marriage is not a sufficient part performance; but when there has been such a verbal ante-nuptial agreement, a written contract or settlement in pursuance or upon the basis of it, made after the marriage, is valid and will be enforced.(1) But such subsequent agreement or settlement may not be upheld against intervening creditors, whose rights it would cut off. (2)

SEC. 96. Part performance.-As has already been shown,(3) equity will sometimes decree the specific execution of agreements for the breach of which the law can give no remedy, because the statute of frauds interposes an inseperable obstacle to the recovery of a legal judgment for damages. The doctrine was established at an early day in England that a verbal agreement, if part performed, can, notwithstanding the requirements of the statute, be enforced by a court of equity; or, to use the technical language of the books, that part performance takes a verbal agreement out from the operation of the statute.(4) This doctrine has been fully adopted in nearly all the American states, although the legislatures in several of them have materially altered the language of the act by declaring that the contract shall be "void," instead of providing that "no action shall be maintained" upon it, in the absence of a written memorandum.(5)

(1) Montacute v. Maxwell, 1 P. Wms. 618; Stra. 236; Hammersley v. Du Biel, 12 Cl. & Fin. 45, 64 n.; Taylor v. Beech, 1 Ves. Sen. 297; Surcome v. Pinniger, 3 DeG. M. & G. 575; Barkworth v. Young, 4 Drew. 1; Argenbright v. Campbell, 3 Hen. & M. 144; Albert v. Winn, 5 Md. 66; Satterthwaite v. Emley, 3 Green. Ch. 489 ; Livingston v. Livingston, 2 Johns. Ch. 537; in Randall v. Morgan, 12 Ves. 67, Sir WM. GRANT intimated a contrary opinion.

(2) Reade v. Livingston, 3 Johns. Ch. 481; Winn v. Albert, 2 Md. Ch. 169; 5 Md. 66; Izard v. Izard, Bailey Eq. 236; Andrews v. Jones, 10 Ala. 400; Blow v. Maynard, 2 Leigh, 29; Smith v. Greer, 8 Humph. 118; Wood v. Savage, 2 Doug. (Mich.) 316; Borst v. Cory, 16 Barb. 136; Randall v. Morgan, 12 Ves. 67; Battersbee v. Farrington, 1 Sw. 106; per contra, see Dundas v. Dutens, 1 Ves. 196; Satterthwaite v. Emley, 3 Green. Ch. 489.

(3) See ante, § 30.

(4) The earliest reported case was decided by the House of Lords, April 7, 1701. Lester v. Foxcroft, 1 Colles's Par. Cas. 108; also cited sub. nom. Foxcroft v. Lyster, 2 Vern. 456; Leicester v. Foxcroft, Pre. Ch. 519, 526; Bond v. Hopkins, 1 Sch. & Lef. 433; Clinan v. Cooke, 1 Sch. & Lef. 22, 41.

(5) Newton v. Swazey, 8 N. H. 9, 13; Tilton v. Tilton, 9 N. H. 385, 389; Annan v. Merritt, 13 Conn. 479, 491; Eaton v. Whitaker, 18 Conn. 222, 229; Hall v. Whittier, 10 R. I. 530; Peckham v. Barker. 8 R. I. 17; Meach v. Stone, 1 Chip. (Vt.) 189; Parkhurst v. Van Cortland, 14 Johns. 15, 31; Freeman v. Freeman, 43 N. Y. 34; Eyre v. Eyre, 4 C. E. Green. (N. J.) 102; Welsh v. Bayaud, 6 C. E. Green, (N. J.) 186; Moore v. Small, 19 Pa. St. 461; Greenlee v. Greenlee, 22 Pa. St. 225; Allen's estate, 1 Watts & Serg. 383; Hall v. Hall, 1 Gill. 383, 389; Hamilton v. Jones, 3 Gill & J. 127; Cole v. Cole, 41 Md. 301; Semmes v. Worthing

In several of the states the doctrine, although originating in equity, has received a statutory sanction or even basis. There are two types of these statutory provisions. One class recognizes the doctrine of part performance as enforced by courts of equity, and declares that nothing in the statute of frauds shall be construed so as to interfere with or abridge it, and thus leaves the subject, as it was prior to the legislation, wholly within the domain of equitable principles. (1) The statutes of the other class, differing from each other in their details, agree in making the doctrine a matter of legislation. As the section concerning sales of personal property requires either a written memorandum, or receipt and acceptance, or payment by the buyer, so these provisions concerning lands prescribe a writing or certain specified acts of part performance in the alternative, as the essential requisites of a valid contract. (2) How far, if at all, these statutes have modified the general rules of equity relative to part performance in their respective states will be considered in the sequel.

SEC. 97. In a few of the states, either on account of a strict construction put upon the language of their statutes of frauds, or by reason of the limited jurisdiction in equity conferred upon their courts, the doctrine of part performance has been wholly rejected, or is applied only to a partial extent and under very special circum

ton, 38 Md. 298; Anthony v. Leftwich, 3 Rand. (Va.) 255; Pierce v. Catron, 23 Gratt. 483; Lowry v. Buffington, 6 W. Va. 249; Sites v. Kellar, 6 Hamm. (0.) 207; Grant v. Ramsay, 7 Ohio St. 157; Underhill v. Williams, 7 Blackf. 125; School District v. Macloon, 4 Wisc. 79; Farrar v. Patton, 20 Mo. 81; Despain v. Carter, 21 Mo. 331; Feuiser v. Sneath, 3 Nev. 120; Church of the Advent v. Farrow, 7 Rich. Eq. 378; Ford v. Finney, 35 Geo. 258; Dugan v. Colville, 8 Tex. 126; Boze v. Davis, 14 Tex. 331; Howe v. Rogers, 32 Tex. 218; Clayton v. Frazier, 33 Tex. 91; Johnson v. Bowden, 37 Tex. 621; Gregg v. Hamilton, 12 Kans. 333; Morgan v. Bergen, 3 Neb. 209; Fall v. Hazelrigg, 45 Ind. 576; Northrup v. Boone, 66 Ill. 368.

(1) See ante, § 70, in the statutes of N. Y.; Mich.; Minn.; Neb.; Wisc.; Ind. (2) See ante, § 70, in the statutes of Alabama, which requires the contract for sale of lands, etc., to be written, etc., "unless the purchase-money or a portion thereof be paid, and the purchaser be put in possession of the land by the seller." California, which requires a writing, etc., "unless the contract has been part performed by the party seeking to enforce it, and such part performance has been accepted by the other." Iowa, which enacts that the requirement of a writing does not apply "when the purchase-money or any part thereof has been received by the vendor, or when the vendee, with the actual or implied consent of the vendor, has taken and held possession thereof (i. e., of the land), under and by virtue of the contract, or when there is any other circumstance which, by the law heretofore in force, would have taken a case out of the statute of frauds." Also, that a parol contract shall be enforced when not denied in the pleadings, except against a person other than the maker of it.

stances. In Massachusetts the courts long had the power of enforcing written contracts alone;(1) but by recent legislation their equitable jurisdiction has been enlarged so as to embrace some cases, at least, of parol agreements which have been part performed. (2) In Maine, also, the equity powers of the courts are restricted to the enforcement of written contracts.(3) In North Carolina the equitable doctrine of part performance has never been admitted, and in case of a verbal contract, even if it be admitted by the defendant, provided he claims the benefit of the statute, the remedy of specific execution is refused.(4) The rule that parol contracts, which have been part performed, may be specifically enforced, has also been repudiated in Tennessee as being wholly inconsistent with the statute of frauds;(5) and is only admitted in Kentucky under special circumstances of hardship or injustice to the purchaser.(6)

SEC. 98. This doctrine of part performance, that verbal contracts, embraced within the restrictive provisions of the statute of frauds, may still be enforced when they have been part performed, belongs exclusively to equity jurisprudence and jurisdiction; it has no existence at law, and is, therefore, never admitted in legal actions.(7)

(1) Jacobs v. R. R. Co., 8 Cush. 223; Brooks v. Wheelock, 11 Pick. 439; Dwight v. Pomeroy, 17 Mass. 303, 327; Buck v. Dowley, 16 Gray, 555.

(2) Metcalf v. Putnam, 9 Allen, 97; Glass v. Hulbert, 102 Mass. 25, 33; Stockham Iron Co. v. Hudson Iron Co., 102 Mass. 45; Potter v. Jacobs, 111 Mass. 32.

(3) Power is given by statute to compel "specific performance of contracts in writing," and it is held that, in the face of this provision, the general grant of jurisdiction in all cases of "fraud, trust, accident, and mistake," could not be made to include the specific enforcement of parol contracts which have been part performed. Wilton v. Harwood, 23 Me. 131, 134; Bubier v. Bubier, 24 Me. 42; Stearns v. Hubbard, 8 Greenl. 320.

(4) This course of decision is expressly based upon the statute of frauds; the rules established by the English court of chancery, it is asserted, amount to a virtual repeal of the statute, and let in all the opportunities for frauds and perjuries, which it was the design of that enactment to shut out. When, in such a case, the relief of specific performance is refused, the plaintiff may, however, recover the amount of his payments and outlays for improvements. See Love v. Neilson, 1 Jones' Eq. 339; Barnes v. Teague, 1 Jones' Eq. 277; Ellis v. Ellis, 1 Dev. Eq. 345; Allen v. Chambers, 4 Ired. Eq. 125; Dunn v. Moore, 3 Ired. Eq. 364; Albea v. Griffin, 2 Dev. & Bat. Eq. 9; Plummer v. Owen, 1 Busbee Eq. 254; Barnes v. Brown, 71 N. C. 507, 511, 512, per RODMAN, J.

(5) Ridley v. McNairy, Humph. 174, 177; Patton v. McClure, Mart, & Yerg. 333, and in Mississippi, McGuire v. Stevens, 42 Miss. 724; Hairston v. Jaudon, 42 Miss. 380.

(6) Worley v. Tuggle, 4 Bush, 168, 190.

(7) O'Herlihy v. Hedges, 1 Sch. & Lef. 123; Kelly v. Webster, 12 C. B. 283; Freeport v. Bartol, 3 Greenl. 345; Patterson v. Cunningham, 2 Fairf. (Me.) 512;

Although its operation has doubtless been beneficial, and the principles and rules upon which it rests are firmly established, yet the courts are careful not to extend it to new circumstances or relations not embraced within those rules and principles. That the statute of frauds is a wise and politic enactment, and accords with the common experience of mankind, is shown by its adoption in nearly all the states, and the tendency at the present day is strongly in favor of sustaining and enforcing its provisions.(1) I shall arrange the further

Norton v. Preston, 15 Me. 14, 16; Lane v. Shackford, 5 N. H. 132; Newell v. Newell, 13 Vt. 24; Pike v. Morey, 32 Vt. 37; Kidder v. Hunt, 1 Pick. 331; Thompson v Gould, 20 Pick. 138; Adams v. Townsend, 1 Met. 483; Eaton v. Whitaker, 18 Conn. 231; Downey v. Hotchkiss, 2 Day (Conn.) 225; Jackson v. Pierce, 2 Johns. 221, 223; Abbott v. Draper, 4 Denio, 52; Thomas v. Dickenson, 14 Barb. 90; Boutwell v. O'Keefe, 32 Barb. 434; Wentworth v. Buhler, 3 E. D. Smith, 305; Seymour v. Davis, 2 Sandf. 245; Henderson v. Hays, 2 Watts (Pa.) 148; Walter v. Walter, 1 Whart. (Pa.) 292; Barickman v. Kuydendall, 6 Blackf. 22, 24 ; Sailors v. Gambril, 1 Smith (Ind.) 82; Hunt v. Coe, 15 Iowa, 197; Davis v. Moore, 9 Rich. 215; Payson v. West, 1 Walker (Miss.) 515; Johnson v. Hanson, 6 Ala. 351; Allen v. Booker, 2 Stew. (Ala.) 21; Meredith v. Naish, 4 Stew. & Port. (Ala.) 59.

(1) Phillips v. Edwards, 33 Beav. 440; Phillips v. Thompson, 1 Johns. Ch. 132, 149, per KENT, Ch.: "I agree with those wise and learned judges who have declared that the courts ought to make a stand against any further encroachment on the statute, and not to go one step beyond the rules and precedents already established." German v. Machin, 6 Paige, 289, 293, per WALWORTH, Ch.: "The beneficial provisions of the statute of frauds have been sufficiently broken in upon already, and the doctrine of part performance should not be extended to new cases which do not come clearly within the equitable principles of previous decisions." See, also, Allen's Estate, 1 Watts & Serg. 383, 388; Frye v. Shepler, 7 Barr. 91. 93; Moore v. Small, 7 Harris, 461; Poorman v. Kilgore, 2 Casey, 365; Cox v. Cox, 2 Casey, 375; Wallace v. Brown, 2 Stockt. Ch. 308; Johnston v. Glancey, 4 Blackf. 94, 99; Massey v. McIlwain, 2 Hill, Ch. 421, 426; Hood v. Bowman, 1 Freeman, 290, 294; Anthony v. Leftwich, 3 Rand. 238, 244; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 284, 285; Harnett v. Yielding, 2 Sch. & Lef. 549; Foster v. Hale, 3 Ves. 712, 713, per Lord ALVANLEY; O'Reilly v. Thompson, 2 Cox, 271; Lindsay v. Lynch, 2 Sch. & Lef. 4, 5, 7, per Lord REDESDALE: "The statute was made for the purpose of preventing perjuries and frauds; and nothing can be more manifest to any person who has been in the habit of practicing in courts of equity, than that the relaxation of that statute has been a ground of much perjury and much fraud. If the statute had been rigorously observed, the result would probably have been, that few instances of parol agreements would have occurred. Agreements would, from the necessity of the case, have been reduced to writing. Whereas it is manifest that the decisions on the subject have opened a new door for fraud, and that, under pretence of part execution, if possession is had in any way whatsoever, means are frequently found to put a court of equity in such a situation that, without departing from its rules, it feels itself obliged to break through the statute. It is, therefore, absolutely necessary for courts of equity to make a stand, and not to carry the decisions further." The reported judgments of Lord REDESDALE show that he was strongly opposed to this equitable doctrine.

discussion of the subject in the following order: First. The kinds of contracts to which the doctrine of part performance is applied. Second. The equitable basis and essential principles of the doctrine.

The particular acts which do or do not amount to a sufficient part performance. Fourth. The nature and effect of the evidence by which the contract must be proved.

SEC. 99. First. The kinds and classes of contracts to which the doctrine of part performance is applied.-As the doctrine of part performance exists alone in equity, it is plain that the only agreements to which it can be applied, are those to which equity would grant the remedy of specific execution if they were written. All the conditions upon which the right to the equitable relief is based must be fulfilled, when the agreement is verbal as much as when it is written, for the mere absence of a written memorandum does not of itself let in the equitable jurisdiction; for, otherwise, all contracts might be enforced in equity if they were unwritten. The contract, therefore, must be one for which the legal remedy of damages would be inadequate or impracticable, and for which the equitable remedy of specific execution is possible. (1) It must be obligatory upon the parties, except so far as the absence of a written memorandum prevents its enforcement at law-obligatory, that is, as contradistinguished from a mere honorary engagement; (2) and must be complete and certain in its terms.(3)

SEC. 100. The contracts embraced in certain clauses of the statute of frauds are all purely legal in their nature; the legal remedy of damages is always adequate; and there is no occasion or opportunity either for the equitable relief of specific execution, or the doctrine of part performance. These clauses are: 1, that relating to promises by executors, etc., to answer damages out of their own estates; 2, that relating to promises by one person to answer for the debt, default,

(1) Kirk v. Bromley Union, 2 Phil. 640; a contract for work and labor. Frame v. Dawson, 14 Ves. 386; Pembroke v. Thorpe, 3 Sw. 437; Eckert v. Eckert, 3 Penn. 332; Parkhurst v. Van Cortlandt, 1 Johns. Ch. 273; Armstrong v. Kattenhorn, 11 Ohio, 265.

(2) Lord Walpole v. Lord Orford, 3 Ves. 402; Izard v. Middleton, 1 Dessau. 116; and for further examples of honorary engagements, see ante, § 69.

(3) Thynne v. Lord Glengall, 2 H. L. Cas. 158, per Lord BROUGHAM: "Part performance to take a cause out of the statute of frauds always supposes a completed agreement. There can be no part performance when there is no completed agreement in existence. It must be obligatory, and what is done must be under the terms of the agreement and by force of the agreement." In re Thomas Ryan, 3 I. R. Eq. 238. The subjects of completeness and certainty are fully treated in subsequent sections of this chapter. The contract must be fair, just, reasonable, mutual, and certain. Reese v. Reese, 41 Md. 554.