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.
§ 474. Secondly, it must be exclusive. Where the purchaser moves in upon the premises and remains there in company with the previous occupant, not as the ostensible and exclusive proprietor,2 or where the metes and bounds of the land alleged to be purchased are not fixed and recognized, and the purchaser occupies it in common with adjacent land of his own,3 it has been held that possession, as an act of part-performance, was not sufficiently made out.
§ 475. Thirdly, it must be a possession of the tract claimed. This has never been questioned, and it is obvious that it is necessarily implied in the principles upon which the cases holding possession in any case sufficient have proceeded. Whether the whole of the estate bargained for must be occupied, in order to make a case of possession within the meaning of the rule, is a question requiring some remark.4 Where several lots of land were sold by distinct agreements,
1 Brawdy v. Brawdy, 7 Pa. St. 157. And see Johnston v. Glancy, 4 Blackf. (Ind.) 94; Moore v. Small, 19 Pa. St. 461; Haslet v. Haslet, 6 Watts (Pa.) 464; Frye v. Shepler, 7 Pa. St 91; Charpiot v. Sigerson, 25 Mo. 63.
2 Frye v. Shepler, 7 Pa. St. 91; Wooldridge v. Hancock, 70 Texas, 18; Peek v. Peek, 77 Cal. 106. And see Miller v. Zufall, 113 Pa. St. 317; Trammell v. Craddock, 93 Ala. 450; Miller v. Lorentz, 19 S. E. Rep. (W. Va.) 391. But see Brown v. Sutton, 129 U. S. 238. The possession of one cutting timber under an oral agreement has been held not exclusive Sheldon p. Preva, 57 Vt. 263.
3 Haslet v. Haslet, 6 Watts (Pa ) 464. See also Moore v. Small, 19 Pa. St. 461; Davis p. Moore, 9 Rich. (S. C) Law, 215; Zimmerman v. Wengert, 31 Pa. St. 401.
4 See Glass v. Hulbert, 102 Mass. 28; Beardsley v. Duntley, 69 N. Y. 577; Small v. Northern Pacific R. R., 20 Fed. Rep. 753.
Sir William Grant held, at the Rolls, that part-performance by taking possession of one of such lots could have no efficacy to relieve against the operation of the statute, as to any but that particular lot.1 He leaves to be inferred, apparently, that where several of the parcels are sold together, at one transaction, and for a gross price, it would be otherwise. And so it has been held in New York, in a case before the Vice Chancellor.2 But the Supreme Court of Pennsylvania appear to have determined just the reverse, and to have even considered the fact that the contract for the several parcels was an entire contract, and a gross price to be paid for the whole, a conclusive circumstance against the sufficiency of taking or delivering possession of one parcel only. In the vigorous opinion of Mr. Justice Kennedy, speaking for the court, the whole doctrine of enforcing verbal contracts for land on the ground of possession merely, is ably criticised, and it is declared that the court know of no case where the point referred to was otherwise determined.3 Possibly the aversion of that learned bench, there expressed, to the established doctrine in regard to possession as amounting to part-performance, inclined it to a more strict and narrow application of that doctrine than other courts would be disposed to adopt. Possession of a tract of land must generally be, from the nature of the case, a possession of part only as representing the whole. So long, therefore, as the contract under which possession is claimed to have been taken or delivered is an entire contract, though the land consists of several parcels, it would seem more reasonable to hold that possession of one of such parcels was equivalent to possession of the whole. This view is illustrated and confirmed by what we have heretofore seen to be the settled rule in cases of sales of goods consisting of several parcels; namely, that an acceptance and receipt of one, or a part of one of such parcels, was sufficient to withdraw the whole contract from the operation of the seventeenth section.1
1 Buckmaster v. Harrop, 7 Ves. 341.
2 Smith v. Underdunck, 1 Sand. Ch. 579. So in Wisconsin, Jones v. Pease, 21 Wisc. 644. And see Bigelow v. Armes, 108 U. S. 10; Union Pacific R. R. v. McAlpine, 129 U. S. 305; Blalock v. Waggoner, 82 Ga. 122.
3 Allen's Estate, 1 Watts & S. 383. See also McClure v. McClure, 1 Pa. St. 374; Pugh v. Good, 3 Watts & S. 56; Myers v. Crosswell, 45 Ohio St. 543.
§ 476. Fourthly, the possession must appear to have been delivered or assumed in pursuance of the contract alleged.2 Thus, it is abundantly settled, that if one who is already in possession of land as tenant, verbally contract with the owner for a new term, his merely continuing in possession after the making of the alleged contract is not an act of taking possession within the meaning of the rule, so as to justify a decree for a lease according to the contract.3
§ 477. The same reasoning applies, of course, where the contract set up is the sale of the estate to the defendant by the owner of the fee. And, in like manner, where the tenant's old term has expired and he holds over, such holding will not be decreed an act of part-performance of an alleged contract for the purchase of the estate, but is more naturally referable to his landlord's permission to continue in possession upon the terms of the old holding.1
1 Ante, § 334.
2 Neal v. Neal, 69 Ind. 419; Judy p. Gilbert, 77 Ind. 96.
3 Seagood v. Meale, Finch, Prec Ch 560; Morphett v. Jones, 1 Swanst. 172; Wills v. Stradling, 3 Ves. Jr. 378; Gregory v. Mighell, 18 Ves. 328; Savage v. Carroll, 1 Ball and B. 265, 548; Kine v. Balfe, 2 Ball & B.343; Christy v. Bamhart, 14 Pa. St. 260; Aitkin v. Young, 12 Pa. St. 15; Greenlee v. Greenlee, 22 Pa. St. 225; Johnston v. Glancy, 4 Blackf. (Ind.) 94; Wilde v. Fox. 1 Rand. (Va.) 165; Armstrong v. Kattenhorn, 11 Ohio, 265; Cole v. Potts, 10 N. J. Eq. 67; Rosenthal v. Freeburger, 26 Md. 75; Billinaslea v. Ward, 33 Md. 48; Mahana p. Blunt, 20 Iowa. 142; Anderson v. Simpson, 21 Iowa, 399; Wilmer v. Farris, 40 Iowa, 309; Carrolls v. Cox, 15 Iowa. 455. See Hooper, ex parte, 19 Ves. 477, per Lord Eldon; Truman v. Truman, 79 Iowa. 506; Green v. Groves, 109 Ind. 519; Padfield v. Padfield, 92 111. 198; Pickerell v. Morss, 97 111. 220; Clark v. Clark, 122 11l. 388; Ducie v. Ford, 138 U. S 587; Haines v. McGlove, 44 Ark. 79; Von Trotha v. Bamberger, 15 Col. 1; Boozer v. Teague, 27 S. C. 348; Charles v. Byrd, 29 S. C. 544; Nibert v. Baghurst, 47 N. J. Eq. 201; Foster v. Maginnis, 89 Cal. 264; Barnes v. Boston & Maine R. R, 130 Mass. 388; Andrews v. Babcock, 63 Conn. 109. But see Barton v. Smith, 66 Iowa, 75.