In most jurisdictions the improvement of land by the purchaser under an oral contract is an act which enables him to enforce the contract in equity.1 Where this doctrine is accepted it may be thought unnecessary to raise an obligation on the part of the vendor to pay for the benefit resulting from such improvements,2 except in the event of a subsequent conveyance to an innocent purchaser for value or of some other contingency that makes the remedy of specific performance unavailable.3 On the other hand where the doctrine is rejected the purchaser would in every case be without a remedy unless such a quasi-contractual obligation were raised. The right to restitution has therefore been recognized,4 though it is said not to be enforceable at law.5 When it is the purchaser who is in default under the contract, it may not be inequitable for the vendor to retain the benefit derived by him from the improvement of his property.6 But where the purchaser is willing to proceed and it is the vendor who makes default, the retention of such benefit is clearly unjust. The improvements are made, it is true, without the vendor's request and exclusively for the purchaser's benefit.1 Furthermore the improvements may seem to the vendor neither profitable nor desirable. But the vendor has the option to perform his contract, which is morally, if not legally, binding upon him, and if he is unable or unwilling so to do, he ought at least to pay for the enhancement of the value of his property. The measure of recovery will be further considered in another section (post, Sec. 107).

1 See Browne, "Statute of Frauds " (5th ed.), Sec. 487 and cases cited.

2 Reynolds v. Johnston, 1854, 13 Tex. 214.

3 McNamee v. Withers, 1872, 37 Md. 171; Welsh v. Welsh, 1832, 5 Ohio 425; Holthouse v. Rynd, 1893, 155 Pa. St. 43 ; 25 Atl. 760.

4 Fox's Heirs v. Longly, 1818, 1 A. K. Marsh (8 Ky.) 388; Patterson v. Yeaton, 1859, 47 Me. 308, (Since the enactment of stat. 1874, c. 175, the contract may be specifically enforced. See Woodbury v. Gardner, 1885, 77 Me. 68.); Albea v. Griffin, 1838, 2 Dev. & Bat. Eq. (22 N. C.) 9; Luron v. Badham, 1900, 127 N. C. 96; 37 S. E. 143 ; Ford v. Stroud, 1909, 150 N. C. 362; 64 S. E. 1; Rhea V. Allison, 1859, 3 Head (40 Tenn.) 176; Treece v. Treece, 1880, 5 Lea (73 Tenn.) 220; Ernst v. Schmidt, 1912, Wash. ; 119 Pac. 828. And see Bender's Admrs. v. Bender, 1860, 37 Pa. St. 419.

The purchaser is also held to have a lien on the land for the amount recoverable by him. Brown v. East, 1827, 5. T. B. Mon. (21 Ky.) 405; McNamee v. Withers, 1872, 37 Md. 171; Treece v. Treece, 1880, 5 Lea (73 Tenn.) 220.

5 Shreve v. Grimes, 1823, 4 Litt. (14 Ky.) 220; 14 Am. Dec. 117; Orear v. Botts, 1843, 3 B. Mon. (42 Ky.) 360; Patterson v. Yeaton, 1859, 47 Me. 308; Welsh p. Welsh, 1832, 5 Ohio 425; Mathews v. Davis, 1845, 6 Humph. (25 Tenn.) 324. For a criticism of some of these cases, see Keener, " Quasi-Contracts," pp. 366-371.

6 Farnam v. Davis, 1855, 32 N. H. 302; Long v. Finger, 1876, 74 N. C. .502. And see Gillet v. Maynard, 1809, 5 Johns. (N. Y.) 85; 4 Am. Dec. 329. But see Hawkins v. Beal, 1836, 4 Dana (34 Ky.) 4, 6; Masson v.

The case of improvements made by a lessee under an oral lease within the statute would seem to be governed by the same rules as that of improvements made by a purchaser. In the former case, however, it frequently appears that the improvements are made, not upon the lessee's initiative and exclusively for the lessee's benefit, but in pursuance of the provisions of the lease and as consideration, in whole or in part, for the lease. Improvements thus required of the lessee stand upon the same footing as other services rendered in performance of an oral contract within the statute, and the lessor cannot be heard to say that the improvements are of no benefit to him. It is held, consequently, that the lessee may recover at law the reasonable value of the labor and materials employed in making the betterments, regardless of their effect upon the value of the property.2 Neither purchaser nor lessee may recover for improvements if it appears that notwithstanding the defendant's refusal to perform the contract the plaintiff remains in possession of the land.1

Swan, 1871, 6 Heisk. (53 Tenn.) 450. In the former case the court said: "Had it clearly appeared that the non-execution of the contract was attributable altogether to his [the purchaser's] willful delinquency or fault, we should be indisposed to concede to him any right in equity to any compensation whatever."

1 See Cook v. Doggett, 1861, 2 Allen (Mass.) 439; Smith v. Smith, 1860, 28 N. J. L. 208; 78 Am. Dec. 49; Gillet v. Maynard, 1809, 5 Johns. (N. Y.) 85; 4 Am. Dec. 329.

2 Gray v. Hill, 1826, Ry. & M. 420; Pulbrook v. Lawes, 1876, 1 Q. B. D. 284; Findley v. Wilson, 1823, 3 Litt. (13 Ky.) 390; 14 Am. Dec. 72; White v. Wieland, 1872, 109 Mass. 291; Parker v. Tainter, 1877, 123 Mass. 185, (the court in this case said that the cost of the improvements might be recovered); Smith v. Smith, 1860, 28 N. J. L. 208; 78 Am. Dec. 49.