This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
Though in general there must, in order to sustain a suit for specific performance, be a contract in writing within the Statute of Frauds (v), the Court, in certain cases, decrees specific performance of a parol agreement, upon the ground, 1st, of fraud having been the cause of the non-compliance with the Statute : 2ndly, of the parol agreement having been in part performed; or, 3rdly, of its existence being admitted by the defendant (x).
Written agreement, when dispensed with on ground of fraud.
Part performance, or defendant's admission.
1st. If by fraud the defendant has prevented compliance with the Statute, this will not avail him, but the plaintiff will be entitled to relief on proving the fraud and the parol contract (y). But it is not fraud in a purchaser to decline to sign the fair copy of an agreement which he had assented to when in draft, and had promised to sign as soon as it was fair copied (z).
Fraud takes case out of Statute.
(t) Pearce v. Bastable's Trustee in Bkcy., sup.
(u) Gabriel v. Sturgis, (1846) 5 Ha. 97; 15 L.J. Ch. 201.
(v) As to what is a sufficient memorandum within the Statute, see sup. Ch. VI.
(x) As to the distinction between agreements and declarations of trust, see Dale v. Hamilton, (1847) 2 Ph. 266, 275 ; 16 L. J. Ch. 397 ; Smith v. MattJieivs, (1860) 3 D. F. & J. 139 ; 30 L. J. Ch. 445, and cases there cited. "When the Court is called upon to establish or act upon a trust of lands, by declaration or creation, it must not only be manifested and proved by writing, signed by the party by law enabled to declare the trust, that there is a trust; but it must also be manifested and proved by writing, signed as required, what that trust is ; " per Turner, L. J., ib. 151.
(y) Whitchurch v. Bevis, (1789) 2 Br. C. C. at p. 565 ; and note to Pym v. Blackburn, (1796) 3 Ves. 34, and cases there collected ; and Morse v. Merest, (1821) 6 Mad. 26 ; Lincoln v. Wright, (1859) 4 D. & J. 16.
(z) Wood v. Midgley, (1854) 5 D. M. & G. 41 ; 23 L. J. Ch. 553.
2ndly. As to acts of part performance (a) sufficient to take a case out of the Statute of Frauds. - 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 he in, if there were no contract (b). The doctrine has, however, been confined within strict limits, so as to prevent a recurrence of the mischief which the Statute was passed to suppress. The acts relied upon as part performance must be unequivocally, and in their own nature, referable to some such agreement as that alleged (c). It was held by the Court of Appeal that the doctrine did not extend to any other contracts than such as related to real estate (d), but doubt has been cast upon that decision by later cases (c) ; and it may now perhaps be more accurate to say that the doctrine of part performance of a parol agreement " applies to all cases in which Equity would entertain a suit for specific performance, if the alleged contract had been in writing " (/).
Thus, delivery of possession is a sufficient part performance on the part of the vendor to sustain his action against the purchaser (g), and acceptance of possession is a sufficient part performance on the part of the purchaser to sustain his action against the vendor (h). The fact of the purchaser being, without liability to a charge of trespass, in possession of the vendor's land, is considered as showing unequivocally that some contract has taken place between the parties (t) ; and the Court will then receive parol evidence of the terms of such contract. So, where there was a parol agreement for a mortgage, and that the mortgagor should continue in the occupation of part of the property, but an absolute conveyance was taken, it was held that the retention of possession by the mortgagor after the execution of the conveyance was a sufficient part performance to exclude the operation of the Statute ; and parol evidence was admitted to prove the terms of the contract (k). Where the relation of landlord and tenant exists, the mere continuance in possession by the latter cannot per se be relied on as part performance of a parol contract for the purchase of the property (I) : but the execution by a tenant, who was let into possession, of certain repairs pursuant to a parol agreement for a lease, has been held sufficient (m) ; so, the retention of possession by a tenant after the determination of the original tenancy, may, under special circumstances, amount to part performance (n) ; so, also, if a tenant in possession lay out money on the premises, upon the faith of the parol agreement (o), or, it is conceived, commit acts which would, (if he were merely tenant,) subject him to the loss of his lease (p), or to proceedings on the part of the landlord (q) ; so, it has been held, that the mere payment of additional rent entitles the tenant to an answer from the landlord as to the existence of an agreement for a renewed lease, although, the Court intimated an opinion against the admissihility of parol evidence in opposition to the answer (r). And it has been held that, where a landlord has verbally agreed with his yearly tenant to grant him a lease at an increased rent, with an option of purchasing the fee, the mere payment of the additional rent, after the landlord's death, is a sufficient part performance to take the case out of the Statute (s).
Illustration of the doctrine and its limits:
What acts are sufficient; delivery of possession;
(a) A.-G. v. Day, (1749) 1 Ves. Sen. 218, 221 ; Taylor v. Beech, ib. 297.
(b) Per V.-C. Wigram, in Dale v. Hamilton, (1846) 5 Ha. at p. 381; 16 L. J. Ch. 126, 397.
(c) Cooth v. Jackson, (1801) 6 Ves. at p. 38; Frame v. Dawson, (1807) 14 Ves. 386 ; Morphett v. Jones, (1818) 1 Sw. at p. 181.