Opening argument for the defendant by
Wells.—This is a bill in equity, to which a demurrer has been filed, and in which the plaintiff prays a conveyance of the Barrows farm to himself; and that a new trial may be granted in a suit at law of said Cowan against the respondent, in whose favor judgment has been rendered.
1. The agreement to convey to “ Ellis Cowan,” was made on Dec. 31,.upon condition of payment of the notes, with all interest and costs. The notes have never been paid by Cowan, but in 1833, were paid, as the bill admits, in part by Wheeler. Here then is an insuperable bar to the bill. The condition has not been performed.
*272But said Cowan alleges, “ that according to his best knowledge and belief,” Wheeler at that time had funds in his hands to an amount equal to what he paid. - Men of lively imaginations are generally too sanguine in their belief. This belief is too general and indefinite. There must be full and entire evidence of the performance of the condition. A mere vague belief of it is not satisfactory. The plaintiff should state, in what manner, and what kind of funds, Wheeler held, whether they consisted in money, choses in action, real or personal property ; to enable the Court to judge of the performance of the condition. The bill further alleges, that Wheeler, having assumed “ other liabilities,” Cowan did not demand the execution of the trust. These “ other liabilities” must have constituted a good reason for the suspension of his demand. They remain in full force at this time. The action referred to in the bill, embraced every thing, which the plaintiff had against Wheeler, and among other items, Cowan charged Wheeler with a note for $200, which Wheeler gave him, for money paid by Cowan to Barrows for the Barrows farm, as will be seen by the report of the auditor in said action. The charging Wheeler with this $200, looks very much, as if Cowan had no claim upon the farm, and was only desirous to recover back what he had paid. The fact of giving the note for this money indicates the farm to be Wheeler’s property. But the balance recovered by Wheeler shows conclusively, that Cowan was his debtor to a large amount. Notwithstanding the jury, as can be proved, allowed to Wheeler for the rent claimed, nothing more than the interest, during the lease, on the money paid by him towards the farm, still there was a balance due Wheeler. Wheeler, therefore, by Cowan’s own showing, has paid $556 principal, together with the interest on the whole, for some twelve years, amounting to a sum probably equal to the value of the farm. If it should become necessary, all the payments can be shown. By referring to the action at law, Cowan makes it a part of his bill, and the Auditor’s report is a portion of the proceedings. But independently of the $200, the bill admits a note of $356, paid in Dec. 1833, *273which, at annual interest, would be more than double that sum, and the action at law shows that no part of this sum has been paid. It is not pretended that it has been paid. The condition therefore has not been performed, and the entire ground for the prayer of the bill fails.
2. And Cowan admits that “ he had literally failed to comply with the conditions.” How long time shall he have to revive his claim ? He must do what he ought to do in a reasonable time. The money paid in Dec. 1833, was due, and Cowan, by leaving it to be paid by Wheeler, lost all claim, which he or his wife had upon the farm. Cowan was to pay to perform the condition, and that must be when the notes were due ; by lying by, and compelling Wheeler to pay, the right was lost. But if this were otherwise, the length of time in which the claim has rested, since W heeler paid the money, must constitute a sufficient answer. Although this transaction related to real estate, it was a mere promise to do an act, and the right of action is barred in six years from the breach; which must be considered as having taken place, when the money was paid by Wheeler. Where courts of law and equity have concurrent jurisdiction, and the action is barred at law, it is also in equity. Kane v. Bloodgood, 7 Johns. Ch. R. 90, 118. And this is open to objection on demurrer. Story’s Equity PI. <§> 503, and note 4. Here the party entitled to a bill, has also the right to bring an action of assumpsit. Also, if there are laches, and demands are stale, where there is no limitation, courts of equity refuse to interfere. Story’s Com. on Equity, vol. 2, p. 735 and 736.
3. The lease of 1834 and renewal in 1835, afford full evidence of all abandonment of any expectation on the part of Cowan of ever performing the condition. These acts are solemn admissions, under his hand and seal, that the title was in Wheeler. At all events they show, that the condition had not then been performed, and nothing since has taken place showing a performance.
4. The letter of Oct. 3, 1841, can have no effect upon this case. The agreement, previous to the letter, to refer is revoc*274able, leaving the party injured to his action. It is a transaction between Wheeler and Cowan, in which Ellis has no part. Ellis is not a party to any thing contained in the letter, which refers to the previous arrangements in relation to a settlement. Cowan cannot tack this letter-to him, on to an agreement to convey to his wife, and thereby claim a trust to himself. If any trust belonged to her by the agreement of Dec. 1831, it still remains her property, and he cannot take it to himself, and consequently cannot maintain this bill. Moreover there is no consideration for any new trust. Besides, the adjustment, to which Wheeler alludes in the letter, is to be made by the parties themselves. A person might be very willing to convey upon an adjustment, which he would make, when he would not consent to do it, upon an adjustment to be made by others acting as referees. Wheeler has never been cleared of his liabilities and paid what is due him; and there is no allegation that such is the fact, except the mere “judgment and belief” of Cowan. Wheeler does not say he would convey to any one, but barely says, he “ should have no objection.” The amount of it is, if Cowan would do what Wheeler thought he ought to do, Wheeler would have no objection of deeding to Isaac or Newton. Cowan has never done any thing, except to harrass Wheeler with lawsuits.
- This letter makes no allusion to the agreement of Dec. 1831, neither confirms it, nor revives it. The tenor of it appears to indicate, that neither party placed any reliance upon it.
5. The request, that the Court would enjoin upon Wheeler to consent to a new trial, in the suit at law, is what the Court has no power to grant. It is res judicata, and cannot again be opened to contestation for any causes alleged in this bill. Emery v. Goodwin, 13 Maine R. 14; York Man. Co. v. Cutis, 18 Maine R. 210.
Argument for the plaintiff by
N. WestonThe defendant by his demurrer, avers that we have no case, upon our own showing. Upon the demurrer all- our averments, which are well pleaded, and whatever is fairly deducible from them, are taken to be true, and no coun*275ter averments or proof whatever are admissible. Of this poor compensation for inevitable delay, the opening counsel has sought to deprive us, by taking the extraordinary course of denying some of our averments, and of endeavoring to avoid others, by averments of his own. The Court are to decide the question now raised upon the bill and demurrer, and no other matter can be foisted into the case. We have averred, that we paid all the notes, given for the Barrows farm, except the last. This the opening counsel denies in argument, although admitted by the demurrer. It is sufficient at present to say, that, whatever controversy may be raised upon that point we are prepared to meet, whenever the case comes to proof. We have averred, that when the defendant paid the last note given to Barrows, he had in his hands our funds, to an equal or greater amount. I suppose the counsel would be understood to object to this averment as not well pleaded, because the plaintiff has declared it to be true, in his judgment and belief. This would have been implied, if it had not been stated. The plaintiff having been privy to the whole subject matter, did not speak at random. He had materials upon which to form his judgment, and when he distinctly charges a matter against the defendant, upon his judgment and belief, if that is a material allegation, he has a right to an answer, and if not regularly denied, it is admitted. In a demurrer to evidence, all that a jury might find from the proof is taken to be true. So is what the plaintiff avers, and none the less so because the ground of the averment is alleged to be his judgment and belief.
With a view to lay a foundation to ask for an injunction upon the defendant, we have made certain averments, in respect, to a suit at common law, now pending between the parties, upon which judgment is not yet rendered. All these averments that are well pleaded, are admitted by the demurrer. The counsel does not object to their form, but he denies some of them, and goes on to state certain calculations, at variance with our averments, which he says were made by the jury. If he would insist, that what we have set forth upon this mat*276ter is false, let him deny it regularly, and we are ready to join the issue and to meet it. But we do trust, that upon demurrer, we are not bound to prove our averments, otherwise that course of proceeding, besides being an unnecessary delay of justice, which is unavoidable, if the defendant will resort to it, has the effect to controvert at once both the law and the fact of our case.
We take it for granted then, that the question is, whether our bill on its face presents a case, calling for equitable relief.
The Court are possessed of our written motion to amend, so that Ellis Cowan, the wife of Isaac, may be received as a party, by being made a plaintiff with her husband. If the Court deem this necessary, as the defendant has delayed us, as we think unnecessarily by his demurrer, as the omission of the wife as a party is not assigned as a cause of demurrer, and as the amendment will not delay the decision of the case, we hope and-trust the Court will grant it without costs.
Taking our bill to be true, as admitted by the demurrer, does it present a case entitling the plaintiff to relief in equity ? A court of equity looks through form to the real nature of the transaction, upon which a controversy arises. The nature of the subject matter, upon which this bill is based, is sufficiently apparent. The plaintiff had contracted to purchase the Barrows farm, in December, 1831. He was to pay part of the purchase money down, and to give security for the "residue. He made the cash payment, and to secure the other payments, he desired to obtain the name of the defendant, his brother-in-law. To secure him for signing the notes, the land was conveyed to the defendant, by the procurement of the plaintiff. Upon these facts, which are not controverted but admitted, the defendant held this farm, to secure him for what he had to pay on these notes.
The bill avers, that all the notes, except the last, were actually paid by the plaintiff. It further avers, that though the defendant paid the last, it was from the plaintiff’s funds in his hands. No question is made as to the competency of the proof, whether in writing or not. The facts are admitted by *277the demurrer. Second Uni. Society v. Woodbury, 14 Maine R. 281 ; Batsford v. Keble, 12 Vesey, 74.
Upon these facts, the defendant held the Barrows farm in trust for the plaintiff. And this independently of the instrument, executed by the defendant, December 5, 1881, promising to convey, upon the condition stated, to the wife of the plaintiff.
That was a mode of executing the trust, appointed by the plaintiff, who furnished the funds, and for whose benefit the trust must arise, upon the defendant’s being secured, he holding for security only.
But if the trust was for the benefit of the appointee, and its terms are to be collected from that instrument, coupled with the preceding averments, as the defendant held for security, it is contended, tiiat the time and mode of payment is not of the essence of the contract. The essence was, security and indemnity to the defendant for his undertaking to Barrows. Otherwise on the failure of tire plaintiff to pay ever so small a part of either of the notes to Barrows, so that the defendant had to pay it, the plaintiff would forfeit the whole farm.
To show that time is sometimes not regarded in equity as of the essence of a contract, we cito Badcliffe v. Warrington, 12 Vesey, 325; Hearne v. Tenant, 13 Vesey, 287.
The bill avers, that the plaintiff made the cash payment and two thirds of the amount, for which credit was given, and that the defendant paid the other third. Holding as he did for security, will equity seize upon this, and subject the plaintiff as a penalty to the forfeiture of the whole farm ? If so, it is a misnomer to call it equity.
Equity undoubtedly requires, that upon payment or tender of what the defendant paid, he should convey the land to the plaintiff, or to his wife, his appointee. But if the defendant paid at the time from the plaintiff’s funds, this was equivalent to a payment by the plaintiff’s hand, and was in fact a literal performance of the condition, or the same thing. If the defendant paid from the plaintiff’s funds, he paid as his agent. It was the plaintiff’s payment. In this view of the facts, as *278the purchase money came from the plaintiff’s funds, and as the trust for the wife was of his appointment, if the plaintiff failed to perform in that mode, cannot the plaintiff base upon this failure, in connexion with the other facts, a claim to have the land conveyed to him, the defendant being secured and indemnified, never having in fact paid any thing from his own funds.
But if the trust appointed in favor of the wife is, notwithstanding the plaintiff furnished the funds, irrevocable, and the defendant liable under the instrument executed by him in December, 1831, if the court in that case are of opinion, that the wife should have been made a party, we trust that she may be received as such, under our motion to amend.
We apprehended, however, that upon the facts before referred to, the bill would lie for the plaintiff alone, and we did not join the wife, as it might turn out upon the proof, that the trust established might be one, which would not enure to her benefit.
. Assuming that the instrument of the fifth of December had lost its efficacy, and could not be enforced as a declaration of trust, because the condition had not been complied with, it would still be true upon the whole matter, that the defendant held the Barrows farm only as security. The lease set forth in the bill, was merely ancillary to the legal title, and does not change the nature of the trust, nor invalidate the fact, that the defendant held the farm, merely to secure him from loss, for liabilities he may have assumed for the plaintiff. And if written evidence of the trust thence arising was necessary, it is not wanting in this case.
It is not necessary, that a trust should be created in writing. It is sufficient, if proved under the hand of the party to be charged. Foster v. Hale, 3 Ves. 696; Movan v. Hays, 1 Johns. Ch. R. 342; Steere v. Steere, 5 Johns. Ch. R. 1. The precedent matter, showing that the defendant held the Barrows farm only as security, being confessed by the demurrer, no question is raised as to the competency of the proof. But if evidence in writing were necessary, it is supplied by the defendant’s letter of the third of October, 1841. Indeed, with*279out the precedent matter, it is deducible from that letter, that he held that farm as security.
He expresses his willingness to convey the farm to the plaintiff, or to any appointee he might name, upon being cleared of the liabilities, he had assumed for the plaintiff, if the adjustment could be made in any reasonable time. This was in truth all we ever desired ; all we now desire. The demurrer admits, that we repeatedly offered to make this adjustment. It further admits, that there was at that time, had been long before, and up to the time of filing the bill, a balance of the plaintiff’s funds in the defendant’s hands, more than sufficient to clear his liabilities.
If the precedent matter admitted by the demurrer, the letter of October, and the admission by the demurrer, that he had a balance to clear his liabilities, and that we have pressed an adjustment, as proposed by the letter, does not make out a case for the plaintiff, it is difficult to conceive what would.
Wells, for the defendant, in reply, said, among other things, that the plaintiff admits in his bill, that he utterly failed to conform to the agreement of December 5; and he failed substantially and entirely. It was not a mere short coming in point of time, but a thorough and radical omission to fulfil on his, or his wife’s, part, the contract. But time is of the essence of contracts, and cannot be limited or extended to suit the views of any party to a contract. It would be a “ misnomer to call it equity,” if courts exercising equity jurisdiction, should make contracts for the parties.