wishes of A," and compensation was paid to the lessee, CHAP. XVI. but not to A; his representatives were in 1844, when the tenancy expired, restrained from asserting their legal rights, the Court considering that they were entitled to compensation to be determined by the agricultural value of the land taken as calculated in 1844, and not in 1794.(a) But where a person knowing the rights of the owners of land is induced to build on the land without entering into a binding contract, he will not be entitled to relief. Thus, where the agent of a railway company made a verbal agreement with the contractor for the line, that if he would build on land of the company certain cottages more substantially than would be required for his own purposes, and would leave them for the use of the company, then the company would pay him £5,000, and the cottages were built and left on the land, it was held that the contractor could not claim compensation for having been induced to build on the land. (b) "It is," by tenant for life under a power, remain der man not bound. And it appears that the parol contract under a power Parol contract of sale of a tenant for life, followed by expenditure on the part of the purchaser, will not bind the remainder man who has not acquiesced in the expenditure. (c) said Sir W. Grant, M. R., "considered as a fraud in a party permitting an expenditure on the faith of his parol agreement, to attempt to take advantage of its not being in writing. But of what fraud is a remainder man guilty who has entered into no agreement, written or parol, and has done no act on the faith of which the other party could have relied? The only way in which he could (a) Duke of Beaufort v. Patrick, 17 Beav. 60. (b) Crampton v. Varna Railway Co., L. R. 7 Ch. 562. (c) Trotman v. Flesher, 3 CHAP. XVI. Whether change of residence sufficient part perform ance. be affected with fraud would be by showing that an expenditure had been permitted by him, with a knowledge that the party had only a parol agreement from the tenant for life. Without that knowledge there is nothing but the mere circumstance of expenditure. For the primá facie presumption is that he who is making it has a valid lease under the power, or at least a binding agreement for a lease. That the remainder man in this case, or those acting on his behalf, had any such knowledge is neither alleged nor proved. The reason, therefore, fails, on which the case of a parol agreement in part performed is taken out of the Statute of Frauds." (a) In Millard v. Harvey, (b) the plaintiff removed his place of business to a house belonging to the defendant, his father-in-law, upon the faith, as he alleged, of a parol promise by the defendant that he should occupy the house rent free during his life. During the period of his occupation he expended money in repairs. Upon a bill to restrain an action of ejectment, it was held that the change of the plaintiff's place of business did not constitute a sufficient consideration to support the parol agreement, and that he was not entitled to any lien in respect of the money spent in repairs. In Coles v. Pilkington, (c) it was decided that the statute could not be pleaded to a verbal agreement to allow the occupation of a leasehold house for life on payment merely of groundrent, rates, and taxes, where there had been a part performance by possession under the agreement, and the agreement had affected the mode of living of the occupying party. It does not appear, however, from the report that Millard v. Harvey was cited in this case. (a) Blore v. Sutton, 3 Mer. 246. (b) 10 Jur. (N. S.) 1167. (c) L. R. 19 Eq. 174. must be refer agreement. In order that a case may be taken out of the statute by CHAP. XVI. acts of part performance, the acts must unequivocally Acts of part refer to a contract the non-execution of which would be performance a fraud. (a) "In order," said Sir T. Plumer, "to able to an amount to part performance, an act must be unequivocally referable to the agreement, and the ground on which courts of equity have allowed such acts to exclude the application of the statute is fraud; a party who has permitted another to perform acts on the faith of an agreement shall not insist that the agreement is bad, and that he is entitled to treat those acts as if it had never existed. That is the principle, but the acts must be referable to the contract." (b) And in Clinan v. Cooke, (c) Lord Redesdale laid down the principles upon which the Court acts as follows:-"I take it that nothing is considered as a part performance which does not put the party into a situation that is a fraud upon him, unless the agreement is performed; for instance, if upon a parol agreement a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser if there be no agreement. This is put strongly in the case of Foxcraft v. Lyster ;(d) there the party was let into possession on a parol agreement, and it was said that he ought not to be liable as a wrong-doer, and to account for the rents and profits, and why? because he entered in pursuance of an (a) Hollis v. Edwards, 1 Vern. 159; Hawkins v. Holmes, 1 P. Wms. 770; Walker v. Walker, 2 Atk. 100; Att.-Gen. v. Day, 1 Ves. 221; Whitbread v. Brockhurst, 1 Bro. C. C. 417; Wills v. Stradling, 3 Ves. 378; Buckmaster v. Harrop, 7 Ves. 346; Frame v. Dawson, 14 Ves. 386. (b) Morphett v. Jones, 1 Swanst. 181; and see Farrall v. Davenport, 3 Giff. 363; Price v. Salusbury, 32 Beav. 459; affd. ib. 461. (c) 1 Sch. & Lef. 41. (d) 2 Vern. 456; Colles P. C. 108. CHAP. XVI. agreement. Then for the purpose of defending himself against a charge which might otherwise be made against him such evidence was admissible, and if it was admissible for such purpose, there is no reason why it should not be admissible throughout. That I apprehend is the ground on which courts of equity have proceeded in permitting part performance of an agreement to be a ground for avoiding the statute, and I take it, therefore, that nothing is to be considered as part performance which is not of that nature. Payment of money is not part performance, for it may be repaid, and then the parties will be just as they were before, especially if repaid with interest. It does not put a man who has parted with his money into the situation of a man against whom an action may be brought, for in the case of Foxcraft v. Lister, which first led the way, if the party could not have produced in evidence the parol agreement, he might have been liable in damages to an immense extent." In the recent case of Ramsden v. Dyson, (a) Lord Wensleydale stated the principle as follows:-" If a man under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a court of equity will compel the landlord to give effect to such promise or expectation." (b) And where the possession is fairly referable to an (a) L. R. 1 H. L. 170. (b) See also Baukart v. Tennant, L. R. 10 Eq. 146. express agreement to give a fair consideration, the exact amount of which has not been settled, the Court will, in favour of possession, expenditure, and enjoyment, referable to an agreement or to an offer honestly accepted, endeavour by every means within the legitimate bounds of its jurisdiction to ascertain the amount of rent and consideration. But this can only be where there is sufficient evidence of essential terms in the agreement to enable the Court to reach the amount. (a) But if a tenant builds on his landlord's land he does not, in the absence of special circumstances, acquire any right to prevent the landlord from taking possession of the land and buildings when the tenancy has determined. (b) In Phillips v. Edwards, (c) it was said that the doctrine of part performance of a parol agreement is not to be extended by the Court, and is inapplicable to a case where a trustee has a power to lease at the request in writing of a married woman, which has not been made. In this case, however, the acts on which the plaintiffs based their case were held not to be acts of part performance, and the point was not expressly decided. CHAP. XVI. Trustee with power of leasing. possession. Specific performance will not be decreed where the Wrongful possession of the land has been obtained wrongfully. (d) Nor where the plaintiff after filing his bill, but before the Act of Parliahearing, has obtained by an Act of Parliament the means of securing and keeping his possession without the aid of the Court. "The jurisdiction in cases of specific performance is discretionary, and it is sought in this case (a) Meynell v. Surtees, 3 Sm. & Giff. 115, per Stuart, V. C.; and see Gregory v. Mighell, 18 Ves. 333. (b) Ramsden v. Dyson, L. R. 1 H. L. 129. (c) 33 Beav. 440. (d) Cole v. White, cited 1 Bro. C. C. 409. ment. |