§ 1462. By the Statute of 9 Geo. 4, c. 14, § 7, which was passed in extension of the Statute of Frauds, it is provided, "That the said enactments shall extend to all contracts for the sale of goods of the value of £10 sterling and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not, at the time of such contract, be actually made, procured, or provided, or fit or ready for delivery, or some act may be requisite for the making or completing thereof, rendering the same fit for delivery." In this country, however, it has always been held that executory contracts for the future delivery of goods are embraced within the seventeenth section of the original statute.
§ 1463. The Statute of Frauds also enacts, "That all interests in lands, tenements, and hereditaments, except leases for three years, not put in writing and signed by the parties, or their agents authorized by writing, shall not have nor be deemed in law or equity to have any greater force or effect
C. & P. 87; Gardner v. Joy, 9 Met. 177; ante, § 1004, and cases cited; Watts v. Friend, 10 B. & C. 446; Cason v. Cheely, 6 Ga. 554; Hardell v. McClure, 1 Chand. 271.
1 Gardner v. Joy, 9 Met. 177; Spencer v. Cone, 1 Met. 283; Lamb v. Crafts, 12 Met. 353; Watts v. Friend, 10 B. & C. 446; Wilks v. Atkinson, than leases or estates at will." It further enacts, "That no action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning the same, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party or his lawful agent."
6 Taunt. 11. But see contra, Robertson v. Vaughn, 5 Sandf. 1; Sewall v. Fitch, 8 Cowen, 215; Hight v. Ripley, 19 Me. 137; Cooper v. Elston,
7 T. R. 14; Rondeau v. Wyatt, 2 H. Black. 63; Clayton v. Andrews, 4 Burr. 2101; Atwater v. Hough, 29 Conn. 508.
2 Groves v. Buck, 3 M. & S. 178; Sewall v. Fitch, 8 Cowen, 215; Downs v.. Ross, 23 Wend. 270, 273.
3 Lee v. Griffin, 1 B. & S. 272. See further, ante § 1008 and note.
§ 1464. It maybe as well here to consider very briefly the cases in which a court of equity will decree a specific performance of contracts respecting lands which are within these clauses. And the first rule admitted is that courts of equity will enforce a specific performance of such contract, when not in writing, when they are fully set forth in the bill and confessed in the answer, - on the ground that the mischief against which the statute was intended to guard is thereby avoided; and, also, that the setting forth of the terms of the contract under oath is a virtual compliance with the requisitions of the statute.1 But if the answer, although confessing the parol agreement, insists upon the Statute of Frauds as a defence and bar to the suit, it is now well established that specific performance will not be decreed.2 Another case in which specific performance will be decreed is where the contract has been partly performed, on the ground that where one party has executed his part of the agreement in the confidence that the other party will do the same, not to enforce the contract would operate as a fraud.1 A deposit, security, or payment of the purchase-money or a part thereof, though at one time thought to be sufficient to operate as a part performance,2 seems now to be held not to have such an operation;3 on two grounds, that the money paid may be recovered back in an action at law, and also that the statute, by expressly giving to part payment the effect of part performance in all contracts relating to goods, and omitting such a clause in relation to lands, virtually prohibits such a construction.4 Nothing, therefore, is considered as a part performance unless it places the party suing for it in a situation which would operate as a fraud on him if the agreement were not performed.5 As if a vendee, upon a parol agreement for the purchase of land, should in faith thereon proceed to build a house on the land.6 So, also, it should clearly appear that the acts alleged as a part performance were done solely with a view to the entire performance of the agreement, and were not merely ancillary or preliminary to the performance of it.7 And mere possession of land, if obtained wrongfully or independently of the contract, would not be a part performance within the rule of a court in equity.1 It should also clearly appear that the contract is plain, definite, and unequivocal in all its terms, so that there shall be no ambiguity in its meaning.2
1 2 Story, Eq. Jur. § 753 et seq., for a full statement of the doctrines relating to specific performance. Attorney-General v. Sitwell, 1 Y. & C. 583; Attorney-General v. Day, 1 Ves. 221; Croyston v. Baynes, 1 Eq. Abr. 19; Child v. Godolphin, 1 Dick. 39; Child v. Comber, 3 Swanst. 423, note; Cottington v. Fletcher, 2 Atk. 155; Lacon v. Mertins, 3 Ib. 3. See, however, Popham v. Eyre, Lofft, 786, 80S; Rondeau v. Wyatt, 2 H. Black. 68; The London & Birmingham Railway Co. v. Winter, Craig & Phil. 57, 62.
2 Whaley v. Bagnel, 1 Bro. P. C. 345; Walters v. Morgan, 2 Cox, 369; Whitbread v. Brockhurst, 1 Bro. Ch. 416, and Mr. Belt's note; Whitchurch v. Bevis, 2 Bro. Ch. 559; Rondeau v. Wyatt, 2 H. Black. 68; Cooth v. Jackson, 6 Ves. 17; Rowe v. Teed, 15 Ib. 375; Blagden v. Bradbear, 12 Ib. 466; Leman v. Whitley, 4 Russ. 423. See, also, 1 Fonbl. Eq. B. 1, ch. 3, § 8, note (d); 2 Story, Eq. Jur. § 755 to § 759.
1 2 Story, Eq. Jur. § 759 et seq.; Attorney-General v. Day, 1 Ves. 221; Rathbun v. Rathbun, 6 Barb. 98; Buckmaster v. Harrop, 7 Ves. 346; Walker v. Walker, 2 Atk. 100.
2 Hales v. Van Berchem, 2 Vern. 618; Owen v. Davies, 1 Ves. 82; Skett v. Whitmore, Freem. Ch. 280; 3 Wooddes. lect. 57, p. 427.