The facts were that in 1856 the plaintiff bought of Mr. Rencher the land mentioned in the pleadings, at the price of $443.60, for which he executed to Rencher his note, and thereupon took from him a bond to make title on payment of the purchase money; that afterwards, in November, 1856 the plaintiff having failed to pay the purchase money, and it being necessary for Mr. Rencher to be absent from the State for several years, it was agreed that the latter should execute a deed for the land to the defendant Hanks upon his signing the note as surety for May, and executing to Rencher a bond to make title to the plaintiff on the payment of the purchase money with the interest — all of which *Page 208 was accordingly done; that afterwards, in 1858, Hanks, becoming much embarrassed, executed a deed to one Jackson in trust to sell and pay off certain creditors of Hanks. In this deed, contrary to the (311) trust and confidence reposed in him by Mr. Rencher and the plaintiff, and in direct violation thereof, Hanks included the land mentioned in the pleadings, and it was sold by Jackson, the trustee, and bought by the defendants Harman H. Burke and Millikin. At the time of this sale, the defendants Harman H. Burke and Millikin had full notice of the equity of the plaintiff and of Mr. Rencher, and of the breach of trust which had been committed by Hanks, and which they were aiding him to consummate. The defendant William C. Burke had notice, either express or by having his attention called to such facts and circumstances as ought to have put any prudent and conscientious man upon inquiry, so that he is affected with notice.
The plaintiff is entitled to compensation from Hanks for the breach of trust, if he is able to make it, and also from the other (312) defendants, Harman H. Burke and Millikin, for the aid and countenance given by them to Hanks; and also has an equity to follow the land into the hands of the other defendant, W. C. Burke, and call for a conveyance from him, together with an account of the mesne profits, if he has received any, so that the plaintiff may have his land on payment of the purchase money, unless the defendant, W. C. Burke, has set out matter in his answer sufficient to repel the equity of the plaintiff, byalleging and proving a a transfer or abandonment of the plaintiff's equitable estate to him before he bought the land from his codefendants, Harman H. Burke, and Millikin. This is the only question in the case, and the difficulty about that is not only the want of proof, but the absence of all sufficient allegations in the pleadings; and we must again call the attention of members of the bar to the point, that proof without allegation is no better than allegation without proof. Hanks files a separate answer, and Harman H. Burke, Millikin and W. C. Burke file a joint answer, and seem disposed to embark in the same bottom. The only allegation of a transfer or abandonment of the plaintiff's right in favor of the defendant W. C. Burke, is in these words: "These defendants, further answering, say that the said H. H. Burke and Millikin did convey the land to W. C. Burke, as set forth in plaintiff's bill, and that said land, when it came to be run off, was surveyed by Nathaniel Clegg, at the request both of May and the defendant W. C. *Page 209 Burke, and that the plaintiff May was present as one of the chain carriers, and assented thereto, and set up no claim to the land; and that last August, one year ago, the plaintiff May offered the defendant W. C. Burke, $1,000 for the land mentioned in the will, and set up no claim to it."
So there is not the slightest allegation of any transfer or abandonment of the plaintiff's equitable estate, in favor of the defendant, W. C. Burke, at any time prior to his purchase from his codefendants, Harman H. Burke and Millikin; and all we have afterwards is the (313) fact that the plaintiff was present, and acted as chain carrier in running off this land from other land in which the mother of May owned the fee simple, whereas in this she only owned a life estate, and that May set up no claim to the land, and actually offered $1,000 for it some time afterwards. So the pleadings show only an ex post facto estoppel in regard to land!
Upon the proof we find, although it was hardly necessary to go into them, that after Harman H. Burke and Millikin got a conveyance for the land from Jackson, W. C. Burke applied to them to buy. They told him they could not sell, "as May was entitled to the refusal." Why, and how? should have been Burke's inquiry; and their reply would have been: "Hanks is cheating him out of his land. We are implicated in the fraud, and wish to let him have the land if he is able to give as much as we can get from anyone else." However, W. C. Burke applies to May, who, in effect, tells him that Hanks and H. H. Burke and Millikin have defrauded him out of the land; that he is not able to help himself; that he might have paid up what he is to give Rencher, but these accumulated difficulties were too much, for him; he could not stand it; that if the land was to be sold, he would rather W. C. Burke should have it than anyone else, etc. And W. C. Burke, taking advantage of the distress of his neighbor, and the helpless condition to which he had been reduced by the conduct of his codefendants, buys the land from them; and now, in a Court of Equity, insists that May should not be allowed to set up his equitable estate.
Had W. C. Burke paid May, say fifty or one hundred dollars, and taken a transfer of his equity in writing, Burke could only have held the title as security for the money advanced. As, however, he paid nothing, and took no writing or note or memorandum of the contract by May to transfer or abandon his interest in the (314) land, the transaction is void under the statute of frauds.
When the courts are called upon to apply the doctrine of equitable estoppel on the ground of a transfer, or waiver, or license to sell, either expressly or by implication from the conduct of the party, then if the subject be land, as in Pickard v. Sears, 33 E. C. L., 117, cited in *Page 210 West v. Tilghman, 31 N.C. 166, the statute of frauds will apply; but when the aid of the courts is invoked on the ground of direct fraud in fact, as in Sanderson v. Ballance, 55 N.C. 322; Blackwood v. Jones, 57 N.C. 54, where one party Knowingly and intentionally misleads another, although the subject be land, relief will be given, on the ground that otherwise the statute of frauds will be made the instrument of fraud.
There will be a decree for the plaintiff in conformity to this opinion, and the cause will stand for further directions, should a sale of the land become necessary or should Mr. Rencher become a necessary party, that he may be bound by the decree in regard to the balance due for purchase money.
PER CURIAM. Order accordingly.
Cited: Brendle v. Heron, 88 N.C. 387; Hill v. R. R., 143 N.C. 566;Wynn v. Grant, 166 N.C. 45.
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