jun., 240. Johnson v. Child, 1 Bro. C. C. 94.)

Again; should this be considered a case of fraud, it may be asked, what relief are the appellants to have ? Will this court decree the land to them without price ? Would not such a decree go beyond their claim, and travel out of the case presented by their bill ? Or will the court undertake to establish the price and the terms of payment, or the terms and conditions of a lease to be given by the respondent ? If it will, it must do so arbitrarily, and without a guide, or it must recur to the agreement set up by the appellants. The. first would violate all the settled principles of justice and equity, and the latter brings us back to the question, whether the agreement stated by the appellants has been duly proved, and can be specifically executed here.

I am aware that there are cases in the books in which it is.' laid down that a party’s right shall be concluded by his fraudulent acts. But those are cases widely different from the present. For the purpose of illustration, I will mention a few of them, and state the principles on which they are decided.

Where a man who has a title to land, and knows of it, stands by, and either encourages, or does not forbid, the purchase from another, he, and all claiming under him, shall be bound by such purchase. (1 Fonbl.Eq. 161. Rob. on Frauds, 130.) For he imposed a false apprehension upon the purchaser by his sile nee, when silence was treacherously expressive. So, where A. encourages a person to take a long lease from a tenant for life, to whom A. stands next in remainder, and to build and make improvements, and the tenant for life dies before the lease is out, a court of equity will not suffer A. to disturb the lessee until the expiration of his lease. (Hanning v. Ferrers, 1 Abr. Equ. Cas., 375.) Because, to use the language adopted by his honour, Ch J. Thompson, in Nevin v. Belknap, (2 Johns. Rep., 589.,) where a man has been silent, when, in conscience, he ought to have spoken, equity will debar him from speaking when conscience requires him to be silent.

Again; in the same case, when speaking of a purchaser taking possession, and making improvements under the circumstances above mentioned, his honour says that, to make those acts available to him, they must be done as owner of the estate, and which he would not have done had he not considered himself in that light.

Hence it will be seen, that the class of cases in which fraud will devest, or suspend, a man’s title, differ totally from the case now before us. Here the appellants avow that they entered and made their improvements upon the faith of an agreement, by which they acknowledge the title to the land to be in the respondent. There has, therefore, been no fraudulent concealment in the case. The appellants have not been treacherously led to purchase the title from another, nor to enter upon and improve the land, considering it as their own; for their bill furnishes conclusive evidence to the contrary.

But after all, what evidence have we to support any allegation of fraud against the respondent ? It is said, that he induced the appellants to expend their labour and money to improve his land, by false assurances that he would give them a good title for it. Is this true ? To answer the question correctly we must again look at the testimony.

In July, 1793, the appellants obtained an assignment of a written permission given by the respondent to Lawrence, to enter upon, and hold the land until further orders ; they to have the preference either to purchase or lease, whenever his title should be perfected. By virtue of that assignment, they took possession in the spring of 1794, and occupied the land until April, 1797, when they surrendered the written license of 1793, and by their agent, S. Parkhurst, requested what he calls a new contract. ÍJpon this request, the respondent gave them another written permission, dated the 7th of April, 1797, to possess the land, and containing a promise that as soon as his title should be completed by a release from the heirs of Mr. Clark, he would give tt|em the preference either to purchase or take a lease. Before, and at the time of giving the last permission,the respondent in several conversations relative to the terms upon which hfe intended to sell or lease the land, declared that he would sell ondease it to the occupants as wild land was going at the time of giving the title, and that no advantage should be taken of their labour. But, although the appellants had, by their agent, S. Parkhurst, previous to that time, intimated to him their desire to have better security, he gave, and they accepted, the permission of 1797, as their only written security. This, in my opinion, puts the allegations of fraud, founded on the above conversations, at rest. For, according to S. Parkhurst’s testimony, the last permission must be considered as the new contract. Its language is plain, and cannot be misunderstood. If the appellants were not satisfied with it, they had an election to reject it; but they elected to accept, and, therefore, qre concluded by it. But the evidence does not stop here. In February, 1803, the respondent wrote a letter to his attorney) (Mr. Platt,) requesting him to give leases for three years to the Settlers on his Oriskmiy lands; and in that letter he inclosed a list of the settlers, to whom he says hé gave permission, several years before, to hold during his pleasure, without any other consideration than their taking care of and preventing waste on the land. The bill admits that a copy of this letter was delivered to one of the appellants, when he received the lease for three years» Surely, that copy gave the appellants full notice of the light in which the respondent considered his engagement to them, and after this notice, they accepted from him, and held under a three years lease, with covenants to deliver up the possession at its expiration.

Again : when the lease expired in the spring of 1806, G. W. F. Parkhurst, for himself and the other appellants, addressed a letter |o the respondent, which unequivocally admits, that he has the absolute disposal of the land, and explicitly negatives every pretence of any agreement with them, either for a deed or a lease upon any terms. What then is the evidence of fraud and deception in this case ? It is obvious that the appellants were ignorant of any, in 1806, and the case furnishes no testimony of a discovery since.

In every point of view in which I have considered this case, I am fully satisfied that the appeal cannot be sustained. I am, therefore, constrained, notwithstanding it may appear hard against the appellants, to concur in the decree made by his honour the chancellor. For, to use the strong language of Mr. J. Thompson, in the case of Jackson v. Sill, (11 Johns. Rep. 220.,) “ it is better to preserve consistency in legal principles, although it may not always suit the equity of the individual case, than to make those principles bend to what may be thought the substantial justice of each particular case.”

Allen, Barker, Cochran, Frey, Hascal, Radcliff, Seymour, Stewart, Tibbits, and Wendell, Senators, were of the same opinion.

A majority of the court^* being of opinion, that the decree „ . ~ ° . , or the court of chancery ought to be reversed, it was, thereupon, “ Ordered, adjudged, and decreed, that the decree appealed from be reversed, &c., and that the proceedings in this cause be remitted to the court of chancery, to the end that the decree made therein, in the said court, prior to the rehearing thereof, and to the making the decree hereby reversed, may be carried into full effect; and that the respondent pay to the appellants their costs of this appeal, to be taxed and allowed by the said court of chancery.”

Decree reversed.

* Ante. p.1.

* For revwing, 17: for affirming, 12.

‡ 6 Ves. 470.

ǁ 2 Sch. & Lefroy, 8.