The opinion of the court was delivered by
Kekshaw, A. A. J.We do not find sufficient reason to disturb the findings of fact upon which the Circuit judge based his decree. There is sufficient evidence to sustain them. We shall, therefore, determine the questions made by the appeals upon the state of facts so ascertained.
The case thus presented is substantially as follows: The plaintiff, Mary A. Coney, is the wife of C. J. Coney, the co-plaintiff. In September, 1867, the land which is the subject of this action was the property of the said C. J. Coney. It was then sold under an execution against him for taxes due to the United States. It was bought by the defendant, W. B. Timmons, at such sale, under an agreement that it was to be held by him in trust for the plaintiff, Mary A. Coney, whenever he should be paid the price at which he purchased and certain sums of money due to said Timmons by C. J. Coney. This agreement was not in writing, but was established by parol evidence.
There was evidence in the case tending to show that Timmons represented himself, before the sale, as bidding for Mrs. Coney, and that, in consequence of such representation, he purchased the land at an under value. This evidence seems to have been adopted as true by the Circuit judge and is incorporated in his decree.
Titles to the land were duly made to Timmons, and he suffered Mrs. Coney to occupy the same and receive the rents therefor. On November 3d, 1870, Mrs. Coney still being in possession of the land, it was sold under a judgment and execution against W. B. Timmons, at the suit of G. W. Williams & ■Co., after due levy and advertisement by the sheriff, and pur*384chased, by R. B. Garner, the defendant, who paid the purchase-money and received titles therefor. Garner, at the time of the purchase, had iiotice of the rights of Mrs. Coney in the premises.
We do not regard the contract under which Mrs. Coney claims as a conditional one, to be fully performed on her. part before she acquired any rights thereunder. No time was specified for the payment by her of the considerations of the agreement, and she was let into possession immediately. As stated in the decree, it was a unilateral contract, there being no express engagement by Mrs. Coney to comply with it; but an implied promise to pay the considerations arose when she assumed the possession of' the land under the contract. She became bound by it when she accepted the benefits of it. There being no definite time fixed lor the performance on her part, she will not be held to have lost the benefit of the contract by delay until some act was done, or notice given by the other party, requiring performance. Either party might have demanded performance within a reasonable time, and the contract might thus have been waived or forfeited by non-compliance. Seton v. Slade, 2 Lead. Cas. Eq., Pt. 2, *537, Am. Notes; Prothro v. Smith, 6 Rich. Eq. 324.
But here no such demand was made, and the agreement remained a subsidiary contract at the time of Garner’s purchase, of which he had notice. He therefore became bound by all the obligations of Timmons in relation thereto. Massey v. McIlwain, 2 Hill Ch. 426.
Aside from the fact of possession by Mrs. Coney, such a contract, not in writing, would be void under the Statute of Frauds. McDonald v. May, l Rich. Eq. 91.
Change of possession has long been held to take a case out of the statute on the ground of fraud. It was held that a party receiving a benefit under an agreement could not set up the statute against it, as that would be a fraud, and the statute, intended to prevent frauds, could not be employed to enable a party to perpetrate a fraud. Upon this principle many authorities held that only the party injured by part performance could set up the contract, while the other party would be precluded by the statute from insisting upon its enforcement. Rob. Fr. 138; Buckmaster v. Harrop, 7 Ves. 347. But here it has *385been settled that a party who is in possession under a parol agreement to purchase may claim its performance, because, otherwise, he might be treated as a trespasser. 2 Story Eq. 761; Smith v. Smith, 1 Rich. Eq. 136; Kine v. Balfe, 2 Ball & B. *347.
While these authorities are sufficient to sustain the Circuit decree, we think it may also stand upon another principle. It is well established, in this State, that where land has been purchased at an execution sale, either under an agreement to purchase for the benefit of the debtor or of his family, or where the purchaser (there being no agreement) represents himself as so purchasing, and, in consequence, competition is stifled, or the land is bought at an under value, the sale cannot stand. Kinard v. Hiers, 3 Rich. Eq. 423; McDonald v. May, 1 Rich. Eq. 98; Schmidt v. Gatewood, 2 Rich. Eq. 177 ; Cox v. Cox, 5 Rich. 365. If, in consequence of the agreement alleged here, and his actions under it, Timmons prevented even one bidder from competing at the sale, it was a fraud upon the sale and he could not retain the title for his own benefit or transmit the same by alienation to one affected with notice.
The last case on the subject is that of Johnston v. Lamotte, 6 Rich. Eq. 347. There Chancellor Johnston gives the following summary of the law:
1. “ The bill may aver a contract without time. In such case, if the defendant deny it and plead the Statute of Frauds, or, at the hearing, objects to parol proof, or if he admit the contract and plead the statute, the contract cannot be established by parol — the bill must be dismissed. 2. The bill may aver a contract, and may also charge and set out circumstances of fraud. In such cases * * * whether the defendant admit or deny the contract, it is competent for the plaintiff to waive such portion of the pleading’s as relates to the contract and proceed entirely upon the fraud. 3. The plaintiff may file his bill upon the fraud alone, which is certainly the better method of pleading. In this case the defendant has no resource but to deny the fraud, and leave the issue to depend upon the proofs, unless he choose to set up the contract by way of exonerating himself from the *386fraud charged against him, in which case he must perform the contract.”
There had been some difference of opinion upon the subject between Chancellor Johnston and his brethren of the bench, and he himself tells us that he had in consequence taken “some pains ” to set forth a summary of the law with much explicitness. As the whole court concurred in sustaining the decree in Johnston v. Lamotte, the law may be regarded as settled in accordance therewith. It would follow that if an agreement of this character were made, and were so acted on by the purchaser as to procure the land at an under value, in consequence of its use to stifle competition, the statute is avoided where the plaintiff proceeds upon the ground of fraud.
In this case the agreement is alleged in the complaint, and the use made of it to procure the purchase at an under value. It does proceed upon the ground of fraud, and charges it explicitly. According, therefore, to the doctrine laid down in the cases cited the plaintiffs are entitled to relief. Upon the facts which appear here the sale to Timmons might properly be avoided. If the judgment of the court went no further the effect would be to leave the title to the land in C. J. Coney. But he is a party here, and admits by his pleading that it is subject to the trust claimed, and joins with her in asking that it be carried into effect by the judgment of the court. There is no one before the court who has any right to object. There is no reason, therefore, why the court should not do that which will meet all the equities of the case as presented, and this is substantially accomplished by the Circuit decree.
The Statute of Limitations, the benefit of which is claimed by the defendants, was not pleaded, nor had six years elapsed from the time when Mrs. Coney was ousted from the possession of the land (and time did not run against her before), wherefore this statute cannot avail the defendants. We do not find anything in this case to authorize the application of the doctrines of laches, waiver, &c.
The only, other matter to be mentioned is that the Circuit decree does not fix any time within which Mrs. Coney is required to pay any balance that may remain due by her upon the account*387ing directed. In the further orders to be taken a day should be named for such payment, if anything be due by her, with an alternative provision for its payment out of the land in case of her failure to do so.
The judgment below is affirmed, and the case is remanded to the Circuit Court to carry the same into effect.
Simpson, C. J., and McGowan, A. J., concurred.