This is a parol agreement to buy a particular tract of land, and is within the statute of frauds. There is no partnership alledged — no loss could be charged upon the complainant. Nor can any trust be raised by implication of law, as the frame of the bill is not designed to present that question, but is-for a sale of the land, and division of the profits. The Court will not go beyond the averments of the bill.
*899ORMOND, J.Waiving the question, whether the bill states such-a contract as could be enforced, not being in writing, and relating to the purchase and sale of lands, we think it sufficiently appears by the bill, that the complainant at the time his bill was filed, was seeking relief against the defendants, in a bill filed by him against the defendants and others, upon the claim here insisted on. It was moved to dismiss that bill for multifariousness, which the chancellor refused, upon the ground that the complainant had jproperly brought it to the notice of the Court, as a portion-of the partnership effects there sought to be settled, which had gone into the hands of Clauson, the ancestor of the present defendants. It is too late now for him to contend, that it was more advantageous to him, to consider it as a contract between him and Clauson, in which the partnership had no interest. In that aspect of the case his bill for a settlement of the partnership accounts was multifarious, and it was only by affirming the complainant’s view of it, that it was not an individual contract, between himself and Clauson, but was in substance an allegation merely, that the Elston note was partnership property, and having been received by Clauson, it was right he should be charged with it, and account for it, that the bill could be sustained.
These facts being admitted by the bill, it cannot be sustained, as the complainant might, if this were to be tolerated, recover twice upon the same cause of action. Although not necessary, it may be proper to state, that the bill filed by the complainant for settlement of .the partnership accounts, has been before us at the present term, and in the account there stated, Clauson was charged with these notes as partnership property. The result however would be the same, if the bill was still pending. The same matter here attempted to be introduced, being there put in issue, must be there determined.
The decree of the chancellor dismissing the bill, is affirmed.