1 Glass v. Hulbert, 102 Mass. 35. See Brown v. Hoag, 35 Minn. 373.

§ 449. By the Revised Statutes of Maine, power is given to the Supreme Judicial Court of that State to compel specific performance of contracts in writing made after a certain date therein mentioned, in all cases of "fraud, trust, accident, and mistake;"1 enactments which have received the construction of that court in the following case: The defendants verbally agreed to sell the plaintiffs a lot of land at a certain price, relying upon which agreement the plaintiffs built a house upon the land and afterward tendered the price and requested a conveyance, which was refused, whereupon a bill was filed praying that the defendant might be compelled to perform his agreement, or pay the value of the house, and that he be restrained from obstructing the plaintiffs in their occupation of it, and from bringing suits against them on account of it. In the opinion of the court it is said, that if it was intrusted with a general jurisdiction in equity, there might be no difficulty in decreeing a specific execution of the agreement on the ground of part-peform-ance; but that its jurisdiction was limited in such cases. It is then remarked, that it had been decided that the original statute law of the State did not authorize the court to compel a specific performance of a contract in writing, and the opinion proceeeds to say: "By the Revised Statutes such power is given, but it is limited to contracts in writing, made since February 10, 1818. It is contended, however, by the counsel for the plaintiffs, that a specific performance of a verbal contract may be decreed by virtue of the statute giving jurisdiction in all cases of fraud. If the court were to decree the specific performance ... on the ground, that after part-performance, it was a fraud upon one party for the other to refuse to execute a conveyance, the effect would be to assume, under that clause of the statute, the very jurisdiction intentionally denied under another and more appropriate clause. During the revision of the statutes the law relating to the specific performance of contracts not in writing, after they had been partially executed, was doubtless noticed and considered; and it appears to have been the intention not to authorize under any circumstances a decree for the specific performance of a contract not made in writing. It is also contended, that the defendant should in equity be enjoined from claiming and asserting a title to the lot, after having been instrumental in causing the plaintiffs to expend their money in building upon it under the promise of a title. It is true, that one, who hears another bargain with a third person for an estate, and sees such third person pay for it, or expend money upon it, without making known his own title, will not be permitted in equity to disturb him in the enjoyment of the estate, because by so doing he knowingly abets or aids the seller to deceive and injure him. The essential ingredient which destroys his own title is the knowledge, that the purchaser is deceived with respect to the title, and that he must suffer by it, and the neglect, when he has an opportunity to do so, to undeceive him and save him from injury. But this rule cannot be applied to cases of contract, where all the parties to the contract fully understand the true state of the title, and one of them seeks relief from another. The plaintiffs in this case were not ignorant, that the title to the lot was in the defendant, and that they must rely upon his verbal contract to obtain a title to it

1 Rev. Stat. Cap. 96, § 10. And in the Revised Statutes of 1871, Cap. 77, § 5.

If the defendant, after having authorized the plaintiff to place the building upon his land, had by any act converted it to his own use, their proper remedy to recover the value of it would have been an action of trover, and not a suit in equity. It is not therefore necessary to consider, whether the testimony presented would have entitled them to maintain such an action. It is not perceived, that under this process the court has any power to relieve the plaintiffs from the inconvenience or loss which they may sustain by having inconsiderately placed too great confidence in the verbal promise of the defendant." The bill was dismissed without costs.1

§ 450. In Massachusetts, also, the equity powers of the Supreme Court were formerly specifically defined, the Revised Statutes giving it power to enforce contracts in writing,2 and an act passed in 1855 giving it "jurisdiction in equity in all cases of fraud." 3 The latter statute does not appear to have received a judicial construction in reference to cases of part-performance.4 By the General Statutes 5 full equity jurisdiction is given to the Supreme Court, and this provision manifestly covers the specific execution of verbal agreements within the Statute of Frauds.6

1 Inhabitants of Wilton v Harwood, 23 Me. 133; Patterson v. Yeaton, 47 Me. 308. See Pulsifer p. Waterman, 73 Me. 233.

2 Mass. Rev. Stat. Cap. 74, § 8.

3 Stat. 1855, Cap. 194, § 1.

4 In the case of Sanborn v. Sanborn, the point was raised and discussed, but as the suit was commenced before the passage of the statute of 1855, the court gave no opinion upon it, being clear that they had no jurisdiction of the suit, it being for specific execution of a verbal contract, though acts of part-performance were alleged. The bill was dismissed without prejudice to the complainants' right to file a new bill framed upon the hypothesis that the statute of 1855 would give the court jurisdiction as of the fraud arising upon the alleged part-performance. Sanborn v. Sanborn, 7 Gray, 142. No report of the subsequent trial and decision has been found.

5 Mass. Gen. Stat. ch. 113, § 2.

6 Glass v. Hulbert, 102 Mass. 33; Whelan v. Sullivan, 102 Mass. 204. It has been decided in Massachusetts, that a clause of the Revised Statperformance, is that sort of fraud which is cognizable in equity only." 1