1877. March Floyd, Trustee, V. Harding & als. effect of the statute was to render the unrecorded deed Term. quoad the creditors of the grantor, a mere nullity, it left the subject precisely in the same situation as if no deed had been made or attempted. Judge Baldwin, in delivering the opinion of the court said, "It could not be doubted, a fair purchaser of the equitable estate has a right to hold it against creditors of the vendor who have not previously recovered judgments." This decision was rendered at the January term 1848. At the revisal of 1849 an amendment was incorporated in the statute. It is contained in sections 4 and 5, chap. 118, Code of 1849, and is as follows: "4. Any contract in writing made in respect to real estate, or goods and chattels, in consideration of marriage, or made for the conveyance or sale of real estate, or a term therein of more than five years, shall, from the time it is duly admitted to record, be as against creditors and purchasers as valid as if the contract was a deed conveying the estate or interest embraced in the contract." "5. Every such contract, every deed conveying any such estate or term, and every deed of gift, or deed of trust or mortgage, conveying real estate or goods and chattels, shall be void as to creditors and subsequent purchasers for valuable consideration without notice, until and except from the time it is duly admitted to record in the county or corporation wherein the property embraced in such contract or deed may be.” These provisions, as will be seen, do not expressly, or even by any fair implication, include all contracts for the sale of land. They apply only to contracts in writing. Having provided for the recordation of written contracts in the fourth section, the framers of the statute by the use of the words, "such contracts in the fifth, evinced a deliberate purpose to confine the March Floyd, Trustee, V. operation of that section to contracts in writing. It 1877. is obvious that the language was carefully chosen, and the omission to require the recordation of EVERY contract was not accidental. In order to give the statute the construction now contended for, we must strike out, or wholly disregard the words "in writing," in the one section, or the word "such" in the other. Are we authorized by any rule of interpretation to take such a liberty with a legislative enactment plain and explicit in its terms. While in the construction of statutes the constant endeavor of the courts is, to ascertain and give effect to the intention of the legislature, that intention must be gathered from the words used, unless a literal construction would involve a manifest absurdity. Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed. The authorities in support of this principal are almost innumerable. It is unnecessary to cite them, as they may be found in Dwarris on Statutes, 181-4, 209; 2, 204–5, 208. In this connexion I cannot forbear quoting briefly a portion of the opinion of the supreme court of the United States in the case of Denn v. Reid, 10 Peters R. 524. The case turned upon the proper construction to be given to certain recording acts of North Carolina and Tennessee. Mr. Justice McLean, after giving his construction of the statute said: "This, it must be admitted, when we consider the mischief the law was probably intended to remedy, is a somewhat technical construction of the act; and cases may be found where courts have construed a statute most liberally to effectuate the remedy: but where the language of the act is explicit, there is great danger in departing from the Harding & als. March 1877 words used, to give an effect to the law which may be Term. supposed to have been designed by the legislature. * * * It is not for the court to say, where the lanFloyd, Trustee, guage of the statute is clear, that it shall be so construed as to embrace all cases, because no good reason can be assigned why they were excluded from its provisions." V. Harding &als. If the rule of construction here laid down be correct, there would seem to be an end of the question. But if we are permitted to go outside of the express language of the statute in pursuit of the supposed intention of the legislature, have we such satisfactory and conclusive evidence of that intention here, as to justify the courts in giving to the statute an interpretation so palpably in conflict with its language. In answering this question it is important to bear in mind the rules of law in respect to parol contracts for the sale of land. Courts of equity treat such contracts, where there is part performance, as valid and effectual as those evidenced by the most solemn instruments of writing. In order to prevent the possibility of fraud in engrafting this exception upon the statute of frauds, it is settled, that the parol agreement relied on must be certain and definite in its terms: the acts proved in part performance must refer to, result from or be done in pursuance of the agreement: and the agreement must have been so far executed that a refusal of full execution will operate as a fraud upon the party, and place him in a situation which does not lie in compensation. Wright v. Pucket, 22 Gratt. 370; Lead. Cases in Equity, 2 vol. 1052. When these circumstances concur it is as much a matter of course for the equity courts to decree a specific execution as for the common law courts to award damages for the breach of a written contract. The pur 1877. March Term. Floyd, V. Harding & als. chaser is regarded as the real beneficial owner of the estate, and the vendor a mere trustee of the legal title for his benefit. Whatever loss may fall on the estate is the loss of the purchaser. Whatever advantage Trustee, may accrue to it is his gain. This doctrine is now too firmly settled ever to be changed by anything short of an express legislative enactment. It is to every intent a law of property, as much so as if the exception had been incorporated in the statute of frauds. Upon the faith of its existence, purchases of valuable estate have been made and held throughout this commonwealth. There can be no ground of controversy upon these points. It may be further affirmed that the title thus vesting in the purchaser under a valid parol contract, is good against all the world, except subsequent pur chasers of the legal title for valuable consideration without notice. I speak now without reference to the recording acts. That the equitable estate of the purchaser is good against creditors of the vendor is inIt has been over and over again decided that the judgment creditor can acquire no better right to the estate than the debtor himself has when the judgment is recovered. controvertible. He takes it subject to every liability under which the These principles have been time and time again announced by the courts of England, by this court, and by the supreme court of the United States, and by the 1877. March Term. Floyd, V. courts of many other states of the Union. See the cases cited by Judge Baldwin in Withers and Carter. Brown v. Pierce 7 Wall. U. S. R. 205; Rogers v. BonTrustee, ner, 45 New York R. 379; Money v. Dorsey, 7 Smedes & Marsh. 15; Morton v. Robards, 4 Dana R. 258. Numerous other cases might be mentioned, but it is unnecessary. Harding & als. The revisors of 1849 were men learned in the law; they were perfectly familiar with these principles. They could not but be aware that the question of the rights of purchasers under parol contracts would constantly arise in the courts. If they intended to make this fundamental revolution in the laws of property, and utterly to annihilate, for the benefit of creditors, a large class of contracts universally recognized as valid, they certainly would have expressed their intention in plain and unmistakeable language. It is not reasonable to suppose they would have left a matter of so much importance to all the hazards of judicial interpretation-an interpretation only to be reached by disregarding the plain words of the statute, and having no other foundation than a supposed public policy. But we are told that every consideration, prompting the revisors to require the recordation of deeds and title bonds, applies more strongly to mere verbal agreements for the sale of lands. A little reflection will, I think, show that this is not true, certainly not to the extent asserted in the argument. When the vendee has a deed or other written evidence of his purchase, there is no hardship in requir ing him to place it upon the record. It is gross laches not to do so, which the legislature might well. declare good ground of forfeiture. But in many cases the vendee has neither deed nor title bond. He is often deprived of one or both by the fraud of the vendor, |