We have rarely considered a case addressing itself stronger to the equitable consideration of the court, than this. The case made by the bill, is either admitted by the answers, or is proved by an overwhelming preponderance of the testimony. Indeed the whole case is admitted, except as to the time of payment, and the price of the prairie land. Upon the former point, the bill is sustained by the testimony of one witness, who heard the bargain made, and three or four other witnesses, who testify to the admissions of.the defendant, and one witness only, testifies to the admissions of the complainant, tending to support the answer; and upon the second point, the bill is sustained by the testimony of the witness who heard the bargain, and by two other witnesses, who heard the defendant admit, that the price of the prairie land, was three dollars per acre, as stated in the bill, and one states that the complainant said he was to give three dollars and fifty cents per acre. That Tomlin and Hillyard had notice, both actual and constructive, no question can be made.
The case then is this: In 1851, the complainant by a parol agreement, purchased the land in question of the defendant, and was to pay him for the timber lot one hundred dollars, and for the prairie three dollars per acre. That he was to have at his option five years, within which to pay the purchase money, and thatupon the payment of the purchase money, the defendant should convey the land to the complainant. That at the time the bargain was made, the complainant paid the defendant twenty dollars, and afterwards a steer worth twelve dollars, or twelve dollars and fifty cents, upon the purchase. . Soon after the purchase was made, the complainant took possession of the land under the purchase, with the consent of the defendant, built a house thereon, and enclosed and broke eighty acres of the land, and made other improvements, of the value, in all, of six hundred dollars. That in 1853, the complainant moved his family on to the premises, and has continued to reside thereon ever since. Before the expiration of the five years, the complainant offered to pay, and tendered to the defendant the balance of the purchase money upon receiving a conveyance. The defendant said he would receive the money, but refused, with imprecation, to make the deed.
Does this take the case out of the statute of frauds, which is relied upon by the defendant in his answer? We think it unquestionably does. The only condition that any case or dictum has ever required, and which is not entirely fulfilled here, is that the whole of the purchase money was not actually paid, before Samuel Blunt sold the same land to the other defendant, and thus repudiated the contract with the complainant. But wte have met with no case where the purchaser has been required to make payment or tender of the purchase money, before it was due by the terms of the agreement, in order to secure the right of his purchase, where he has taken possession with the consent of the vendor, and made valuable and lasting improvements. Here the complainant, in the confidence of the integrity and good faith of the defendant, took possession of the land, made improvements upon it of greater value than the price of the land itself, and made of it, as he supposed, a permanent home for himself and family. All this the defendant encouraged, at least by his acquiescence, until these valuable improvements were completed-—until a piece of wild land was converted into an improved farm, with a comfortable home, and then, as the time for the final payment of the purchase money was approaching, he turned round and sold the land, with all these improvements, to other parties, who have commenced an action of ejectment against the complainant to expel him from his home. The simple statement of the case is revolting to one’s sense of moral justice, and shows that here is an attempt to use the statute passed to prevent frauds, for the purpose of perpetrating a gross fraud. It was one of these extreme cases, so revolting to our sense oí justice, which first induced the court to set aside the statute, for the very reason just stated, and while we may in general regret that courts have ever been influenced by any consideration, so far as to break in upon the statute, yet, when we meet cases like this, we feel quite resigned to follow the precedents which were well understood when our law was passed, and have thus become a part of it.
Here, if there was not an actual payment of the purchase money, there was a tender of it, within the time in which he had a right by the agreement to make the payment, and a refusal by the defendant. We have said, in Doyle v. Teas, 4 Scam. 202, that he who tenders for a deed, need not part with his money till he can touch the deed; so he need run no risk for the safety of his money. A refusal to make the deed was, virtually, a refusal to accept the tender, and rendered it even unnecessary for the complainant to go through the formality of counting out the money, for the doing so, after the peremptory refusal by the defendant, would have been an idle form, unnecessary and contemptible in the eye of a court of equity. The offer to pay, was equivalent to actual payment, so far as fixing the right of the parties in this court is concerned.
One other objection we may notice, and that is, that as this contract was not to be performed in one year, it was obnoxious to another section of the statute of frauds, and that no contract should be enforced which has been declared void by two statutes, and for two reasons. We might answer to this last objection, that it is not relied upon for a defense in the answer, but if it were, it would be as repugnant to the promptings of an enlightened conscience to allow the defendant to succeed in his fraud by the use of one statute, as the other. This feature of the contract may, and no doubt should, make the court more cautious in examining the evidence to prove the contract, but when that is once established to the entire satisfaction of the court, as here, it necessarily passes from the consideration of the case. The complainant was entitled to a decree. The decree of the Circuit Court is reversed, and the suit remanded, with instructions to that court to proceed with the suit consistently with the principles here stated.
Judgment reversed.
Separate Opinion by Breese, J. Whilst I admit the opinion of the majority of the Court is in accordance with repeated decisions of the courts of our sister States, and of England, still I cannot concur in it, for the reason, that I feel myself controlled above and beyond all judicial decisions, by the express law of this State, solemnly enacted by the people, through their' representatives, and which I deem of imperative and paramount obligation. .
The statute is in these words:
“No action shall be brought, whereby to charge any executor or administrator upon any special promise to answer any debt or damages out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default or miscarriage of another person; or to charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, tenements or hereditaments, or any interest in, or concerning them, for a longer term than one year; or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the promise or agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized.” (Scates’ Comp. 511, Sec. 1.)
This is the will of the people of the State, emphatically declared, by the use of words of no doubtful meaning, ana inhibitory in their character. ¡No words of inhibition, more imperious than these, could be used in a statute, and it is, in my opinion, the duty of all courts to give full effect to them. The question presented to me is, shall a solemn act of the legislature, containing no ambiguous or doubtful terms, prevail—be carried into full effect—or shall it be evaded, in deference to the authority of respectable courts ? Of all the evils incident to our system, that of judicial legislation, going so far as to nullify an act of the legislature, is one of the most pernicious. The apology for this decision, and all similar ones in such cases, is, that this act of the legislature was passed with full knowledge of the decisions of the courts upon it, and that the legislature must be presumed, when making the enactment, to have adopted the judicial construction placed upon it. This is a dangerous principle, where no words are used of doubtful meaning, and where it goes to repeal a statute. My view is, that the legislature, in disregard of those decisions, declared what the law should be, and conferred no power upon the courts to repeal it, or evade it. If they entertained the opinion that it was good policy and wise, that part performance, by payment of part of the purchase money, making improvements, etc., should be proof, equivalent to a note or memorandum in writing, of the contract, it was quite easy for them to say so, and thus save the courts from legislating, and relieve them from the necessity of seeking pretexts, by which to evade or nullify the law.
The courts, not only in Great Britain, but in this country, have often expressed regret, that parol testimony had ever been allowed to take cases out of the operation of this statute. The books abound in such cases. And it is worthy of consideration, how the courts could, in the first instance, be brought to nullify it, and render it, in practice, of but little force or effect. It requires more than an ordinary share of boldness, to declare, judicially, in the teeth of a statute, that an action may be brought and maintained on a contract, not in writing, for the sale of land, when the statute declares, “ no such action shall be brought ”! I have fully considered and debated this question, in the separate opinion filed, in the case of Keener v. Crull and Wife, 19 Ill. 192, in reference to the statute of limitations, which has also been frittered away, and “ evaded ” by the courts. These judicial evasions have not my sanction, and so long as those acts remain on the statute book, I shall feel it my bounden duty to defer to them, yielding to them implicit obedience.
It may be said, as it has often been said, to justify these evasions of this statute, that frauds might be committed by allowing the vendor to retain the payments made on account, and- also the benefit of the improvements, and thus fraud would he promoted, rather than prevented. This result need not happen, for the vendee claiming under a parol contract, has his remedy at law or in equity, for the moneys he has advanced, and for the value of his improvements, and such decree, or judgment, as he may obtain, might be made a lien on the land, until he is fully reimbursed all his expenses and outlays. Complete justice, in most cases, might be thus rendered between the parties, and the act preserved inviolate. If not, the fault is not with the law. Let the contracting parties obey the law, and no bad consequences can follow. Judicial legislation is the work of danger; to steer clear of it, is the part of wisdom.