CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF THE STATE OF GEORGIA, AT DECATUR, AUGUST TERM, 1848. No. 38.-JAMES A. MILLER and others, plaintiffs in error, vs. STEPHEN G. COTTEN and others, defendants in error. [1] Though a trust in land need not be created in writing, yet, to take the case out of the Statute of Frauds, it must be proved by writing, and parol testimony is inadmissible for that purpose. [2.] Whenever a case of fraud is made by the bill, parol evidence will be admitted for the purpose of establishing that case. But the facts upon which re lief is prayed, on the score of fraud, must be plainly, fully and distinctly alleged. [3.] Even in cases of fraud, parol evidence is not regarded with favor; and the Court will not act upon it if it be not strong and irrefragable, particularly where there has been long acquiescence on the part of the complainants. [4.] To justify the specific execution of a parol agreement, its terms and conditions should be precisely stated. If the contract, which is sought to be performed, is vague and uncertain, or the evidence does not support it, Equity will not enforce it. [5.] If a testator has affected to dispose of property, which is not his own, and has given a benefit to the person to whom that property belongs, the devisee or legatee accepting the benefit so given to him, must make good the testator's attempted disposition. For the doctrine of election, is, that he who accepts a benefit under a deed or will, must adopt the whole contents of the instrument, conforming to all its provisions, and renouncing every right inconsistent with it. [6.] A Court of Equity will not decree the cancellation of conveyances, where any thing has been received, until re-payment is made. Miller and others vs. Cotten and others. In Equity, in Crawford Superior Court. Before Judge FLOYD, February Term, 1848. The facts are incorporated into the opinion of the Court. HUNTER & BLAKE, for plaintiffs in error. Mr. HUNTER, for the plaintiffs in error, made the following points: 1st. In this case, there is a prayer for specific and general relief. Complainant is only entitled, under general prayer, to such relief as in consistent with the case made, and the special prayer. 2 Kelly, 413. 1 Dan. Ch. Pr. 220, '2. 2d. Parol evidence is inadmissible to contradict or add to the terms of a deed, and to create a trust in land, especially after the death of the nominal purchaser. Hovenden on Frauds, 87. 1 Hen. Bl. 659. 1 Cox, 15. Sugden on Vendors, 170, 207. 2 Bro. Ch. R. 115. Roberts on Frauds, 99 7 Vesey, Jr. 211. 13 Mass. R. 443. 1 J. Ch. R. 339, 425, 273, 593. 1 Bay R. 461. 6 J. R. 21. Ebenezer Duffey's heirs bound by recitals in his deed to Daniel Duffey. 9 Wend. 209. 1 Green. 26, '7. 1 Kelly, 550. 4 Price, 453. 1 J. Ch. R. 329. 1 Bacon, 165. Parol evidence is inadmissible to establish the agreement set up in complainant's bill, on the ground of implied trust; this case not making such a trust, and the bill not praying a declaration of trust, but the specific performance of the alleged parol contract to re-convey said premises at the death of Daniel Duffey. 1 Green. 304. To take a parol contract to convey land out of the Statute of Frauds, on the ground of fraud, the fraud must not be constructive but actual; and it must be in the making of the instrument, for no resulting trust can arise upon any thing which takes place after the making of the deed, or other instrument. 1 Henry Blk. 659. 3 Vesey, Jr. 696, 713, (note.) 1 J. Ch. R. 429. 2 do. 404. 5 do. 1. 2 Kelly, 296. 3d. A parol agreement to convey land, will not be enforced in Equity, where the agreement is denied by the answer to complainant's bill, and the Statute of Frauds relied upon as a defence. 2 Story's Com. 59, 60. 1 Vernon, 151. 6 Vesey, Jr. 12. The deed from Ebenezer to Daniel Duffey, is no evidence of the Miller and others vs. Cotten and others. agreement charged in complainant's bill, and the only evidence. that a deed was taken in pursuance of said agreement, is the parol declarations of Daniel Duffey himself, which, as I have already shown, are inadmissible. The agreement set up must first be established according to law, and that this deed was taken in pursuance of said agreement. 2. Story's Com. 66, '9. 1 Bacon, 181, "7. Roberts on Frauds, 105, 115. Mitford's Ch. Pl. 329. 4th. A Court of Equity will not decree the specific performance of a parol contract to convey land, when it has no means of carrying it into effect; where the terms of the contract are not clearly stated, nor of any agreement other than the precise agreement set up by complainant's bill. Roberts on Frauds, 106, '7. 2 Vesey, Jr. 242, '4. 6 Vesey, Jr. 328. 3 Vesey, Jr. 713, (note.) 3 Merirale, 451, '4. 2 Dan'l's Ch. Pr. 248. 2 Story's Com. 69, 71, '5, '9, 743. 7 Vesey, Jr. 30. 1 J. Ch. R. 273, 593. 5th. This is a case of election as to all the complainants, and the Court below erred in deciding that it was a case of election only, as to John W. Duffey. The rule in Equity is, that a party taking a benefit, although it be but a contingent benefit, under a will, must conform to all of its provisions, and cannot claim, under and against the will at the same time; and if he has, by unequivocal acts, elected to abide by the will, he cannot afterwards dispute its provisions; but if he elects to insist on his independent title to property conveyed by the will, to a third person, he must make compensation out of the legacy bequeathed to him by the will, to the disappointed devisee. 2 Story's Com. 353 to 360. 2 Vesey, Jr. 372, 562, 693. 1 Vesey, Jr. 523. 13 do. 220, 'S. 2 Maddock's Ch. R. 47. 1 Swanston, 381, 413, 25. 2 Schoales & Lefroy, 133. Hovenden on Frauds, 108. 1 Kelly, 501, 10. 6th. The deed from Eben. to Dan. Duffey, if set aside in Equity, upon the ground of fraud, the rescision will be made only upon the condition that complainants pay to the estate of Dan. Duffey what is equitably due said estate from Ebenezer Duffey, deceased. 1 J. Ch. R. 478. 1 Story's Com. 337. 3 Vesey, Jr. 170. 1 do. 215. 1 Vernon R. 100, 237. 2 Swift, 74. 1 Story's Com. 81, '2. 19 Vesey, Jr. 129. 2 Comyn, 473. 1 Ver. 480. 2 Story's Com. 6, 7 7th. Where, at the hearing, a complainant fails to make out his case, as stated in his bill, or from defect of proof, or otherwise, shows that he is not entitled to recover, it is the duty of the Chan Miller and others vs. Cotten and others. 2 Ve cellor to charge the jury that he is not entitled to recover. sey, Jr. 242. 5 do. 457. 7 do. 30. 14 J. R. 516. 2 Story's Com. 743, 4. Upon these grounds and authorities, we contend that the judgment of the Court below is illegal, and should be reversed. A. HAMMOND, for defendant in error, cited and commented on the following authorities. 1 Porter, 328. 1 Fairfield, 1, 23, 24. 1 John. Ch. 582. 2 do. Ch.582. 406. 1 Green. Ec. §266. 7 Pick. 533. 4 Kent's Com. 305. 1 Lomux, 202, '3. 1 Powell on Mort. 151, a. 3 Mason's C. C. U. S. 301. 15 Mass. R. 203. 12 do. 107. 1 Washington, 21. 2 Atkyns, 256. 1 Paige's C. Rep. 152. 14 Vesey, 215, 234, 243. 1 Murphy, 116, 141. 1 Story's Eq. J. §§239, 251. 2 Story's Eq. §1097. C. on Contracts, 29. Clancey on M. W. 249. 3 Mylne & Craig, 171. 1 Phillips' Ev. 578, notes, 1033. 3 Kelly, 256. By the Court.-LUMPKIN, J. délivering the opinion. In 1827, one Ebenezer G. Duffey, being the owner of 3033 acres of land, to-wit: lot No. 254, and one half of lot No. 255, in what was originally Houston, now Crawford county in this State, conveyed the same, by deed, to Daniel Duffey, his father. The only consideration mentioned in the deed, is the sum of $1000, which the bargainer acknowledges to have received as payment in full for the land, and immediately follows a clause, exonerating the bargainee therefrom. Shortly after the purchase, Daniel Duffey went into possession and remained on the land till his death, in 1838, and having devised the land by his will to his son, Jesse Duffey, who was living with him on the premises, the devisee continued in the occupancy till October, 1839, when he died intestate. His administrators took possession, and have held the land ever since. In 1845, Stephen G. Cotten and Catharine, his wife, formerly Catharine Duffey, widow and relict of Ebenezer G. Duffey, filed their bill in the Superior Court of Crawford county, in which they seek to recover one half of this land, together with a moiety of the rents, issues, and profits since the death of Daniel Duffey. And it is upon the final trial of this bill, that the errors complained of are alleged to have been committed. Miller and others vs. Cotten and others. As preliminary to the examination and right adjudication of the questions presented in the record and bill of exceptions, it is important, nay, indispensably necessary, to ascertain, and define accurately, the nature and object of the bill filed by Cotten and wife. And the principal difficulty we have had to encounter, was to satisfy ourselves with certainty on this point. Is it a bill for specific performance? Or is it brought to declare a resulting trust? After the most patient and careful inquiry, our conclusion is, that the design of this proceeding is the execution of a parol declaration of a trust in the remainder of this land, after the fruition and termination of the life estate of Daniel Duffey. It addresses itself to the conscience of the defendants, to wit: The legal representatives of the estates of Daniel and Jesse Duffey, to discover the trust agreement-it prays the performance of this agreement. In corroboration of this view, we may refer to the character and capacity in which the complainants come into Court. It is not as the heirs at law of Ebenezer G. Duffey, to whom this land would descend by operation of law, in the event of the deed from Ebenezer G. to Daniel Duffey, being set aside on the ground of fraud. But they apply, as before stated, as remaindermen in trust, asking to have the secret trust between the father and the son, executed in their behalf. So far from repudiating the deed of Daniel Duffey, on account of the fraud in its inception and procurement, they set up this conveyance. They concede that under and by virtue of it, Daniel Duffey had a good estate for and during the term of his natural life, and they expressly waive calling upon his executors for an account of the rents, issues, and profits which accrued previous to his death. They demand that by a decree in Chancery, the parol trust may be executed. [1.] Parol testimony was offered to establish this trust, or rather to engraft it upon the deed. It was objected to by the solici tor of the defendants, but allowed by the Court; and this is the first error complained of. Now if we are right in the view we have taken of the nature and object of this bill, it fixes conclusively the law of this case, for the 7th sect. of the Statute 29 Car. 11, c. 3, (usually called the Statute of frauds,) enacts, "That all declarations or creations of trusts or confidences of any lands, tenements, or hereditaments, shall be manifested or proved by writing, signed by the party who is by law enabled to declare such trust, or by his last will in writing, or else shall be void." If the |