Roughton v. Rawlings , 88 Ga. 819 ( 1892 )

Bleckley, Chief Justice.

The plaintiff has parted with nothing which he pos-es.-ed or owned before. He has the same amount of money and property, and has rendered no service nor caused any to be rendered. What he has missed by reason of the defendant’s refusal to perforin the verbal agreement is only the gain which he would have derived from the performance if the defendant had not violated his promise. The mere right to bid for the property at the executor’s sale was not itself property, nor the subject-matter of bargain and sale. The non-exercise of' that right by forbearing to bid was therefore not a consideration for the agreement which will take the case out of the statute of frauds by reason of part performance. According to the amended declaration, that right, was not parted with by any stipulation in the agreement. Had he refused to perform, and had the other party asserted his right to have a specific performance, it might be that the latter, having changed his condition on the faith of the agreement and encumbered himself by the purchase with, more property than he wanted, could allege this fact as a part performance, and on that ground successfully prosecute, a suit. But. as to the plaintiff, there is no such substantial change in his condition as will render it an actionable fraud upon him for the defendant to retain all the fruits of his purchase. The plaintiff simply misses the benefits of a parol agreement, just as'did one of the parties in Graham v. Theis, 47 Ga. 479. By the code, §1950, any contract for the sale of lands, or any interest in or concerning them, must be in writing signed by the party to be charged therewith or some, person by‘him lawfully authorized. This is a condensed statement of one of the provisions of the English statute of frauds, and may be taken as meaning the same as did the provision in that statute as it was un-derst.ood prior to the adoption of the code. This being so, if the first head-note in Chastain v. Smith, 80 Ga. 96. be sound as applied to the facts of that case, there was in the present case a resulting trust, and no writing was. necessary. But the. facts iu Chastain and Smith did not require the court to determine Avhether there was a resulting trust or not before Chastain contributed legal services in pursuance and on the faith of the agreement, of which services Smith, or rather the two Smiths, the other parties to the agreement, took thebenefit. strike this fact out of the case, and there would have been a voiy different question before the court from that on which the decision could be upheld with this fact in it. The case itself was decided correctly, hut the reason suggested in the first head-note is not applicable to the facts as a whole, nor sustainable. Several cases decided by other courts are directly, or almost directly,in point. These are: Levy v. Brush, 45 N. Y. 589; Parsons v. Phelan, 134 Mass. 109; Farmham v. Clements, 51 Me. 426. And see Hook v. Turner, 22 Mo. 333. According to these cases, and we consider them sound, the facts before us did not raise any trust which a court of law or equity would recognize and enforce in the absence of written evidence to prove it. The code says: “All express trusts must be created or declared in writing.” §2310. Both from the structure of the petition and the argument, here, we take it for granted that the agreement sought, to be enforced was iu parol, and on that assumption we hold that it was within the statute of frauds, and that, the court erred in not sustaining the demurrer to the petition. Judgment reversed.