While the foregoing general principles are correct statements of the law, there has been a number of late cases where the courts have enforced the foregoing rules with much liberality and have granted specific performance of oral agreements wherein not much has been done by way of part performance. (See note 67.)

In the accompanying note we have set out those cases in one group,67 where the courts have held part performance suf-

65. Compiled Laws of 1915, Section 11979.

66. Lyle v. Munson, 213 Mich. 250.

Verbal Contracts Partly Performed

-Illustrative Cases-Relief

Granted

67. Lyle v. Munson, supra. Where the defendant under a lease with the option to buy took possession of property, took steps to construct a barn and hog pen; obtained and had upon the place sufficient material ready for their construction, consisting of lumber, scantling and timbers, and had posts set in the ground preparatory to building a hog pen, and the written contract was held to be void because executed on Sunday, the court enforced the oral agreement upon which the written agreement had been based and refused to allow the defendant to invoke the statute of frauds on the grounds of equitable estoppel.

Nickerson v. Nickerson, 209 Mich. 134. Where a father agreed with his son that he would convey at some future time a certain farm, upon the condition that the latter move upon the same, clear it. work it and make a home upon it, and said contract was fully performed by said son; was held not too indefinite and uncertain to admit of equitable relief, and specific performance was granted.

Loesy v. Hutchinson, 209 Mich. 318. Where parties entered into an oral lease in which it was agreed to make a written lease for three years and in pursuance of such agreement, plaintiff went into possession of said premises, paid the stipulated rent in advance and on defendant's refusal to make certain agreed repairs, made them themselves at a cost of approximately $200.00. Held sufficient part performance to take an agreement out of the operation of the statute of frauds and to entitle plaintiff to a decree.

Engel v. Engel, 209 Mich. 276. Where certain heirs entered into an oral agreement, one of them to have a farm belonging to the father's estate and the defendant, his brother, was to have the personal property. Where parties so contracting, each took possession of the property described in such agreement and remained in such possession which was acquiesced in by both parties for a period of two years, the courts held that to be such part performance as to take the case out of the statute and grant a specific performance.

Pendergast v. Pendergast, 206 Mich. 525. Where a certain son agreed with the father and entered into an oral contract when the father was eighty years of age, that in consideration of said son's remaining on the farm, keeping the home intact, and furnishing him with such care as he needed during the rest of his life, that he would deed said farm to him. This contract was fully performed on the part of the son. Held that specific performance of such oral agreement be decreed.

Pearson v. Gardner, 202 Mich. 360. In proceedings for the specific performance of a contract for the sale of land, where the vendees paid part of the purchase price, entered into possession, and exercised acts of ownership changing the character of the freehold, although the contract itself was insufficient to satisfy the statute of frauds, a court of equity will award a decree for specific performance.

Fowler v. Isbell, 202 Mich. 572. On a bill by a daughter against her father for the specific performance of an oral contract to convey to plaintiff a house and lot, where the record shows that plaintiff has performed on her part, under authority of section 11979, 3 Comp. Laws 1915, the decree of the court below awarding specific performance will be affirmed.

Stuart v. Mattern, 141 Mich. 686. Payment of one thousand dollars on a purchase price of $2,500.00, taking possession and expending $2,000.00 as improvements, constitutes such a part performance of a contract to convey land made by a tenant in common as makes it inequitable to permit the other tenant who had full knowledge of the facts to repudiate the contract. In this case it was also held that a written contract to convey land naming the purchaser made by an agent duly authorized in writing and signed by him in behalf of his principal is valid even though the name of the purchaser was not disclosed to the vendor before the contract was made.

Stonehouse v. Stonehouse, 156 Mich. 43. Where a son desired to engage in business for himself and his father persuaded him to remain at home agreeing that if he would do so he would compensate him therefor, that such son did so remain and thereafter the father verbally agreed with him to make him a deed for certain lands and where it appeared that the son had expended large sums of money in improvements, the court held that he was the owner of the equitable title and was entitled to the specific performance.

Pike v. Pike, 121 Mich. 170. A parol agreement by parents to deed their farm to their son if he would surrender his lease to his farm on which he was living and come to live with them is taken out of the statute of frauds by his accepting the offer, surrendering his lease and moving onto the farm with the parents and a bill for specific performance will lie.

Lamb v. Hinman, 46 Mich. 112. A son agreed with his father to remove with his family to the lat-ter's house, take care of the father and turn over to him annually a certain proportion of the crops, in consideration of all of which the father was to deed to the son a certain parcel of land, which he promised to do, but did not. The only uncertainty related to the time at which the deed was to be given. Held, that the case was sufficient to sustain a bill for specific performance against the administrator and heirs at law of the father.

The reason why taking possession of land under an oral contract is such part performance of the contract as will sustain a bill for its specific performance, when payment of the purchase price is not, is that in the former case there is no certain basis for estimating damages for the breach.

Cilley v. Burkholder, 41 Mich. 749. Where a survey of the land and keeping possession for several years was held to be a sufficient part performance to entitle the vendee to specific performance.

Davis v. Strobridge, 44 Mich. 157. Where the vendee took possession of the property and paid a portion of the purchase price and did a small amount of clearing, this was held to be a sufficient part performance to entitle him to specific performance.

Delevan v. Wright, 110 Mich. 143 In this case a verbal agreement by grantee to pay an encumbrance on land to date and to provide a home ficient and in another group have collected the cases where part performance has been held insufficient.68 for the grantor was held to have been taken out of the statute of frauds by part performance.

Smellings v. Sally, 103 Mich. 580. In this case a tenant cleared cer tain lands under a verbal agreement that he should have the right to occupy the same for two years, specific performance was decreed against the landlord and the tenant was given the occupancy of the land for that period.

Karmichael v. Karmichael, 72 Mich. 76. In this case a mother had agreed to leave property to certain of her children by will and afterwards received all the benefits of her agreement. She was compelled to transfer the property in accordance with her contract.

Sigler v. Sigler, 108 Mich. 591. In this case a husband and wife under a verbal agreement divided their personal property upon the condition that the husband should have the right to occupy a certain portion of the premises, and should have the use of a certain vineyard. Specific performance was decreed.

Partially Performed Verbal Contracts-Relief Denied

68. Buhler v.Trombley,139 Mich. 557. Mere occupancy of the dwelling and the making of ordinary repairs and changes to suit the premises to the needs of the occupant paid for out of partnership funds belonging to the promisor and promisee are not sufficient part performance to take parol promise to convey out of the statute of frauds. It is well settled that payment of the whole or part of the purchase price is not sufficient to take the case out of the operation of the statute of frauds.

The courts have adopted various lines of reasoning to support this doctrine, some holding that payment of money should not be sufficient to support an action for specific performance, as it may readily be repaid, then the parties will be just where they were before, and have considered the legal remedy of the vendee sufficient to deny him the equitable jurisdiction. (See Pomeroy's Equitable Remedies, Vol. 5, Sec. 2246, 4th Edition; Gates on Real Property, Sec. 598; 4 L. R. A., N. S. 957.)

Klett v. Klett, 175 Mich. 224. Where a complainant sued to specifically enforce an oral contract to convey real and personal property to him in consideration of support and services to be rendered to the father and mother of complainant, he was not entitled to the relief prayed for where the contract provided that if the son became dissatisfied or the parties were unable to live peaceably together, he was not bound to continue to perform the contract. It was held in this case that the rights growing out of the oral contract made by the husband could not affect the homestead interest of the wife.

Fleming v. Fleming, 202 Mich. 615. An oral contract by husband and wife agreeing to give a son one-half of their farm, which was also their homestead in consideration of his moving upon the farm, working it and caring for them until their death, was void, not being