FisHj.J.
1. As will readily be.perceived from the facts set forth in the official report, the agreement sought to be enforced by the plaintiff was one clearly falling within the statute of frauds. Civil Code, § 2693.
2. The mere fact that, relying upon this agreement, he abandoned pending negotiations between' himself and the Georgia Loan & Trust-Company touching a sale to him by that company of the land in question, will not justify a holding that when Bass, in pursuance of his understanding with Lyons, subsequently became the. purchaser, a resulting trust immediately arose in favor of the latter. Roughton v. Rawlings, 88 Ga. 819. As we shall presently endeavor to shovn^ Lyons parted with nothing save a bare privilege, not exclusive but which he enjoyed in common with all other persons [577]*577who might wish to negotiate with the company, of becoming a purchaser from it on terms to it satisfactory. '
3. Nor is there any merit in the suggestion of counsel that* “if Bass intended to deceive Lyons and get him out of the way by appearing to act for him, this would raise an implied trust in Lyons’s favor and compel the execution of a deed by Bass.” In this connection, attention is called to section 3159 of the Civil Code, and to the cases of Adams v. Jones, 39 Ga. 479; Rives v. Lawrence, 41 Ga. 283, and Johnson v. Giles, 69 Ga. 652. Clearly, however, none of the definitions of implied trusts given in the section of the code cited can properly be said to comprehend a case such as the present; nor are the previous adjudications of this court to which reference is made at all pertinent, upon their peculiar facts, to the case before us. In no sense did Bass undertake to act as the agent of Lyons and buy for him the tract of land purchased from the Georgia Loan & Trust Company. The understanding was, on the contrary, that Bass should act for himself alone in making the purchase, furnish all the money, and take title in his own name to the entire tract. Lyons desired only a part of the tract, and Bass merely gave his oral promise that if he purchased the entire tract he would sell this part to Lyons whenever the latter, within- a period of five years, tendered payment of an agreed price therefor. Save that Bass subsequently refused to comply with this parol promise, he neither did, nor omitted to do, a single thing in disregard of the understanding between himself and Lyons. Accordingly, the only fraud involved in the case is such moral fraud as necessarily attends every instance where one' declines to carry out a contract not legally binding upon him because within the operation of the statute.
4. Counsel for the plaintiff further very earnestly insisted, however, that there had been such part performance on his part of the parol agreement upon which he relied as to take the present case clearly outside of the statute of frauds. We analyze the evidence introduced in support of this contention as follows: Lyons was unable to pay his debt to the Georgia Loan & Trust Company, and, upon its promise to allow him [578]*578to purchase a portion of the land pledged as security, agreed that it be brought to sale. The company had a right to sell the land independently of his consent, and its promise to him was without consideration, and although, it seems, its manager stood ready in good faith to carry out this promise, the same was incapable of legal enforcement, for the additional reason that it came within the statute of frauds. Lyons had a parol understanding with other parties, whereby they agreed to buy for themselves portions of the land he did not desire to purchase, but, for a like reason, they were not bound to do so. Agreements of this character are not, in legal contemplation, of any value, and can not be assigned. . Therefore, when Lyons gave up his intention of carrying into effect the arrangement whereby he and the other parties last referred to were to jointly buy from the company the entire tract, he parted with nothing but his naked right to compete with Bass and all other persons in negotiating for a purchase of either the whole or only a portion of the land, in which Lyons could no longer claim any interest whatever, as it then belonged absolutely to the company. He went with Bass to its manager and told the latter he would not, in view of the agreement made with Bass, any longer hold it to its promise; but no legal right was thereby relinquished by Lyons, and bis consent to a sale by the company to Bass had no significance or effect other than to relieve the company of a purely, moral obligation, as has been seen. Lyons yielded up to Bass possession of the premises, and, as a consequence, the latter enjoyed the rents accruing therefrom for, and since, the year 1896. Yet, as Lyons was at the time a mere tenant at sufferance of the company, and the enjoyment of rents is a necessary incident to ownership, we fail to perceive how the circumstances just detailed can in any sense be regarded as part performance by him of the parol agreement he seeks to have enforced. As matter of fact, so far as the record before us discloses, the only performance on his part contemplated by this agreement was tender of the agreed purchase-price of the land which Bass promised to sell; and though such tender was made within the time limited, he positively declined to accept any portion of the [579]*579purchase-money. “ Mere non-action is not performance, either partial or complete, and will not, therefore, take a parol contract out of the statute of frauds.” Augusta Southern R. Co. v. Smith & Kilby Co., 106 Ga. 864. This statement of a well-known principle applies with peculiar force to the facts of the case at bar.
A brief review of the several decisions of this court cited and relied on by the plaintiff as authority for his position will suffice to show that they have little or no bearing upon the question here presented. In Morgan v. Battle, 95 Ga. 663, there was full performance on the part of the complaining party; and in Fontaine v. Baxley, 90 Ga. 416, and Coleman v. Easterling, 93 Ga. 29, partial performance was clearly and unequivocally established. The contract relied on in Perry v. Paschal, 103 Ga. 134, was in writing, and the only question raised was whether or not it rested upon a sufficient consideration. This comment may, perhaps, also apply to the case of Mathews v. Starr, 68 Ga. 521; for it does not appear that the contract was not in writing, and the only question passed upon was as to the sufficiency and legality of the consideration. But even if the agreement there upheld was one in parol, that case, upon its facts, is distinguishable from the case with which we are now called upon to deal; for it appeared that Starr was the owner of property about to be sold by the sheriff, and, in pursuance of an agreement whereby Mathews was to become the purchaser without competition in bidding on the part of Starr, the latter yielded up his substantial right of either making arrangements to pay off the fi. fa. under which the property was brought to sale, or attending the sale and bidding on the property with a view to making it bring its full value.
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FisHj.J.
1. As will readily be.perceived from the facts set forth in the official report, the agreement sought to be enforced by the plaintiff was one clearly falling within the statute of frauds. Civil Code, § 2693.
2. The mere fact that, relying upon this agreement, he abandoned pending negotiations between' himself and the Georgia Loan & Trust-Company touching a sale to him by that company of the land in question, will not justify a holding that when Bass, in pursuance of his understanding with Lyons, subsequently became the. purchaser, a resulting trust immediately arose in favor of the latter. Roughton v. Rawlings, 88 Ga. 819. As we shall presently endeavor to shovn^ Lyons parted with nothing save a bare privilege, not exclusive but which he enjoyed in common with all other persons [577]*577who might wish to negotiate with the company, of becoming a purchaser from it on terms to it satisfactory. '
3. Nor is there any merit in the suggestion of counsel that* “if Bass intended to deceive Lyons and get him out of the way by appearing to act for him, this would raise an implied trust in Lyons’s favor and compel the execution of a deed by Bass.” In this connection, attention is called to section 3159 of the Civil Code, and to the cases of Adams v. Jones, 39 Ga. 479; Rives v. Lawrence, 41 Ga. 283, and Johnson v. Giles, 69 Ga. 652. Clearly, however, none of the definitions of implied trusts given in the section of the code cited can properly be said to comprehend a case such as the present; nor are the previous adjudications of this court to which reference is made at all pertinent, upon their peculiar facts, to the case before us. In no sense did Bass undertake to act as the agent of Lyons and buy for him the tract of land purchased from the Georgia Loan & Trust Company. The understanding was, on the contrary, that Bass should act for himself alone in making the purchase, furnish all the money, and take title in his own name to the entire tract. Lyons desired only a part of the tract, and Bass merely gave his oral promise that if he purchased the entire tract he would sell this part to Lyons whenever the latter, within- a period of five years, tendered payment of an agreed price therefor. Save that Bass subsequently refused to comply with this parol promise, he neither did, nor omitted to do, a single thing in disregard of the understanding between himself and Lyons. Accordingly, the only fraud involved in the case is such moral fraud as necessarily attends every instance where one' declines to carry out a contract not legally binding upon him because within the operation of the statute.
4. Counsel for the plaintiff further very earnestly insisted, however, that there had been such part performance on his part of the parol agreement upon which he relied as to take the present case clearly outside of the statute of frauds. We analyze the evidence introduced in support of this contention as follows: Lyons was unable to pay his debt to the Georgia Loan & Trust Company, and, upon its promise to allow him [578]*578to purchase a portion of the land pledged as security, agreed that it be brought to sale. The company had a right to sell the land independently of his consent, and its promise to him was without consideration, and although, it seems, its manager stood ready in good faith to carry out this promise, the same was incapable of legal enforcement, for the additional reason that it came within the statute of frauds. Lyons had a parol understanding with other parties, whereby they agreed to buy for themselves portions of the land he did not desire to purchase, but, for a like reason, they were not bound to do so. Agreements of this character are not, in legal contemplation, of any value, and can not be assigned. . Therefore, when Lyons gave up his intention of carrying into effect the arrangement whereby he and the other parties last referred to were to jointly buy from the company the entire tract, he parted with nothing but his naked right to compete with Bass and all other persons in negotiating for a purchase of either the whole or only a portion of the land, in which Lyons could no longer claim any interest whatever, as it then belonged absolutely to the company. He went with Bass to its manager and told the latter he would not, in view of the agreement made with Bass, any longer hold it to its promise; but no legal right was thereby relinquished by Lyons, and bis consent to a sale by the company to Bass had no significance or effect other than to relieve the company of a purely, moral obligation, as has been seen. Lyons yielded up to Bass possession of the premises, and, as a consequence, the latter enjoyed the rents accruing therefrom for, and since, the year 1896. Yet, as Lyons was at the time a mere tenant at sufferance of the company, and the enjoyment of rents is a necessary incident to ownership, we fail to perceive how the circumstances just detailed can in any sense be regarded as part performance by him of the parol agreement he seeks to have enforced. As matter of fact, so far as the record before us discloses, the only performance on his part contemplated by this agreement was tender of the agreed purchase-price of the land which Bass promised to sell; and though such tender was made within the time limited, he positively declined to accept any portion of the [579]*579purchase-money. “ Mere non-action is not performance, either partial or complete, and will not, therefore, take a parol contract out of the statute of frauds.” Augusta Southern R. Co. v. Smith & Kilby Co., 106 Ga. 864. This statement of a well-known principle applies with peculiar force to the facts of the case at bar.
A brief review of the several decisions of this court cited and relied on by the plaintiff as authority for his position will suffice to show that they have little or no bearing upon the question here presented. In Morgan v. Battle, 95 Ga. 663, there was full performance on the part of the complaining party; and in Fontaine v. Baxley, 90 Ga. 416, and Coleman v. Easterling, 93 Ga. 29, partial performance was clearly and unequivocally established. The contract relied on in Perry v. Paschal, 103 Ga. 134, was in writing, and the only question raised was whether or not it rested upon a sufficient consideration. This comment may, perhaps, also apply to the case of Mathews v. Starr, 68 Ga. 521; for it does not appear that the contract was not in writing, and the only question passed upon was as to the sufficiency and legality of the consideration. But even if the agreement there upheld was one in parol, that case, upon its facts, is distinguishable from the case with which we are now called upon to deal; for it appeared that Starr was the owner of property about to be sold by the sheriff, and, in pursuance of an agreement whereby Mathews was to become the purchaser without competition in bidding on the part of Starr, the latter yielded up his substantial right of either making arrangements to pay off the fi. fa. under which the property was brought to sale, or attending the sale and bidding on the property with a view to making it bring its full value. At any rate, the statute of frauds was not even incidentally alluded to, and, this being true, the decision announced in that case not only does not control, but is really not even pertinent to, the question now in hand. Upon its facts, the case of Kerr v. Hammond, 97 Ga. 567, is quite similar to the one at bar. The circumstance should not be overlooked, however, that it appears from the opinion of Chief Justice Simmons (page 569) that: “At the conclusion of the [580]*580plaintiff’s evidence, the trial judge, on motion of the defendant, granted a nonsuit on the ground that there was no continuing tender and no payment into court of the plaintiff’s part of the purchase-money.” This court ruled, merely, that under the circumstances disclosed by the evidence, the plaintiff should not, for the reason urged' by defendant’s counsel and assigned by the trial judge, have been nonsuited. No other question was raised or passed upon, either in the court-below or in this court. A casual reading of the opinion delivered by the Chief Justice will disclose that he confined his-discussion strictly to the single point made, and carefully refrained from even intimating how the court viewed the evidence bearing upon other questions which might have been,, but were not, presented for adjudication.
5. Aside from the judgment of nonsuit rendered in the-present case, the only ruling complained of was the refusal of the trial judge to allow the plaintiff to introduce “in evidence a paper, of date July 15, 1896, from C. C. Bass to the Georgia Loan and Trust Company, in which said Bass disclaimed, as against the said company, all right he might have to claim-possession of the Lyons land from said company.” Obviously, the evidence offered was totally irrelevant to any issue in the. case, and further discussion in regard thereto would be wholly unprofitable.
Judgment affirmed.
All the Justices concurring.