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.
10 Neb. 138; Wallace v. Scoggins, 17 Oregon, 476; Rosenberger v. Jones, 118 Mo. 559; Puterbaugh v. Puterbaugh, 131 Ind. 288; Burns v. Daggett, 141 Mass. 368.
1 Pugh v. Good, 3 Watts & S. 56, a decision of great fulness and learning; see, however, Moore v. Small, 19 Pa. St. 461; McKowen v. McDonald, 43 Pa. St. 441. See also Ebert v. Wood, 1 Binn. 216; Bassler v. Niesly, 2 Serg. & R. 352; Jones v. Peterraan, 3 Serg. & R. 543; Miller v. Hower, 2 Rawle, 53; Stewart v. Stewart, 3 Watts, 253; Rhodes v. Frick, 6 Watts, 315; Johnston v. Johnston, 6 Watts, 370; Woods v. Far-mare, 10 Watts, 195; Reed v. Reed, 12 Pa. St. 117. The rule in Pennsylvania has been changed from that stated in the text, but it is not clear what the present rule is in that State. See Anderson v. Brinser, 129 Pa. St. 376; Simmons' Estate, 140 Pa. St. 567.
2 Stewart v. Stewart, 3 Watts (Pa.) 253. And see Young v. Glenden-ning, 6 Watts (Pa.) 509; Syler v. Eckhart, 1 Binn. (Pa ) 378; Bright v. Bright, 41 111. 97; Guynn v. McCauley, 32 Ark. 97; Shellhammer p. Ashbaugh, 83 Pa. St. 24; Sower v. Weaver, 84 Pa. St. 262; Ballard v. Ward, 89 Pa. St. 358; Poorman v. Kilgore, 26 Pa. St. 365; Harris v. Richey, 56 Pa. St. 395; Anson v. Townsend, 73 Cal. 415; Neukirk v. Marshall, 35 Kansas, 77; Ballard v. Ward, 89 Pa. St. 358; Brown v. Sutton, 129 U. S. 238; Story v. Black, 5 Montana, 26; Dickerson v. Colgrave, 100 U. S. 583; Galbraith v. Galbraith, 5 Kans. 241.
3 Tender of a deed is not sufficient delivery to be a ground for a decree for specific performance. Graham v. Theis, 47 Ga. 479; Sands v. Thompson, 43 Ind. 18.
§ 470. If the rule in question were not so firmly established, it might be a most pertinent inquiry, whether it necessarily follows that a fraud is practised upon the purchaser unless the verbal agreement be valid in law or in equity, and whether it is a sound reason for holding it valid for all purposes, that evidence of it is admissible to repel the vendor's claim in trespass. To apply the forcible reasoning of one of our judges, "Seeing the English act . . . gave to the party put into possession under the parol contract for the purchase of the land in fee, an implied, at least, if not an express estate at will, which was sufficient to prevent his being made a trespasser until the vendor entered upon him and gave him notice to quit, it is difficult to imagine why it should have been deemed necessary to carry the contract into complete execution in order to protect the vendee from being punished as a trespasser for having entered and occupied the land before he had notice to quit." 3 The Supreme Court of Massachusetts also has strongly intimated that specific performance will not be decreed in that court, unless some stronger equity than that arising from possession merely can be shown.4
1 Lockey v. Lockey, Finch, Prec. Ch. 518; Clinan v. Cooke, 1 Schoales & L. 22; Lord Pengall v. Ross, 2 Eq. Cas. Abr. 46; Underbill v. Williams, 7 Blackf. (Ind.) 125; Smith v. Smith, 1 Rich. (S. C.) Eq. 130; Story, Eq. Jur. § 761; Ham v. Goodrich, 33 N. H. 32; Coney v. Timmons, 16 S. C. 378.
2 Story, Eq. Jur. §761.
3 Kennedy, J., in Allen's Estate, 1 Watts & S. (Pa.) 387. 4 Glass v. Hulbert, 102 Mass. 32.
§ 471. From the fact that the purchaser, when he has taken possession of the land, may on that ground enforce the contract of sale against the vendor, it seems to follow, upon equitable principles, that the vendor should have a right to enforce it when he has delivered possession. At any rate (and the cases are not explicit as to the reason upon which the doctrine depends), it is held that he may enforce upon that ground, as an act done by himself in part-performance of the contract,1 although this doctrine seems to be open to just the same objections as those above noted with regard to possession delivered.
§ 472. In all cases in which possession, either as delivered by the vendor, or as assumed by the purchaser, is relied upon, it must appear to be a notorious and exclusive possession of the land claimed, and to have been delivered or assumed in pursuance of the contract alleged, and so retained or continued. These several elements of a possession which satisfies the rules of equity in such cases will be briefly considered in detail.
§ 473. First, it must be notorious. To allow a mere technical possession, not open to the observation of the neighborhood, and capable of being proved only by select and confidential witnesses, to be sufficient for obtaining a decree to enforce the contract, would manifestly afford an opportunity for and an encouragement to dishonest testimony. Thus, where the vendor, having at the time a tenant in possession, makes a verbal sale of the premises, it has been held that, the tenant remaining in possession, and merely attorning to the purchaser, there was no such open and notorious change of possession as would justify a court of equity in enforcing a contract; and that, at any rate, the attornment must be formal, public, and explicit.1
1 Earl of Aylesford's case, 2 Stra. 783; Pyke v. Williams, 2 Vern. 455; Harris v. Knickerbacker, 5 Wend. (N. Y.) 638; Pugh v. Good. 3 Watts & S. (Pa ) 56; Reed v. Reed, 12 Pa. St. 117; Moore v. Small, 19 Pa. St. 461; White v. Crew, 16 Ga. 416; Nau v. Jackman, 58 Iowa,359; Andrews v. Babcock, 63 Conn. 109; Andrew v. Babcock, 26 Atl. Rep. (Conn.) 715; Cameron v. Austin, 65 Wisc. 657. And see Usher v. Flood, 83 Ky. 552; Dean v. Cassiday, 88 Ky. 572. But see Reynolds v. Reynolds, 45 Mo. App. 622; Greenlees v. Roche, 48 Kans. 503. In Barton v. Smith, 66 Iowa, 75, where the plaintiff sued to recover real estate, the defendant in possession produced a written contract of sale to himself. The plaintiff was then allowed to prove that the defendant had verbally cancelled his contract of purchase, and had thereafter held as tenant and paid rent. On this ground, it is held that under verbal contracts for the exchange of lands, possession of one party may be evidenced by the giving up of possession by the other. Savage p. Lee, 101 Ind. 514.