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 McLain v. School Directors of White Township, 51 Pa. St. 196; Freeman v. Freeman, 43 N. Y. 34; Murphy v. Stell, 43 Tex. 123; Neale p. Neales, 9 Wall. (U. S.) 1; ante, § 467; Mauck P. Melton, 64 Ind. 414; Allison v. Bums, 107 Pa. St. 50; Ogsbury v. Ogsbury, 115 N. Y. 290; Stratton v. Stratton, 58 N. H. 473; White v. Ingram, 110 Mo. 474; Dougherty p. Hartel, 91 Mo. 161; Young v. Young, 45 N. J. Eq. 27: Smith v. Smith. 125 N. Y. 224; West v. Bandy, 78 Mo. 407; Anderson v. Shocbley. 82 Mo. 250.
2 Lindsay p. Lynch. 2 Schoales & L. .5. See also Harnett v. Yeilding, 2 Schoales & L. 549; Forster v. Hale, 3 Ves. Jr. 696, per Lord Alvanley; O'Reilly v. Thompson, 2 Cox, 271; Parkhurst v. Van Cortlandt, 1 Johns.
§ 492 a. It has been held 1 that possession taken and improvements made under a verbal contract for land constitute an equitable title which may be enforced, not only between the parties, but against a third party taking a deed of the land with knowledge of such possession and improvements. This seems to be a dangerous extension of the doctrine of part-performance.
§ 493. In all cases where the plaintiff seeks relief upon the ground of his having in part performed the agreement, it is incumbent upon him not only to show his acts of part-performance, but also to prove to the satisfaction of the court the terms of the agreement, before they will undertake to enforce it.2
§ 494. As to the degree of proof which will suffice in such cases, it is obviously quite impossible to lay down any general rules. But it may be remarked that mere contrariety in the proofs adduced will not prevent the courts from decreeing the execution of the agreement; their principle is, to collect from the proofs, if they can, what the terms of the agreement really are.1
(N. Y.) Ch. 273; Phillips v. Thompson, 1 Johns. (N. Y.) Ch. 131; Eyre v. Eyre, 19 N. J. Eq. 102.
1 C. B. & Q. R. R. Co. v. Boyd, 118 111. 73.
2 Pilling v. Armitage, 12 Ves. 78; Parkhurst v. Van Cortlandt, 1 Johns. (N. Y ) Ch. 273; 8. c. nom. Parkhurst v. Van Cortland, 14 Johns. 15; Phillips v. Thompson, 1 Johns. (N. Y.) Ch. 131; Sage v. M'Guire, 4 Watts & S. (Pa.) 228; Frye v. Shepler, 7 Pa. St. 91; Greenlee v. Greenlee. 22 Pa. St. 225; Rankin v. Simpson, 19 Pa. St. 471; Moore v. Small. 19 Pa. St. 461; Burns v. Sutherland, 7 Pa. St. 103; Hugus v. Walker, 12 Pa. St. 173; Charnley v. Hansbury, 1C Pa. St. 16; Shepherd v. Bevin, 9 Gill (Md.) 32; Owings v. Baldwin, 1 Md. Ch. Dec. 120; Shepherd v. Shepherd, 1 Md. Ch. Dec. 244; Beard v. Linthicum, 1 Md. Ch. Dec. 345; Chesapeake & Ohio Canal Co. v. Young, 3 Md. 480; Wingate v. Dail, 2 Harr. & J. (Md.) 76; Rowton v. Rowton, 1 Hen. & M. (Va.) 92; Thomson p. Scott, 1 McCord (S. C.) Ch. 32; Church of the Advent v. Farrow, 7 Rich. (S. C.) Eq. 378; Goodwin v. Lyon, 4 Port. (Ala.) 297; Kay v. Curd, 6 B. Mon. (Ky.) 100; Newnan c. Carroll, 3 Yerg. (Tenn.) 18; Shirley v. Spencer, 4 Gilm. (11l.) 583; Eyre v. Eyre, 19 N. J. Eq. 102; Petrick v. Ashcroft, 19 N. J. Eq. 889; Force v. Dutcher, 18 N. J. Eq 401; Purcell v. Miner, 4 Wall. (U. S.) 513; Williams v. Williams, 7 Reporter. 656; Hart v. Carroll, 85 Pa. St. 508: Wright v. Pucket, 22 Grat. (Va.) 370; Williams v. Morris, 95 U. S. 444; Nay v. Mograin, 24 Kansas *75; Cutsinger v. Ballard, 115 Ind. 93; Lords Appeal, 105 Pa. St. 451; Wagonblast v. Whitney, 12 Oregon. 83; Vose v. Strong. 144 111. 108; Alba v. Strong, 94 Ala. 163; Vose v. Strong, 45 111. App. Ct. 98.
§ 495. In some of the earlier cases, this principle was applied with extreme liberality. In an anonymous case reported by Yiner, where a man entered and built upon certain land upon the faith of the defendant's having told him that his word was as good as his bond, and promised him a lease when he received his own from the landlord, but the terms of the lease to be given were not proved, it appears that Lord Chancellor Jeffries decreed a lease to the plaintiff, notwithstanding the uncertainty in the terms; for he considered that it was in the plaintiff's election, for what time he would hold the land, and he elected to hold during the defendant's term at the old rent.2 The proceeding of the court in this case appears to have been, as Judge Story remarks, to frame "a contract for the parties, ex aequo et bono, where it found none."3
§ 496. Again, it would seem to have been formerly an approved rule, where there was no proof, or insufficient proof, of the contract before the court, to send the case to a Master to ascertain what the terms of the contract were. Lord Eldon mentions a case as having occurred before Lord Thurlow, where "possession having been delivered in pursuance of a parol agreement, and a dispute arising upon the terms of the agreement, Lord Thurlow thought proper to send it to the Master, upon the ground of the possession being delivered, to inquire what the agreement was. The difficulty there was in ascertaining that. The Master decided as well as he could, and then the case came on before Lord Rosslyn,1 upon farther directions; who certainly seemed to think Lord Thurlow had gone a great way; and either drove them to a compromise, or refused to go on with the decree upon the principle on which it was made." 2 Lord Thurlow, nevertheless, adhered to the same course in the subsequent case of Allan v. Bower, where it appeared that there was an oral agreement by the defendant's testator to give the plaintiff a lease of certain premises. His Lordship directed the Master, who had refused to admit parol evidence, to ascertain and report what the promise was, at what time it was made, and what interest the tenant was to acquire under it in the premises; upon which order evidence was received, proving that the tenant was to hold during his life, and a lease was decreed to be executed accordingly.3 And so Lord Redesdale, in a case where a written agreement for a lease was held imperfect, as not showing the term for which it was to be granted, said that if there had been evidence of part-performance he must have directed a further inquiry, the bill not suggesting any specific term of lease, and the pleadings and evidence being both silent on that point.4