Pollock v. Pegues

The opinion of the Court was delivered by

Mr. Chief Justice Pope.

This is an appeal from a decree of his Honor, Judge James Aldrich. In order to understand the issues here involved, the pleadings will be reproduced, and are as follows :

“The complaint of the plaintiffs shows:

“1. That in the year A. D. 1901, the plaintiff, Carrie E. Pollock, was lawfully seized and possessed of all that certain piece, parcel or tract of land, .in Chesterfield County, S. C., containing 400 acres, more or less, bounded * * * the said land having been sold under foreclosure or mortgage, held by the said Carrie E. Pollock, and bid off by the plaintiff, W. P. Pollock, as attorney (but no deed made), and the said Carrie E. Pollock being in possession thereof.

“2d. That in the fall of the said year, 1901, the said W. P. Pollock, as agent and attorney for the said Carrie E. Pollock, contracted orally with the defendant to lease or rent unto him the said plantation, at a yearly rental of $150 per annum and one-fourth of all crops made on the low grounds, the said lease being for an indefinite term of years; and at the same time, the said W. P. Pollock, as agent and attorney as aforesaid, agreed orally with the said James W. Pegues to sell unto him twenty-five acres of land in the southwest corner thereof, bounded by the Britt lands, the said public road and the plantation road leading through said plantation: Provided, That the same should not take in any buildings on said place; and later agreed, orally, with said defendant to sell unto him thirty-five instead of twenty-five acres, at $8 per acre, with interest; and in addition, if said thirty-five acres of land as laid off between the boundaries above given and a line parallel with said public road embraced the buildings on the place, the said James W. Pegues was to pay whatever the said W. P. Pollock charged for the said buildings, the said W. P. Pollock simply agreeing to charge a reasonable amount for such buildings, with interest.

“3d. That in pursuance of all the foregoing, the said James W. Pegues went into the possession of all the said plantation, and for the year A. D. 1902 he paid only about $88 on the rent — the said W. P. Pollock having consented to reduce the rent for said year to $100 on account of the poor crop made, and there is a balance due the plaintiff, Carrie E. Pollock, of about $12 on said rent for said year. That some time during the winter 1902-1903, or the spring of 1903, the said James W. Pegues paid unto the plaintiff, W. P. Pollock, as agent and attorney, the sum of $25, and requested that it be credited on the purchase of said thirty-five acres of land, which said amount is all the said defendant has ever paid on account of the purchase of said land, and for the year A. D. 1904, the said James W. Pegues only jitaid about $99.50 on the rent for said place for said year of $150, thereby leaving- a balance due thereon of about $50.50.

“4th. That in the late fall of 1903, the plaintiff, W. P. Pollock, as attorney and agent as aforesaid, went to the said James W. Pegues and proposed to him, that in as much as he had an opportunity of selling the whole plantation, and the said defendant had not paid all rent due, and had paid practically nothing on the purchase price of said thirty-five acres of land, that he would like the said defendant to agree to give up all claim to the land and consent for said W. P. Pollock to convey same to another, and proposed if he would do so that he would cancel all indebtedness for rent and give the said Pegues the free use of as much of the land as he cared to cultivate for the year 1904, and finally to give him $50 in cash in addition. That the said defendant, after more than one conference with said W. P. Pollock, declined said proposition. Thereupon said Pollock demanded of said Pegues payment for said thirty-five acres of land at $8 per acre (to wit: $280), and payment for the buildings thereon, which are embraced in said thirty-five acres, the sum of $150, which is very reasonable, if not very low price for same, and interest thereon, less the $25 paid, and the balance due on rent, and offered to at once make deed to said defendant to said land; but the said defendant positively refused and failed to pay same, and said he would not and could not pay more than $280— that is, $8 per acre for the thirty-five acres. The said W. P. Pollock then proposed that he would go ahead and convey said place, and that said Pegues might sue this plaintiff, and whatever amount he might get judgment for would be promptly paid, which proposition was declined. Thereupon the said W. P. Pollock proposed that he would convey said lands to another, and the said J. W. Pegues should yield possession thereof, and if he and said Pegues could not agree on an amicable settlement, that they would each appoint a disinterested person, and those two could appoint a third person, who should fix the amount, if anything, which should be paid to said Pegues, and the said Pegues agreed to the said proposition and agreed for said Pollock to convey said lands.

“5th. The said W. P. Pollock, as agent and attorney for said Carrie E. Pollock, for the salce of convenience, had the clerk of Court to make title to him, and after the said agreement with the said Pegues, which he communicated to M. H. Stacy, he conveyed by warranty deed all of said tract of land to said M. H. Stacy, and the said M. H. Stacy by deed conveyed same to E. E. Stacy, who now holds the title thereto, but the possession was retained by W. P. Pollock, as agent and attorney as aforesaid, until the first of January, 1905.

“6th. That thereafter the said J. W. Pegues demanded of said W. P. Pollock the sum of $1,000, which was refused, and said W. P. Pollock proposed to leave the matter to three disinterested parties, as was the agreement, but the said Pegues refused to do so, notwithstanding that he had agreed that he would do so, and he now unlawfully withholds possession of said thirty-five acres and the buildings.

“7th. That the original agreement between the parties has been broken by the said defendant, and in addition thereto the same has been superceded by the subsequent agreement above set forth, but the claim of the defendant is a cloud on the title.

“Wherefore, plaintiffs pray judgment that the original agreement between parties be cancelled and set aside, and for such other and further relief as to the Court may seem meet and proper, and for costs.”

“The defendant, answering the complaint herein, says:

“First, for a first defense:

“I. That he admits the allegations contained in the first paragraph of said complaint.

“II. That he denies the allegations of the second paragraph of the complaint as to the rental of the plantation being for $150 per annum, and alleges that the rent to be paid for that part of the plantation not bought by this defendant was to be two bales of cotton, 500 pounds weight each, and one-fourth of all the crops made on the low grounds, except such crops as were planted in the low grounds by this defendant; this he was to have free of charge for looking after the other crops made on the low grounds for W. P. Pollock. And he alleges that the said Pollock received one-fourth of all such crops; and he denies, also, that he was to pay for the house what the said W. P. Pollock charged for the said building, and alleges, on the contrary, that he was to pay a reasonable charge for the buildings, if they were embraced in the lands bought, when they were marked out.

“III. He alleges that in so far as the allegations in the third paragraph are concerned, he denies that he only paid $88 on the rent, and denies that there is a balance due of $12; but he alleges, on the other hand, that he paid two bales of cotton, which, on account of shortage in the weight, left a balance of $12, which W. P. Pollock agreed to allow him for hauling the rents received from the low grounds to Cheraw for him; and he denies, further, that he ever agreed to pay anything else as rent for the lands not purchased, either for the years 1903 or 1902, than two bales of cotton of 500 pounds weight, and he alleges that he has paid and discharged all sums due for rent for said lands. He denies, also, that the payment, which he made upon the land, was at the date or of the amount alleged in said paragraph.

“IV. He admits, in so far as the fourth paragraph of the complaint is concerned, that the plaintiff, W. P. Pollock, did endeavor to get. this defendant to surrender his rights, and alleges that he offered him so much of the land as he cared to cultivate for the year 1904, and $100 in cash, but that said proposition was declined, and that he offered to pay the amount of the purchase money, to wit: $8 per acre, and offered further to pay what was reasonable for the buildings, but was not willing to pay $150, which was more than double the value of the said building when defendant received it. He denies further and most positively, that he ever agreed to consent to a sale by the plaintiff, or either of them, of this land to a third person and to hold possession thereof pursuant to such sale, or to leave the damage, which he should suffer thereby, to disinterested persons, or that he would sue the said W. P. Pollock for his damages; but, on the other hand, he positively declined to allow such sale, and they failed to agree to any such proposition. He' further alleges that he has always been ready and willing to pay for the tract of land under the contract specified, and he is now ready and willing to do so and take his title according to said contract, and he is ready to pay for the building, which he has improved and added to and made habitable, at whatever it was reasonably worth when he bought it, and he is ready to bring the money into Court, if so ordered, and take his title according to the contract under which he has gone into possession of said property and has improved the same.

■ “V. That defendant has not sufficient information on which to base a belief as to the fifth paragraph of the complaint and demands strict proof thereof.

“VI. That defendant admits that he asked $1,000 for his land, which he had purchased and gone into possession of and had improved under a contract, for a title out of which $1,000 he was and is ready and willing to settle any sums which he may be owing the plaintiffs, or either of them, but he denies that he had agreed that he would yield possession, or that the said land might be sold, or that he withholds unlawfully the said possession of said tract.

“VII. He denies that the agreement had been broken by himself, but alleges that it has been broken by the plaintiff, W. P. Pollock, and he denies that it has been superceded by any subsequent agreement, or that any such agreement subsequent thereto has been entered into by him. And he alleges that he has gone into possession of the land so described under a valid contract to purchase, that he has improved the same in many particulars, and that he is ready and willing to carry out his contract and pay for the same according to the contract, and he desires that the title shall be made to him, and he alleges that all the plaintiffs herein had full notice of his rights before any of the transactions relating to the sale to other parties occurred.

“Second. For a second defense.

“1. The defendant alleges that the said contract, which the plaintiff sets up in paragraph IV. of the complaint (which contract this defendant denies), is a contract relative to an interest in lands, and no memorandum thereof has been made in writing, signed by this defendant or either party thereto, and, therefore, the same is void under the statute of frauds.

“Wherefore, this defendant demands that the plaintiffs, or which ever one of the plaintiffs has the legal title, be required to execute to him a good and indefeasible title in fee simple, that the amount that is due and owing by this defendant under the contract made for said lands, be ascertained and determined by this Court, and that he be permitted to bring same into Court and to receive the title agreed upon in the original contract, and for such other and further relief as to this Court seems meet and proper.”

As may be recalled from reading the pleadings herein, the issue paramount to all others is that of the alleged estoppel of the defendant, J. W. Pegues, from asserting an equitable claim upon thirty-five acres o'f land now embraced in the deed of 412 1-2 acres conveyed to M. H. Stacy by Miss Carrie E. Pollock, on the fourth of January, 1904. The alleged estoppel grows out of this state of facts, to wit: Carrie E. Pollock, in 1901, through her attorney, W. P. Pollock, made a parol sale of thirty-five acres, a part of her 412 1-2 acres, at $8 per acre, and it not being known whether the thirty-five acres so sold would embrace the dwelling house, it was agreed that if such dwelling house should afterwards be discovered to be located on the said thirty-five acres, that James W. Pegues would pay that sum which W. P. Pollock, as attorney for said Carrie E. Pollock, might reasonably require therefor.

Thereafter, on the 14th of February, 1902, J. W. Pegues paid the sum of $20, as part of the purchase money of said lot of land, and no other payment has ever been made by him.

Near the close of the year 1903, after repeated efforts to sell, W. P. Pollock, as attorney for Carrie E. Pollock, began a negotiation with M. H. Stacy, a citizen of the State of North Carolina, looking to the sale of Miss Pollock’s land, Stacy offering $3,300 for the entire tract, including the thirty-five acres of land bargained to J. W. Pegues. The said M. H. Stacy positively refused to buy any part of Miss Pollock’s land unless he could obtain the land bargained to J. W. Pegues. These facts were communicated by W. P. Pollock to the said J. W. Pegues, and inducements were offered by W. P. Pollock to the said J. W. Pegues, in order to induce him to relinquish his claim to said thirty-five acres of land. Interview after interview was held by Pollock with Pegues without accomplishing any result. Finally, M. H. Stacy agreed to meet W. P. Pollock in his office at Che-raw, oij the evening of the fourth day of January, 1904, to hear what had been the result of his negotiations with Pegues, and if fortunate, to close the trade. These facts were fully communicated by W. P. Pollock to J. W. Pegues at an interview at Chesterfield Court House, on the afternoon of the fourth of January, 1904.

As a final outcome of those negotiations, it was agreed by Pegues with Pollock that he should convey his thirty-five acres along with the other lands to M. H. Stacy, at the price of $8 per acre for the whole tract, and that J. W. Pegues would come to Cheraw on Tuesday, the fifth day of January, 1904, to see Pollock what amount of money should be paid the said Pegues for his surrender of his claim on the thirty-five acres of land which Pollock was to convey to M. H. Stacy. M. H. Stacy and Pollock met the evening of January the fourth, 1904, whereupon Stacy paid $1,100 in cash, and executed his bond and mortgage for $2,200 to W. P. Pollock, and Pollock thereupon conveyed the 412 1-2 acres to the said M. H. Stacy, and thereafter the said M. H. Stacy conveyed the entire tract to E. E. Stacy, as whose agent he had purchased the same. On the next morning, the said J. W. Pegues demanded $1,000 for his interest, which Pollock declined to pay, but offered to leave it to the award of the three arbitrators, as had been previously agreed upon by Pollock and Pegues, but this Pegues declined to do, retaining possession of the land; hence this action.

By agreement of the parties, an order was passed by Judge Watts, wherein all the issues of law and fact were referred to R. T. Caston, Escp, as special referee. A great deal of testimony was offered by both parties to the issues raised by the pleadings. The report of said special referee was made, wherein he found that Pegues was bound by the representations he had made to Pollock, and which Pollock had repeated to M. H. Stacy, and that he was thereby es-topped from alleging any claim to the thirty-five acres of land, which said Pegues had bargained to purchase from said Carrie E. Pollock. *

To this report both parties, plaintiffs and defendant, filed exceptions. The whole then came on to be heard by Judge Aldrich, who rendered his decree, January, 1905, wherein he sustained some of the exceptions of the plaintiffs, overruling two of the same, but overruling all of the exceptions of the defendant.

As recommended by the report of the special referee, Judge Aldrich adjudged as follows:

“1. That the plaintiff, Carrie E. Pollock, do pay to the defendant, James W. Pegues, the sum of $350, less the cost of this action, to be taxed by the clerk of this Court.

“2. That the clerk of the Court do tax the costs of this action, after legal notice of such taxation to the parties here, and that the plaintiff do pay such costs; and the remainder of the $350, found above as damages, to the defendant.

“3. That upon the-payment of the aforesaid by the plaintiff, Carrie E. Pollock, or her attorney, to the defendant, the title of the plaintiff, E. E. Stacy, in and to the thirty-five acres, described in the pleadings herein, as having been contracted to be sold by Carrie E. Pollock, or her attorney, W. P. Pollock, to the defendant, James W. Pegues, be, and hereby is, affirmed; and the said James W. Pegues be, and hereby is, forever estopped from, in any manner, disturbing the title and possession of the said E. E. Stacy.

“4. This decree stops with the rent, or accounting for rents, on January 1st, 1904, and nothing after that date is included herein.”

Let the report of this case contain a copy of the referee’s report and the exceptions thereto and the Judge’s decree.

The defendant alone appealed from the decree of Judge Aldrich, on nine grounds, which we will hereafter consider.

The first and second grounds of appeal are as follows:

“I. In that the Judge erred in holding competent and considering the testimony of M. H. Stacy, that W. P. Pollock told him he had arranged the matter of the surrender of the place with J. W. Pegues and told him the particulars of it, this being mere hearsay and incompetent and irrelevant.

“II. Because he held competent and considered the testimony of Mr. Pollock, that he had told said M. H. Stacy that the said matter was arranged, and also considered and held competent the details of said conversation, same being hearsay, a declaration in his own favor by the witness in the absence of the defendant, and incompetent.”

And the third, fourth, fifth, sixth, seventh, eighth and ninth are as follows:

“III. Because the Court erred in finding as a matter of fact that the defendant agreed to give up the land and arbitrate the damages.

“IV. Because the Court erred in holding that the defendant was bound by such agreement, if made, the same being with reference to an interest in land, and void under the statute of frauds.

“V. Because the Judge erred in holding that the defendant was estopped by reason of the fact that M. H. Stacy had knowledge of such an agreement, the same being error; (a) because defendant made no such communication to said Stacy; (b) because, if he had done so, Stacy is charged with knowledge of the law, that such an agreement must be in writing to bind the defendant, and his knowledge was such that he could not have been misled as to the legal effect of such an agreement, and there is. no estoppel where the party invoking it is not misled.

“VI. Because it appears as an admitted fact that E. E. Stacy had traded for the land on Friday before the conversation invoked as an estoppel occurred on Monday; hence he could not have been misled by that conversation.

“VII. He erred in holding that by applying the doctrine of estoppel, the statute of frauds can be avoided in transactions relative to real estate.

“VIII. He erred in not holding that the plaintiff, Stacy, was fully protected, and could not invoke the doctrine of estoppel, for the reason that he still owed far more than the amount of land which was lost, and could get an abatement of price to protect him from loss.

“IX. He erred in not holding that the agreement alleged by W. P. Pollock and denied by J. W. Pegues, that Mr. Pegues agreed to allow Mr. Pollock to sell the land in dispute to L. E. Stacy, was void for want of consideration.”

We first pass on the sixth exception. We do not agree that the testimony establishes that L. E. Stacy had traded for the land on the Friday before the Monday, the fourth day of January, 1904. On the contrary, the trade was not made until the latter date. This ground of appeal is overruled.

It may not be amiss at this junction to ascertain what estoppel means. In sixteen Cyc., at page 679, it is held: “In the broad sense of the term, ‘estoppel’ is a bar which precludes a person from denying the truth of a fact, which has in contemplation of law become settled by the facts and proceedings of judicial or legislative officers, or by the act of the party himself, either by conventional writing or by representations, expressed or implied, in pais.” Or, as is said in Greenleaf’s Evidence, chap IV.: “An estoppel arises where a man has done some act which the policy of the law will not permit him to gainsay or deny.”

In eleventh A. and E. Ency., page 429, it is said, “Also, it seems to be well established, as a general rule, that if a man knowingly suffers another to purchase and expend money on land under an erroneous opinion of title, though he does it passively by looking on, without making known his claim, he shall not afterwards be permitted to exercise his legal right against that, person. This rule is especially applicable where the owner has encouraged the parties to deal with each other in such sale and purchase.” By the same author just quoted, at page 424, it is said: “To constitute an estoppel by misrepresentation or concealment of facts, certain prerequisite facts must be proved. As fraud is not presumed, but, when charged, must be strictly proved, the authorities uniformly hold that the evidence, to establish the essential elements of an 'estoppel by conduct or misrepresentation, must be clear, precise and unequivocal. And it has been held that this rule should be strictly applied where the estoppel is envoked against a claim to real estate. The doctrine is opposed to the letter of the .statute of frauds, and would greatly tend to the insecurity of titles, if they were allowed to be affected by parol evidence of light and doubtful character. It is held that the facts necessary to work an estoppel must appear affirmatively.”

To the same effect, Pom. Eq. Jur., 2d vol., sec. 803. Also, in sec. 807 of the same author, it is said: “The general rule is that if a person interested in an estate, knowingly misleads another in dealing with the estate, as if he were not interested, he will be postponed to the party misled, and compelled to make his representations specifically good. It applies to one who denies his own title or encumbrance, when enquired of by another who is about to purchase the land, or to loan money upon it as security; to one who knowingly suffers another to deal with the lands as though it were his own; to one who suffers another to expend money in improvements without giving notice of his own claim, and the like. This equity being merely an instance of fraud which is evidence of an intent to deceive.” Continuing the same quotation, the author says: “It is opposed to the letter of the statute of frauds, and it would greatly tend to the insecurity of titles if they were allowed to be affected by parol evidence of light or doubtful character.”

Our own decisions fully sustain this doctrine, as will be seen by Chambers v. Bookman, 67 S. C., 432, 46 S. E., 39; Bethune v. McDonald, 35 S. C., 88, 14 S. E., 674; Gaston v. Brandenburg, 42 S. C., 348, 20 S. E., 157; Dunlap v. Gooding and Elliott, 22 S. C., 548. The tenor of these decisions and quotations from eminent authors abundantly show that the seventh ground of appeal must be overruled.

Having determined the law relating to estoppel, we will now discuss the facts here involved, always remembering, however, that the Circuit Judge has decided adversely to the defendant in his construction of the testimony, and it will require the appellant to advance testimony sufficient to overcome this finding of the Circuit Judge.

In the first place, it may be observed that the admission of the testimony by parol, inasmuch as fraud may be said to be herein involved, was a necessity. It may not be amiss to remind parties to this action that of all gross carelessness relating to titles of real estate the conduct of W. P. Pollock and James W. Pegues furnish an instance. In 1901, when the thirty-five acres were bargained by W. P. Pollock, no minute of this transaction was made. There was no plat of said lands made by a surveyor — indeed, the only evidence of a written character, was the receipt of $20 paid on the 14th of February, 1902, long after the trade itself was made. It was not known whether the dwelling house was on the thirty-five acres of land; the minds of these men never met as to what value should be placed on the dwelling house, and-at this date that condition of things exists — one claiming it is worth $50, and the other at least $150. The same uncertainty existed in the minds of the parties as to what the rent should be. These matters are mentioned to show that parol testimony was absolutely necessary to fix the status of this thirty-five acres of land as between Mr. Pollock and Mr. Pegues. There being nothing in writing, all testimony was by parol, but now what shall we say? The rights of W. P. Pollock are not involved, because he has transferred the legal title to all these lands to M. FI. .Stacy, who has in turn deeded them to L. E. Stacy — both of whom are innocent parties.

The question now comes as to whether the witness, M. H. Stacy, may testify, giving a detailed statement of W. P. Pollock’s representation of J. W. Pegues’ authority to him to sell the thirty-five acres of land. James W. Pegues had an equity arising out of a parol agreement respecting the thirty-five acres of land. Stacy would not purchase any of the land unless he could obtain the thirty-five acres in the possession of J. W. Pegues. This fact was known to both Pegues and Pollock. Stacy knew that Pollock had gone to see Pegues on Monday just before he received his title. It is a part of the history of the transaction for Stacy to be able to tell what representations Pollock made to him as coming from J. W. Pegues.

W. P. Pollock insists that every word that he detailed to Stacy was uttered by J. W. Pegues a few hours before he met Stacy. It is true, Pegues now denies that he uttered such words to Pollock on that day. We have given this matter a most careful consideration and must say that, as the result of that investigation by us, we have reached the deliberate conclusion that W. P. Pollock has told the exact truth in what he states, and that, on the contrary, J. W. Pegues is more than mistaken in what he states as to the agreement between himself and W. P. Pollock. It was no part of Pollock’s mission to Chesterfield Court House on Monday, January 4th, 1904, to ascertain what J. W. Pegues should pay for the dwelling house on the thirty-five acres; he was seeking to protect the estate in land of his young sister, involving several thousand dollars. It was to see about the sale of his sister’s lands that he sought this interview with J. W. Pegues. What W. P. Pollock has represented as coming from J. W. Pegues is sustained by the fact that on the train on his way from Chesterfield Court House to Cheraw, he told his friend, Mr. Matheson, all that he testifies that he told Stacy. And when he reached Cheraw that evening, he told M. H. Stacy the same state of facts, and he is further sustained by J. W. Pegues himself, who said in his testimony, “I had promised Mr. Pollock that I would see him that morning, which was Tuesday, the 5th day of January, 1904. In that interview, after a while, I said, Willie, what have you done about that land? He said, I have sold it and made the deeds. I didn’t say anything for some time, and then I told him, of course, I. had nothing more to say. He asked me what I would take for the land and I told him $1,000.”

From Mr. Pollock’s testimony the following is extracted: “To show further that I cannot be mistaken as to its being exactly as I stated, when he came down the value of the house was not mentioned, but I asked him what he would be willing to take to close the matter up, that I had gone ahead and sold upon our understanding, and he said $1,000.”

If James W. Pegues did not authorize William P. Pollock to make the representation to M. H. Stacy that he did, then there was a fraud perpetrated by him; but, on the contrary, if James W. Pegues did authorize W. P. Pollock to convey the thirty-five acres to M. H. Stacy, including his claim of the thirty-five acres, and denies it as he now does, then he is guilty of a fraud. We are satisfied that W. P. Pollock has been guilty of no fraud, but that James W. Pegues did make the agreement as charged by Pollock, and that Stacy did purchase upon the representation repeated as coming from James W. Pegues, that he would not have made the purchase except for his reliance upon the representation made by James AY. Pegues, that Stacy thereby was misled to his prejudice by James W. Pegues, that the testimony of Stacy and of Pollock was necessary to uncloak this wrong; hence such testimony was admissible. We must, therefore, overrule the first and second exceptions.

Prom a careful examination of the testimony, we find that the defendant did agree to give up the land and arbitrate the damages. The third ground of appeal is, therefore, overruled.

We find that the Circuit Court did not err in holding that the defendant was bound by his agreement, although it was with reference to an interest in the land, and it was not void under the statute of frauds. We find that the agreement was clear and explicit, and would be a fraud upon the rights .of Stacy, if not upheld. The fourth ground of appeal is,therefore, not sustained.

As to the fifth ground of appeal, we cannot sustain the same on the grounds already advanced by us.. It is, therefore, overruled.

We cannot hold that Stacy could be fully protected by reason of the fact that he still owes $2,200 on the land. He was fully entitled to every acre of the 412 1-2 acres. He refused to buy except as an entirety. This ground of appeal is unsustained.

Lastly, we cannot agree to the ninth ground of appeal, for there was a full consideration, even as to James W. Pegues. This ground of appeal is overruled.

It is the judgment of this Court, that the judgment of the Circuit Court be affirmed.

Mr. Justice Gary.

The agreement entered into between J. W. Pegues and W. P. Pollock was not executory or conditional, in so far as it conferred upon W. P. Pollock the right to sell the land to M. H. Stacy, which could be exercised immediately after the agreement. The fact that the agreement was executory as to the amount of compensation to be paid J. W. Pegues did not prevent W. P. Pollock from conveying the land before the amount of compensation was ascertained. As the conduct of J. W. Pegues induced others to deal with the land, he was thereby estopped from setting up the plea that the agreement was void under the statute of frauds.

For these reasons, I concur in the result announced in the opinion of Mr. Chief Justice Pope.