Phillips v. Jones

Battle, J., (dissenting.) Section 3654 of Kirby’s Digest provides, in part, as follows: “No action shall be brought * * * to charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, * * * unless the agreement, promise or contract upon which such action shall be brought, or some memorandum or note thereof, shall be made in writing, and signed by the party to be charged therewith, or signed by some other person by him thereunto properly authorized.” Courts of equity will, however, enforce a specific performance of a contract within this statute where the parol agreement has been performed by a party to an extent which will place him in a situation which is a fraud upon him, unless the agreement is fully performed. They will not permit the statute, which was designed to prevent frauds, to be made the instrument of fraud. McNeil v. Jones, 21 Ark. 278 ; Terry v. Rosell, 32 Ark. 478 ; Johnston v. Glancy, 4 Blackf. 98 ; Greenlee v. Greenlee, 22 Pa. St. 235; 2 Story’s Equity Jurisprudence, § § 759, 761; Browne, Statute of Frauds (5 Ed.), § 448; Wood, Statute of Frauds, § § 483, 496.

Judge Story says: “But a more general ground, and that

which ought to be the governing rule in cases of this sort, is that nothing is to be considered as a part performance which does not put the party into a situation which is fraud upon him unless the agreement is fully performed.” 2 Story’s Equity Jurisprudence, § 7<5i.

In Derr v. Ackerman, 182 Pa. St. 596, the court said: “In order to take a parol contract for the sale of land out of the operation of the' statute of frauds, its terms must be shown by full, complete, satisfactory and indubitable proof. The evidence must define the boundaries, and indicate the quantity of the land. It must fix the amount of the consideration. It must establish the fact that possession was taken in pursuance of the contract and at or immediately after the time it was made, the fact that the change of possession was notorious, and the fact that it has been exclusive, continuous and maintained. Also it must show performance or part performance by the vendee which could not be compensated in damages, and such as would make a rescission inequitable and unjust.”

Pomeroy on Contracts says: “The acts of part performance must be done in pursuance of the agreement; must unequivocally refer to and result from the agreement; or, in other words, clearly showing that there exists some contract between the parties, they must be exclusively referable thereto; it must appear that they would not have been done except on account thereof, and they must be consistent with the contract alleged. When parol evidence has been admitted to prove the agreement in suit, the acts of part performance must be clearly and exclusively referable to and in pursuance of its terms. Undoubtedly much of the general language found in the case is intended to describe the necessary correspondence between the acts of part performance and the agreement alleged, after it has thus been established by the evidence directly introduced for that purpose. The theory upon which-equity proceeds in this branch of its jurisdiction is well established, and, if rightly understood, it will harmonize all the cases and remove all occasion of doubt or confusion. A plaintiff can not, in the face of the statute, prove a verbal contract by parol evidence, and then show that it -has been partly performed. This course of proceeding would be a virtual repeal of the statute. Pie must first prove acts done by himself, or on his behalf, which point unmistakably to a contract between himself and the defendant, which can not, in the ordinary course of human conduct, be accounted for in any other manner than as having been done in pursuance of a contract, and which would not have been done without an existing contract; and although these acts of part performance can not, of themselves, indicate all the terms of the agreement sought to be enforced, they' must be consistent with it and in conformity with its provisions when these shall’ have been shown by the subsequent parol evidence. It follows, from this invariable rule, that acts which do not unmistakably point to a contract existing between the parties, or which can be reasonably accounted for in some other manner than as having been done in pursuance of such a contract, do not constitute a part performance sufficient in any case to take it out of the operation of the statute, even though a verbal agreement has actually been made between the parties. It is for this reason, among others, that payment of the purchase price, in whole or in part, is not of itself a sufficient performance to obviate the statute, because the mere payment of money by one man to another does not, in the ordinary course of human conduct, indicate the existence of a contract between them; the fact of such payment is reasonably explicable in many other ways than as having been done in pursuance of a contract. For a like reason, the mere possession of the premises by a tenant, continued after the expiration of his term, is not a sufficient part performance of a verbal contract to renew the lease or to convey the land, because such possession may be as reasonably and naturally explained by his holding over as by an agreement to renew or to convey; in other words, it does not unequivocally point to the existence of a contract between the parties, but is referable to another cause. The rule is general in its application and fundamental in principle, that acts which are referable to something else than a verbal agreement, and which may be ordinarily otherwise accounted for, do not constitute a sufficient part performance of it.” Section 108; Browne, Statute of Frauds (5 Ed.), § 454; Waterman, Specific Performance, § 261; Billingslea v. Ward, 33 Md. 48 .

“Possession alone of land, under a verbal contract, when delivered to the vendee or lessee, or taken by him with the consent of the vendor or lessor, ór with the knowledge which implies such consent, is an act of part performance which takes the case out of the statute of frauds, even without the additional circumstances of the payment of consideration, or the making of improvements. Such possession must be taken and held with the intent of carrying out and executing the agreement; it must be actual, definite and exclusive, in pursuance and consequence of, and exclusively referable to, the contract; must be subsequent in point of time to the contract; and, with- the probable exception of a new agreement between a tenant and his landlord, the act of taking possession must be performed after, or at all events simultaneously with, the conclusion of the contract between the parties.” Pomeroy on Contracts, § § 115-125; Moore v. Gordon, 44 Ark. 334 ; Sutton v. Myrick, 39 Ark. 424 ; Aitkin v. Young, 12 Pa. St. 15; Christy v. Barnhart, 14 Pa. St. 260; Pearson v. East, 36 Ind. 27 ; Emmel v. Hayes, 102 Mo. 186 ; Hutton v. Doxsee, 116 Iowa, 25 ; Knoll v. Harvey, 19 Wis. 99 ; Mahana v. Blunt, 20 Iowa, 142 ; Armstrong v. Kattenhorn, 11 Ohio, 265; Johnston v. Glancy, 4 Blackf. 98, 99 ; Greenlee v. Greenlee, 22 Pa. St. 225-237; Kaufman v. Cook, 114 Ill. 14 ; Barnes v. Boston & Maine R. Co., 130 Mass. 388 ; Browne, Statute of Frauds (5 Ed.), § § 472, 476, 477, 478, 480.

In New Orleans v. Gaines, 138 U. S. 594 , the court, in speaking of the possession that is a sufficient part performance of a verbal agreement for the sale of land, and will take it out of the statute of frauds, said: “In short, it must be a new possession under the contract, and not merely the continuance of a former possession claimed under a different right of title.”

In Green v. Groves, 109 Ind. 519 , the court held that “a verbal contract by a creditor with the wife of his debtor that in consideration that she shall join her husband in a mortgage of real estate belonging to the latter, thus releasing her inchoate interest, he will, upon acquiring title through foreclosure and sale, convey to her a certain part of the property, is a parol contract for the sale of the land within the meaning of the statute of frauds;” and- that neither the possession of the wife of the land at and before the agreement and continued thereafter until and after the complete performance of the contract on her part and the foreclosure of the mortgage, nor the payment of the consideration would take the contract out of the statute of frauds, and entitle her to a specific performance. Carlisle v. Brennan, 67 Ind. 12 , is to the same effect.

In Peckham v. Balch, 49 Mich. 179 , it was held that “a verbal agreement to convey land being void under the statute of frauds, a bill against a wife to compel a conveyance, even though her husband made the agreement and received the consideration with her full knowledge and consent, can not be maintained where there is no such part performance as will take the case out of the statute and that, “the complainant being a tenant in common of the property, his continued possession would not be sufficient.” See Mahana v. Blunt, 20 Iowa, 142 . In Wilmer v. Farris, 40 Iowa, 309 , it was held that “specific performance will not be enforced of a parol contract for the sale of real estate by one partner to another, where the only change of possession is the withdrawal of the vendor and the continuance of the vendee in possession.”

Courts of equity enforce the performance of a verbal contract to sell land, where there has been a part performance, in order to prevent. fraud. They interfere only where the contract has been the means' of leading a party into a situation which is a fraud upon him, unless the agreement is fully performed. When the vendee was in possession of the land at the time the contract was made, and that possession has been unchanged, he has not been injured or affected by the contract in that respect. Neither would his situation be so changed by the payment of the purchase money as to make the enforcement of the contract by a court of equity necessary to prevent fraud, for he could recover the purchase money and interest (Johnson v. Craig, 21 Ark. 533 ); nor would his situation be so changed by making improvements of so little value as to be compensated by the temporary enjoyment of the land (Moore v. Gordon, 44 Ark. 341 ). In such cases there is no occasion for the interposition of a court of equity for the protection of the parties-or either of them.

Possession by a purchaser, under a verbal contract to sell or convey land, does not, of course, relieve him from the performance of the conditions he is bound to do by the terms of his contract before he will be entitled to a conveyance. It takes his contract out of the operation of the statute of frauds, and no more.

In the case at bar there was a verbal agreement to sell land. The vendee was in possession at the time, and remained in possession; there was no change of possession. She paid a part of the purchase money and a part of the taxes, and made improvements of little value, which were a small compensation for her temporary enjoyment of the land. There was not enough done to take the agreement out of the operation of the statute of frauds.

I think that the decree of the chancery court should be affirmed.

Riddick, J., concurs in the dissenting opinion of Judge Battle. °