CHAP. XVI. Part payment of purchase money not take case out of statute. which has never been parted with by his solicitor amount to an act of part performance. (a) In the case of a purchase of different lots by different parol contracts, part performance as to one of the lots will not take the agreements as to the other lots out of the statute.(b) The payment of part of the purchase money is not such an act of part performance as alone to take a case out of the statute. Thus in Clinan v. Cooke, (c) the act of part performance on which the plaintiff relied was the payment to and acceptance by the defendant of the sum of fifty guineas, but it was held that this was not sufficient to take the case out of the statute. "It has always," said Lord Redesdale, (d) "been considered that the payment of money is not to be deemed part performance to take a case out of the statute. Seagood v. Meale (e) is the leading case on that subject; there a guinea was paid by way of earnest, and it was agreed clearly that that was of no consequence in case of an agreement touching lands. Now if payment of fifty guineas would take a case out of the statute, payment of one guinea would do so equally, for it is paid in both cases as part payment, and no distinction can be drawn, but the great reason, as I think, why part payment does not take such agreement out of the statute is that the statute has said, (ƒ) that in another case-viz. with respect to goods, it shall operate as part performance. And the courts have therefore considered this as excluding agreements (a) Cooke v. Tombs, 2 Anst. 420; Whaley v. Bagenal, 1 Bro. P. C. 345; Phillips v. Edwards, 33 Beav. 440. (b) Buckmaster v. Harrop, 13 Ves. 474. (c) 1 Sch. & Lef. 22; and see (e) Prec. Chanc, 560. 225. for lands, because it is to be inferred that when the legis- CHAP. XVI. lature said it should bind in the case of goods, and were silent as to the case of lands, they meant that it should not bind in the case of lands." So in O'Herlihy v. Hedges, (a) the payment of £100 fine upon the renewal of a lease was held not to be sufficient ground upon which to decree specific performance. In Hughes v. Morris, (b) the rule was even further extended, Knight Bruce, L. J., saying that "a parol contract for the sale of land, though all the money be paid. without part performance (for the payment of the money is no part performance), cannot be carried into effect if the person sued chooses to avail himself of the defect." So the procuring a release from a stranger by the payment of a valuable consideration is not an act of part performance.(c) payment on contract. Where the owner of an estate contracts with a pur- Effect of part chaser for the immediate sale of it, the ownership of the executory estate is in equity, transferred by that contract. Where the contract undoubtedly is an executory contract, in this sense, namely, that the ownership of the estate is transferred subject to the payment of the purchase money, every portion of the purchase money paid in pursuance of that contract is a part performance and execution of the contract, and, to the extent of the purchase money so paid, does in equity finally transfer to the purchaser the ownership of a corresponding portion of that estate. (d) Admission into possession of land in pursuance of a Admission into (a) 1 Sch. & Lef. 123. (b) 2 D. M. G. 356. (c) O'Reilly v. Thompson, 2 Cox, 271; see observations on this case in Parker v. Smith, 1 HH possession is part perform Coll. 624, per Knight Bruce, ance. (d) Rose v. Watson, 10 H. L. CHAP. XVI. parol agreement is a sufficient act of part performance to take a case out of the statute. (a) "Admission into possession," said Sir Thomas Plumer, M.R., "having unequivocal reference to contract, has always been considered an act of part performance. The acknowledged possession of a stranger in the land of another is not explicable, except on the supposition of an agreement, and has therefore constantly been received as evidence of an antecedent contract, and as sufficient to authorize an inquiry into the terms, the Court regarding what has been done as consequence of contract or tenure.” (b) Where, upon a verbal agreement for a mortgage, it was agreed that the mortgagor (the plaintiff) should remain in possession of the property, and an absolute conveyance was made, it was held that the plaintiff's continuance in possession after the conveyance, being referable only to the verbal agreement, amounted to part performance of that agreement, and excluded the operation of the statute. (c) Express assent not necessary. It is not necessary that there should have been express assent by the vendor to the taking possession, if he acquiesces in it, and there have been acts of part performance. (d) Thus, where part of the agreement for a lease was that the plaintiff should execute certain repairs before (a) Borrett V. Gomserra, Bunb. 94; Earl of Aylesford's Case, 2 Str. 783; Pyke v. Williams, 2 Vern. 455; Lacon v. Mertins, 3 Atk. 1; Wills v. Stradling, 3 Ves. 381; Bowers v. Cator, 4 Ves. 91; Gregory v. Mighell, 18 Ves. 328; Kine v. Balfe, 2 Ball & B. 343. (b) Morphett v. Jones, 1 Swanst. 81; and see Dale v. Hamilton, 5 Hare, 381; Pain v. Coombs, 3 Sm. & Giff. 449; 1 De G. & J. 34. (c) Lincoln v. Wright, 4 De G. & J. 16. (d) Gregory v. Mighell, 18 Ves. 328; Pain v. Coombs, 3 Sm. & Giff. 449; 1 De G. & J. 34. the lease was granted, and he was put into possession by CHAP. XVI. the defendant's solicitors and executed some repairs, it was held that although he might have been let into possession without authority from the defendant, there was a concluded agreement for a lease on the part of the defendant, and a sufficient part performance to take the case out of the statute. (a) An agreement may be enforced, on the ground of part Either party may enforce performance by admission into possession, by the vendor agreement. as well as the vendee. (b) The laying out of money on land on the faith of the Expenditure of contract, and with the knowledge of the owner, amounts to part performance.(c) Where a tenant entered into possession of a farm, and expended moneys under an agreement that the landlord. would grant a lease for twenty-one years, and make such improvements and repairs as he and the landlord should jointly agree, it was held on demurrer to a bill for specific performance, that the stipulation as to repairs was not of the essence of the agreement, and that the impossibility of the strict performance of that stipulation in consequence of the death of the landlord was no reason for allowing a demurrer to a bill for specific performance where the plaintiff had so long a possession, and had expended money on the faith of the agreement. (d) (a) Shillibeer v. Jarvis, 8 D. M. G. 79; and see Powell v. Lovegrove, ib. 357. (b) Kine v. Balfe, 2 Ball & B. 343. (c) Floyd v. Buckland, 2 Freem. 268; Lester v. Foxcroft, 1 Colles P. C. 108; S. C. nom. Foxcraft v. Lister, 2 Vern. 456; Mortimer v. Orchard, 2 Ves. J. (d) Norris v. Jackson, 3 Giff. 396. money. CHAP. XVI. under terms of lease not part performance. Expenditure by a tenant under the terms of his lease is Expenditure not an act of part performance. Thus where the plaintiff was in possession, and was under an engagement which bound him to make a fence and wall of a particular description, for which he was to have an allowance, and which ought to have been made during the term of the lease which he had, and they were not completed during the term, but the allowance was made notwithstanding, it was held that this alone would not entitle the plaintiff to a decree. (a) Acquiescence in expenditure. Where a colliery proprietor constructed a railway from his colliery across the lands of several other persons, by agreement, and his solicitors wrote a letter to the defendant, across whose lands he desired to carry the railway, referring to the powers of a local act of parliament, supposed to enable him to take lands within a certain area for roadways, and offering on the part of the plaintiff to pay him for the land at a fair valuation, and the defendant did not reply to the letter, and the railway was made across his land without further communication with him, and after three or four years, the parties being unable to agree upon the price to be paid for the land, the defendant brought ejectment; the action was restrained upon the plaintiff giving judgment in the ejectment and paying a sum not less than the utmost valuation of the land into court. (b) Again, where a canal was made in 1794 through land of which A was the owner, and B lessee, "with the full consent and approbation of, and in accordance with the (a) Lindsay v. Lynch, 2 Sch. & Lef. 1; and see Frame v. Dawson, 14 Ves. 386. (b) Powell v. Thomas, 6 Hare, 300; and see Clavering's Case. cited 5 Ves. 690; Duke of Devon v. Eglin, 14 Beav. 530. |