*18The opinion of the Court was drawn up by
Weston C. J.The contract, upon which the plaintiff declares, is void by the statute of frauds. Where the party, who would avail himself of this statute, has himself been guilty of fraud, the party injured may often have a remedy in equity, and sometimes at law. There are cases where a court of equity would decree a specific performance, when the estate had not been previously conveyed to a bona fide purchaser, without notice. And when it has, a decree might pass against the fraudulent party, to make compensation in damages.
It has been said, that where a court of chancery would decree a specific performance, upon a parol contract for the sale of land, on the ground of fraud, damages might be recovered at law, based upon such fraud, in a proper action; but not assumpsit upon the contract. Boyd v. Stone, 11 Mass. 342. It is however, there stated, that “ no instance can be found, in the reports of chancery cages, of a specific performance decreed, where the fraud consisted only of a' breach of promise.” The facts offered to be proved, present a case of great oppression. Whether any relief could be afforded in chancery, we are not called upon to determine. We are, however, quite clear, upon the authorities, that the plaintiff cannot maintain assumpsit, upon the express contract.
We are further of the opinion, that the plaintiff is entitled to reclaim what he has paid, since the conveyance of the land, upon an assumpsit implied by law. For the liability, undertaken by the defendant for the plaintiff, the latter put property into his .hands, far transcending what was wanted for his indemnity. When the defendant, therefore, paid what he had assumed, retaining the property, and being .thereby more than reimbursed, he had no further claim upon the plaintiff The payment, subsequently made by him, was to re-purchase the estate upon the parol contract. It was upon this consideration alone, that the defendant could equitably receive or retain it. These parol contracts, although not legally, are morally binding, and payments made under them cannot be reclaimed, so long as the party receiving is in no fault. But if he repudiates the contract, a right of reclamation, upon the principles of equity and good conscience, accrues to the other party. Here the defendant has repudiated the contract, by depriving himself of *19the power of fulfilment. Richards v. Allen, 17 Maine R. 296. Having a second time received of the plaintiff, what he had paid for him, he holds the sum last received for the use of the plaintiff; and to that extent, we are satisfied the action may be maintained, if the case stated can be made out in proof.
Nonsuit set aside.