John W. Simonton, vs. Pedro A. Gandolfo. sidered as personalty going to the executor and not the heir. Releasing the debt extinguishes the mortgage and no reconveyance is necessary. 4 Kent's Com., 193 and 194 in notes, 5th edition. Again, the releasor was not even the mortgagee, but a cestui que trust who had no claim whatever upon the land but an equitable claim on the money and its income, &c. 2. It was not a "sale" which was contracted for. Sale implies a transfer over. Here was none, but a mere cancellation-extinguishment. 3. This contract is not within our statute of Frauds though it may be within the English statute. There is a very important difference between them. Our statute does not like the English avoid a contract or sale, but only a "contract for the sale." The foundation of the present action is not a "contract" to sell or to do any other thing in futuro, but a sale or release executed and complete. 4. It is not within even the English Statute. A “contract or sale" (to use the words of the statute,) which is executed or even party executed, is not void for want of a writing. Clarke us. Vankirk, 14 Serg. & Rawl., 354; Teal vs. Anty, 4 Moore, 547; 2 Broderip & Bingham, 99; Hoby vs. Roebuck, 7 Taunt., 157; 3 Barn. & Ad., 899; Wilbur vs. Paine, 1 Ham., Ohio R., 251; Pomeroy vs. Winship, 12 Mass., 523; Chapman vs. Allen, Kirby, Conn. R., 400; Davenport vs. Mason, 15 Mass. R., 82-89; Crosby vs. Wadsworth, 6 East., 602; Miller vs. Hower, 2 Rawl., Penn, R., 53; Jones us. Peterman, 3 Serg. & Rawl., 543; 2 Marsh., 433; Parkhur-t vs. Van Courtland, 14 John. R., 15. Carmack & Baker, for Appellee: This is an action of assumpsit on a parol promise for the purchase of an interest in land, that is to say: the relinquishment of a mortgage held by the trustee of the plaintiff. 1st. As no written promise is declared on, or set out in the declaration, or copy of such writing given as required by the act of Leg islature, Duv., 96, Sec. 35; it results that the declaration is upon a verbal promise. 2d. By the act regulating conveyancing, Duv., 206, Sec. 10, it is provided that no action shall be brought to charge any person for the sale of land, or of any uncertain interest in or concerning them, unless the agreement or promise upon which such action shall be John W. Simonton, vs. Pedro A. Gandolfo. brought, or some note or memorandum thereof shall be in writing, and signed by the party to be charged therewith. See also sec. 1, of this act. Its phraseology imparts light as to construction of sec. 10. Sec. 4. Stat. 29, Charles 2, which is in force here, uses the words, "or upon any contract or sale of lands, &c., or any interest in or concerning them." Rob. on Frauds, Append., 468. If no action shall be brought none can be maintained. A release or any agreement to discharge a mortgage is embraced by the statute. A release according to Blackstone is the conveyance of a man's rights in land. 2 Bl., 324; Litt., 445, 465-6; 1 Inst., 264, 267; Am. Com. L. Title St. Frauds; Day's Digest; Kain vs. Sanger, 14 John., 89; Jackson, ex dem., Bain vs. Talver, 8 John., 370. BALTZELL, J., delivered the following opinion: The defendant Gandolo demurred in the court below to the declaration of the plaintiff, assigning the following special grounds: 1st. "That the assumpsit declared on should have been in writing and so stated in the declaration." 2d. "A parol promise respecting the sale of lands is illegal and cannot be enforced in a court of law." Judgment on the demurrer having been for defendant the plaintiff has appealed to his court. We do not regard the agreement as set forth to be within the statute of Frauds. Mortgages are not considered as conveyances of lands within the statute. 2 Burr., 969; 1 Pow. Mortg., 144. con In Massachusetts where it is held that the equity of redemption may not be transferred by parol, an action was maintained by the grantor against the grantee to recover the consideration acknowledged in the deed to have been paid. The Court saying "it is not tract for the sale of lands, that contract was executed and finished by the deed. This is only a demand for money arising out of that contract." Scott vs. McFarland, 13 Mass., 311; Wilkinson rs. Scott, 17 Mass., 249. In Hess vs. Fox. Executor of Fox, plaintiff declared on a special agreement to this effect, that plaintiff being indebted to Fox the testator in the sum of $400 secured by mortgage, it was agreed that plaintiff should convey the premises by absolute deed, and deliver them to Fox, and he should discharge plaintiff from the debt of $100, John W. Simonton, vs. Pedro A. Gandolfo. and sell the premises at the best price, and pay over to plaintiff any surplus over the $400. This was insisted to be void within the statute of frauds. The court say after reciting the statute which is substantially the same as ours, "the meaning is that no interest in land shall pass otherwise than by deed or writing," and they held the agreement not within the statute but valid and binding. 10 Wend., 439, 440. Now in that case the agreement was to the benefit of the mortgagor, in this it is the mortgagee that asks the aid of the court in his behalf. The principle we regard as the same, the statute not operating in the one case we cannot see how it can be made to bear in the other. There is another difference. Gandolfo is the assignee of the mortgagor, having purchased a portion of the lots. In reference to these he occupies the same position to the mortgagee as the original mortgagor, with the exception that he is not liable to judg ment on the notes originally given. As assignee, however, a suit for foreclosure would properly be maintainable against him, and a decree for the sale of the lots be had against him. We then see that he had a direct and fixed interest of his own in the discharge of the mortgage. There was express benefit and advantage to him, and injury to the plaintiff in parting with the security of the mortgage by the release given, thus making an original independent promise in his behalf. 2 Peter's. S. C. R., 182; 5 Bing., 464. A different result could not well be arrived at without holding the release of the mortgage void and the lots held by Gandolfo subject to the incumbrance. It is scarcely consistent with right, that he shall have the advantage and benefit of the release, and keep the money also which he was to pay the mortgagee for it. The judgment of the court below will be reversed and the cause remanded with directions to overrule the demurrer of defendant to the plaintiffs declaration, and for further proceedings to be had there in agreeably to the principles of law. Executor of Jesse H. Willis, vs. John S. Shepard. EXECUTOR OF JESSE H. WILLIS, vs. JOHN S. SHEPARD. A judgment in favor of one execution creditor of an estate upon a rule against another execution creditor of the estate, determining the right of the parties to moneys in the hands of the Sheriff is irregular, such mode of proceeding not being authorized by Common Law or Statute. The proper course in such case is for each execution creditor to take his rule against the Sheriff. Appeal from Leon Circuit Court. Jesse H. Willis, plaintiff, in an execution against the executors of Alfred M. Gatlin, upon motion, obtained a rule in the Leon Circuit Court, against Alfred A. Fisher, Sheriff, John S. Shepard, assignee of the Union Bank of Florida, and William D. Moseley, plaintiffs in other executions in the same court, against the executors of Gatlin, to show cause instanter, why the said Sheriff should not pay over to the attorneys of the said Willis, certain moneys arising from a sale of slaves made by virtue of sundry executions against Gatlin's estate, including the execution in favor of Willis. It does not appear what answers were made by the defendants to the rule, except that according to the bill of exceptions, the Sheriff at the hearing made a return of all the executions under which the sale was made, and of the levies and sales, &c., and that testimony was taken to prove various facts deemed important, and that other facts were admitted and entered by consent in the bill of exceptions. The following entry of the final decision in the court below appears in the record : : "Upon hearing the several parties in interest and claiming the proceeds of the said sale of the first Monday in December last: It is ordered, that the sum of four hundred and five dollars, the proceed of the sale of Ben Tillet be deducted from the amount in the Registry of the court, and that the residue of said sum, be distributed pro rata amongst and upon the execution in favor of said Willis, numbered 2981, and the executions numbered 2982, 2983, and 2984, in favor of the Union Bank of Florida, and the execution numbered 2985, in favor of William D. Moseley; the execution numbered 2887 in favor of the said Union Bank of Florida, upon Executor of Jesse H. Willis, vs. John S. Shepard. which John S. Shepard, the assignee, ordered a stay of execution, being considered as dormant, the stay thus ordered operating as a waiver and relinquishment of all the levies made under it, except that of the 7th of October, 1844, which has been otherwise disposed of. And the said Jesse H. Willis, by his attorney, prayed an appeal from the foregoing order, to the Supreme Court, which is granted; and the said John S. Shepard, by his attorney, also prayed a cross appeal therefrom, in case said appeal of the said Jesse H. Willis, shall be prosecuted by him, to the end that the questions be decided by the Supreme Court: First, Whether his execution, numbered 2887, is not entitled to the whole of the moneys in controversy. And, second, Whether if it be not entitled to the whole it is not entitled to a pro rata portion thereof, with all the other executions, which is also granted, and by consent of parties, bond and security is dispensed with on said appeals respectively, and by consent of parties, it is further ordered, that these several orders be entered as of the 20th day of November last." "THOMAS DOUGLAS, Judge.” Thompson & Hagner, for Appellants. Long & Walker, for Appellee. BALTZELL, J., delivered the following opinion: We have not been able to decide the important question presented to us in the argument of counsel, upon any rule or principle of law satisfactory to ourselves. The case in this court is between Willis's executor, appellant, and Shepard appellee, and there is also a cross appeal. In the court below it was entitled, Willis against Gatlin's executors, and was commenced by rule as well against Shepard as the Sheriff and Moseley, ordering them to appear and show cause why the Sheriff should not pay over to Willis's attorneys moneys arising from sale of certain slaves, &c. To this there was no answer by any one. The trial seems to have progressed between Shepard and Willis until finally an order was passed for "the distribution of the residue after deducting $405 the proceeeds of sale of a negro from the amount in the registry of the court." Now we are not aware of any such mode of proceeding at common law or by statute as a rule between two individuals to try the right of money |