From an early day courts of equity have excepted from the operation of the Statute of Frauds cases where there has been part performance, so called, of the agreement. Whether the basis of the doctrine originally was "that whenever acts had been done which were such as to be consistent only with the existence of a contract, the case was taken out of the mischief of the statute and the only question was the sufficiency of the proof of what the contract was,"23 or whether the injustice, amounting to a kind of fraud, of allowing the statute to be pleaded to an agreement which had already been partly per-fo.med,24 or whether both of these reasons have been operative, it is at least certain that most courts of equity have not scrupled to enforce parol contracts for the sale of land, and sometimes even when the parties could be put substantially in statu quo, and when consequently the latter reason seems inapplicable. It is true that payment of a pecuniary consideration by the buyer is not generally held sufficient justification for enforcing specifically an oral contract to convey land,25 the purchaser
19Estes v, Ballard, 22 Cal. App. 334, 134 Pac. 361; Neagle v. Kelly, 44 111. App. 234 (affd. in 146 111. 460,34 N. E. 917); Delgamo v. Cement Co., 93 Kan. 654,658,145 Pac. 823; Lewis v. Grimes, 7 J. J. Marsh. 336; Root v. Burt, 118 Mass. 521; Hurlburt v. Fitspatrick, 176 Mass. 287, 67 N. E. 464; Lane v. Flint, 217 Man. 96, 104 N. E. 670; Birch v. Baker, 86 N. J. L. 660, 90 Atl. 297; Bowen v. Bell, 20 Johns. 338; Negley v. Jeffers, 28 Ohio 8t. 90; Freed v. Richey, 115 Pa. St. 361, 8 Atl. 626; Ascutney Bank v. Ormsby, 28 Vt. 721; Spangler v. Ashwell, 116 Va. 992, 83 8. E. 930. See also Boston v. Boston, 73 L. J. K. B. 17; Holmwood v. Gillespie, 11 Manitoba, 186; Sencer v. Spenoer, 23 Manitoba, 461. Cf. Coleman v. Chester, 14 S. C. 286. In Gillespie v. Battle, 15 Ala. 276, the court sustained an action on a note for the purchase price of land of which the buyer was in possession. Though no conveyance had been made, the seller was not in default, and the court held that there was no failure of consideration. In Birch v. Baker, 85 N. J. L. 660, 90 Atl. 297, the conveyance was not made to the one who undertook to pay the price, but to his nominee. This was rightly held immaterial,
20Angell p. Duke, L. R. 10 Q. B. 174.
21Cocking v. Ward, I C. B. 868. See also Sanderson v. Graves, L. R. 10 Ex. 234, 241.
22Hamilton v. Terry, 11 C. B. 954; Price v. Sturgis, 44 Cal. 591; Michael v. Foil, 100 N. C. 178, 6 8. E. 264, 6 Am. St. Rep. 677; McGinnis v. Cook, 57 Vt. 36, 52 Am. Rep. 115. InAlchin v. Hopkins, 1 Bing. N. C. 99, however, an agreement for a composition with creditors which provided that the profits of the defendant's benefice should be collected by a receiver and a portion thereof applied in liquidation of the defendant's debts, was held to be within the statute. Similarly an oral agreement to repay a loan out of the future rent of a farm was held invalid in - Ex parte Hall, 10 Ch. Div. 615. English decisions seem to have gone very far in treating contracts relating to money secured by land within the statute. See supra, \ 492.
23 Maddiaon v. Alderson, 8 A. C. 467, by Lord Blackburn.
24 In Maddison v. Alderson, 8 A. C. 467, Selbome, L. C, said: "In a suit founded on such port performance, the defendant is really 'charged' upon the equities resulting from the acta done in execution of the contract, and not (within the meaning of the statute), upon the contract itself. If such equities were executed, injustice of a kind which the statute cannot be thought to have had in contemplation would follow. Let the case be supposed of a parol contract to sell land, completely performed on both sides, as to everything except conveyance; the whole purchase money paid; the purchaser put into possession; expenditure by him (say in costly buildings) upon the property; leases granted by him to tenants. The contract is not a nullity; there is nothing in the statute to estop any court which may have to exercise jurisdiction in the matter from inquiring into and taking notice of the truth of the facts. All the acts done must be referred to the actual contract, which is the measure and test of their legal and equitable character and consequences. If, therefore, in such a case a conveyance were refused, and an action of ejectment brought by the vendor or his heir against the purchaser, nothing could be done towards ascertaining and adjusting the equitable rights and liabilities of the parties, without taking the contract into account. The matter has advanced beyond the stage of contract; and the equities which arise out of the stage which it has reached cannot be administered unless the contract is regarded. The choice is between undoing what has been done (which is not always possible, or, if possible, just) and completing what has been left undone. The line may not always be capable of being so clearly drawn as in the case which I have supposed; but it is not arbitrary or unreasonable to hold that when the statute says that no action is to be brought to charge any person upon a contract concerning land, it has in view the simple case in which he is charged upon the contract only and not that in which there are equities resulting from rat gestae subsequent to and arising out of the contract." Consider in this connection the enforcement by equity of gifts of real estate because of improvements by the donee. See supra, Sec. 130. 25 Maddison v. Alderson, 8 App. Cas. 487, 478-479; Humphreys v. Green, 10 Q. B. D. 148, 159; Purcell v. Minor, being left to his quasi-contractual remedy of recovering back what he has paid; 26 and the rule is not changed though the vendor is insolvent and the quasi-contractual remedy is therefore ineffectual.27 Nor is the performance of services as consideration of a promise to convey land generally held sufficient to justify enforcement of a contract.28 Nor will the preparation of deeds or giving instruction for their preparation validate the agreement.29 And "an act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not in general admitted to constitute a part performance."30 But in many jurisdictions possession taken by the purchaser with the consent or acquiescence of the vendor is held to warrant specific enforcement of the contract.31 Since it is fundamental, however, as has been