1789.
}In the cafe now under confideration, Mrs. Dorothy Saltar was feized in fee of the premifes ftated in the ejectment ; and had fhe made no conveyance, her fifter, Mary Thompʃon, would have been her heir at law; but her huband, whom fhe loved, wifhed to enjoy the eftate during his life, and fhe defigned that her fifter, and her fifter's children fhould have the eftate uncontrouled by her hufband. With this view the deeds were executed ; and, if the folemn promife and agreement of Lawrence Saltar is not to be enforced, his heir at law will have the eftate, contrary to the intention of parties.
The queftion then is, whether the engagement of Saltar, not being in writing, although it concerns lands of inheritance, is void by the act of Affembly for preventing frauds and perjuries?
We are of opinion, that it is not ; and that the parol evidence was proper to be admitted upon the trial of the caufe. Here was a breach of truft in Lawrence Saltar, a fraud in law, which is not within the act. This is the reafon of our judgment ; a reafon warranted by a due conftruction of the act, and an attentive confideration of its frame and defign ; which was, not only to guard againft perjuries, but, alfo, as I have already obferved, againft frauds. It is to be remembered, that there is no purchafor, bona ʃide, for a valuable confideration, without notice, in the prefent cafe ; the defendant claims under the heir at law of Lawrence Saltar; he ought, therefore, to perfon what Lawrence fhould have performed ; and equity will confider that as done, which ought to have been done ; Grounds, &c. oƒ Law and Equity. 75. Every man's contract (whereever it is poffible) fhould, indeed, be performed as it was intended.
The numerous cafes cited, as well as fome determined in this Court, both before and fince the Revolution (feveral of which are in point) all turn upon the fame principle, and are uniformly in favour of the Plaintiff : And fo many uniform, folemn decifions, ought to be always of great weight and confideration , that the law may be certain. I am glad, indeed, that the prefent motion has been made, becaufe it has afforded an opportunity of full deliberation on the fubject, and of fettling it upon a fatisfactory and permanent foundation.
With refpect to the ʃecond objection, we are clearly of opinion, that the verdict was given agreeably to weight of the evidence.
And, upon the whole, direct, that judgment be entered for the Plaintiff.
D‘UTRICHT verʃus MELCHOR.
T
HIS caufe was tried at bar, in September Term, 1788, and, a verdict being found for the Plaintiff, the Defendant obtained a rule to fhew caufe why a new trial fhould not be granted ; which was argued at the prefent Term by Coxe and Sergeant, in fupport of the rule, and by Lewis and Heatly againft it.
