The opinion of the court was. delivered by

The case presented for adjudication is so completely stated in the opinion of Vice-Chancellor Reed, upon which the decree appealed from was made, that it need not be here repeated.

It appears therefrom, without any contradiction, that the agreement of Brown to convey certain land to Riddle and Clabby, the parties to this litigation, upon their paying the consideration, part in cash on the delivery of the deed and part at a future day secured by the bond of Riddle and Clabby and a mortgage on the land, was performed on the part of Brown by the conveyance of the land to Clabby alone, and on the part of the purchasers by a cash payment by Clabby of such part of the sum to be paid in cash as Brown was willing to receive, and by a bond and mortgage upon the land made by Clabby alone. This substituted performance was expressly assented to by Riddle, but his assent was by parol.

*583It is obvious, however, that by his conduct, in having assented to the conveyance to Clabby alone, he was estopped from making any claim to a conveyance from Brown, and, by his assenting to Clabby’s contracting to pay the whole of the deferred payments of the consideration, from asserting as against Clabby any. adverse claim to the land arising from such conveyance. Riddle’s claim of a right to a conveyance from Clabby of an undivided half of the land must therefore rest either upon a trust arising from the transaction or from an agreement on the part of Clabby.

Riddle has produced no trust or agreement expressed in writing by Clabby.

No trust arose by his paying or securing to Clabby one-half of the purchase price of the land, for he did not do so. While he permitted Clabby to use his commissions of $600, which Brown owed him, to make up part of the cash payment., such use was correctly held by the vice-chancellor not to create a trust for an undivided half of the land.

The vice-chancellor, however, conceded that the agreement by Clabby to convey the undivided half of the land to Riddle, could, under the circumstances, be established by parol evidence and was not within the statute of frauds.

I deem it unnecessary to pronounce upon the correctness of this view, for, assuming it to be correct, the parol evidence adduced was held by the vice-chancellor to be insufficient to make out such an agreement, and as the evidence was extremely contradictory, and as the decision thereon must have depended upon the credit given to the witnesses, I feel unable to say that'the vice-chancellor who saw and heard the witnesses was wrong' in his conclusion.

For this reason, I shall vote to affirm the decree.

For affirmance — The Chief-Justice, Depue, Van Syokel, Gummere, Collins, Lippin.cott, Hendrickson, Adams, Nixon, Yredenburgh — 10.

For reversal — Dixon, Garrison, Ludlow, Bogert — 4.