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v. Winkler, 37 S. C. 457, wrote the opinion, also, in Bates v. Taylor, 28 S. C. 476, where he quoted from Attorney General v. Jolly, 1 Rich. Eq. 99, 42 Am. Dec. 349, with approval.

After a long and patient investigation of the authorities upon this question, we have reached the firm conclusion that the judgment of the circuit court should be affirmed, and it is so ordered. Judgment affirmed.

TRUSTS.-COURTS WILL NOT ALLOW A CLEAR TRUST TO FAIL for want of a trustee: Randolph v. East Birmingham Land Co., 104 Ala. 355; 53 Am. St. Rep. 64, and note. A trust will not be permitted to fail through the failure or disability of the trustee to execute the trust, but will be supported upon the intention of the testator that the trust is attached to and fastened to the land, and that the land remains chargeable with it in the bands of the heirs or devisees: Seda v. Huble, 75 Iowa, 429; 9 Am. St. Rep. 495. See Brandon v. Carter, 119 Mo. 572; 41 Am. St. Rep. 673, and note.

CHARITIES-DEVISES TO UNINCORPORATED SOCIETIES.The question as to whether unincorporated societies can receive be quests to charitable uses is a controverted one: Extended note to Bridges v. Pleasants, 44 Am. Dec. 101. In Massachusetts, bequests to charitable purposes are valid though the charity is to be distributed by an unincorporated society and no person is in esse who can be a cestui que use: Burbank v. Whitney, 24 Pick. 146; 35 Am. Dec. 312, and note. See Owens v. Missionary Soc., 14 N. Y. 380; 67 Am. Dec. 160, and extended note; Burr v. Smith, 7 Vt. 241; 29 Am. Dec. 154.

DEVISES-WHEN VOID FOR UNCERTAINTY.—A devise may be void on account of uncertainty as to the devisee or devisees: Miles v. Fisher, 10 Ohio, 1; 36 Am. Dec. 61; White v. University, 4 Ired. Eq. 19; 44 Am. Dec. 92. A devise "to the propagation of the gospel in foreign lands" is void for uncertainty in the devisee: Carpenter v. Miller, 3 W. Va. 174; 100 Am. Dec. 744; or the uncertainty may be as to subject matter: Extended note to Bridges v. Pleasants, 44 Am. Dec. 99.

PEAY V. SEIGLER.

[48 SOUTH CAROLINA, 496.]

STATUTE OF FRAUDS.-LETTERS AND RECEIPTS. though neither are of themselves sufficient, may together make such a memorandum as will satisfy the statute of frauds. Hence, if the owner of land requests another by letter to sell his place at L. on terms stated in the letter, and the agent thus constituted replies that be cannot sell on those terms, but can sell on other terms, which he states, to which the owner replies that he will accept the terms named, one hundred dollars in cash and the same amount each year for three years with interest at eight per cent per annum, and the agent thereupon notifies the purchaser that his offer has been accepted and receives from him his first payment and gives a receipt therefor to him, the letters and the receipt constitute a valid and enforceable contract.

STATUTE OF FRAUDS-PAROL EVIDENCE TO SUPP'y DEFECTS IN MEMORANDUM.-Whenever the writings relled up

on show that both parties referred to the same property, parol evidence is admissible for the purpose of designating the particular place both had reference to, and, if it is described as the land of the vendor at L., parol evidence is admissible to prove what land he had there, and, if he had but one parcel, that must have been the one referred to by both parties.

STATUTE OF FRAUDS-AGENT'S AUTHORITY TO SELL. WHEN NOT LIMITED BY CONDITIONS RESPECTING THE PURCHASER.-The fact that the owner of lands in authorizing another to sell them for him on credit, added that he expected a mort gage for the unpaid purchase price, and that he wanted a reliable purchaser, one such as the agent thinks will make all payments promptly, does not justify the principal in rejecting a contract of sale because he thinks the purchaser not reliable. The language employed by him indicates that he will permit the agent to determine that question.

STATUTE OF FRAUDS.-IT IS NOT NECESSARY THAT BOTH PARTIES SIGN the contract or memorandum necessary to satisfy the statute of frauds. It is sufficient, in a suit or cross-bill against the vendor of land for specific performance, to show that he signed the contract of sale, for the vendee becomes bound thereby and renders the contract mutual when he brings suit for specific performance, or takes possession of the property under his contract.

STATUTE OF FRAUDS-PART PERFORMANCE.-Though a contract for the sale of land is oral, yet if the purchaser makes par tial payments, and under and in pursuance of the contract enters into possession of the property, these acts constitute such part performance of the contract as take it out of the statute of frauds. If the sale is made by an agent, his authority to place the purchaser in possession is established by a letter from the vendor authorizing him to make the sale and suggesting that the property is in possession of a renter whose lease had expired, and that if the sale is made, the agent is authorized to request such renter to vacate at once.

ONE IS NOT A PURCHASER FOR A VALUABLE CONSIDERATION without notice unless he paid the purchase money and acquired a legal title before he had notice of the equity of his adversary.

Specific performance of a contract to sell and convey land may be decrced against the grantee of the vendor, unless he purchased the land, paid the purchase price, and received a conveyance before he had notice of the plaintiff's right.

J. E. McDonald and R. A. Meares, for the appellant.
Ragsdale & Ragsdale, contra.

502 McIVER, C. J. This action was originally commenced on the thirty-first day of May, 1895, against English P. Jenkins and William J. Seigler, who was his tenant, for the recovery of the possession of a certain tract of land, containing twenty acres, more or less, situate in the county of Fairfield, in Longtown, South Carolina. Seigler having 503 been made a formal party, as tenant in possession, Jenkins alone answered, setting up two defenses: 1. A general denial; 2. That he was the equitable

owner of the land in controversy, under a contract for the purchase of the same from one W. M. Waller, the then legal owner, the terms of which he had complied with, and under which he had entered into possession and made improvements. The plaintiff claimed under a deed from the said Waller, bearing date the seventh day of May, 1895. The case, therefore, presented two issues, one legal and the other equitable; and after the legal issue had been tried by the jury, and a verdict in favor of the plaintiff, the case was then transferred to Calendar 2, for a trial of the equitable issue presented by the answer of defendant, Jenkins. This issue was tried by his honor, Judge Witherspoon, who rendered a decree, overruling the equitable defense set up by defendant, Jenkins, and from that decree this appeal was taken, upon the several exceptions set out in the record. The decree of the circuit judge, together wih the exceptions thereto, will be set out in the report of this case.

After the appeal was taken, the defendant, Jenkins, departed this life intestate, leaving as his heirs at law the parties named as such in the title, as set out in "case," and the defendant, Seigler, who administered on his estate. Thereupon, by an order of this court, the appeal was continued in the names of such administrator and heirs at law.

The main question in the case is, whether there was a valid contract for the purchase of the land by Jenkins from Waller prior to the contract by which the plaintiff acquired his deed from said Waller. The undisputed fact is, that the said Waller, then being a resident of the state of Kentucky, on the sixth day of January, 1895, by a letter of that date, requested his friend, Dr. S. S. Linder, then residing in the neighborhood of the land, to sell his place at Longtown, on certain terms therein named. To that letter Linder seems to have replied, under date of the 12th of January, 1895, saying that he could not find a purchaser 504 at the price named by Waller, but that he had an offer of $100, payable one-third cash and the balance in three equal annual installments, with interest at the rate of eight per cent per annum, and recommended the acceptance of the offer. Waller replied, on the 14th of January, 1895, saying, amongst other things: "After consideration, Mrs. W. and myself have concluded to let the property go at the figures mentioned in your letter, namely, $400, on the following terms: $100 spot cash and $100 per year for three years, at eight per cent per annum. The party who is living in the house now has not re-rented for this year; so, of course, he can give possession right away. I think there will be no difficulty in getting possession within ten days,

if necessary. If you make the trade, this will authorize you to request the party to vacate the house at once. . . . . I want a mortgage on the property until it is paid for." Upon receipt of this letter, Linder at once notified Jenkins that his offer had been accepted by Waller, asking him to come to town and make the cash payment. Jenkins came on the 17th of January, 1895, made the cash payment, and took from Linder a receipt, of which the following is a copy: "Ridgeway, S. C., January 17th, 1895. Received from E. P. Jenkins $100, as first payment in full on Waller land in Longtown, S. C. (Signed) S. S. Linder, agent for Will. M. Waller." On the same day, Linder notified the tenant on the land, John Smith, in writing, that he had sold the land to Jenkins, and to yield the possession to him. The tenant, John Smith, testifies that Jenkins took possession of the land on the 17th of January, 1895, which he surrendered to him upon the receipt of the note from Linder directing him to yield the possession to Jenkins, though it seems, from the testimony of Jenkins, that he did not immediately turn Smith out, but allowed him to remain there a few days, as he had no place to go to; so that Jenkins did not actually move to the place until the 27th of January, 1895. As soon as Linder had thus closed the trade with Jenkins, he immediately wrote Waller, informing 505 him what he had done, inclosing the draft of a deed to Jenkins for Waller to execute. To this letter Waller replied, under date of the 21st of January, 1895, saying, amongst other things: "Your letter of January the 17th received. I cannot accept an offer from Jenkins, as I do not consider him reliable. I had no idea, when you wrote me of the offer made for the place, that it was from Jenkins. You will recollect that I stated in one of my letters to you that of course the party must be a reliable person." Then, after speaking of some negotiations between himself and the plaintiff, Nicholas A. Peay, Jr., for the purchase of the place, he uses the following language, the important significance of which will be seen presently: "I think Nicholas will take the place; but if he does not, I prefer to rent again rather than sell to Jenkins." This language shows conclusively that Waller had not at the date of that letter-the 21st of January, 1895--made any contract with the plaintiff for the sale of the land in question. There was also testimony tending to show that the plaintiff, as far back as December, 1894, had been negotiating by letter with Waller for the purchase of the place; but the testimony of the plaintiff himself was exceedingly indefinite and unsatisfactory, to say the least of it, as to when the terms of the purchase had been agreed upon; the plaintiff finally say

ing that this would be shown by the letters which he had placed in the hands of his attorneys, but which letters were not offered in evidence the only letter from Waller to plaintiff, bearing date the 19th of December, 1894, which was offered in evidence, showed that Waller had explicitly declined to accept plaintiff's proposition. Indeed, so far as appears from the testimony set out in the "case," there is no evidence as to when the trade between Waller and plaintiff was closed, except the deed, which bears date the 7th of May, 1895, long after the contract with Jenkins had been closed and he put into possession by Waller's agent, Linder, and long after he, Jenkins, had 506 complied with the terms of the contract by making the required cash payment.

The first inquiry is, whether there was a sufficient memorandum in writing of the contract between Waller, through his agent, Linder, and Jenkins, for the sale of the land. As was said in Kennedy v. Gramling, 33 S. C. 383, 26 Am. St. Rep. 676, "it is not and cannot be denied that a valid contract for the sale of real estate may be made out by putting together a letter of the defendant to the plaintiff, and the plaintiff's reply thereto, or vice versa, provided all the essential terms of the contract can be gathered from the terms of such letters." Now, in this case, it is clear that all of the essential terms of the contract here in question can be gathered from the correspondence between the vendor, Waller, and his agent, Linder, and the receipt given for the cash portion of the purchase money. Waller unquestionably requested and authorized Linder to sell his place at Longtown, by his letter of the 6th of January, 1895, upon certain terms therein specified, and the only restriction he then imposed was expressed in these words: "Of course, I want a reliable purchaser, one whom you think would make his payments promptly." In accordance with this request, Linder undertook to sell the land, "and had tried to sell to two other parties before he offered the land to Jenkins, but could not sell to them at the same price offered by Jenkins." He then, as it seems, by letter of the 12th of January, 1895, communicated to Waller the offer which had been made by Jenkins, and Waller, by his letter of the 14th of January, 1895, accepted the terms offered, repeating the same, and saying in that letter that he wanted a mortgage on the property until it is paid for. Thereupon Linder closed the trade with Jenkins, receiving the cash payment, giving his receipt therefor as the agent of Waller, and put Jenkins in possession of the land. We do not see how it can be doubted that these letters and this receipt showed all of the essential terms of the

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