The opinion of the court was delivered by
Mr. Justice McGowan.
This was an action, in the nature of a bill in equity, to set aside the conveyance of a certain tract of land, alleged to be fraudulent, and to enforce a. parol agreement as to the same. The defence denied the existence of the alleged parol agreement, and interposed the statute of frauds to exclude all evidence of such agreement. The case came on to be heard by Judge Aldrich, who admitted the testimony, the sub-stance of which is fully stated in the decree of the judge, with an abstract of the testimony of the different witnesses. It will therefore be unnecessary to restate the testimony, or to do more than give such a general outline of it as to show its character and make the points intelligible. [Here follows a statement of the testimony of Mims and Goodman as given in the Circuit, decree.] There was other testimony, but none, as we think, very materially changing the substance of this statement.
The Circuit judge decreed that the conveyance of the land from D. W. Chandler to his brother, Duncan, should be set aside as fraudulent; that D. W. Chandler should execute the trust assumed by him to convey the land to Mims, and that the master should make title to the said Mims, on his paying the balance of the purchase money, viz., $296.76, with interest thereon from-February 16, 1883, the costs to be paid out of the money thus to be paid; and the following was added: “As D. W. Chandler [490]*490says the land Avas purchased for the benefit of his aunt, Mrs. Mims, and her children, and that his brother is now ready to carry out that arrangement, it is finally ordered that the master may make title to Mrs. Mims on such terms and conditions as may be agreeable to her husband, Timothy Mims, the plaintiff in this action.”
The defendants appeal to this court upon the following grounds :
1. “Because the agreement alleged in this case could not be proved by parol.
2. “Because his honor erred in holding that the alleged agreement Avas not within the statute of frauds.
3. “Because the receipt for ‘$285 to be placed on land papers’ is not such a memorandum as the statute requires.
4. “Because Mims had been in possession under Chandler’s grantor, and the retention by him of a - pre-existing possession does not take the case out of the statute.
'5. “Because the payment of a pai-t, or even the Avhole, of the purchase money is not sufficient to take the case out of the statute.
6. “Because the circumstances as proved do not satisfy the statute.
7. “Because his honor erred in holding that the payments made by Mims should be credited upon the alleged account for the purchase of the land and not upon his account for merchandise sold to him by Chandler.
8. “Because if an agreement for the sale of the land ever existed betAveen the parties, Mims released all his rights thereunder before the conveyance of said land to T. Duncan Chandler was executed.
9. “Because his honor erred in holding that the plaintiff Avas not estopped from setting up the alleged agreement against T. Duncan Chandler.
10. “Because, under the circumstances as proved, T. Duncan Chandler has at least the right to be reimbursed the amount paid by him for the land.
11. “Because his honor erred in his conclusions of fact and of law.”
We incline to think that the second vieAV of the Circuit judge was the correct one; that the facts made out a case of trust [491]*491resulting to Mims, -which, was susceptible of proof by parol. Billings v. Clinton, 6 S. C., 102. Mims made the contract of purchase from Frierson, not from Chandler — who did not appear in the business at all until the purchase money ivas to be paid. It is true that he then delivered the money to Frierson — not as a purchaser for himself, but for Mims, who furnished $285 of the money so paid. This payment, through Chandler, raised a resulting trust in favor of Mims, certainly to the extent of the payment, if it did not give color and character to the whole transaction. It Avas clearly proved that actual payment of a definite proportion of the purchase money Avas made by Mims, the cestui que trust, at the time of the purchase. Ex parte Trenholm, 19 S. C., 127.
But as Mims did not pay in cash the remainder of the purchase money ($415), which was advanced for him by Chandler Avhen he took the title, Ave will assume that Chandler really occupied the relation of vendor to Mims, and we think that, even upon that assumption, the result must be the same. The statute of frauds, embodied in section 2019 of the general statutes, does provide “that no action shall be brought upon any contract or sale of lands, tenements, or hereditaments, or any right in or concerning them * * * unless the agreement upon Avhich such action shall be brought, or some memorandum or note thereof, shall be in writing, signed by the parties to be charged therewith,” &c. The agreement sought to be enforced by the plaintiff — -that Chandler held the legal title of the land only as a security for the purchase money advanced by him — Avas not in Avriting. At the time Chandler took the title, he gave to Mims a receipt in Avriting for $285, “to be placed on land papers,” and we have no doubt that receipt had reference to .the land in question, and was an acknowledgment of part payment of the purchase money. We do not, however, think that the receipt expressed the agreement alleged to exist, or was such “a memorandum thereof” as the statute requires. It did not contain the particulars of the agreement in such definite and unambiguous terms, as has been held to be necessary under the statute. Church of Advent v. Farrow, 7 Rich. Eq., 378.
- But while the receipt was not such a memorandum of the [492]*492agreement as to take it out of the statute, it is well settled that “the Court of Equity will enforce specific performance of a contract within the statute when the parol agreement has been partly carried into execution. The distinct ground upon which Courts of Equity interpose in cases of this sort is that otherwise one party would be enabled to practise a fraud upon the other.” 2 Story Eq., § 759; 2 Pom. Eq. Jur., 423. Was there such part performance in this case as to take it out of the statute ? We think there was. The Circuit judge found that the payment by Mims of the $285 at the time the arrangement was made, for which a receipt was given, stating that it was “to be placed on land papers,” was in part payment of the purchase money, and’ in this finding we concur. That payment could not (as claimed by Chandler) have been a payment for the rent due Frierson, for the pr-ice of the land ($1,200) had absorbed and extinguished the rent to Frierson as su'ch. Nor could it have been for rent due to Chandler himself, for there is not an intimation in the case that at that time Mims owed Chandler any rent.
This and the other payments to Chandler, indicated by the receipts “on account,” were payments on the land purchase as directed by Mims; but, according to the authorities, these payments on the purchase were not alone sufficient to take the case out of the statute. It seems that the payment of the whole purchase money would not of itself suffice for that purpose, but it is a circumstance which, in connection with others, may be considered. Smith v. Smith, 1 Rich. Eq., 130. According to.
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The opinion of the court was delivered by
Mr. Justice McGowan.
This was an action, in the nature of a bill in equity, to set aside the conveyance of a certain tract of land, alleged to be fraudulent, and to enforce a. parol agreement as to the same. The defence denied the existence of the alleged parol agreement, and interposed the statute of frauds to exclude all evidence of such agreement. The case came on to be heard by Judge Aldrich, who admitted the testimony, the sub-stance of which is fully stated in the decree of the judge, with an abstract of the testimony of the different witnesses. It will therefore be unnecessary to restate the testimony, or to do more than give such a general outline of it as to show its character and make the points intelligible. [Here follows a statement of the testimony of Mims and Goodman as given in the Circuit, decree.] There was other testimony, but none, as we think, very materially changing the substance of this statement.
The Circuit judge decreed that the conveyance of the land from D. W. Chandler to his brother, Duncan, should be set aside as fraudulent; that D. W. Chandler should execute the trust assumed by him to convey the land to Mims, and that the master should make title to the said Mims, on his paying the balance of the purchase money, viz., $296.76, with interest thereon from-February 16, 1883, the costs to be paid out of the money thus to be paid; and the following was added: “As D. W. Chandler [490]*490says the land Avas purchased for the benefit of his aunt, Mrs. Mims, and her children, and that his brother is now ready to carry out that arrangement, it is finally ordered that the master may make title to Mrs. Mims on such terms and conditions as may be agreeable to her husband, Timothy Mims, the plaintiff in this action.”
The defendants appeal to this court upon the following grounds :
1. “Because the agreement alleged in this case could not be proved by parol.
2. “Because his honor erred in holding that the alleged agreement Avas not within the statute of frauds.
3. “Because the receipt for ‘$285 to be placed on land papers’ is not such a memorandum as the statute requires.
4. “Because Mims had been in possession under Chandler’s grantor, and the retention by him of a - pre-existing possession does not take the case out of the statute.
'5. “Because the payment of a pai-t, or even the Avhole, of the purchase money is not sufficient to take the case out of the statute.
6. “Because the circumstances as proved do not satisfy the statute.
7. “Because his honor erred in holding that the payments made by Mims should be credited upon the alleged account for the purchase of the land and not upon his account for merchandise sold to him by Chandler.
8. “Because if an agreement for the sale of the land ever existed betAveen the parties, Mims released all his rights thereunder before the conveyance of said land to T. Duncan Chandler was executed.
9. “Because his honor erred in holding that the plaintiff Avas not estopped from setting up the alleged agreement against T. Duncan Chandler.
10. “Because, under the circumstances as proved, T. Duncan Chandler has at least the right to be reimbursed the amount paid by him for the land.
11. “Because his honor erred in his conclusions of fact and of law.”
We incline to think that the second vieAV of the Circuit judge was the correct one; that the facts made out a case of trust [491]*491resulting to Mims, -which, was susceptible of proof by parol. Billings v. Clinton, 6 S. C., 102. Mims made the contract of purchase from Frierson, not from Chandler — who did not appear in the business at all until the purchase money ivas to be paid. It is true that he then delivered the money to Frierson — not as a purchaser for himself, but for Mims, who furnished $285 of the money so paid. This payment, through Chandler, raised a resulting trust in favor of Mims, certainly to the extent of the payment, if it did not give color and character to the whole transaction. It Avas clearly proved that actual payment of a definite proportion of the purchase money Avas made by Mims, the cestui que trust, at the time of the purchase. Ex parte Trenholm, 19 S. C., 127.
But as Mims did not pay in cash the remainder of the purchase money ($415), which was advanced for him by Chandler Avhen he took the title, Ave will assume that Chandler really occupied the relation of vendor to Mims, and we think that, even upon that assumption, the result must be the same. The statute of frauds, embodied in section 2019 of the general statutes, does provide “that no action shall be brought upon any contract or sale of lands, tenements, or hereditaments, or any right in or concerning them * * * unless the agreement upon Avhich such action shall be brought, or some memorandum or note thereof, shall be in writing, signed by the parties to be charged therewith,” &c. The agreement sought to be enforced by the plaintiff — -that Chandler held the legal title of the land only as a security for the purchase money advanced by him — Avas not in Avriting. At the time Chandler took the title, he gave to Mims a receipt in Avriting for $285, “to be placed on land papers,” and we have no doubt that receipt had reference to .the land in question, and was an acknowledgment of part payment of the purchase money. We do not, however, think that the receipt expressed the agreement alleged to exist, or was such “a memorandum thereof” as the statute requires. It did not contain the particulars of the agreement in such definite and unambiguous terms, as has been held to be necessary under the statute. Church of Advent v. Farrow, 7 Rich. Eq., 378.
- But while the receipt was not such a memorandum of the [492]*492agreement as to take it out of the statute, it is well settled that “the Court of Equity will enforce specific performance of a contract within the statute when the parol agreement has been partly carried into execution. The distinct ground upon which Courts of Equity interpose in cases of this sort is that otherwise one party would be enabled to practise a fraud upon the other.” 2 Story Eq., § 759; 2 Pom. Eq. Jur., 423. Was there such part performance in this case as to take it out of the statute ? We think there was. The Circuit judge found that the payment by Mims of the $285 at the time the arrangement was made, for which a receipt was given, stating that it was “to be placed on land papers,” was in part payment of the purchase money, and’ in this finding we concur. That payment could not (as claimed by Chandler) have been a payment for the rent due Frierson, for the pr-ice of the land ($1,200) had absorbed and extinguished the rent to Frierson as su'ch. Nor could it have been for rent due to Chandler himself, for there is not an intimation in the case that at that time Mims owed Chandler any rent.
This and the other payments to Chandler, indicated by the receipts “on account,” were payments on the land purchase as directed by Mims; but, according to the authorities, these payments on the purchase were not alone sufficient to take the case out of the statute. It seems that the payment of the whole purchase money would not of itself suffice for that purpose, but it is a circumstance which, in connection with others, may be considered. Smith v. Smith, 1 Rich. Eq., 130. According to. the authorities, it seems that putting the purchaser into possession is to be considered as stronger evidence of part performance than mere payment of the purchase money, for the reason that such act would be a fraud upon the purchaser unless the agreement should be fully performed. “Especially will it be held to do so when the party let into the possession has expended money in building, or repairs, or other improvements ; for under such circumstances, if the parol contract were to-be deemed a nullity, he would be liable to be treated as a trespasser; and the expenditure would not only operate to his prejudice, but be the direct result of a fraud practised upon-him.” 2 Story Eq., § 763.
To have such effect, of course the possession must not be ob-[493]*493tamed wrongfully or independent of the agreement, but by virtue of it and held under it. In this ease it was contended that the possession of Mims, being obtained originally as the tenant of Frierson, and Mims never having gone out as tenant and reentered as purchaser, must still be considered as possession under Frierson; that his possession from December, 1880, when the purchase was made, until December, 1881, when the action was brought, continued to be his old possession of tenant, and not a new possession as purchaser. We cannot adopt this view, which is contradicted' by every fact in the case, as well as by the declarations of Chandler himself. “If the possession may be referred to an independent title, e. g., where it is held under a preexisting tenancy, the same principle does not apply, unless the parties so conduct themselves as to show that they are acting under the contract,” &c. Adams JEq., 212.
The Circuit judge found as matter of fact, and We concur with him, that on December 21, 1880, Mims ceased to be the tenant of Frierson, and was let into a new possession as purchaser. Up to that time, as tenant of Frierson, he was in possession of the whole land; afterwards he was only in possession of the parcel (sixty-five acres) purchased by him. On the day indicated, Frierson conveyed all his interest in the land, and of course Mims’s tenancy to him then ceased, and there is no evidence that on that occasion, or any other, he took a new lease from Chandler or any one else. On the contrary, he then commenced a new possession of the parcel purchased by him, in accordance with the direction of Chandler himself, who said, “I can’t draw your papers, it is late now, but I will have them fixed up by Dr. Mayes and send them to you. Gro home, go to work, and make yourself easy.”
He was in this possession as purchaser for a year at least, and during that time made improvements on the land without dissent or warning. It is true the improvements were not extensive. It may be considered a small matter to clear, drain, and ditch ten acres of land, but it is not probable that as mere tenant he would have done so much, and the improvements do not seem to be out of proportion to the means of the parties. This possession by the direction of Chandler, with the improvements made, consid[494]*494ered in connection with the other circumstances, and particularly the payments on the purchase money, were sufficient to take the case out of the statute, and the parol proof established the contract alleged by the plaintiff. We agree with the Circuit judge that the plaintiff is entitled to have the land conveyed to him upon the payment of the balance due on the advances made by Chandler -with interest.
' But we do not concur in so much of the decree as authorized the master to make the title to Mrs. Mims. At the time of the agreement nothing was said about conveying the land to Mrs. Mims. What was afterwards said by Chandler was ex parte and without consideration. Timothy Mims made the contract, also the payments in part, and he will be required to pay the balance due. The title should be made to Timothy Mims himself;
In reference to the deed of the land from D. W. Chandler to his brother, Duncan, the latter testified that “he does not know what the land is worth; at least $500; he bought it for that-price ; paid no money; had money in his brother’s hands, which he had lent him from time to time; that his brother agreed to take $500 for the land, what he owed him.” He said Mims did have the receipts at the gate, and he did tell him'his brother would not cheat him, &c. The deed bore date December 13, 1881, one day before the action was brought. At that time, T. Duncan Chandler knew all the facts as to the manner in which his brother held title to the land. He paid nothing for it, and we agree with the Circuit Judge that the deed should be set aside as fraudulent and void.
The judgment of this court is that the judgment of the Circuit Court be modified so that the title to the land described shall be made to Timothy Mims, and in all other respects affirmed.1