fraud or mistake extends no further than to prevent the execution, or withhold from the other party written evidence of the agreement, it does not furnish sufficient ground for the court to disregard the statute of frauds and enter into the investigation of the oral agreement for the purpose of enforcing it.

No part performance by the party sought to be charged will take an agreement out of the statute of frauds, except in those cases where the statute itself provides for such effect. It is part performance by the party seeking to enforce, and not by the other party, to which courts of equity look in giving relief from the statute.

When the proposed reformation of an instrument involves the specific enforcement of an oral agreement within the statute of frauds, or when the term sought to be added would so modify the instrument as to make it operate to convey an interest or secure a right which can only be conveyed or secured through an instrument in writing, and for which no writing has ever existed, the statute of frauds is sufficient answer to such a proceeding, unless the plea of the statute can be met by some ground of estoppel to deprive the party of the right to set up that defence.

The fact that the omission or defect in the writing, by reason of which it failed to convey the land or express the obligation which it is sought to make it convey or express, was occasioned by mistake or by deceit or fraud, will not alone constitute such an estoppel. There must occur also some change in the condition or position of the party seeking relief, by reason of being induced to enter upon the execution of the agreement, or to some acts upon the faith of it as if it were executed, with the knowledge and acquiescence of the other party, either express or implied, for which he would be left without redress if the agreement were to be defeated.

It has been held to be sufficient to take the case of the statute, that the plaintiff in pursuance of a parol agreement as purchaser had been let into possession of the entire premises. The reasoning by which this result was reached is far from satisfactory, and even where the rule prevails

there are frequent intimations that it is regarded as trenching too closely upon the spirit as well as the letter of the

statute.

If possession be taken without permission to enter, express or implied, it is no foundation for relief in equity.

Fraud, which relates only to the preparation, form and execution of the writing, is sufficient to vitiate the instrument so made. It may be set aside either in law or equity. If it is made to include land not the subject of the actual sale it is inoperative as to such land, and the fraud may be shown, for the purpose of defeating its recovery, in an action at law.

Fraud may vitiate the writing which is tainted by it, but it does not supply that which the statute requires. It may destroy a title or a right acquired by its means, but it has no creative force. It will not confer title. In the absence of a legal contract by the agreement of the parties, it will not establish one nor authorize the court to declare one by its decree.

Parol testimony, used to defeat a title or limit an interest acquired under a written instrument or to convert it into a trust, does not necessarily conflict with the statute of frauds. It has been held that an absolute deed may in this mode be converted in equity into a mortgage.

A fraudulent misrepresentation, although sufficient to sustain an action for damages, cannot be converted into a contract to be enforced as such. Neither will it furnish the measure by which a written contract may be reformed. The tendency of the human mind, when fraud and injustice are manifest, is to strain every point to compass its defeat, and render full redress to the party upon whom it has been practiced. This influence has led to decisions in which the facts of the particular case were regarded more than the general considerations of public policy upon which the statute is founded and entitled to be maintained. Courts have sometimes regarded it as a matter of judicial merit to wrest from under the statute all cases in which the lineaments of fraud in any form were discernible. But the impulse of moral reprobation of deceit and fraud, however commend

able in itself, is liable to mislead if taken as the guide to judicial decrees.

That which moves the court to a decree to enforce the agreement is not the artifice by which the execution of the writing has been evaded, but what the other party has been induced to do upon the faith of the agreement for such a writing. It is not that deceit, misrepresentation or fraud of itself entitles a party to an equitable remedy, but that equity will interfere to prevent the accomplishment of the fraud which would result from the enforcement of legal rights contrary to the real agreement of the parties.

Upon principle, the conveyance of land cannot be decreed in equity by reason merely of an oral agreement therefor, against a party denying the alleged agreement and relying upon the statute of frauds, in the absence of evidence of change of situation or part performance creating an estoppel against the plea of the statute. This rule applies as well to the enforcement of such an agreement by way of rectifying a deed as to a direct suit for its specific performance.

A court cannot disregard a valid statute, nor regard it with favor or disfavor, nor take out of its operation a case that is within it, nor grant relief at law or in equity against it. The judicial question is, what purpose of the legislature appears in its acts, upon the established rules of construction? The meaning of one act may be shown by other acts. There may be several acts, none of which can be properly administered in a particular case except as part of one law comprising them all. It may be necessary to consider one statute on any subject a part of the whole law, statutory and common, on that subject, as it is necessary to consider one section or word of a statute a part of that statute.

A written instrument executed by a surety, which by mistake fails to express the actual agreement and intention of the parties, may be reformed, upon parol proof, like other written instruments, and then enforced against the surety.

[No Relief for Culpable Negligence.]

A court of equity never relieves a man from the consequences of his own culpable negligence. The application of this rule may work hardship in some cases, but it requires nothing unreasonable. It is infinitely better that men should be held to the consequences of their own culpable carelessness than that courts of equity should undertake to relieve therefrom. The rule requires reasonable caution and prudence in the transaction of business, and is deeply imbedded in our jurisprudence.

When one sues another for negligence, his own negligence contributory to the injury will constitute a defence to the action; but where one sues another for a positive wilful wrong or fraud, negligence by which the party injured exposed himself to the wrong or fraud will not bar relief. If the rule were otherwise, the unwary and confiding, who need the protection of the law the most, would be left a prey to the fraudulent and artful practices of evil-doers.

[Laches as a Defence.]

The rules relating to acquiescence and laches, which the court has always recognized, altogether outside of and independent of the statute of limitations, are the fruit of the maxim that "equity aids the vigilant, not those who slumber on their rights."

The defences of laches and acquiescence are cognate but not correlative. They both spring from the cardinal rule that "he who seeks equity must do equity."

"Acquiescence" relates to inaction during the performance of an act. "Laches" relates to delay after the act is done.

If a party having a right stands by and sees another dealing with property in a manner inconsistent with that right, and makes no objection while the act is in progress, he cannot complain. That is the proper sense of the word "acquiescence." And thus it is that in such a case an equitable estoppel is raised.

When once the act is completed, without any knowledge or

assent upon the part of the person whose right is infringed, the matter is to be determined on very different legal considerations. A right of action has then vested in him which at all events, as a general rule, cannot be divested without accord and satisfaction or release under seal. Mere submission to the injuries for any time short of the period limited by statute for the enforcement of the right of action cannot take away such right, although under the name of "laches" may afford a ground for refusing relief under some peculiar circumstances.

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The doctrine of laches in courts of equity is not an arbitrary or technical doctrine. When it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or when, by his conduct and neglect, he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterward to be asserted, in either of these cases lapse of time and delay are most material. But in every case, if an argument against relief which otherwise would be just, is founded upon mere delay, that delay, of course, not amounting to a bar by any statute of limitation, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are the length of the delay and the nature of the acts done during the interval which might affect either party, and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.

A person cannot be deprived of his remedy in equity on the ground of laches, unless it appears that he has knowledge of his rights. As one cannot acquiesce in the performance of an act of which he is ignorant, so one cannot be said to neglect the prosecution of a remedy when he has no knowledge that his rights have been invaded, excepting, always, that his want of knowledge is not the result of his own culpable negligence.

It is not a little difficult to determine what knowledge is