1 Whaley v. Bagnel, 1 Bro. P. C. 345.

2 Rathbun v. Rathbun, 6 Barb. (N. Y.) 98; Barnes v. Boston & Maine R. R. 130 Mass. 388. But see Bard v Elston, 31 Kansas 274.

3 Post, §§ 468 et seq.

4 Pugh v. Good, 3 Watts & S. (Pa.) 56. See Brown v. Hoag, 35 Minn. 373.

5 See Sugden, Vend. & P. 169. Roberts on Frauds, 139; Cameron v. Austin. 65 Wisc. 652. In Caton v. Caton, L. R. 1 Ch. App. 148, Cran-worth, L. C, says: "I presume it will not be argued that any consequence can be attached to acts of part-performance by the party sought to be charged."

6 Lacon v. Mertins, 3 Atk. 4.

§ 455. It has been sometimes said that the acts of part-performance, in order to avail a plaintiff seeking relief by specific execution, must be such as unequivocally prove the contract alleged. And, upon this view, it has been remarked by Mr. Roberts, that the entire doctrine of enforcing a contract in equity on the ground of part-performance proceeds in a circulating course of reasoning; that it assumes the existence of the contract, inasmuch as the acts must have been done with a direct view to perform a particular agreement, and that thus the acts relied on prove and are proved from the agreement at the same time; and he adds that "to call anything a part-performance before the existence of the thing whereof it is said to be the part-performance is established, is an anticipation of proof by assumption, and gets rid of the statute by jumping over it; for the statute requires proof, and prescribes the medium of proof." 2 So far as this view tends only to prove general unsoundness in the equitable doctrine of part-performance, it would be of little practical importance to discuss it, now that the doctrine is so firmly rooted in the jurisprudence of both England and our own country. But it seems to confound two branches of that doctrine which are, and it is most material should be, kept entirely distinct; namely, the use of parol evidence to prove the terms of the contract, and the use of parol evidence to prove part-performance. The latter evidence is that which, in such cases, is required to be first introduced. It is manifest that the two classes of evidence cannot be required for proving precisely the same thing. If the acts of part-performance prove the whole contract, there is no occasion for any parol evidence of its terms, and no difficulty whatever arises under the Statute of Frauds. It is true, the acts relied on must ultimately appear to have been done in pursuance of the contract sought to be enforced, or the whole equity of the plaintiff fails. But they are not put in evidence to prove what that contract is, that being the office of the parol evidence to which the proof of them opens the door. They are put in evidence, in the first instance, to show that the parties have entered into some contract, and they must be such as clearly to show that fact. Vice-Chancellor Sir James Wigram says: "It is, in general, of the essence of such an act that the court shall, by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights, they would be in if there were no contract. A common example of this is the delivery of possession. One man, without being amenable to the charge of trespass, is found in the possession of another man's land. Such a state of things is considered as showing unequivocally that some contract has taken place between the litigant parties; and it has, therefore, on that specific ground, been admitted to be an act of part-performance. But an act which, though in truth done in pursuance of a contract, admits of explanation without supposing a contract, is not, in general, admitted to constitute an act of part-performance taking the case out of the Statute of Frauds; as, for example, the payment of a sum of money, alleged to be purchase-money. The fraud, in a moral point of view, may be as great in the one case as in the other; but in the latter cases the court does not in general give relief."1

1 Frame v. Dawson, 14 Ves. 386. See upon this rule the following cases: Buckmaster v. Harrop, 7 Ves. 341; Lindsay v. Lynch, 2 Schoales & L. 1; O'Reilly v. Thompson, 2 Cox, 271; Parker v. Smith, 1 Coll. Ch. 624; Morphett v. Jones, 1 Swanst. 172; Brennan v. Bolton, 2 Dru. & War. 349; Cooth v. Jackson, 6 Ves. 12; Rathbun v. Rathbun, 6 Barb. (N. Y ) 98; North v. Forest, 15 Conn. 400; Osborn v. Phelps, 19 Conn. 74; Moore v. Small, 19 Pa. St. 461; Eckert v. Eckert, 3 Penna. Rep. 332; Frye v. Shepler, 7 Pa. St. 91; Moale v. Buchanan, 11 Gill & J. (Md) 314; Hamilton v. Jones, 3 Gill & J. (Md.) 127; Shepherd v. Shepherd, 1 Md. Ch. Dec. 244; Owings v. Baldwin, 8 Gill (Md.) 337; Shepherd v. Bevin, 9 Gill (Md.) 32; Hall v. Hall, 2 McCord (S. C.) Ch. 269; Rawlins v. Shropshire, 45 Ga. 182; Townsend v. Sharp, 2 Over. (Tenn ) 192; Armstrong v. Kattenhorn, 11 Ohio, 265; Cole v. Potts. 10 N. J. Eq. 67; Jervisr. Smith, Hoff. (N. J.) Ch. 470; Cutsinger v. Ballard, 115 Ind. 93; Dncie v. Ford, 8 Montana, 233; Sullivan v. Ross Estate, 98 Mich. 570; Koch v. National Building Association, 137 11l. 497; Shahan v. Swan, 48 Ohio St. 25; Wallace v. Rappleye, 103 111. 229.

2 Roberts on Frauds, 135.

§ 455 a. The question of the principle upon which courts of equity proceed in enforcing oral contracts covered by the Statute of Frauds, which have been acted upon by the party seeking relief, has received very thorough consideration in Maddison v. Alderson, before the House of Lords.2 The case was that an intestate induced a woman to serve him as his housekeeper without wages for many years, and to give up other prospects of establishment in life, by the verbal promise to make a will leaving her a life estate in land, and afterwards signed a will, not duly attested, by which he left her the life estate; and it was held that there was no contract, and that even if there had been, and although the woman had wholly performed her part by serving till the intestate's death without wages, yet her service was not unequivocally and in its nature referable to any contract, and was not such a part-performance as to take the case out of the operation of the Statute of Frauds, and that she could not maintain an action against the heir for a declaration that she was entitled to a life estate in the land.3 The Lord Chancellor (Selborne) said: "In a suit founded on part-performance, the defendant is really ' charged ' upon the equities resulting from the acts done in execution of the contract, and not (within the meaning of the statute) upon the contract itself. If such equities were excluded, injustice of a kind which the statute cannot be thought to have had in contemplation would follow. Let the case be supposed of a parol contract to sell land, completely performed on both sides, as to everything except conveyance; the whole purchase-money paid; the purchaser put into possession; expenditure by him (say in costly buildings) upon the property; leases granted by him to tenants. The contract is not a nullity; there is nothing in the statute to estop any court which may have to exercise jurisdiction in the matter from inquiring into and taking notice of the truth of the facts. All the acts done must be referred to the actual contract, which is the measure and test of their legal and equitable character and consequences. If, therefore, in such a case a conveyance were refused, and an action of ejectment brought by the vendor or his heir against the purchaser, nothing could be done towards ascertaining and adjusting the equitable rights and liabilities of the parties, without taking the contract into account. The matter has advanced beyond the stage of contract; and the equities which arise out of the stage which it has reached cannot be administered unless the contract is regarded. The choice is between undoing what has been done (which is not always possible, or, if possible, just) and completing what has been left undone. The line may not always be capable of being so clearly drawn as in the case which I have supposed; but it is not arbitrary or unreasonable to hold that when the statute says that no action is to be brought to charge any person upon a contract concerning land, it has in view the simple case in which he is charged upon the contract only, and not that in which there are equities resulting from res gestae subsequent to and arising out of the contract. So long as the connection of those res gestae with the alleged contract does not depend upon mere parol testimony, but is reasonably to be inferred from the res gestae themselves, justice seems to require some such limitation of the scope of the statute, which might otherwise interpose an obstacle even to the rectification of material errors, however clearly proved, in an executed conveyance, founded upon an unsigned agreement." The case is an instructive one, and Lord Selborne's opinion contains a careful review of the authorities.