ช.

tained any damage at all. It is an action for liquida- HUGHES ted damages, and it is immaterial what was the real injury which the Plaintiff suffered. 7 Vin. 300-Tit Damages. S.-Moore 419, Colman's case.-4. Burr. 2228, Lowe v. Peers.-1. Lord Raym. 1164.

The Court below was correct in the opinion, that a judgment in this suit would have barred a suit in equity to set aside the patent. It was only an agreement for the extinguishment of an equitable right which need not be in writing. It transfered nothing to the Defendant.*

MARCH 7th.... All the Judges being present,

MARSHALL, Ch. J. delivered the opinion of the Court as follows:

Much of the seeming intricacy of this cause will disappear, if we extricate the questions made by the pleadings before the Court, from others which might greatly embarrass and perplex it.

The declaration contains four counts. The first recites an original contract between Cleon Moore and John Darby, for the sale of certain lands, lying in Kentucky, and proceeds to recount in detail those transactions on which the action was founded. The other counts state, in different terms, the several assumpsits, which they allege to have been made.

The Defendants crave oyer of the written contract, stated in the first count, and file several pleas to that

* It is understood that the opinion of the Court below was grounded on the idea that this case was to be governed by the principles relative to implied trusts which are not within the statute of frauds. Darby & Hughes having obtained the legal estate without the assent of the Plaintiff, were to be considered as holding it in trust to secure to him the payment of 7001. in case the land should turn out to be worth 2,0001. This was an implied trust, resulting from the circumstances of the case, and which would cease to exist upon payment of the 7001. Upon the Plaintiff's receiving payment of that sum, his equitable title would cease. It would not be transferred to the Defendant; but would be extinguished. If the 7001. mentioned in the declaration were to be considered as the compensation for the injury done in depriv ing the Plaintiff of his legal security for 7001. to be paid upon a contingency, it is evident that that injury could not have exceeded 7001. And whether it were to be paid as compensation for that injury, or as the sum which would be due upon the happening of the contingency, it would equally destroy the implied trust. And as an implied trust can be raised without writing, so, it was thought, it could be extinguished without writing.

MOORE.

HUGHES Count. They then, without repeating the oyer, file similar pleas to the remaining counts. After taking issue on some of the pleas, and demurring to others, the Plaintiff below discontinues his first count.

v. MOORE.

By the counsel for Hughes, this has been considered as error. But the Court can perceive no reason for this opinion. After this discontinuance, the parties are in precisely the same situation, as if all the issues both of law and fact which were joined upon that count, had been decided in favor of the Defendant below. Such decision could not, in point of law, have affected the rights of the parties under the issues joined on the remaining counts, and consquently the discontinuance upon that count must leave those rights unimpaired. Whether this count remain in the declaration, or be stricken out of it, the right of the Plaintiff in the Circuit Court, to recover on the other counts, will be precisely the same. The examination of this right must be conducted on the same principles as if the declaration had never contained the first count.

By the Plaintiff in error it is contended, that the oyer, which was prayed of the written contract alleged in the first count, spreads that contract on the record, and makes it a part of all his subsequent pleas. This is certainly true with respect to all his subsequent pleas to that count, but not with respect to his pleas to the other counts. Different counts allege different contracts, and different assumpsits. It is upon this idea alone, that a verdict can be rendered for the Plaintiff, on one count, and for the Defendant on another. the oyer of one contract cannot be the oyer of another contract, and cannot spread upon the record a contract supposed to be totally distinct from that which was read. The discontinuance of the first count produces no change in this respect, in the condition of the parties, Had it remained, it could have had no influence on the other counts, nor could the oyer of the written contract it stated have transferred that contract to the other counts.

Now

The second count states, that Cleon Moore was owner and proprietor of a plat and certificate of survey for lands lying in Kentucky, for which he was entitled to a patent from the government of that State; and that

บ. MOORE.

James Hughes, without authority, transferred that plat HUGHES and certificate, in the name of Cleon Moore to John Darby and the said Hughes, by which wrongful act a patent for the said land was issued to the said Darby & Hughes to the great injury of the said Moore. That af terwards the said Hughes promised to pay to the said Moore, "the sum of seven hundred pounds for the said injury, and loss of the said land assigned as aforesaid; the said Plaintiff at the same time, agreed to the said terms, and to accept of the said compensation in full of all claims and demands for the said land and for the injury aforesaid."

To this count, the Defendant pleaded several pleas, one of which was, that neither the promise nor any memorandum thereof was made in writing. To this plea the Plaintiff demurred, and the Court sustained the de

'murrer.

The correctness of this decision depends entirely on the application of the statute of frauds to the contract stated in the declaration.

Cleon Moore is averred to have been the proprietor of a plat and certificate of survey on which Hughes & Darby obtained a patent by using his name without authority. This tortious act did not divest Moore of his equitable title. The land, in equity, was his. Did he part with this title by the contract stated in the declaration? The answer must, in the opinion of the whole Court, be in the affirmative. "He agreed to accept of the said compensation in full of all claims and demands. for the said land, and for the injury aforesaid. This, then, was an agreement to sell his equitable title to the land for the sum of seven hundred pounds. The Court can perceive no distinction between the sale of land to which a man has only an equitable title, and a sale of land to which he has a legal title. They are equally within the statute.

It is, therefore, the unanimous opinion of this Court, that the judgment upon the demurrer to this plea, ought to have been in favor of the Defendant below. This plea being a complete bar to the second count, it is unnecessary to consider the other pleas,

HUGHES

0.

The third count states the title of Cleon Moore, and the injury sustained by him to the same effect with the MOORE. second count. It then states a conversation between the parties, concerning a compensation for the loss, "and a liquidation of the damages sustained by the said Cleon, by reason of the misconduct and wrong doing of the said James in the premises, and of the vesting them, the said Darby & Hughes, with the legal title to the said land as aforesaid; and it was then and there agreed by the said James, on his part, in consideration of the premises, and of the just claims of the said "Cleon, for compensation and damages as aforesaid, that the said James should pay to the said Cleon, in "satisfaction for the same, the sum of 700l." &c. "And "the said Cleon then and there agreed, on his part, to "accept of the said seven hundred pounds in full com"pensation of his just claims as aforesaid," and, upon the same being secured, &c. to release and quit claim to the said James, all his, the said Cleon's, claims and demands whatsoever, for compensation, redress or damages arising from the wrong doing and misconduct of the said James in the premises, and from the vesting the said Darby & Hughes, with the legal title to the said land as aforesaid.

To this count also, the statute of frauds was pleaded in bar. The Plaintiff below demurred to the plea, and the Defendant joined in demurrer.

Upon the true construction of the contract stated in this count, there was some contrariety of opinion among the judges. It is, however, the opinion, of the majority that the contract must be understood to import a sale of land, and that the sum of money stipulated to be paid, was, in contemplation of the parties, to extinguish the title of the said Cleon Moore.

The conversation was concerning a compensation "for the loss and a liquidation of the damages sustained "by the said Cleon," not only by reason of the mis"conduct of the said Hughes, but also by reason “ of "the vesting them, the said Darby & Hughes, with the "legal title to the said land." "And it was then "agreed, in consideration of the just claims, of the said "Cleon, for compensation and damages, that the said

"James, should pay the said Cleon, in satisfaction for HUGHES "the same, the sum of 700l." To the majority of the υ. Court, it seems, that a compensation for the loss of the MOORE. title to the land must be understood to be a compensation for the land itself, and that the receipt of this money by Cleon Moore, would not only have barred an action for damages, but a suit in equity for the title.

If this opinion be correct, then the contract is substan tially for the sale of land, and, to be valid, ought to have been in writing. On this plea also the demurrer ought to have been overruled.

The fourth count states the injury more in detail, than is done in either the second or third counts. It states the claim of Cleon Moore to be compensated for the loss sustained by his land being granted without his consent to Hughes and Darby. A conversation was then held, and "propositions for a compromise were made, touching the compensation and indemnification of him, the said Cleon," and it was then and there agreed by the "said James, in consideration of the just claims of the " said Cleon, to be compensated for the damage and ❝injury for the misconduct of the said James in the pre"mises, and in consideration of the said James having "procured and obtained a patent to be completed and "issued to the said James, and the said John Darby, as "last aforesaid, for the said land," that he, the said James, would well and truly pay the said Cleon, one other sum of 700l. This the said Cleon agreed to "accept in satisfaction of his just claims to compensa❝tion arising from the causes and considerations last "aforesaid."

The compensation here offered and accepted, is for the injury sustained by Cleon Moore, in consequence of the grant of his land, by the state of Kentucky, to Hughes and Darby. It seems to the Court, that this compensation was in lieu of the patent itself, and must have been intended to extinguish his right to that patent. It is difficult to suppose an intention, in this case, to receive a full compensation for the loss of a title, and yet to retain the right to that title. The majority of the Court is of opinion that, under the contract as stated in this count also, the payment of the money agreed to be VOL. VII.

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