1 Story, Eq. Jur. § 761.

2 Rhodes v. Rhodes, 3 Sandf. (N. Y.) Ch. 279. See Watson v. Mahan, 20 Ind. 223; Davison v. Davison, 13 N. J. Eq. 246; Gupton v. Gupton. 47 Mo. 37; Webster v. Gray, 37 Mich. 37; Franklin v. Tnckerman, 68 Iowa, 572; Crabill v. Marsh, 38 Ohio St. 331; Howard v. Brower, 37 Ohio St. 402; Phlugar v. Pulz, 43 N. J. Eq. 440. But see Suman v. Sprin-giite, 67 Ind. 115; Wallace v. Long, 105 Ind. 522; Austin v. Davis, 128 Ind. 472; Hershman v. Pascal, 4 Ind. App. Ct. 330. A similar point was raised in argument by Sir Samuel Romilly, as early as the case of Buck-master v. Harrop, 13 Ves. 456. The payment there, however, was of the auction duty, and Lord Chancellor Erskine, admitting that the duty could not be recovered back, held that the payment was not to be taken as an act of part-performance, because it was required to be made, whether there was any effectual contract or not.

1 Malins v. Brown, 4 N. Y. 403; German v. Machin, 6 Paige Ch. 288. See also Dugan v. Gittings, 3 Gill (Md.) 138; Gosden v. Tucker, 6 Munf. (Va.) 1; Johnson v. Hubbell, 2 Stock. (N. J.) 332. Ante, § 460. The rule stated in the text is supported by the following cases also: Phlugar v. Pulz, 43 N. J. Eq. 440; Warren v. Warren, 105 111. 568; Kenyon v. Youlan, 53 Hun (N. Y.) 592; Matthews v. Matthews, 62 Hun (N. Y.) 110; Van Dyre, 3 Stock. (N. J.) 370; Sharkey v. McDermott, 91 Mo. 647; Fuchs v. Fuchs, 48 Mo. App. 18; Ruggles v. Emery, 14 Sup. Ct. Rep. 1083; Ford v. Steele, 31 Neb. 521. But in the recent case of Wallace v. Long, 105 Ind. 522 the Supreme Court of Indiana have decided to the contrary. The facts were that a childless husband and wife, in consideration that a young girl should live with them until the death of either of them and of the survivor, in all respects as their child, rendering them such service as she could, verbally promised to give her by will at their death the whole estate, which included land and more than fifty dollars' worth of personalty; it was held that the Statute of Frauds applied, and that the verbal promise, notwithstanding performance by the girl, could not be enforced. See also Maddison v. Alderson, 8 App. Cas. 467, disapproving Loffus v. Maw, 3 Giff. 592; Nelson v. Masterton, 2 Griffith (Ind.) 524; Grant v. Grant, 63 Conn. 530 and cases cited; Baldwin v. Squier, 31 Kansas, 283. The case of Brown v. Sutton, 129 U. S. 238, is peculiar. In that case the facts were that in consideration of the plaintiff's living with the defendant and his wife and taking care of them until their death, the defendant agreed to buy land and build a house on it larger than was necessary for the three, and made larger for the purpose of enabling the plaintiff to keep boarders therein; and the land was bought and the house built accordingly, and the plaintiff put into possession. The Court said: "There can be little doubt that the delivery of possession to the Suttons, and the construction of this house under their direction and control, is a sufficient part-performance to take the case out of the Statute of Frauds;" and the decree accordingly was affirmed. No cases are cited. In the case of Manck v Melton, 64 Indiana, 414, where the verbal promise was to convey or devise lands to promisee, in consideration of promisee's boarding and caring for him during his life, and the promisee was put in possession, and also made valuable improvements upon the property, the case was, with more reason, it would seem, held to be taken out of the statute by the promisee's acts in part-performance of the contract. The difficulty with the decision in Brown v. Sutton is that the possession was no more by one tant considerations upon the taking or delivering of possession as an element of such a case.

§ 464. In such cases as these, it will be observed, the contract is originally so made that the payment provided for party than the other, as they all occupied together. (See post, sections 474, 476.) In the case of Barbour v. Barbour, 49 N. J. Eq. 429, a husband, against whom his wife had filed a petition for divorce on the ground of adultery, asking for alimony and counsel fees, entered into an agreement with his wife by which he promised that if she would dismiss her suit and return to him and live with him as his wife, he would execute and deliver to her a deed for the house and lot in and upon which they had been living, and she accepted his offer, dismissed her suit, and returned to her home in good faith. He was required to specifically perform. In Murphy v. Whitney, 69 Hun (N. Y.) 573, there was an agreement between parties owning an estate, that it should be held in common for the joint use of all, as from time to time they might be living, and that on the decease of any of them, his or her interest was to vest in the survivors, until the title was concentrated in the last survivor, on whose death it should pass to the plaintiff. This agreement was respected by the brothers and sisters, who by deeds and wills conveyed and devised their interests to each other, until all had died but one sister. She, being old and feeble, was induced by the other defendants to convey the property to them without consideration. Held, that she could not be compelled to convey or devise to the plaintiff the undivided share of the estate owned by her as a tenant in common with her brothers and sisters; but that as to the remainder, as to which the agreement had been executed by the other tenants in common by conveying and delivering their shares to her, she would not be permitted to repudiate the agreement under which she had taken title, as such repudiation would be a fraud upon all her deceased brothers and sisters; and that on her death, such shares should go to the plaintiff; and there was a decree establishing the trust and setting aside the conveyance to the other defendants. (Affirmed in Murphy c. Whitney, 140 N. Y. 541.) Compare with this Gravest'. Goldthwait. 153 Mass. 268, where, on a bill in equity for specific performance, it appeared that the plaintiff and her six sisters, including the defendant, all of whom were tenants in common of several parcels of land, made an oral agreement, by which the plaintiff was to pay to each a fixed sum, and they were to convey to her their right and title in and to one parcel, on which the plaintiff resided; and after three of them had conveyed to her their respective interests, and each had received the sum agreed, she offered the same amount to the defendant, requesting a release, which was refused; that thereafter, and before the bill was brought, the other two released their rights to her. in accordance with the agreement; and that the defendant offered, for the protection of the plaintiff's title, to surrender any claim she might have to avoid the conveyances made to her by the other sisters of their respective fractions of the parcel in question, and to recognize their validity. Held, that any injury that might cannot be satisfactorily returned; and so it is, in effect, a fraud in the defendant to repudiate the contract. The case seems to be different where, a mere money consideration having been originally provided for, the defendant has become bankrupt or otherwise unable to return it. Here there is no such fraud in the transaction on his part as would justify equitable interference.1