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 Mundy v. Jolliffe, 5 Myl. & C. 177; Boardman v. Mostyn, 6 Ves. 467; Burns v. Sutherland, 7 Pa. St. 103; Rhodes v. Rhodes, 3 Sandf. (N. Y.) Ch. 279. In Pennsylvania it is held that a stricter rule of proof should be applied in cases of agreements between members of the same family. See Ackerman v. Fisher, 57 Pa. St. 457; Edwards v. Morgan, 100 Pa. St. 330.
2 5 Yin. Abr. 523, pl. 40. 3 Story, Eq. Jur. § 764.
§ 497. Lord Eldon's remarks, just quoted, show a strong bias on his part against the freedom exercised in the cases referred to, in obtaining proof of the terms of the contract. And subsequent decisions show that the same view is gaining ground with the courts. Lord Chancellor Manners has very clearly indicated what may be considered at this day the prevailing doctrine. "Where there is contradictory evidence in a case that raises a doubt in the mind of the court, that is to say, where the case is fully proved by the party on whom the onus of proof lay; but that proof shaken, or rendered doubtful, by the evidence on the other side; there the court will direct a reference or an issue to ascertain the fact; but where there is no evidence whatever, would it not be introducing all the mischiefs intended to be guarded against by the rules of the court, in not allowing evidence to be gone into after publication, and holding out an opportunity to a party to supply the defect by fabricated evidence, if I were to direct such an inquiry? I therefore do not think myself at liberty, from the evidence in this case, to direct the reference or issue desired."1
1 Lord Loughborough, afterward created Earl of Rosslyn. 2 Per Lord Eldon, in Boardman v. Mostyn, 6 Ves. 479. 3 Allan v. Bower, 3 Bro. C. C. 149.
4 Clinan v. Cooke, 1 Schoales & L. 22; Weaver p. Shipley, 127 Ind. 526.
§ 498. The third and last of those classes of cases in which courts of equity enforce verbal agreements, notwithstanding the Statute of Frauds, is where the agreement, fully set forth in the bill, is confessed by the answer.2 The reason upon which this rule is generally said to rest is, that the statute is only intended to prevent fraud and perjury, the danger of which is wholly removed by the defendant's admission. But, as we shall hereafter see, it is settled that the defendant, notwithstanding such admission, may insist upon the statute, and thus defeat any recovery upon the agreement, - a rule with which the reason just alluded to does not seem to be altogether consistent. For if the removing of all danger of perjury, by having the defendant admit the agreement, does in fact take the case out of the intent of the statute, his subsequent reliance upon the statute of course cannot avail him. And it may have been with this view that Lord Bathurst held that, though admitted by the defendant, a verbal agreement within the statute could not be enforced, and that to do so would be to repeal the statute.1 The same difficulty opposes itself to what Mr. Justice Story has suggested as another reason which might perhaps be adduced in support of the general rule we are considering; namely, that after admission by the defendant, the agreement, though originally by parol, was now in part evidenced by writing under the signature of the party, which was a complete compliance with the terms of the statute.2 In a late case in Maryland, it was urged that an answer filed by a defendant, admitting an agreement, and not setting up the statute, could be read against his creditors afterward coming in to resist the decree for specific execution, as itself a memorandum; but the Chancellor held that it could not, and strongly dissented from Judge Story's suggestion above referred to.3 Upon the whole, the soundest reason which can be assigned for this rule, imprrgnably settled as it is by authority, seems to be that the defendant, having admitted the agreement charged, if he does not insist upon the statute, is taken to renounce the benefit of it; the maxim, quisque renuntiare potest juri pro se introducto, being applicable to such a case.4
1 Savage v. Carroll, 1 Ball & B. 283. See also Boardman v. Mostyn, 6 Ves 467; Reynolds v. Waring, Younge, 346; Story, Eq. Jur. §764; Sugden, Vend. & P. 150; Wallace v. Brown, 10 N. J. Eq. 308.
2 Attorney-General v Day, 1 Ves. Sr. 218; Croyston v. Banes, 1 Eq. Cas. Abr. 19; s. c. Finch, Prec. Ch. 208; Symondson v. Tweed. Finch, Prec. Ch. 374; Lacon v. Mertins, 3 Atk. 1; Cottington v. Fletcher, 2 Atk. 155; Gunter v. Halsey, 2 Arab. 586; Child v. Godolphin, 1 Dick. 39; Whitchurch v. Bevis, 2 Bro. C. C. 559; Spurrier v. Fitzgerald, 6 Ves. 555; Cooth v. Jackson, 6 Ves. 12: Attorney-General v. Sitwell, 1 Younge & C. (Exch.) 583; Harris v. Knickerbacker, 5 Wend. (N. Y.) 638; Argenbright v. Campbell, 3 Hen. & M. (Va.) 144; Hollingshead v. McKenzie, 8 Ga. 457; Ellis v. Ellis, 1 Dev. (N. C) Eq. 341; Switzer v. Skiles, 3 Gilm. (111.) 529; Dyer v. Martin, 4 Scam. (111.) 146; Woods v. Dille, 11 Ohio, 455; McGowen v. West, 7 Mo. 569; Artz v. Grove, 21 Md. 456; Burt v. Wilson, 28 Cal. 632. In Pennsylvania, it has been held, on the strength of the principle of this rule, that a mortgagee could not, in an action at law, avail himself of the Statute of Frauds to resist the enforcement of a prior trust agreement concerning the land, -which was acknowledged by the owner of the reversion. Houser v. Lamont, 55 Pa. St. 311; Bennett v. Tiernay, 78 Ky. 580; Connor v. Hingtgen, 19 Neb. 472; Brakefield v. Anderson, 87 Tenn. 206.
1 Popham v. Eyre, Lofft, 786.
2 Story, Eq. Jur. § 755.
3 Winn v. Albert, 2 Md. Ch. Dec. 169. Affirmed on appeal, nom Albert v. Winn, 5 Md. 66.
4 Newland on Contracts, c. 10, p. 201; 1 Fonbl. Eq. Bk. 1, c. 3, § 8, note d; Rondeau v. Wyatt, 2 H. Bl. 63; Spurrier v. Fitzgerald, 6 Ves 548; Adams v. Patrick, 30 Vt. 516.
§ 499. Where the defendant, having appeared to the suit, makes default in filing his answer, and the bill is taken pro confesso, it should seem, and has been held in New Hampshire, that it amounted to an admission of the contract charged, so as to entitle the plaintiff to a decree.1 Where the defendant has once admitted the contract as charged, he cannot afterward, when the plaintiff has amended his bill in a matter not going to the substance of the contract, retract his admission.2 And the same rule seems to hold, where the plaintiff afterward comes in for a decree, upon a bill amended by permission so as to cover an agreement which the defendant in his answer had confessed.3 And if the defendant, after having admitted the agreement, should die before a decree, upon a bill of revivor against the heir, a specific performance by him would be decreed; for the principle goes throughout, and binds the representative as well as the ancestor.4