§ 488. The improvements relied upon must be of a kind permanently beneficial to the estate, and involving a sacrifice to the purchaser who made them.8 Thus, the cutting of

Moulton v Harris, 94 Cal. 420; Johnson v. Hurley, 115 Mo. 513; Hays v. Kansas City R. R., 108 Mo. 554; Wall v. M., St. P. & S. S. M. R R, 86 Wisc. 48; Lloyd v. Hollenback, 98 Mich. 203; Young v. Overbaugh, 76 Hun (N. Y.) 151; Mudgett v. Clay. 5 Wash. 103; Young v. Young, 45 N. J. Eq. 27; Bard v. Ellston, 31 Kans 274.

1 Whether the making of improvements not amounting to occupation of the land will suffice, see Ackerman v. Fisher, 57 Pa. St. 457.

2 Blore v. Sutton, 3 Mer. 237. See Shannon v. Bradstreet, 1 Schoales & L. 72; Morgan v. Milman, 3 De G., M. & G. 24.

3 Hollis v. Edwards, 1 Vern 159; Deane v. Izard. 1 Vern. 150: Hamilton v. Jones, 3 Gill & J. (Md.) 127; Davenport v. Mason, 15 Mass. 85; Wolfe v. Frost, 4 Sandf. (N. Y.) Ch. 72; Wack v. Sorber, 2 Whart. (Pa.) 387. 39 a ditch through an adjoining estate, in order to supply the plaintiff's mill with water, though attended with expense to himself, has no effect to induce a decree for the specific execution of a verbal agreement by the owner of the adjoining estate to sell the ditch to the plaintiff; it is not beneficial to that estate, but the reverse.1 Again, as the same case illustrates, the improvements must be on the faith of the contract, and, of course, are not available to set up a subsequent contract.2

§ 489. But although the improvements are required to be beneficial to the estate, a court of equity will not inquire whether the expenditures have been judiciously or injudiciously made; for, apart from the many embarrassments which would attend the determination of such a question, it would be plainly inequitable to allow the vendor in such a case to defend upon the ground of the innocent indiscretion of the purchaser. To use the language of Lord Thurlow, "whether the money has been well or ill laid out is indifferent; the fraud is the same."3

§ 490. It must appear, however, that the loss of his improvements would be a sacrifice to the purchaser. If therefore he has gained more by the possession and use of the land, than he has lost by his improvements,4 or if he has been in fact fully compensated for the improvements,5 they will not be available to him as a ground for specific execution. On the other hand, the vendor will never be allowed to profit by the expenditures into which he has deceived the purchaser; therefore when the court finds itself compelled, for want of sufficient acts of part-performance being shown, or from failure in the proof of the terms of the contract, to refuse to enforce it, they will decree compensation to be made by the vendor to the purchaser for the fair value of the improvements.1

1 Hamilton v. Jones, 3 Gill & J. (Md.) 127.

2 Byrne v. Romaine, 2 Edw. (N. Y.) Ch. 445; Farley v. Stokes, 1 Sel. Eq. Cas. (Pa.) 422; Wood v. Thornly, 58 111. 464; Sands v. Thompson, 43 Ind. 18; Abbott v. Baldwin, 61 N. H. 583.

3 Whitbread v. Brockhurst, 1 Bro. C. C. 417. 4 Wack v. Sorber, 2 Whart. (Pa.) 387.

5 Eckert v. Eckert, 3 Penna. Rep. 332; Ash v. Daggy, 6 Ind. 259; Pond v. Sheean, 132 111. 312.

§ 491. From the language of some of the cases, it seems to be considered that the making of improvements cannot be relied on as an act of part-performance, unless it was stipulated in the agreement itself that they should be so made; and it is said by Mr. Roberts to be hardly reconcilable with the rule to call it an act of part-performance, unless this is the case, because of the rule that such an act must be done with a view to perform the agreement.2 But this arises from a too narrow view of the nature of the equity jurisdiction, as based solely on acts done in performance of the contract, as distinguished from those done in reliance upon it.3

§ 491 a. A principle analogous to that upon which taking possession of and making improvements upon the land claimed, protect the claimant from the operation of the Statute of Frauds in courts of equity, is applied to gifts of lands, upon the faith of which such possession has been taken and such improvements made, although there is in such cases no contract enforceable even at common law, the gift, if strictly such, being without a consideration sufficient to support an action for breach of the promise to give.1

1 Lord Pengall v. Ross, 2 Eq. Cas. Abr. 46; Parkhurst v. Van Cort-landt, 1 Johns. (N. Y.) Ch. 273; Wack v. Sorber, 2 Whart. (Pa.) 387; Harden v. Hays, 9 Pa. St. 151; Heft v. McGill, 3 Pa. St. 256; Dunn v. Moore, 3 Ired. (N. C.) Eq. 364; Goodwin v. Lyon, 4 Port. (Ala.) 297. In Anthony v. Leftwich, 3 Rand. (Va.) 255, the rule of compensation in such cases is instructively discussed. In North Carolina, where the doc-trine of part-performance does not obtain, he is allowed in a court of equity on account for his improvements. Albea v. Griffin, 2 Dev. & B. Eq. 9; Baker v. Carson, 1 Dev. & B. Eq. 381; Pitt v. Moore. 99 N. C. 85. Where the plaintiff, being behindhand in his payments, was warned by the defendant not to put on improvements, except at his own risk, he was not allowed to recover for improvements afterwards made. Rainer v. Huddleston, 4 Heisk. (Tenn.) 223.

2 Roberts on Frauds, 135.

3 See Ingles v. Patterson, 36 Wisc. 373: Neale v. Neales, 9 Wall. (U. S.) 1; Swain v. Seameus, 9 Wall. (U. S.) 254; ante, § 457.

§ 492. It should be remarked, in conclusion of this topic, that the decided inclination of the courts appears to be against extending, beyond those limits to which it has been carried by clear authority, the doctrine of enforcing oral contracts in equity upon the ground of part-performance. As Lord Redesdale remarks, the "statute was made for the purpose of preventing perjuries and frauds, and nothing can be more manifest to any person who has been in the habit of practising in courts of equity, than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been rigorously observed, the result would probably have been that few instances of parol agreements would have occurred; agreements would, from the necessity of the case, have been reduced to writing: whereas it is manifest that the decisions on the subject have opened a new door to fraud, and that under pretence of part execution, if possession is had in any way whatever, means are frequently found to put a court of equity in such a situation that, without departing from its rules, it feels itself obliged to break through the statute. And I remember, it was mentioned in one case, in argument, as a common expression at the bar, that it had become a practice 'to improve gentlemen out of their estates.' It is, therefore, absolutely necessary for courts of equity to make a stand, and not carry the decisions further." 2