The argument was made at the last June term; and uow the opinion of the Court was delivered by
illimiuoN O. J.Several points made by the counsol in the argument, we shall pass over in giving our opinion, and attend to those only on which the decision is founded. As the deed in the case < .outains no covenants on the part of the proprietors, and there being no suggestion of fraud on their part as to any facts connected with the conveyance in question, we do not perceive on what prim' pies of law an action could he maintained against them oh any implied promise to refund the consideration to the plaintiff, in coiur «pence of the failure, or rather want of title in them, at the time the conveyance was made. To guard against losses consequent, on such', an event, a purchaser should insist on such covenants as will protect him; and the omission so to do, in the case of a fair sale, is a voluc-♦ary acknowledgement that, ho neither expects or intends to claim a *366return of the consideration in any event. The correctness of this principle, if not admitted, seems to be well established — Boswell vs. Vaughan, Cro. Jac. 196. Bree v. Holbeck, Dougl. 654. Johnson v. Johnson, 3 Bos. & Pul. 162. Gates v. Winslow, 1 Mass. 65. Wallis v. Wallis, 4 Mass. 523. Joyce v. Ryan, 4 Greenl. 101. But it is contended that the promise, made by the defendant at the time the deed was delivered, being an express one, furnishes a solid ground op which this action may be maintained, the failure of title having taken place, which was the event on which the promise was to become binding. Waiving the question as to the admissibility of the parol proof objected to, and the liability of the defendant for monies received by him as the agent of the proprietors, and paid over to his principals, before any notice given him not to pay over the same, we will examine the nature of this express promise, and ascertain its legal effect. The report states that the defendant, at the time the deed was delivered, inasmuch as the plaintiff’s agent expressed fears as to the validity of the title of the Pejepscot proprietors “ promised that if the deed did not have the effect to pass and secure the said land to the plaintiff, he would make it good;” and that the plaintiff, relying on this assurance and promise, was induced to pay his money. — • The meaning of the expression “ he would make it good,” could not have been that he would make that deed good, nor the land good ; but that if that deed was not sufficient to convey the title to the land, he would “ make it good,” that is, that the title should be perfected and legally conveyed , for it must be remembered, at that time ho doubt existed on the part of Little, or the proprietors, as to the soundness of the proprietary title. It seems to the court that such is the legal import of Little’s promise ; but if it be considered as extending further, and amounting to a promise to indemnify the plaintiff, by way of damages, for the loss of the title, we apprehend the legal ground will not be changed. Considering the promise in either point of view, it is within the statute of frauds; it is either a contract respecting real estate and the conveyance of the same, and then it is void; or else it is a promise to pay the debt or answer for the default of another, and then also it is void j the money when paid to Little, being the property of the proprietors $ and to them he has, *367if not, formally, at least substantially accounted. Besides, what consideration was there for the defendant’s promise ? No possible benefit had accrued or could accrue to him. But waiving this inquiry, the statute of frauds is a bar to the action which we cannot remove.
The case is not changed by the new promise which the jury have found was made by the defendant within six years next before the commencement of the action. It was only a repetition of the origi-promise, and can have no other effect than to revive that; buf, Vdíñg revived, it has no legal obligation, for the reasons before mentioned.
It has been urged that the facts present a case of extreme hardship on the part of the plaintiff; but of this we are not at liberty to take judicial notice ; but if we were, we should also direct our attention to those dangers which would be the consequence of leaving written contracts and title deeds subject to the influence of surrounding circumstances at the time ol their execution; and of relying on accompanying or subsequent declarations of a grantor or his agent, after,the lapse of many years, as independent contracts in relation , o the title. To countenance such a principle and proceeding, would he to expose contractors to liabilities and consequences never anticipated, and against which the greatest care and prudence would aft ford but an uncertain protection.
After the most patient and anxious examination, we are all of opinion that this action cannot be maintained ; and accordingly the ver diet, must bo set aside and a nonsuit, entered.
Plaintiff nonsuit.