The opinion
Ryan, O. J.
I assent to the judgment against the appellant William Brown, the respondent’s vendor; but I cannot bring *80 myself to think tbe judgment against the appellant Michael Murphy, the mortgagee, correct.
In my judgment, the mortgagee was entitled to the balance unpaid of the purchase money. His lien covered all interest of his mortgagor, including the unpaid purchase money. And, as against him, the respondent was not entitled to offset it against the costs, especially as there is no suggestion anywhere in the case that the principal defendant, the respondent’s vendor, is insolvent.
In my judgment, also, it was an abuse of discretion to give costs against the mortgagee, who appears to have acted in good faith. I know of no rule, in cases of specific performance, which warrants a judgment for costs against an innocent intervening purchaser or mortgagee. The respondent’s right rested wholly in parol, except his mere possession. It may be that, under the circumstances, his possession was notice of some interest in the premises, sufficient to hold his parol right paramount to the mortgage. But this was, at most, constructive notice only. And the mortgagee appears not only to have had no actual notice of the respondent’s right, but to have believed that he had none. The mortgagee might have been more diligent in his inquiries, but that appears to have been in mere .ignorance, not at all in bad faith. The evidence tends to show that the respondent himself was sometimes doubtful of his right; and surely the mortgagee ought not to be punished, in costs to the respondent, for discrediting a right which the respondent himself seems to have sometimes discredited.
By the Cowrt. — The judgment of the circuit court is affirmed, with costs.
LyoN, J., took no part.
On motion for a rehearing, appellants’ counsel contended, 1. That to entitle a party to take a case out of the statute on *81 the ground of part performance of the contract, be must make out by clear and satisfactory proof the existence of a contract as alleged (Bowen v. Warner, 1 Pin., 600 ; Hazelton v. Putnam, 3 id., 107; Blanchard v. McDougal, 6 Wis., 167, 173 ; Knoll v. Harvey, 19 id., 99; Tiernan v. Gibney, 24 id., 190, 193; Rowton v. Rowton, 1 Hen. & Mun., 92; Story’s Eq. Jur., §§ 764, 769); and that there was confessedly no such clear and satisfactory proof of the contract, or of all its essential terms, in this case. 2. That the rule of practice in this court, “not to disturb the findings of the circuit court upon questions of fact, except in cases where the preponderance of evidence is most clearly against them,” has no application to cases like the present. In support of this view, counsel referred to the cases above cited, and contended that Ely v. Daily, 40 Wis., 52 , and Murphy v. Dunning, 30 id., 296, do not sustain the rule in the form here recited; and that Snyder v. Wright, 13 Wis., 689 , related only to a review of questions of fact in common-law actions, required by the statute there mentioned. For the practice of this court in equity cases, counsel also cited Sanford v. McGreedy, 28 Wis., 103 , and Clegg v. Jones, 43 id., 482.
Respondent’s counsel, in reply, contended that, under the provision of our state constitution (art. YII, sec. 19) that “ the testimony in causes in equity shall be taken in like manner as in cases at law,” i. e., by examination of witnesses in open court (Brown v. Runals, 14 Wis., 693 ), the rule as to reversal in equity cases upon appeal to this court has properly been modified so as to resemble that adopted in cases at law. Ely v. Daily, 40 Wis., 52 ; Murphy v. Dunning, 30 id., 296; Bacon v. Bacon, 33 id., 147; Ingles v. Patterson, 36 id., 376. 2. That the statute of frauds does not control, because cases of part performance of parol contracts for purchase of lands are excepted by the terms of the statute itself. R. S. 1858, ch. 106, see. 10; Brandeis v. Neustadtl, 13 Wis., 152 -3. 3. That the mere number of witnesses in such a case is not controlling, *82 but it is sufficient if the court is satisfied by the evidence that the agreement was made substantially as alleged, and has been partly performed (1 Sugd. on V. & P., 6th Am. ed., 150, pl. 19; Ingles v. Patterson, supra; Parkhurst v. Van Courtland, in court of errors, 14 Johns., 35 -6); and this is specially applicable to cases of part performance in which the purchaser has been allowed to take possession and make valuable improvements, because the element of fraud enters into the decision of such cases. Roberts on Frauds, 131-2, 134; 1 Sugd., 151, pl. 21; Gregory v. Migdell, 18 Ves., 328, 333, approved by Cranworth, Ch., Meyell v. Sturtees, 31 Eng. Law & Eq., 492; Jackson v. Jackson, 19 id., 545; Duke of Devonshire v. Eglin, 14 Beav., 530; Mundy v. Jolliffe, 5 Myl. & C., 177; East India Co. v. Nuthumbadoo Veerasawmy Moodelly, 7 Moore P. C. C., 497. In no Wisconsin case cited for the appellants did this court reverse the decision of the circuit court’ decreeing specific, performance, where a purchaser had taken possession under the contract and made improvements.
The motion was denied.