dissented, and delivered the following opinion’:—I do not take it to be at all material in the present case, that the fourth section of the British statute of frauds and perjuries is omitted in our act of assembly; for it is not damages, that are now demanded for non-performance of an alleged parol contract; but the plaintiff sues by ejectment, claiming possession of the land itself, and alleging an actual transfer of the title. •
Beyond a doubt the words of the act of assembly are clear and positive against the plaintiff: but for a long course of years, perhaps from the date of the British statute, parol titles, created under certain particular circumstances, have been sustained by the iules of equity against the strict words of the law, by a train of decisions sanctioned sometimes by legislative authority, so that there are now admitted.decided exceptions, as well known as the law itself. But it certainly has for many years past been usual for courts of justice ■ to regret, that these exceptions were ever made from the statute by construction, and to declare that under no pretence whatever, should any new exceptions be introduced.
In my opinion, most clearly the Chief Justice was right in admitting the evidence as offered. ■ But after the whole evidence had been heard, was it such as to take the case out off the statute, and give a title to land,; or in other words, the jury having upon such proof ffound a verdict for the plaintiff, ought the court now to interfere and set aside the verdict? Has the parol title here been made out by proof so unexceptio-nably clear, as to bring the case within any of the established exceptions to the statute?
*417I must say, that to me the verdict appears to be decidedly against the weight of evidence. The testimony is by parol throughout. There is no part performance: no fact: no one single act done, or offered to be done by Walker, or by Samuel Brown, jr. Mere .words spoken, which in their own nature are so exceedingly easy to be mistaken or perverted, form the whole of thé plaintiff’s title in this ejectment. ‘
Whatever there is of. fraud or trust in the case, upon which Brown’s equitable claim is supported against the legal title of Walker, depends upon four witnesses, Zeigler, Kinsloe, Elliot and Warwick. These four principal witnesses were called by the plaintiff, and one witness by the defendant. To show how'little dependence is to be put upon the remembrance of words spoken relative to contracts for real estate, it happens that the plaintiff’s witnesses agree neither with the defendant’s witness, nor with each other. Zeigler and Elliot, concur in stating that Walker repeatedly declared that he was buying the land for BroiOn; but the only circumstance which makes this evidence of any use in the case, viz. that these declarations were at the time of the second sale by the sheriff; is positively denied by Kinsloe, who swears that all those declarations by Walker, were at the first attempt to sell, one full year before, and thafnot one word was uttered upon the subject at the second sale. Kinsloe. adds further a most material fact, that one condition of Walker’s promise at the first sale was, that a debt due from Brown to Walker was to be let in, as the witness called it, and paid. Kinsloe swore also that there was an express exception of a few acres, how many he.did not say, for Nancy Ferguson' near the still house, stating the reasons for the exception. Warwick, the fourth of the plaintiff’s witnesses, who was present at the second sale, proves these words by Walker. ie I intend to give it to Brown, and I intend to let Kinsloe have a chance of the part he is concerned in; and I will reserve a part for Nancy Ferguson.’] On cross-examination, Warwick stated further, that Walker at the same time complained that Brown had disappointed him in money, but the Witness could not recollect the .particulars.
Curran, the defendants’ witness, states a material fact, unsaid by any of the rest, that another condition of the arrangement at the first sale was, that Brown was to pay down four hundred dollars, and this is strongly confirmed by Kinsloe, stating that Walker was not to lay out his own money.
Clearly, if any single fact is well made out by the evidence, it is that some reservation was intended for Nancy Ferguson. But without any notice of the positive exception on her behalf, the jury have awarded the whole tract to the'plaintiff directly against his own proof.
Curran and Kinsloe, were the only witnesses who ever saw Walker and Brown together conferring upon the subject of the the land. They both prove some essential- previous conditions *418which the plaintiff did not pretend were performed. There is nothing improbable in what they swore. The reverse would seem to be absolutely incredible. Yet thé jury would appear totally to have disregarded the only witnesses who were present when the two parties were together, and who,. if a parol bargain existed, could be able to state the terms' of it with any correctness. ’ The jury have depended rather upon loose accidental expressions, uttered without connexion or meaning as far as the full terms of a contract are necessary to understand the meaning of it; and of all the witnesses who prove these loose uncertain expressions only one of them, Elliot, has thought it material'to mention that Walker was intoxicated at the time.
It is an established rule of chancery never to decree against the t words of the statute of frauds, in any case whatever upon mere parol proof, where that proof is contradictory. Rowton v. Rowton, 1 Hen. & Munf. 91.
My impression is, that the plaintiff could not recover the land, even if the statute of frauds were not in his way. But under that statute, beyond a question, the verdict appears to me to be wrong. There is in the case no part, performance, nor the pretence of it. But, it is argued at bar, here is a-trust,: a fraud, which.I deny, if by trust and fraud, are meant the same things that are meant by those words in a court of equity. Such a trust is not, as far as I can discover, to be found in any chancery proceedings, as that of a man having purchased a legal title to land in his own name, with his own money, being called on and enforced to convey to another, by parol proof, of a bare promise without consideration, the merest nudum pactum, in favour of one whose sole interest in the title was what the promise created. There appears no more fraud here than what-is implied in every .non-performance of a.promise. An action at law could not, I,think, be sustained,for damages for breach of such engagement. And as to chancery, it is laid down that even before the statute of frauds, equity would not execute a mere parol agreement not in part performed. ' Sugden on Vend. 86.
That a gratuitous promise will not support a bill in equity, any more than it will an action' at law is shown by 3 P. Wms. 131, 317. 1 Vern. 12. 1 Ves. 507. 2 Ves. 310, 547. 7 Johns. Rep. 207, 332. 10 Johns. 246, 594.
There are many authorities which, in my opinion, would clearly show that the present case is not one calling for equitable relief against the words of the statute. 1 P. Williams, 771. 5 Mass. 133. 1 Dessaus. 289. 9 Mass. 510, 533. 11 Mass. 342. 15 Mass. 85. 16 Mass. 221. 4 Cranch, 235. 5 Johns. Rep. 272. 1 Root, 59, 549. 3 Johns. Rep. 216. 7 Cranch, 176. Prec. Chancery, 69. Smith L. 393, notes.
But the main thing in the case is the inconclusiveness of the ■ proof. Even Brown hims.elf, though he lived for about a year after Walker’s deed from the sheriff, and during nearly the whole of *419that time appears to have been in full possession of his faculties, and attending to his business; and though two or three witnesses swear to his declarations relative to the land, yet, during all that time, there is not the least evidence, that he alleged any trust or charged David Walker vvith any fraud, or preténded to have any shadow of title to .the land; but, on the contrary, took a lease for a year on the shares, binding himself to keep up the fences, and restore the possession.
This lease would, I apprehend, amount to a discharge and surrender of parol claims to the land, if he had any.. It is argued, that this coming under lease must have been compulsory. There is no proof of compulsion, nor, to my mind, any probability of it; for the man’s last will, drawn apparently with the utmost care and minuteness, and specifying some of the smallest articles of personal property, yet, mentions not a syllable about the plantation which this verdict says he was then the owner of. . ■
if the staíuté of frauds cannot protect David Walker in his legal title, there seems one peculiar hardship in his case. In England, and in ¿11 those states in which courts of equity are. established, the man whose freehold is attacked by parol proof and alleged promises, would generally have the privilege to be himself sworn, and on his oath to contradict or explain the evidence. But by our mode of proceeding in Pennsylvania, Walker’s mouth is closed. So, that a witness who arrives at the middle of a conversation, maybe sworn as to one half, without the right of the defendant even to state to the jury what the other half was. In my opinion, the parol proof which is to dispense with the statute of frauds, ought to be stronger and clearer here than in any country where they have a special chancery jurisdiction. The verdict being, as I think, decidedly ag¿inst, evidence and law, I am for'setting it aside, and awarding a new trial.
• Sogers, J. and Huston, J. were absent.Judgment affirmed.