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.
§ 465. Although payment alone, is not sufficient, yet it may serve to corroborate other acts which are generally regarded as amounting to part-performance, so as to afford ground for a decree of specific execution. Where, for instance, it is accompanied by a purchaser's entering into possession of land in pursuance of a verbal contract for the purchase of it, a case for specific performance is commonly considered to be shown.2 And this leads us to some imporresult to the plaintiff by a failure of the defendant to carry out her agreement was insufficient to take the contract out of the Statute of Frauds; and that the bill must be dismissed.
1 On this point compare § 760 and § 761 of Story, Eq. Jur. See Townsend v. Fenton, 32 Minn. 482.
2 See, in addition to those cited hereafter under the head of taking or giving possession, the following cases: Wilkinson v. Scott, 17 Mass. 249; Sutton v. Sutton, 13 Vt. 71; Davis v. Townsend, 10 Barb. (N. Y.) 333; Gilday v. Watson, 2 Serg. & R. (Pa.) 407; Green walt v. Horner, 6 Serg. & R.(Pa.) 71; Billington v. Welsh, 5 Binn. (Pa.) 129; Dugan v. Git-tings, 3 Gill (Md.) 138: Drury v. Conner, 6 Harr. & J. (Md.) 288; Moale v. Buchanan, 11 Gill & J. (Md.) 314; Woods v. Farmare, 10 Watts (Pa.) 195; Follmer v. Dale, 9 Pa. St. 83; Tibbs v. Barker, 1 Blackf. (Ind.) 58; Williams v. Pope, Wright (Ohio) 406; Kelley v. Stanbery, 13 Ohio, 408; Shirley v. Spencer, 4 Gilm. (111.) 583; Thornton v. Vaughan, 2 Scam. (111.) 218; Hawkins v. King, 2 A. K. Marsh. (Ky.) 548; Brewer v. Brewer, 19 Ala. 481; Wible v. Wible, 1 Grant (Pa.) 406; Jones v. Pease, 21 Wisc. 644; Fitzsimmons v. Allen, 39 111 440; Holmes v. Carlen, 57 Vt. 1ll; Hunt v. Hayt, 10 Col. 278; Holmden v. Janes, 42 Kansas 758; Bechtel v. Cone, 52 Md. 698; McWhinne v. Martin, 77 Wisc. 182; McDowell v. Lucas, 97 111. 489; McNamara v. Garrity, 106 111. 384; Whitsitt p. Trustees Presbyterian Church, 110 111. 125; Smith v. Yocum, 110 111. 142; Gorham v. Dodge, 122 111. 528; Nibert v. Baghurst, 47 N. J. Eq. 201; Price v. Bell, 91 Ala. 180; Spies v. Price, 91 Ala. 166; Gould p. Elgin City Banking Co., 136 111. 60; Hall v. Peoria & Eastern R. R.. 143 111. 163; Manning v. Pippen, 95 Ala. 537; Watts v. Witt, 39 S. C. 356.
§ 466. It has been said that nothing was to be considered part-performance of a contract for land, which did not include a change of possession in the land;1 but this would seem to be a merely arbitrary proposition, for there may be, obviously, many acts done by the vendor or purchaser under such a contract, which would, from their irrevocable character, and from the situation in which they would leave the party performing, demand the specific enforcement of the contract.2
§ 467. It is, however, well settled, that possession alone, without payment or other acts of ownership, is sufficient part-performance of a verbal contract for land to sustain a decree for its specific execution.3 Such is declared to be the
1 M'Kee v. Phillips, 9 Watts (Pa.) 85; M'Farland v. Hall, 3 Watts (Pa.) 37; Peifer v. Landis, 1 Watts (Pa.) 392; Ackerman p. Fisher, 57 Pa. St. 457; Wallace p. Long, 105 Ind. 522; Bowers v. Bowers, 95 Pa. St. 477.
2 Hollis, v. Edwards (and Deane v. Izard), 1 Vern. 159; Mundy p. Jolliffe, 5 Mylne& C 167; Slingerland p. Slingerland, 39 Minn. 197; Gulley p. Macy, 84 N. C. 434. Ante, § 463.
3 1 Powel on Contracts, 299; Newland on Contracts, 181; Sugden, Vend. & P. 105; 1 Fonbl. 175; 1 Madd. Ch. 303; Roberts on Frauds, 147; 4 Kent Com. 451; Story, Eq. Jur. § 761; Butcher v. Stapely, 1 Vern. 363; Seagood v. Meale, Finch. Prec. Ch. 560; Lacon p. Mertins, 3 Atk. 1; Boardman v. Mostyn, 6 Ves. 467; Coles p. Pilkington, L. R. 19 Eq. 174; Ungley v. Ungley, 4 Ch. Div. 73; Hunt p. Wimbledon Local Board, 4 C. P. Div. 48; Maddison p. Alderson, L. R. 8 H. L. C. 467; per Blackburn, J. at 489; Rapley v. Klugh, 18 S. E. Rep. (S. C.) 680; Eaton v. Whitaker, 18 Conn. 222; Harris v. Crenshaw, 3 Rand. (Va.) 14; Murray v. Jayne, 8 Barb. (X. Y.) 612; Anderson v. Simpson, 21 Iowa, 399; Arrington p. Porter, 47 Ala. 714: Pindall v. Trevor, 30 Ark. 249; Wells p. Stratton, 1 Tenn. Ch. 328. Ante, §§ 74, 76. Qtirere as to this, however, in Maryland. Shepherd p. Shepherd. 1 Md. Ch. Dec. 244; Owings v. Baldwin, 8 Gill, 337; Morris p. Harris, 9 Gill, 19. And Massachusetts: Glass v. Hulbert, 102 Mass. 32. And Illinois: Cloud v. Greasley, 125 111. 313; Ferbrache v Ferbrache, 110 111. 210. See Reynolds p. Johnston, 13 Tex. 214; Danforth P. Laney, 28 Ala. 274; Carroll p. Powell, 48 Ala. 298; Pindall v. Trevor, 30 Ark. 249; Catlett p. Bacon, 33 Miss. 269. See Eshleman p. Henrietta Vineyard Co., 36 Pac. Rep. (Gal.) 775; Eberly p. Lehman, 100 Pa St. 512; Wiggin v. Wiggin, 58 N. II. 235; Southmayd v. Southmayd, 4 Montana, 100; Hanlon p. Wilson, law also in Pennsylvania, and equally so in that State, notwithstanding the absence from its legislation of the fourth section of the statute of Charles at the time of such decisions.1 In the case of a parol gift of land, however, something more seems to be required than the mere taking possession; as, for instance, the expenditure of money upon the estate, or the rendering of service by the donee, upon the faith of the gift.2
§ 468. The subject of possession under a verbal contract for land is to be regarded from two points of view: the one where the purchaser relies upon it as taken by him, and the other where the vendor relies upon it as delivered by him, in pursuance of the contract.3
§ 469. Where the purchaser goes into possession, and rests upon that act his claim for the specific execution of the contract, one reason assigned for allowing that claim is, that if there be no agreement valid in law or in equity, he is made a trespasser and is liable as a trespasser; a position which would amount to a fraud practised upon him by the vendor.1 "Now, "says Mr. Justice Story, "for the purpose of defending himself against a charge as a trespasser, and a suit to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection; and if admissible for such a purpose, there seems to be no reason why it should not be admissible throughout."2