This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
§ 225. Of the various topics embraced by the provisions of the Statute of Frauds, nothing seems to have attracted such anxious attention on the part of its framers as the whole class of transactions affecting the title to real estate. The expanded phraseology of the fourth section in this respect, although it may not indeed appreciably enlarge the scope of the section, evinces this spirit very clearly; specifying, as it does, those lighter shades of interest which may be said merely to concern land. But this general drift and policy of the statute may be especially apprehended by comparing together the several provisions bearing on this kind of property. We have already had occasion to examine those sections in which the formality of a writing is exacted in all cases of the creation or transfer of a legal title to land, and written evidence of all declarations of trusts or confidences in land; and we now find the same watchful disposition guarding against the too ready alienation of this important species of property, by denying any remedy upon a mere oral contract for the sale of it, unless proved by a memorandum in writing signed by the party to be charged thereby. In view of the fact that, in the course of their independent legislation, some of the States have omitted one or more of these provisions while retaining others, it is well to observe how far those sections which concern the creation and transfer of interests in land may be made to supply the place of that which we have now to consider. We have already had occasion, in introducing the subject of trusts, to notice the relation which the seventh section, covering trusts, bears to that which is now before us.
§ 226. In Pennsylvania, where the first three sections only of those of the English statute, which relate to the creation and transfer of interests in land, have been re-enacted, the courts have repeatedly had occasion to deal with verbal contracts for the purchase or sale of such interests. And although there have been, particularly in the more recent decisions, indications of a disposition to consider the English statute, including the fourth section, as having some force, by adoption into the common law of the State, to restrain the right of action upon such contracts, the law as it now stands clearly allows that right.1 But it allows it for the mere and narrow purpose of recovering damages for the non-performance of the contract, and, under the liberal and salutary application of those sections which have been preserved in that State, the right is considerably affected in its extent. Thus, in an action by the vendor on such a contract, he is not allowed to recover the full amount of the purchase-money agreed to be paid; for this, it is said, would be in effect to compel the vendee to a specific execution of the contract, against the spirit of the other sections forbidding the establishment of a title to land without writing.1 The vendee may recover the actual damage he has sustained by the refusal of the other to carry out the contract, and nothing more. And where the vendee sues for a breach by the vendor, it should seem plain that he is to recover only his actual damage, and not the value of the land, which he bargained for, but cannot acquire a title to on account of the first three sections of the statute.2 But the learned judges of that State have uniformly refused to decree a specific execution of a verbal contract for the sale or purchase of land, unless there existed such circumstances as in England are held, in equity, sufficient to deprive the fourth section of its application, such as part-performance of the contract by one party on the faith of the other's engagement; or to eject the vendors by proceedings at law upon the proof of such oral contract; and their determinations have been placed upon the ground of the existence in their own law of the provisions against the creation of estates in land without writing.3 It is thus apparent that, so far as the office of the fourth section is to cut off such an equitable claim of title in land as arises in a contract for the purchase of it, that office is fulfilled by the other provisions referred to.
1 Bell v. Andrews, 4 Dall. 152; Ewing v. Tees, 1 Binn. 450; McDowell v. Oyer, 21 Pa. St. 417; Kurtz v. Cummings, 24 Pa. St. 35; Malaun v. Ammon, 1 Grant 123. In Pugh v. Good, 3 Watts & S. 56, Gibson, C. J., said: "I would hold the particular clause in the fourth section of the British Statute of Frauds to have been extended here by adoption, had not this court, very inconsistently I think, held it otherwise in Bell v. Andrews [supra]. As it is, we must take that clause with its equitable exceptions to be part of our peculiar common law adopted in analogy to the British statute, as we take the doctrine of charitable uses to be adopted in analogy to the statute of that name; or, if it must necessarily hare a statute foundation, we must forcibly engraft it on that clause of our Act which limits the effect of a parol conveyance to the creation of an estate at will, though there be great difficulty in doing this." The case, however, presented fair ground for a decree of specific execution on account of part-performance, which was accordingly granted. In Ellet v. Paxson, 2 Watts & S. 418, it was said that on an action for refusal to fulfil a contract to purchase land the vendor was at most only entitled to recover his actual damage. In Whitehead v. Carr, 5 Watts 368, which was an action for damages for refusal to convey land according to a verbal contract, brought, as it appeared, for the purpose of obtaining an opinion of the court on the point whether such an action would lie, Huston. J., said: "If the question were new, and there were no decisions on the subject, and it were necessary to decide it in this case, it would deserve and obtain very serious consideration." These expressions show that an important question in that State is still regarded as not quite closed. It would be unprofitable, however, for us to pursue it here, as in the great body, if not all, of the other States the enactments referred to have been incorporated together in the local law.