It is always an agreeable duty
for a court, when it is consistent with the rules which must ever control them in their adjudications, to enforce rules of morality; to protect the interests of parties defrauded; and to secure the performance of contracts wfiere confidence has been reposed by one party in the promises of another. Especially is this desirable, when that other is found to have secured to himself advantages by cunning, overreaching and selfishness. But courts do not possess the power to sit in judgment to enforce all obligations that depend upon rules of morality alone; nor to determine what parties ought to.do who have neglected, in their own behalf, to observe those precautions which the statutes, for wise purposes, have declared to be indispensable, in transactions relating to the alienation of real estate, and the omission of which observances those statutes declare renders the agreement void.
The statute declares that every contract for the sale of lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and be subscribed by the party by whom the sale is to be made. (1 R. S. 135, § 8.) The plaintiff omitted to secure such a contract from the defendant, and the statute is controlling upon the court. It was passed to teach parties the wisdom of obedience to its provisions, and to avoid fraud and perjuries in relation to parol contracts. The frailty of human memory, and the promptings of self-interest were found to be danger*26ous temptations to the commission of frauds and other crimes, and this statute was intended to protect against them. Courts have pronounced it wise, and they could not, if they would, disregard its teachings.
The plaintiff, at the time of this agreement, had no title or interest in the property in question, and there was no legal consideration received from him, for the promise made by the defendant, and this is another difficulty thrown in his- way by the statute of frauds. There was no part performance of the agreement which can be enforced in equity. The use of the $83.67 to aid the defendant in the first payment, ■ is .not sufficient fpr that purpose; and if it could have been, by some evidencefin the case tending to that end, such evidence was destroyed by the repayment of that sum by the defendant to the plaintiff and the acceptance of it by the latter, and a receipt in full of all demands given; thereby waiving any such claim, more than three, years before the action was brought.
There could be no express trust in the case, for the reasons that the plaintiff had no estate to put in trust, except the $83.67, and which he afterwards received back before suit brought; and because there was no writing to make a valid trust. (2 R. S. 134, § 6.) ' Eor could there have been a resulting trust, according.to the provisions of the statute; (1 R. S. 728, §§ 51, 54.) Eo valuable consideration was paid by the plaintiff, as before shown, and the conveyance was absolute upon its face. It wras in the form -which the parties agreed upon, and therefore could not have been a mortgage, and in this particular there was no' fraud. (Cook v. Eaton, 16 Barb. 439.) Indeed, the plaintiff had not, in law, any estate to mortgage.
With all disposition to discountenance falsehood and dishonor, and to grant relief in all cases of breach of con*27fidence, the more ungrateful when committed hy a relative, in whom the confidence has been reposed, I do not see, in this case, how this court by the rules of law or equity, can grant relief. I think the judgment must be affirmed.
[Third Department, General Term, at Binghamton, June 6, 1871.Judgment affirmed.
Miller, P. J., and Potter and Parker, Justices.]