dissenting. The facts of this case, as found by the Circuit Judge, are as follows : the real estate in question, was sold at a foreclosure sale as the property of R. G. Lamar, the husband of the plaintiff, Carrie M. Lamar. It was bid in by the defendant, George K. Wright, not for himself, but for the plaintiff under an agreement made some days before the sale with the said R. G. Lamar, as agent of his wife; the purchase money to be advanced by Wright, who was to secure himself by a mortgage on the premises ; that the property was knocked down to Wright at $2,100, a. reduced price on account of the fact that it was understood by some persons at the sale, who would otherwise have made the property bring a larger price, that Wright was buying for Mrs. Lamar; that after the sale as above, Wright informed Lamar that he could not advance but $1,800 of the purchase money, and that the remainder, $300, would have to be raised by Lamar; this sum, Lamar, not being able to raise in cash, tendered a note for the $300, with ten per cent, interest added, endorsed by B. B. McOreery; this was declined by Wright, who then required R. G. Lamar to sign a written agreement with him, “reciting the bidding off of the land, and that the same had not been complied with, whereby the defendant agreed to transfer his bid to the plaintiff if the sum of twenty-one hundred dollars to be paid in cash by 3 o’clock that afternoon, and the said R. G. Lamar agreed if said payment was not made by 3 o’clock as aforesaid, he would at once surrender possession to said defendant;” this was done without consulting *78Mrs. Lamar, the plaintiff; R. Gr. Lamar failed to raise the $2,-100 by 3 o’clock of the day mentioned, and a few days thereafter the defendant, Wright, paid the whole amount of the purchase money, $2,100, and took absolute titles to himself, and upon application to R. Gr. Lamar to that end, he received possession of the land, to wit, in March, 1887 ; in February, 1888, t.he plaintiff made a tender of $2,232, the purchase money and the interest at the rate of 10 per cent., declaring herself ready to pay to the defendant other expenses of titles, &c., and demanded titles, which being refused, the action below was commenced, &c.
Now, the first question which arises is, are'these facts above to be regarded as the facts of the case, to which, and upon which, the law must be applied and the rights of the parties adjudicated? This depends upon the application of the following rule, which has been uniformly acted upon by this court, and which is the rule in all courts where the law is properly administered, to wit, that the findings of fact by a Circuit Judge must be taken and regarded as the facts of the case, unless said findings are either entirely without evidence in their support, or the great weight of the testimony is against them.
Now, applying this rule, what do we find ? There can be no dispute as to the finding that the defendant, Wright, did not bid off the land in the first instance for himself. This is testified to by R. G. Lamar, admitted in the answei of the defendant,' and fully appears from the fact that Wright did not take titles to himself until some time after the bidding, when several efforts had been exhausted to make arrangements for the titles to be executed to Mrs. Lamar.
Second. There was testimony that Wright was not only not bidding for himself, but that he was bidding for Mrs. Lamar. R. G. Lamar testifies positively that some days before'the sale he called upon Wright and asked him if he could not make some arrangement to buy in the place for Mrs. Lamar ; that Wright asked what property Mrs. Lamar had, and he stated that she had lands in Kershaw County, from which she could reimburse him, and after several interviews the arrangement stated above was made. True, Wright denies this, and this produces a conflict, but we cannot say that there is no evidence to support these find*79ings, nor that the great weight thereof is against them. There was some testimony also that the land would have brought more than it did, but for the fact that certain parties who had intended to buy, heard in some way that it was to be bid in for Mrs. Lamar. John Crowly said that he was present at the sale, and was there with a view of buying it, and was prepared to give $2,500, but hearing that it was to be bought for Mrs. Lamar, did not make a bid. See also testimony of Mr. Lorick to the same effect. There is certainly testimony also to the facts that after the sale, Wright declined to carry out the understanding as first agreed upon, and suggested one or two others, as found by the Circuit Judge, more and more stringent, none of which Lamar could comply with. And finally that he paid up the whole purchase money and had the titles executed to himself and.took possession.
It is said, however, that all of this testimony was verbal, and therefore incompetent in this case, it being a case where an interest in land is attempted to be set up upon'contract, which, it is contended, should have been in writing under the statute of frauds, and could only be proved by the writing. It is true that the statute of frauds requires all contracts for the sale of land, or of any interest therein, to be in writing or else they are void ; and in a contest turning upon a contract for the sale of land, or of any interest therein, the writing must be produced, verbal testimony being utterly incompetent. But does this contest between the plaintiff, Mrs. Lamar, and the defendant, Wright, depend upon, or involve in the least, a contract for the sale of land, or of any interest therein, by Wright to Mrs. Lamar? We do not think so. According to the facts found by the Circuit Judge, Wright was not to become a purchaser for himself, nor even- a purchaser at all. He was to bid at the sale, it is true; not for himself, however, but for Mrs. Lamar. It does not seem that it was ever intended that titles were to be executed to him, but they were to be executed to Mrs. Lamar, who was to make payment of the purchase money out of funds to be advanced by Wright, which she was to secure to him by a mortgage of the premises — which could only be done by her getting the titles. Wright said to *80Lamar in the first interview, that he thought the arrangement could be made by putting a mortgage on the place.
So that the action below did not involve the enforcement of a contract for the sale of land or of any interest therein, and therefore it steers clear of the statute of frauds. Instead of being an action to enforce a contract for the sale of land, it was an action by a principal against an agent, where the agent has taken titles to himself, in a purchase where he obtained an advantage by the fact that he was understood to be buying for his principal. Such being the character of this case, it differs from those cases relied upon by the respondent where the facts brought them under the statute of frauds, and excluded verbal testimony to enforce the agreement of sale, though the testimony under certain circumstances, even in such cases, might be allowed to set aside the sale as fraudulent.
Under the facts as found by the Circuit Judge, I think he was right in charging Wright with a trust, according to the principles declared in the cases cited, to wit: Kinard v. Hiers, 3 Rich. Eq., 423, and McDonald v. May, 1 Rich. Eq., 95. I cannot concur in the idea that the written agreement entered into by Wright and R. G. Lamar, by which Lamar agreed to give up the premises unless he raised the entire purchase money, $2,100, by 3 o’clock, was binding upon the plaintiff. R. G. Lamar testifies that this paper was executed without the knowledge of Mrs. Lamar, and it does not seem to me that it was within the scope of his original agency, which was to get Wright to bid in the land for her. Mo're than this, it was a very stringent agreement and made under circumstances of pressure, which does not appeal to the court for support.
I think the judgment below should be affirmed. And therefore I am unable to concur in the opinion of the majority.
Judgment reversed.