Bowte, O.- J.,
delivered the opinion of this Court.
This appeal is taken by the plaintiff below from the rejection of her prayers and the granting of those offered by the appellee. As the latter refer to the pleadings and evidence in the cause, it is necessary to state their nature and substance briefly. The narr. consisted of two counts : The first for money had and received by Thos. Devecmon in his lifetime, and payable to Thomas White in his lifetime, and by Coombs as executor since his death. The second, for money had and received by Coombs as executor of Devecmon, since his death, to and for the use of the appellant, as administrator of White. To which the defendant pleaded—
1st. That Thomas Devecmon in his lifetime never was indebted as alleged.
2d. That defendant never was indebted as alleged. On which issues were joined.
In support of the action, among other things, the plaintiff proved by a competent witness, that in the month of November, 1864, the defendant’s testator came to the house of the plaintiff’s intestate during his absence from home, and asked if he could get into Mr. White’s office, and then said that he had .sold a tract of land to Mr. O’Hern for $5,000, and that he wanted to get the papers to draw the deed; that Mrs. Devecmon further said, that her (witness’) father was interested in the matter, for he was entitled to one half of the $5,000. That afterwards witness, by her father’s directions, went to Devecmon’s office to see him about it. He then told her that $1,250 of the money would be paid the next day, and that he would deposit the half of it in the bank for her father. The plaintiff proved by M. P. O’Hern, that he bought of [499] Thomas Devecmon in the month of November, 1864, a tract of land called “Mount Atlas,” for $5,000, $1,250 of which he paid to Thomas Devecmon before his death, and gave a draft for $1,250, which was paid to Mr. Coombs, as executor, and the balance was secured by a deed of trust to Wm. Devecmon ; the title of the tract was conveyed to witness’ daughter.
The appellee, to maintain the issue on his part gave in evidence a certificate of survey of a tract of land called “Mount Atlas,” dated in May, 1864, for 47-J acres, on an escheat warrant, issued to Thomas Devecmon; a deed, dated 21st Nov., 1864, from Thomas Devecmon, to S. O’Hern for the same land; a deed of trust dated 13th Dec., 1864, from S. O’Hern to Wm. Devecmon, to secure to Thos. Devecmon certain sums therein mentioned. The appellant further proved by Wm. Devecmon that his brother Thomas, a short time before his death, gave him, the witness, certain papers from which to write several deeds: among others, the deed to Miss O’Hern; that he did not then give him the name of the tract, but Devecmon told witness that White had a half interest in the land to be conveyed by that deed. The prayers of the respective parties are founded upon this evidence.
The appellant’s first prayer affirms, that if the jury believe that Thomas Devecmon made the declarations testified to by the daughter of Thos. E. White, and that he received the sum of twelve hundred and fifty dollars from O’Hern, on account of the land, they may find for the plaintiff, for one half of the sum so received by Devecmon.
The second, that if in addition to the above facts, they find that the defendant (the appellee) after the death of Devecmon, received on account of said purchase money, the further sum of twelve hundred and fifty dollars, then they may find for the plaintiff one half of said further sum of $1,250.
The third, that if they believe from the evidence, that [500] Thomas Devecmon received the sum of $1,250 in his lifetime, and that one half thereof belonged to Thomas F. White, the plaintiff is entitled to recover one half of said sum so received by Thomas Devecmon.
The appellee’s prayers, reciting the evidence of title in the tract called “ Mount Atlas ” from the State to Thos. Devecmon, and from him to Miss O’Hern, asked the Court, to instruct the jury, that if they believed the same, “ and that part of the purchase money of said tract under said deed is sought to be recovered in this case,” then the plaintiff cannot recover.
The second, in addition to the facts stated in the first, reciting the testimony of Miss White, and of Wm. Devecmon and the receipt of the several sums by Thos. Devecmon in his lifetime, and the appellee, his executor, since his death, further instructed the jury, that the appellant could not recover'under the pleadings and evidence in the cause. The question raised by the first and second propositions of the appellant, and those of the appellee, is purely, whether the proceeds of land can be recovered in an action for money had and received, upon oral proof of the right of the plaintiff, without any note or memorandum in writing.
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Bowte, O.- J.,
delivered the opinion of this Court.
This appeal is taken by the plaintiff below from the rejection of her prayers and the granting of those offered by the appellee. As the latter refer to the pleadings and evidence in the cause, it is necessary to state their nature and substance briefly. The narr. consisted of two counts : The first for money had and received by Thos. Devecmon in his lifetime, and payable to Thomas White in his lifetime, and by Coombs as executor since his death. The second, for money had and received by Coombs as executor of Devecmon, since his death, to and for the use of the appellant, as administrator of White. To which the defendant pleaded—
1st. That Thomas Devecmon in his lifetime never was indebted as alleged.
2d. That defendant never was indebted as alleged. On which issues were joined.
In support of the action, among other things, the plaintiff proved by a competent witness, that in the month of November, 1864, the defendant’s testator came to the house of the plaintiff’s intestate during his absence from home, and asked if he could get into Mr. White’s office, and then said that he had .sold a tract of land to Mr. O’Hern for $5,000, and that he wanted to get the papers to draw the deed; that Mrs. Devecmon further said, that her (witness’) father was interested in the matter, for he was entitled to one half of the $5,000. That afterwards witness, by her father’s directions, went to Devecmon’s office to see him about it. He then told her that $1,250 of the money would be paid the next day, and that he would deposit the half of it in the bank for her father. The plaintiff proved by M. P. O’Hern, that he bought of [499] Thomas Devecmon in the month of November, 1864, a tract of land called “Mount Atlas,” for $5,000, $1,250 of which he paid to Thomas Devecmon before his death, and gave a draft for $1,250, which was paid to Mr. Coombs, as executor, and the balance was secured by a deed of trust to Wm. Devecmon ; the title of the tract was conveyed to witness’ daughter.
The appellee, to maintain the issue on his part gave in evidence a certificate of survey of a tract of land called “Mount Atlas,” dated in May, 1864, for 47-J acres, on an escheat warrant, issued to Thomas Devecmon; a deed, dated 21st Nov., 1864, from Thomas Devecmon, to S. O’Hern for the same land; a deed of trust dated 13th Dec., 1864, from S. O’Hern to Wm. Devecmon, to secure to Thos. Devecmon certain sums therein mentioned. The appellant further proved by Wm. Devecmon that his brother Thomas, a short time before his death, gave him, the witness, certain papers from which to write several deeds: among others, the deed to Miss O’Hern; that he did not then give him the name of the tract, but Devecmon told witness that White had a half interest in the land to be conveyed by that deed. The prayers of the respective parties are founded upon this evidence.
The appellant’s first prayer affirms, that if the jury believe that Thomas Devecmon made the declarations testified to by the daughter of Thos. E. White, and that he received the sum of twelve hundred and fifty dollars from O’Hern, on account of the land, they may find for the plaintiff, for one half of the sum so received by Devecmon.
The second, that if in addition to the above facts, they find that the defendant (the appellee) after the death of Devecmon, received on account of said purchase money, the further sum of twelve hundred and fifty dollars, then they may find for the plaintiff one half of said further sum of $1,250.
The third, that if they believe from the evidence, that [500] Thomas Devecmon received the sum of $1,250 in his lifetime, and that one half thereof belonged to Thomas F. White, the plaintiff is entitled to recover one half of said sum so received by Thomas Devecmon.
The appellee’s prayers, reciting the evidence of title in the tract called “ Mount Atlas ” from the State to Thos. Devecmon, and from him to Miss O’Hern, asked the Court, to instruct the jury, that if they believed the same, “ and that part of the purchase money of said tract under said deed is sought to be recovered in this case,” then the plaintiff cannot recover.
The second, in addition to the facts stated in the first, reciting the testimony of Miss White, and of Wm. Devecmon and the receipt of the several sums by Thos. Devecmon in his lifetime, and the appellee, his executor, since his death, further instructed the jury, that the appellant could not recover'under the pleadings and evidence in the cause. The question raised by the first and second propositions of the appellant, and those of the appellee, is purely, whether the proceeds of land can be recovered in an action for money had and received, upon oral proof of the right of the plaintiff, without any note or memorandum in writing.
It is contended on behalf of the appellee, that it is an evasion of the Statute of Frauds, which prohibits the creation of any estate or interest in lands, except by writing, and actions on any contract or sale of lands, or any •interest in or concerning them, unless the contract is in writing, and all declarations or creations of trust, by parol. 29, Char. H., ch.3, secs. 1, 2, 3, 4, 7. It seems impossible to escape from the force of this objection. The subject matter, or consideration, for which the testator of the appellant, would in law be under an implied obligation to pay to the appellee, is proved to be the proceeds of land ; the right of action (if any) arises, then, on a contract or sale of lands, or some interest ip or concerning them. This contract is not executed, but executory. Its whole effect [501] depends upon the force to be given to the evidence offered to support it, and that rests exclusively in memory. To allow such contracts to be established without writing, would virtually abolish all the restraints designed to be imposed by the Statute. Vide 2 Greenleaf Ev., 120 ; Browne on the Statute of Frauds, 115 ; 1 Chitty’s Pleadings, 352. The third prayer of the appellant, as an abstract proposition, is entirely correct, but when connected with the facts proved in the cause, it would have been misleading the jury to have granted it. The appellee’s prayers presented the law as applicable to the evidence and pleadings. “The Statute of Frauds does not declare that the contracts embraced by it, shall be illegal or void, unless put in writing. It does not in any way affect their substance or ingredients, but simply prescribes as a rule of evidence, that in all cases, where they are sought to be enforced, oral proof of them shall not be received. An agreement, therefore, which was legal and actionable previous to the Statute, is legal since and notwithstanding the Statute, and is also, actionable or enforcible if the proof of it be such a writing as the Statute requires. In many cases the legal effect will indeed be the same as if the Statute had declared the promise or contract void. This will be the case in all instances where the promise or contract remains executory on both sides, and an action is brought to enforce it. Here, although it is not strictly correct to say that the contract is void, yet, as the same legal consequences would result from it as if it were void, it would not be erroneous for a Court to decide it to be so.” Browne on the Stat. of Frauds, sec. 115. The appellee’s prayers in effect declare, that no right of action accrues to the appellant from the evidence, which can be enforced under the pleadings in the case; these being correct in our opinion, it is unnecessary to inquire into the question of misjoinder of causes of action. The judgment below will be affirmed.
(Decided 17th July, 1868.)
Judgment affirmed.