This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
It has already been stated that full payment of the purchase price alone will not take the contract out of the statute.1 Still less will payment of part of the purchase price take the case out of the statute.2 Thus, where A bought standing timber on B's land and paid part of the purchase price, such payment did not take the case out of the statute.3 Even under a contract to exchange realty, conveyance of one tract is not part performance with reference to the contract to convey the other.4
By special statute in some states as in Alabama the statute of frauds does not apply to contracts for the sale of realty where the vendee is in possession and has paid part or all of the purchase price.5 Neither possession nor payment of the purchase price will, without the other, prevent the application of the statute.6 Under such statute, however, it is not necessary to take the case out of the statute that the purchaser take possession under the contract. If he is in possession before the contract of sale, as where he holds under a lease7 and pays part of the purchase price under the contract, the statute of frauds does not apply. It is not necessary that the purchase price be paid at the same time that possession is taken.8 Performance by the vendee of the covenants on his part to be performed, such as conveying realty9 or personalty,10 or giving notes,11 or performing services12 in consideration of the conveyance of the realty bargained for is such part performance as renders the contract enforceable.
1 See Sec. 716.
2 Thompson v. Coal Co., 135 Ala. 630; 93 Am. St. Rep. 49; 34 So. 31; Nelson v. Mfg. Co., 96 Ala. 515; 38 Am. St. Rep. 116; 11 So. 695; Temple v. Johnson, 71 111. 13; Felton v. Smith, 84 Ind. 485; Leis v. Potter, - Kan. -; 74 Pac. 622; Nibert v. Baghurst, 47 N. J. Eq. 201; 20 Atl. 252; Bruley v. Garvin, 105 Wis. 625; 48 L. R. A. 839; 81 X. W. 1038; Harney v. Burhans, 91 Wis. 348; 64 N. W. 1031.
3 Bruley v. Garvin, 105 Wis. 625; 48 L. R. A. 839; 81 N. W. 1038.
4 Riddell v. Riddell (Neb.), 97 N. W. 009.
5 Price v. Bell, 91 Ala. 180; 8
So. 565; McLure v. Tennille, 89 Ala. 572; 8 So. 60.
6MeKinnon v. Mixon, 128 Ala. 612; 29 So. 690; Nelson v. Mfg. Co., 96 Ala. 515; 38 Am. St. Rep. 116; 11 So. 695; Manning v. Pip-pen, 95 Ala. 537; 11 So. 56.
7 Franke v. Riggs, 93 Ala. 252; 9 So. 359.
8 Louisville, etc., Ry. v. Philyaw, 94 Ala. 463; 10 So. 83.
9 Webb v. Ballard, 97 Ala. 584; 12 So. 106.
10 Powell v. Higley, 90 Ala. 103; 7 So. 440.
11 Logerfelt v. McKie, 100 Ala. 430; 14 So. 281.
In other states, as in Iowa, the statute with reference to contracts for the sale of realty is substantially the same as that for sales of personalty13 and by its terms the statute of frauds does not apply where there has been either possession of realty under the contract or payment of part or all of the "purchase money."14 In the meaning of the statute the "purchase money" may consist of money,15 of notes, and a mortgage securing them,16 of allowing the promisor to name a child,17 of the rendition of services as of an attorney,18 or furnishing board and care.19 Grantee's payment of a debt of an intestate ancestor of grantor, as the purchase price of realty sold under oral contract, which payment relieves land set apart to another heir of incumbrances thereon has been held to be part performance.20 A deposit of money in a bank, subject to the order of vendor when the title becomes perfect,21 or an advance to vendor by his own agent under an arrangement with the vendee,22 do not constitute payment of the "purchase money" within the meaning of the statute.