The case was briefly argued upon bill and answer, by Fessenden for the plaintiff, and S. Emery for the defendants; and the opinion of the Court was read at the ensuing October term, as drawn up by
Mellen C. J.In the plaintiff's bill he prays for a decree against the respondents, directing them to make and execute a deed to him of the real estate described therein and for the reasons he has stated. ' By law, this court has power to compel a specific performance of a contract in writing -, but no such contract is set forth in the bill, nor, indeed, is there an allegation of any parol contract on the part of the defendants to make and execute to him a deed of the premises in question; neither does the answer of the deféndants contain any admission that there ever was any such contract, in writing or by parol. In Mitford’s pleadings, pages 215, 216, it is stated, as settled in courts of equity, that the statute of frauds may be relied on by plea or answer; and that though a parol agreement to convey be stated in the bill and confessed by the answer, still the defendant is entitled to the protection of the statute; and no decree can be made merely on the ground of such confession. Viewing the cause in this light, we do not perceive what authority we have to compel a performance, or rather a conveyance of the land in question, any more than in any other case where one person, who has purchased real estate and paid for it, cannot obtain a deed of it. And, even in the case put, if the court should decree a conveyance on the ground of fraud, still in the case before the court there is no suggestion of fraud or conspiracy on the part of the defendants, or pretence of any. On the facts appearing on the bill and answer, the bill is not sustainable. But, in addition to this, on looking into the case, we are left in total doubt whether the estate was purchased at auction by the plaintiff for his own benefit, or for the benefit of, or in trust for Polly Daniels ; or whether the purchase money was paid by him out of his own funds, or from funds furnished to him by the said Polly Daniels. This want of certain*323ty probably is owing to the long interval of time which the plaintiff has suffered to pass since the sale, without asserting his alleged title. In this state of the case, and with these clouds resting on the claim of the plaintiff, we cannot decree the conveyance prayed for ; nor, for the same reason, do we think there is any ground for granting an injunction upon Sally Daniels, enjoining her no further to prosecute her action against the said Stearns, now pending in this court, as stated in the complaint. Bill dismissed.