The opinion of the Court was delivered by
Sergeant, J.— This is a suit of rather a peculiar description,, and is involved in perplexity not less by its own nature than by the looseness of the plaintiff’s pleadings.
The allegation of the plaintiff is, substantially, that the defendant’s testator bought from a third person a tract of land which had formerly belonged to the plaintiff, his son, and took the deed in his own name, under a verbal agreement with the plaintiff that if he, the father, should sell it for more than the price to be paid and interest, he would pay over the surplus to the plaintiff: in consideration of which the plaintiff agreed to take possession and saw logs for the father at a mill on the premises. Evidence was given to show the purchase made, the plaintiff’s taking possession and sawing logs for the testator. The testator never sold the land in his lifetime, but, on the contrary, when he made his will, directed the defendants, his executors, to sell it with his other estate, and divide the proceeds amongst his children. The executors accordingly sold the land for more than the price paid and interest; and this suit is brought to recover the difference.
As by the Act against frauds and perjuries an interest in land (beyond a tenancy at will or for a short period) cannot pass by a parol contract, the mere verbal agreement between the father and son could not give the latter any interest in land purchased by the father with his own money, and held under a deed to himself. Nor can the possession delivered to the son be deemed part performance, because it was not the agreement that he should own the land, nor was possession taken with that view, nor did he pay any part of the purchase money, or make improvements under a contract of that kind. He became only the tenant of his father, who on his part engaged that whenever the land was sold, he would answer to him for the surplus money received, and nothing further. Had the father in his lifetime disposed of the land for more than the price paid and interest, and refused to pay over to the plaintiff the difference, the plaintiff’s remedy would have been an action on the case to recover damages for a breach of the personal promise, in which the measure of the plaintiff’s damages would necessarily be the difference above-mentioned. He could *534not have recovered for so much money had and received to his use from the sale of the land; for that would be to enforce an interest in land derived from a parol contract merely; nor could a Court of Chancery, for the same reason, enforce such contract specifically by compelling the father to pay the difference, there being no part performance. The plaintiff’s only remedy would be an action at law to recover damages for a breach of the agreement, which, under our Act against frauds and perjuries, is not prohibited.
The principle is the same when the suit is brought against the executors. Had the father complied with the alleged contract by directing his executors by his will to sell the land and pay over to the plaintiff any surplus that might be received; and had the executors accordingly sold the land under the injunction, and received a surplus, they might, perhaps, have been liable in their individual capacity for so much money had and received to the plaintiff’s use, or in a special action on the case, stating as the foundation of the claim the contract, the will and the receipt of the money under a sale made in compliance with the will. That, however, is not the case. The testator did not make such provision in his will, but the reverse; for he ordered the proceeds of the sale of this land to be divided amongst his children. This was a course entirely incompatible with a compliance with the contract; and the money thus received by the executors can never be considered or treated as money had and received for the plaintiff’s use, or in affirmance of the alleged contract. It was, on the other hand, a manifest breach of it; and if the executors are liable, it can only be in their representative character, on the ground of a breach of the contract by the testator and the responsibility of his estate for the damage sustained. And this was the ground on which the case was placed by the court below. And this disposes also of the objection to the filing of the new count, that the first counts were against the defendants in their individual capacity, and the latter against them in their representative character, therefore, for a new and incompatible cause of action.
But on which of the grounds above referred to, the plaintiff here sues, is left altogether uncertain in his new count. It states, that the testator died, made a will and appointed the defendants his executors, and they sold his land for $725, and received the money, and that by such sale, $482.75 became due to the plaintiff. But how came executors to sell land 1 were they empowered by the will ? and if so, were they directed to sell, in order to perform this contract, or for other purposes 1 Not a word is said in the narr. about points so material as these : it is lamentably defective, and leaves us totally in the dark.
If we look to the evidence, we have something further. We have the will, which contains an express direction to the executors to apply the proceeds of sale to another object, and is, therefore, in itself, a violation of the contract—a termination of the agree*535ment by the testator—a permanent breach of it. The executors could not now officially perform it: and the testator has thereby subjected his representatives to a liability for the damages that might afterwards appear to be sustained. There would be no difficulty on reaching this point, if the narr. had been properly drawn: and the measure of damages would be the same, as I have before stated, and as the court below charged. And the only question is, whether it is now open to the defendants to take this objection: and I am of opinion, that it is now too late to do so. It seems to be rather a title imperfectly stated, than a defective title, and is, therefore, cured by going to trial and verdict, instead of demurring to the narr., as the defendants might have done. Besides which, the defendants were so far from desiring the court to charge on this, that they in their 4th point requested the court to instruct the jury, that the action would not lie to recover the proceeds of sale, but only the damages arising from a breach of the alleged contract, and in disaffirmance of the contract.
On ihe other points, we see no error.
Judgment affirmed.