The Opinion of the Court was delivered by
Caton, J.*This cause was submitted to the Court principally upon written arguments, and we acknowledge the assistance which they have afforded in enabling us to come to a satisfactory conclusion; and where the cause has been so ably discussed by counsel, but little need be said by the Court more than to state conclusions.
As there is very little disagreement as to the substantial facts of the case, it is unnecessary to set out a full abstract here, which would necessarily be very voluminous, but the facts will be referred to as occasion may require. This agreement, which is sought to be specifically enforced resting in parol, is within the Statute of Frauds. And the first question is, whether such acts have been done under it as will relieve it in equity from the operation of that statute. Spencer took possession of the whole half section of land under the agreement. At this time, however, the eighty acres which Spencer was to have, were not designated. Afterwards and at different times, all but seventeen acres of the land was designated, Spencer still being in possession. From that time, we think that Spencer was in possession of this specific land under the contract, upon which he had made valuable and lasting improvements. It is admitted on all hands, that Spencer had paid the entire consideration for the eighty acres, by the services which he had rendered Shirley according to the agreement. The law is well set-tied, that this is sufficient to take the case out of the Statute of Frauds, unless the uncertainty as to the location of the seventeen acres will prevent it.
We have sought in vain through this record, to find any evidence by which we can locate these seventeen acres. The evidence does not show that the parties ever did complete that portion of the agreement, by designating them. Such is the finding of the Court below, as is recited in the decree, and in consequence of this, the Court appointed a third person to go and complete this unfinished agreement of the parties for them, by ascertaining and settling the bounds of the said seventeen acres. We are of opinion that that portion of the decree, at least, was erroneous. It is the province of the Court to enforce the contract which the parties have made, and not to make a contract for them, and then enforce it. This portion of the land not having been selected by the parties, the Court ought not to have appointed a Commissioner to select it for them. When the Court compels the conveyance of these seventeen acres, how can it say that they are the seventeen acres which the party agreed to convey?
It is insisted that, inasmuch as this is an entire contract, and that because a part of it is so uncertain that it cannot be enforced, that, therefore, the Court will enforce no part of it, but will leave the party to his remedy at law. But this, we think, is carrying the doctrine too far. When a man has bargained and paid for eighty acres of land, and we can only locate sixty three of it, to say that because we cannot give him all which he contracted for, we will therefore turn him out of Court with none, would seem to wear the appearance of a hardship. If he choose to take what he can locate and make certain, we think he may do so without violating any principle, and without giving the defendant below any just cause to complain.
About the time Shirley was going to enter the land, he called on Spencer to pay him seventy dollars, which he owed him, he not having the means to enter the land himself. Spencer could not pay him, but told him to hire the money on the best terms that he could for him, and he would pay him whatever he had to pay. This, we think, is a fair conclusion, taking all of the evidence together. In pursuance of this instruction, Shirley procured the money of one Taylor at an interest of thirty three and a third per cent, for three years, and in case the money was not paid by that time, then interest was to be paid on the whole at the rate of ten per cent. The land was entered in Taylor’s name for security. Spencer was informed of this arrangement afterwards, and approved it. He never, however, paid the money thus loaned, and Shirley was obliged to-pay it for him in order to get a title to the land, which he did in 1845. This matter is adjudicated upon in the Court below, and perhaps properly; but in the decree, the Court, instead of allowing the interest which Shirley paid on the seventy dollars for Spencer, only allowed him interest at the rate of twelve twelve per cent. This was wrong. Shirley either had a right to recover what he had paid to Taylor, or he had only a right to recover interest at six per cent. It was only by virtue of a special agreement, that he was bound to pay more than six per cent., and there was no agreement that he should pay twelve per cent. It is true that he once stated, that he was willing to pay twelve per cent., but this was never agreed to by Shirley, who all the time insisted he had a right to all that he paid Taylor’s estate for Spencer. And we think he was right in this claim. He was not obnoxious to the charge of claiming usury on his own account, but was claiming to be re-imbursed what he had contracted for with Taylor, and paid as the agent of Spencer, and according to his directions.
After the timber land had been set off to Spencer, Shirley sold eighteen and six-eighteenth acres to Henderson for two hundred and twenty three dollars and eighty cents, as is found by the Court below, which is probably about correct. In equity, this money was received by Shirley to the use of Spencer, as he has chosen to affirm the sale. From this amount must be deducted one hundred and eighty two dollars, the amount as near as we can ascertain, which Shirley paid to the estate of Taylor for the use of Spencer, which leaves only forty one dollars and twenty cents, which the complainant is entitled to recover of Shirley.
That portion of the decree which directs Shirley to convey the said.seventeen acres, and appointing a Commissioner to ascertain the same, must be reversed, as also that portion of the decree which awards Shirley to pay to Spencer more than forty one dollars and twenty cents, and the balance of said decree must be affirmed, and the Circuit Court must be directed to issue an execution for the said forty one dollars and twenty cents and costs, and that each party pay one half of the costs of this appeal.
Decree modified«
Wilson, C. J, did not sit in this case,