Arnold v. Trice , 39 Ga. 511 ( 1869 )

McCay, J.

The proof in this record is strong that there was a contract between the complainant and defendant in the bill for the sale of the land in dispute. Indeed, that point is beyond a doubt. But it is admitted by the bill itself that the contract was not in writing, and the point in the case, even as set up in the bill, is, that there was such a part performance of the parol contract as takes the case out of the Statute of Frauds, and as brings it within that class of cases where a Court of Equity, for the purpose of preventing a fraud, will enforce the contract, even though it fails to come up to the requirements of the statute.

It is charged in the bill that there was, a complete performance of the contract on both sides, except as to the single act of making a deed by Arnold to Trice for the land, that Trice delivered the consideration, and went into possession, and that nothing was left to be done except making the deed. Is this made out by the proof? That, independently of the question of jurisdiction and adequacy of consideration, is an essential point in the case. Indeed, however strong the proof of the contract may be, the complainant must fail unless he proves the part performance, since the contract itself is of no avail, because, as admitted by the bill, it was not in writing; The complainant was himself a witness, and sustained, by his evidence, the charges in the bill, and the defendant, by his answer, denied them in almost every particular. By the established rule in equity the answer is worth more than the evidence of one witness, and will, as to any fact, outweigh one witness. There must be other evidence equal to a witness. Was there in this case, on the necessary facts to be proven, to-wit: on the question of part performance, the delivery of the negro, and the taking possession under the contract, such evidence as, under the rule we have alluded to, overcame the answer? There is but one other witness on these points, to-wit: Brake. All the other witnesses confine themselves to the contract. They only testify that they heard Arnold say he had sold Trice his land for the negro, or a negro. Brake, the only other witness, and the only one who testifies a word about the possession, says, when he returned from the war he found his wife in possession. He does not say who put her in. He adds, that he lived on the place in 1865, 1866 and 1867; that he considered himself Trice’s tenant during this time, but on a dispute arising, he agreed with Arnold to hold under him. This is all, except what Trice himself says, and which the answer denies in toto.

It is admitted by both parties that the negro was hired to Arnold at the time of the contract, that no written conveyance of the title to the negro was ever made. The contract is charged in the bill to have been made on the 19th of October, 1864, while the negro was in Arnold’s possession, working for Arnold by the day, but lodging at Trice’s, his owner; and that in November, 1864, about a month after the contract, he went off with Sherman’s army, as it passed through the country, and has since been emancipated. So much as to the delivery of the negro, affirmed on one side, denied positively by the other, and no proof whatever from any other source on the subject. So as to the delivery of the possession of the land. Trice swears positively that he put Brake in possession as his tenant. This the answer positively denies, and says that Trice asked his permission to let Mrs. Brake, whose husband was away in the war, reside in the house, and that he did this as a mere favor to her. Brake himself says, that when he returned, he found his wife in possession. I do not think this proof overcomes the answer; Outside of the one witness, the complainant, there is absolutely no evidence of the transfer of even the possession of the negro; and as to the possession of the land, there is no evidence of that, except the complainant’s testimony, directly contradicted by the answer; and Brake’s testimony is perfectly consistent with the statement of either. As to who Brake at first considered himself the tenant of, it will hardly be contended that his thoughts, derived, perhaps, from Trice’s own statements to him, are evidence.

The verdict of the jury is, therefore, in my judgment, contrary to law, because it allows the unsupported testimony of one witness, and that the complainant in the bill, to overcome the answer of the defendant, on the very turning point of the whole case, made in direct response to the charges in the bill.

1. But a Court of Equity will never decree a specific performance of a parol contract for land when the consideration of the contract is inadequate. The Statute of Frauds requires a contract for the sale of real estate to be in writing. At law the contract can not be enforced, it is void, contrary to law. But a Court of Equity will not allow gross injustice and fraud, even though to prevent it, it must set up a contract in the teeth of the statute. The whole jurisdiction of a Court of Equity to interpose, turns not upon the contract, but upon the fact that the parties have so altered their condition by the trust which the buyer has reposed in the seller, that it would be a gross fraud to set up the statute, and this can never be the case when the consideration is grossly inadequate. What is the case here ? Two hundred acres of land are sold in October, 1864, for a negro fellow, within a month before Sherman swept as a besom of destruction through the State, after the fall of Atlanta, when a negro fellow was not, in any portion of the State, worth fifty dollars in gold. It is as strong a case of inadequate consideration as I have met with. The consent of the parties does

not mend the matter. It will be no fraud on Trice to let the parties stay as they are. He is not so injured, by his trust in Arnold, as to call upon the Courts, in their horror of fraud, to override that express statute which requires contracts in relation to land to be in writing. One cannot but feel that the wrong is on the other side, and if Trice should recover at all, it is because of his right to have the express terms of his contract enforced. As we have seen, this is not the ground of the power assumed by a Court of Equity to grant relief in such cases. The contract is not what that Court goes upon. It is the fact that the contract has been used by the defendant as an instrument of fraud. Our Code, section 3134, says that mere inadequacy of price is sufficient to justify a refusal to decree specific performance, or any other fact showing the contract to be unjust, unfair, or against good conscience. In my judgment this is such a case. No negro, in the judgment of any man of ordinary sense, in the exercise of his wits, was worth in October, 1864, any thing like the value of this land, and the consideration is not only inadequate, but outrageously so.

2. But this is an attempt to “ enforce a contract, the consideration of which is a slave/7 Has it any other ? Does not the claim of Trice all turn on his allegation that he sold to the defendant his slave? Is not that the price, the value, the transfer of the slave, the whole consideration of the contract set up ? We think it is, and for the reasons given in Shorter vs. Cobb, at this term, we hold that the Court had no jurisdiction to enforce it.

Judgment reversed.