parol contract for a lease was made, and the terms of it were agreed on between the proposed lessor and lessee, and by the direction of the lessor the lessee instructed a solicitor, who acted for both parties, to reduce the terms to writing; and the solicitor took a note of the terms thus stated to him, and from it prepared a draft contract embodying these and other terms, which he submitted to the lessor, who afterwards, without objecting to it, let the lessee into possession, and directed the solicitor to prepare a lease in pursuance of the draft contract; and a draft lease was accordingly prepared, to which the lessor objected, and gave the tenant notice to quit:-the court held that there was part performance of the contract, and enforced the same accordingly. (o) § 578. Even where the possession has been taken without consent, yet if the owner afterwards allow the stranger to remain in possession, this will, it seems, operate as an act of part performance. (p)

§ 579. Possession is, it must be observed, part performance both by and against the stranger and the owner:(2) the owner has allowed the stranger to do an act on the faith

(0) Pain v. Coombs, 1 De G. & J, 34 See, too, Miller v. Finlay, 5 L T. (N. S.), 510.

(p) Gregory v. Mighell. 18 Ves., 328; Pain v. Coombs, 1 Ďe G. & J., 34. 46. See, too, per

Lord Kingsdown in Ramsden v. Dyson, L. R. 1 H. L, 170.

(q) Wilson v West Hartlepool Railway Co, 2 De G. J. & S., 475, 485.

3 Ham., 294; Weed v. Terry, Walk. Ch., 501. It was held, in Smith v. Underdunk, 1 Sandf. Ch., 579, that where, upon a parol contract for the sale of two parcels of land, at a gross price. the vendor at the time of completion, conveyed one parcel only, and agreed to convey the other presently, and the purchaser paid the whole price and entered into possession of both parcels, on receiving the deed for the one, the contract was not merged in the deed, and that the purchaser's assent to the delay, and the vendor's agreement to give a deed for the second parcel, did not constitute a new agreement, or substitute for the first; but that the conveyance by one parcel was a part performance of the original contract In Pugh v. Goods, 3 Watts & Serg., 56, it was said that the delivery of the possession of the whole of the land sold, is sufficient, and entitles the parties to a specific performance. But in Allen's Estate. 1 Watts & Serg., 383, it is decided that the delivery of possession of a part of the land, to a vendee by parol, is not alone sufficient to take the case out of the Statute of Frauds. In Ellis v. Ellis, 1 Dev. Ch., 341. a purchaser of land was put in possession, and paid the purchase money, under à parol contract. Held, that the contract was not thereby taken out of the statute. In Hatcher v. Hatcher, 1 McMullan's Ch., 311, it is decided that remaining in possession by the purchaser, if he was in possession at the time of his purchase, does not constitute such a part performance as will take the case out of the statute. See Brock v. Cook, 3 Porter, 464; Johnson v. Glancy, 4 Blackf., 94. But if the vendee takes and continues possession of the premises, under the contract, and especially if he makes valuable improvements on them, this will be sufficient to satisfy the statute. Johnston v. Glancy, 4 Blackf., 91: Tibbs v. Barker, 1 id., 58; Moreland v. Lemaster, 4 id., 383; Thornton v. Henry, 2 Scam., 218; see Keats v. Rector, 1 Pike, 391.

of the contract, viz., enter on the land: the stranger has allowed the owner to do an act on the faith of the contract, viz., withdraw from the land. They are, therefore, both bound.

§ 580. Possession is, as already pointed out, part performance as well against a company as against a natural person. (r)

§ 581. It is not only in contracts for a sale or a lease that possession is part performance. It may let in parol evidence of any contract explaining the possession. Thus, where A. was in possession of his own land subject to a mortgage, and he, as he alleged, contracted with B. that B. should purchase the land from the mortgagee and hold it for the benefit of A., subject to certain terms for the repayment of the purchase money, and B. afterwards set up the purchase as being an absolute one for his own benefit, the continued possession of A. as owner of the land was held to be part performance of the contract alleged by him. (s) In another, case A., by parol, agreed to allow B. the occupation of a leasehold house for life, on payment merely of ground rent, rates and taxes. B. was put into possession, and that possession was held to preclude any objection on the ground of the statute.(t)

§ 582. Many cases have also risen in respect of marriage contracts, where the part performance has excluded the operation of the statute. Thus, in a case, where there was a parol promise before marriage to give certain property to the married pair by the father of the intended wife; the marriage took place, and was followed by the delivery up of possession to the son-in-law, expenditure of money by him, and the absence of all disturbance on the part of the father-inlaw; these acts were held to be in part performance of the alleged ante-nuptial contract. (u) And so where a father verbally promi-ed, in consideration of his daughter's marriage, to give her a house as a wedding present, and immediately after the marriage put the daughter and her husband into possession, and continued himself to pay what became due to a building society in respect of an existing mortgage

(r) S C.

(u) Surcome v Pinniger, 3 De G. M. & G., see, also, Floyd v. Buckland, 1 Ferm.,

268.

(8) Lincoln v. Wright, 28 L. J. Ch., 705; S. 571 C.. 7 W, 124, 330; 4 De G & J, 16 (t) Coles v. Pilkington, L. R. 19 Eq., 174.

on the house, it was held by the court of appeal (affirming the decision of Malins (V. C.), that the possession took the case out of the statute, and that the balance due to the building society on the father's death was payable out of his estate. (v)

§ 583. The same principle applies in cases of family arrangements involving the giving up, partition, or exchange of land; so that though such arrangements may be by parol, yet, if they be followed by uninterrupted exclusive enjoyment of the several lands in pursuance of the arrangment, the court will specifically enforce them.(w)

§ 584. In considering this effect of possession where the acquiescence has been of very long duration, the court will regard the lapse of time as a circumstance against allowing the statute to be set up.(x)'

§ 585. The laying out of money, provided it be such as would only be likely to take place in pursuance of such a contract as that alleged, and it be with the privity of the other party, is an act of part performance. (y) Therefore, where a proposed lessee entered and built, the acts were held to be such :(z) and, again, the alteration of a garden fence and the plantation of a meadow with the privity of the other party, and partly at his expense, by a tenant in possession, were held acts of part performance, evidencing a contract to demise the meadow for a term. (a) So the ex

(v) Ungley v. Ungley, 4 Ch. D, 73; 5 id., 887.

(w) Stockley v Stockley, 1 V. & B., 23; Neale v. Neale, 1 Ke, 672; Williams v. Wil liams, 2 Dr. & Sm., 378; affirmed L. R. 2 Ch., 294 (see especially pages 304, 3 5); Cood v. Cood, 33 Beav., 314.

(x) Blackford v. Rockpatrick, 6 Beav., 232; ef. Crook v Corporation of Seaford, L. R. 10 Eq, 678; 6 Ch.. 551.

(y) Wills v. Stradling, 3 es., 378 (z) Savage v Foster, 5 Vin Abr, 524, pl. 43; Reddin v. Jarmyn, 16 L. T., 449.

(a) Sutherland v. Briggs, 1 Íla., 26. See,

Thus, where a vendee having paid part of the purchase money of land under a parol agreement, had, together with his heirs, been in possession for several years, this was thought sufficient to take the case out of the Statute of Frauds, and to entitle the heirs to a specific performance of the agreement. Cox v. Cox, Peck, 443; see Brock v. Cook, 3 Fort., 464.

2 See Bomier v Caldwell, Harring 's Ch., 7: Johnston v. Glancy. 4 Black., 94; Tibbs v Barker, 1 id., 58; Moreland v. Lemasters 4 id., 383; Thornton v Henry, 2 Scam., 218. But where a father promised his son that if he would remain with and carry on his farm, he would leave him the farm at his death, the son having already continued with him two years after he came of age, it was held that the continuance of the son to cultivate and manage the farm, and his making extensive improvements thercon at his own expense, it not appearing that he agreed to do so by the contract alleged to have been made with his father, were not considered a part performance of the contract, such as would take the case out of the statute. Carlysle v. Fleming, Harring.'s Ch. 421.

penditure of money, in alterations and repairs of the property, by a sub-lessee with the knowledge of the owner has been held to be part performance of the contract by the owner to let to the sub-lessor. (b)

§ 586. The expenditure of money differs, it will be observed, from possession, in two respects; the one, that whilst mere possession is referable to a tenancy at will, as well as to a larger estate, the laying out of any considerable sums of money is rationally to be referred only to some contract to confer a substantial interest in the property; the other, that whilst possession cannot be supposed to be continued by a stranger without the knowledge of the owner, a person in possession may well lay out money without the owner s cognizance; and what is, therefore, necessarily inferred in the one case must be proved in the other.

§ 587. There are cases where it has been held that, as money spent in repairs easily admits of compensation, such expenditure is no part performance, and consequently does not avail to take a case out of the statute;(c) and where the acts relied on are proper to be brought before a jury, and can be answered in damages, or are in the nature of acts of preparation, (d) they will not be considered as part performance. But nothing can be clearer than that there are many acts, easily enough admitting of compensation, which yet amount to such part performance as will enable the court to enforce a parol contract.

$ 588. If the laying out of money in alterations in pursuance of a contract is a part performance of it, it might be supposed that making a payment of the purchase money payable under the contract was yet more clearly a part performance. But this cannot be said to be the case; for it seems now to be decided that the payment by the purchaser to the vendor of the whole(e) or a part, whether substantial or unsubstantial, of the purchase money, is not an act of

also, Stockley v Stockley, 1 V. & B.. 23; Toole v. Medlicott, 1 Ball & B., 393; Mundy v. Jolliffe, 5 My. & Cr., 167; Surcome v. Pinniger, 3 De 4. M. & G', 571; Farrall v. Dayenport, 3 Giff., 363; Norris v. Jackson, id., 396. Distinguish Millard v. Harvey, 34 Beav., 237.

(b) Williams v. Evans, L. R. 19 Eq,

547.

See, too, Shillibeer v. Jarvis, 8 De G M. &
G., 79, 87. Distinguish Howe v. Hall, IR 4
Eq., 242; Gardner v. Fooks, 15 W R., 388

(c) Frame v. Dawson, 14 Ves., 386, cl. Foreter v. Hale, 3 id., 713

(d) O'Reiny v Thompson, 2 Cox, 271. (e) See per Knight Bruce, L J., in Hughes v. Morris, 2 De G. M. & G., 356.

part performance which will take the parol contract out of the statute.

§ 589. The grounds of this decision seem to be, first, that the mention of part payment in the 17th section of the Statute of Frauds, and the silence in that respect of the 4th section, must be taken to show that the legislature did not intend that part payment should be binding in cases of the sale of lands;(f) and, secondly, that the money may be repaid, and that both parties will then be in the situation in which they were before the contract, without either party having gained any inequitable advantage over the other.(g) This is a case where, for the act done, there are alternative remedies, one by the execution of the contract, and the other by repayment,-and the election to put the other party to the latter remedy is no fraud. It has been truly said that this reasoning overlooks the possibility of an insolvency intervening and preventing the repayment of the purchase money, (g) and it is difficult to say that the reasoning is satisfactory, but the courts have acted upon it.

The law upon this subject has been somewhat vacillating. In a case before Lord Hardwicke, he held part payment to be part performance ;(h) but this as a general proposition was early overruled. The question then arose whether, although payment of a small installment was inoperative, payment of the whole or of a substantial part of the price would not be an act of part performance. Lord Rosslyn maintained the affirmative of this question;(7) but Lord Redesdale denied any such distinction ;(j) and Lord Rosslyn's decision seems now to be overruled, upon the ground that it is impossible satisfactorily to discriminate between substantial and unsubstantial part payments. ()'

(f) Clinan v. Cooke, 1 Sch. & Lef., 22; Watt v. Evans, 4 Y. & C. Ex., 579.

(g) Climan v. Cooke, 1 Sch. & Lef., 22. (g) 13 Ves, 461, note by the reporter (h) Lacon v. Mertins, 3 Atk., 4. Chiid v. Comber, 3 Sw, 423 n. (i) Mam v. Melbourn, 4 Ves., 720,

see, also,

See the

arguments In Wills v. Strading, 3 Ves., 378. and Simmons v. Cornelius, 1 Rep. in Ch., 138 (a case before the statute).

(j) In Clinan v Cooke, 1 Sch. & Lef., 22. (k) Watt v. Evans, 4 Y. & C. Ex., 579. See Ex parte Hooper, 19 Ves, 479.

1 See Story's Eq. Jur., $ 760. In this country the decisions upon this point are, by no means, harmonious. In Virginia and Mississippi, it has been held that part payment of the purchase money is not such a part performance of a parol contract for the sale of lands, as to take an agreement out of the Statute of Frauds. Jackson v. Cutright, 5 Munf., 308: Hood v. Bowman, 1 Freem,'s Ch., 290; and see Hatcher v. Hatcher, 1 McMullan's Ch., 311. In Michigan it