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.
1 Eckert v. Eckert, 3 Penna. Rep 332. See also Haines v. Haines, 6 Md. 435; Johns v. Johns, 67 Ind. 440.
2 Eckert v. Eckert, 3 Penna. Rep. 332. See also Inman v. Stamp, 1 Stark. 12; Reynolds v. Hewett, 27 Pa. St. 176; Myers v. Byerly, 45 Pa. St. 368; Knoll v. Harvey, 10 Wisc. 99. See however, Pain v. Coombs, 1 De G. & J. 46, per L. J. Knight Brace.
3 Morrison v. Herrick, 130 11l. 631.
4 Cole v. White, cited in 1 Bro. C. C. 409; Gregory v. Mighell, 18 Ves.
§ 484. But it does not follow that because an entry against the will, and without the knowledge of the vendor, is not to be taken as an act of part-performance, therefore no entry is to be so taken which is not by the terms of the contract stipulated to be allowed. If it is in pursuance, that is, on the faith of the contract, and with the permission of the vendor, that is sufficient.4
§ 485. Lastly, the possession relied upon must not only be taken under the contract, but so retained. Where a purchaser takes possession under the contract, and afterward attorns to the vendor as landlord, it has been held that he yields his equity, and his possession is referable to his new agreement.6
328; Goucher v. Martin, 9 Watts (Pa.) 106; Gratz v. Gratz, 4 Rawle, (Pa.)411; Sager. M'Guire, 4 Watts & S. (Pa.) 228; Johnston v. Glancy,
4 Blackf. (Ind.) 94; Thomson v. Scott, 1 McCord (S. C.) Ch. 32; Givens v. Calder, 2 Desaus. (S. C.) Ch. 171; Ash v. Daggy, 6 Ind. 259; Jervia v. Smith. Hoff. (N. Y.) Ch. 470: Canolls v. Cox, 15 Iowa, 455; Evans v. Lee, 12 Nevada, 393; Ryan v. Wilson, 56 Texas, 36; Kaufman v. Cook, 114 111. 11. Possession taken and improvements made after the death of the alleged vendor do not make a case of part-performance as against his estate. Rochester v. Yesler, 6 Wash. (Nev.) 116.
1 Pivrcell v. Miner, 4 Wall. (U. S.) 513.
2 Thomson v. Scott, 1 McCord (S. C.) Ch. 32; Harris p. Knickerbacker,
5 Wend. (N. Y.) 645.
3 Jervis v. Smith. Hoff. (N. Y.) Ch. 470.
4 Harris v. Knickerbacker, 5 Wend. (X. Y.) 645; Smith v. Under-dunk, 1 Sand. (N. Y.) Ch. 579. And see Gregory v. Mighell, 18 Ves. 828; Chambliss v. Smith, 30 Ala. 366
5 Rankin v. Simpson, 19 Pa. St 471; Dougan v. Blocher, 24 Pa. St. 28. See Chambliss v. Smith. 30 Ala. 366; Johnson v. Reading, 36 Mo. App. 306; Drum v Stevens, 94 Ind. 181.
§ 486. It may conveniently be observed at this point, that the efficacy of possession taken as part-performance cannot rest on the mere ground of its being an act of ownership. If the purchaser under a parol contract omit to take possession, such acts as having the land assessed in his own name and paying taxes upon it,1 or even cutting timber upon it, or making other transitory use of it (and this latter, too, in a case of uncultivated timber land, such as is not ordinarily taken possession of in any other way),2 have been held insufficient, though clearly acts of ownership.
§ 487. It is always regarded as strongly confirmatory of the right of a plaintiff seeking the specific execution of a verbal contract for an estate in land, that he has proceeded, upon the faith of the contract, and with the knowledge of the vendor, to expend money in improving the land for which he has paid and of which he has taken possession.3 In cases
1 Christy v. Barnhart, 14 Pa. St. 260, explaining Lee v. Lee, 9 Pa. St. 169.
2 Gangwer v. Fry, 17 Pa. St. 491. But see Borrett v. Gomeserra, Bunb. 91; Hunt v Lipp, 30 Neb. 469.
3 Savage v. Foster, 9 Mod. 35; Wetmore v. White, 2 Caines (N. Y.) Cas. 87; Adams v. Rockwell, 16 Wend. (N. Y.) 285; Cummins v. Nutt, Wright (Ohio) 713; Casler v. Thompson, 3 Green (N. J.) Ch. 59; Cum-mings v. Gill, 6 Ala. 562; Floyd v. Buckland, Freem. Ch. 268; 2 Eq. Cas. Abr. 41; Harrison v. Harrison, 1 Md. Ch. Dec. 331; Harder v. Harder, 2 Sand. (N. Y.) Ch. 17; Moreland v. Lemasters, 4 Blackf. (Ind.) 383; Martin v. McCord, 5 Watts (Pa.) 492; Parkhurst v. Van Cortland, 14 Johns. (N. Y.) 15; Ridley v. McNairy, 2 Humph. (Tenn.) 174; Rowton v. Rowton, 1 Hen. & M. (Va.) 92; Surcome v. Pinniger, 3 De G., M. & G. 571; Syler v. Eckhart, 1 Binn. (Pa.) 378; Milliken v. Dravo, 67 Pa. St. 230; Shepherd v. Bevin, 9 Gill (Md.) 32; Byrd v. Odem, 9 Ala. 755; Brock v. Cook, 3 Port. (Ala.) 464; Toole v Medlicott, 1 Ball & B. 393; Underhill v. Williams, 7 Blackf. (Ind ) 125; Wilton v. Harwood, 23 Me. 131; Wilkinson v. Wilkinson, 1 Desaus. (S. C.) Ch. 201; Newton v. Swazey, 8 N. H. 9; Blakeney v. Ferguson, 8 Ark. 272; Conway v. Sherron, 2 Cranch (C. C) 80; Farley v. Stokes, 1 Sel. Eq. Cas. (Pa.) 422; Miller v. Tobie, 41 N. H. 84; SchoolDist. No. 3 v. Macloon, 4 Wisc. 79; Morin v. Martz, 13 Minn. 191; Hoffman v. Fett, 39 Cal. 109; Pfiffner v. Stillwater & St. Paul R. R. Co., 23 Minn. 343; Seaman v. Ascherman, 51 Wisc. 678: Morrison v. Herrick, 130 111. 631; Pledger v. Garrison, 42 Ark. 216; Meetze v. Railroad Co , 23 S. C. 2; Ponce v. McWhorter, 50 Texas, 562; of purchasers who were, before and at the time of the contract, tenants of the same land, as we have just seen, it is often conclusive of the nature and animus of their continued possession; thus serving to explain and define one act of part-performance, by means of a superadded and corroboratory act. The propriety of admitting this expenditure of money in improvements as a reason for enforcing the contract, is much more clear upon the equitable view of preventing fraud, than is that of admitting the taking or delivery of possession. For in many cases such improvements are carried to that point that they are quite incapable of being compensated in damages. And even where this is not so, it is a plain fraud for a vendor who has encouraged a purchaser to make them, to compel him to dispose of them afterward, and lose the expected fruit of enterprise and industry, thus directly making a profit out of the deception which he has himself practised.1
§ 487 a. In a case where the plaintiff entered and improved under a contract of sale with the tenant for life, it was held that the former could not enforce the specific performance of the agreement against the remainder-man, it not being shown that the expenditure had been made with his knowledge and consent.2