claims, were the same, in this respect, as the act of 1872, and that said judgment, as to the second point, denied him "the equal protection of the laws."

Mr. J. C. Bates for plaintiff in error. Messrs. Jas. G. Maguire, John Garber, John H. Boalt, and Thomas B. Bishop for defendant in error.

MR. JUSTICE FIELD: The writ of error is dismissed on the authority of Wood v. Brady, 150 U. S. 18 [37: 981]. Writ dismissed.

EDDY B. TOWNSEND, Appt.,

v.

MARY C. VANDERWERKER.

(See S. C. Reporter's ed. 171–184.) Equity jurisdiction-specific performance-statute of frauds-laches-multifariousness. LA court of equity has jurisdiction of an action which, in addition to the recovery of money, seeks to establish a trust in favor of the plaintiff and to obtain a sale of the property to satisfy his claim. 2. Where defendant has only partially disabled himself from carrying out his contract, the plaintiff may be entitled to specific performance so far as it can be enforced, and may receive compensation in damages for the deficiency. 3. Payment of the consideration, accompanied by an entry into the possession of land, under a verbal contract, is such part performance as will remove the bar of the statute of frauds and support an action for specific performance.

The question of laches depends upon whether, under all the circumstances, plaintiff is wanting in due diligence in commencing his action. That a party to an agreement has died and his testimony is thereby lost is not conclusive of laches,

on demurrer.

Statement by Mr. Justice Brown:

This was a bill in equity to recover one half the value of a certain piece of real estate in Washington, with the house thereon standing, of which one Julia R. Marvin died seised, together with a like proportion of the rents of the said house and lot received by Mrs. Marvin during her lifetime, or due and unpaid since her death.

The amended bill, which was brought against the heirs at law of Julia R. Marvin, the administrator of her estate, and the trustee named in a deed of trust of the property in question, averred in substance that said Julia R. Marvin was seised in fee and possessed of a certain lot of land upon Sixteenth street in the city of Washington; that she died on February 3, 1889, intestate as to her real estate; and that letters of administration were granted by the probate court to the defendant Hood.

After several immaterial averments as to the relationship of the several defendants, the execution of a trust deed to secure the payment of $10,000, the collection of rents by the intestate Marvin and her administrator, the bill averred in substance as follows:

That in March, 1879, an agreement was entered into *between the plaintiff and Mrs. Mar‍[173 vin by which he agreed to contribute in money and in labor one half of the original cost of the said parcel of land and a dwelling house to be erected thereon, and in consideration thereof Mrs. Marvin agreed to convey to him a half interest in the land and dwelling house, so that the same should be owned jointly by himself and Mrs. Marvin; "that at the time of making said agreement there was no note or memorandum thereof in writing, but in performance of sonal attention and supervision to the selection the same on his part the plaintiff gave his perand purchase of the materials for the said dwelling house and the erection of the same," and also expended the sum of $4,000 in defraying the cost of the house; that this agreement, although not reduced to writing, on account of the intimate personal relations existing between the parties and the entire confidence they reposed in each other, had been fully performed by the plaintiff, the amount of money contributed by him, and the value of his serv

[No. 73.]

Argued November 20, 1895. cember 16, 1895.

APPEAL from a decree of the Supreme Court of the District of Columbia affirm ing the decree of the Special Term of said Court sustaining a demurrer and dismissing a suit in equity to establish a trust and to recover one half the value of land in Washington with the house standing thereon, and on the rent of said house and lot. Reversed, with directions for further proceedings.

See same case below, 20 D. C. 197.

NOTE-As to when specific performance decreed and when refused.-see notes to Hepburn v. Dunlop, 4:65; Colson v. Thompson, 4: 253; and Brashier v. Gratz, 5: 322.

That plaintiff must show performance or readiness 160 U. S.

house, although she had repeatedly recognized the claim in her lifetime, and had declared to plaintiff and others that she had made adequate provisions for the same in her last will and testament; that the services of the plaintiff were rendered in the years 1879 and 1880, and the money paid by him in defraying the cost of the house and land was paid during the years 1879, 1880, 1881, 1882, 1883, and 1884 in various sums to Mrs. Marvin, and sent to her

to perform and offer to perform; decree against suðsequent purchaser,-see notes to Colson v. Thompson, 4:253; and Pratt v. Carroll, 3: 627.

As to laches, when a good defense, see note to Felix v. Patrick, 36: 720.

in drafts by mail, as is evidenced by her repeated acknowledgments to him and others during her lifetime and by certain checks indorsed by her.

That from the time of the rendition of the said services and the payment of the said money by the plaintiff in performance of his said agreement, until the day of the death of the said Julia R. Marvin, the plaintiff constantly and repeatedly urged her to come to a settle 174]ment with him and to perform her part of the agreement by conveying tobim a one-half interest in the parcel of land and the dwelling house erected thereon; that she always, when ever the subject was referred to, recognized and acknowledged the validity and justice of the claim, and assured the plaintiff that she had provided for the same in her last will and testament; that on the 4th day of January, 1888, she "admitted to a mutual friend that the house never would have been built but for the fact that she and the plaintiff had built it together, and that he had taken the management of it all, as she never could have done and never would have attempted; that he had paid her in all $4,000, which she had used; that such was her feeling towards him that she intended the house should be his when she was done with it, and should belong to them jointly while she lived; that on the 14th day of November, 1887, she acknowledged to the same mutual friend that the plaintiff had, since 1878, when the lot was bought and they began planning for the house, up to 1883, paid her $4,000; that she had always regarded the house as belonging to them jointly; that she intended it should be his at her death, and that her will, then written, had so provided;" that on account of her repeated and constant acknowledgment of the validity of his claim by her, and on account of the representations hereinbefore referred to as having been made to the said mutual friend and others, which representations were communicated to the plaintiff, and on account of the intimate personal relations always existing between them, and the unlimited confidence he reposed in her, they having lived together for a long time in the same dwelling house, and she having treated and spoken of him as a foster child, the plaintiff failed and omitted to take such measures for the enforcement of his rights as under other circumstances he would have taken. The plaintiff averred that by the course adopted by her and without any fault on his part he had been lulled into a false security, and that he would have instituted his suit during her lifetime for the specific performance of her contract but for the assurance, repeatedly made to him and to others, that she had by her will devised the entire property to him; 175]that the plaintiff did not know until the death of Mrs. Marvin of her failure to carry out her agreement, when he learned to his surprise that she had died intestate as to her real estate. The prayer of the bill was that an account might be taken of the debt claimed by the plaintiff to be due him; an account of the debt due to White, in whose favor the trust deed had been executed, and of other debts and demands against the estate; an account of the value of the lot and house and of other real estate of which Mrs. Marvin died seised; an account of the rents received by Mrs. Marvin

during her lifetime and since her death; and for a decree directing payment to the plaintiff of a sum equal to half the value of the house and lot and of the rents received or due, for a sale of the house and lot for the purpose of paying the same, and for a distribution of the residue of the proceeds among those entitled thereto as next of kin or heirs at law.

A demurrer was interposed to this amended bill, which was sustained by the supreme court, and an appeal taken to the general term, by which the decree of the special term was affirmed and the bill dismissed. 20 D. C. 197. Plaintiff thereupon took an appeal to this court.

Messrs. John Goode, Benjamin Butterworth, and Julian C. Dowell, for appellant: If there be any part of the bill that entitles the plaintiff to relief, the demurrer must be overruled.

Gunton v. Carroll, 101 U. S. 428 (25: 985). A resulting trust arises where several pay the consideration and take title to one of their number.

Shoemaker v. Smith, 11 Humph. 81; Edwards v. Edwards, 39 Pa. 369; Letcher v. Letcher, 4 J. J. Marsh, 590; Reese v. Murnan, 5 Wash. 373; Dow v. Jewell, 18 N. H. 340, 45 Am. Rep.371.

He who purchases at the time and pays after is as much a purchaser as if he bought for cash.

Blodgett v. Hildreth, 103 Mass. 484.

The most common cases of proof by parol of arrangements for joint purchase of land are those of partners. There it has always been held the statute of frauds did not apply.

Fouster v. Hale, 5 Ves. Jr. 309; Dale v. Familton, 5 Hare, 369; Essex v. Essex, 20 Beav. 442. All trusts which arise by operation of law are excepted from the requirements of the statute of frauds.

2 Pom. Eq. § 1030.

There is no arbitrary rule as to laches; if the delay was caused by bad faith and misrepresentation on the part of Julia R. Marvin, no imputation of laches can be made against plaintiff.

Gunton v. Carroll, 101 U. S. 426 (25: 985); Loring v. Palmer, 118 U. S. 231 (30: 211); Ayres v. Morehead, 77 Va. 586.

When defendant has all along recognized plaintiff's right, delay on part of plaintiff will be excused.

Callender v. Colegrove, 17 Conn. 1; Dickerman v. Burgess, 20 Ill. 266.

Lapse of time alone is not a test of staleness. Paschall v. Hinderer, 28 Ohio St. 568. Mr. Jacob H. Lichliter, for appellees: The suit as for recovery of a debt or of damages for a breach of an oral agreement for the sale of land is barred by the statute of limitations.

Shepherd v. Thompson, 122 U. S. 234 (30: 1157); D. C. Comp. Stat. p. 360, § 6. The appellant's remedy was plain, adequate, and complete at law.

Kempshall v. Stone, 5 Johns. Ch. 193.

The alleged agreement, if made, for a conveyance of a half interest in the lot and house mentioned in the bill, comes within the statute of frauds, and not being in writing no action can be brought upon it.

Purcell v. Coleman, 71 U. S. 4 Wall. 513 (18:

435); Williams v. Morris, 95 U. S. 444 (24: 360); Randall v. Howard, 67 U. S. 2 Black, 589 (17: 271); Dunphy v. Ryan, 116 U. S. 496, 498 (29: 704, 705); May v. Rice, 101 U. S. 237 (25: 799); Repetti v. Maisak, 6 Mackey, 366; Wristen v. Bowles, 82 Cal. 87; Fortesque v. Crawford, 105 N. C. 31; Ryan v. Wilson, 56 Tex. 38; Til ton v. Tilton, 9 N. H. 390; Brown v. Lord, 7 Or. 309.

A mere refusal (or a failure) to perform a parol agreement void under the statute of frauds is in no sense fraud, either in law or equity.

Wheeler v. Reynolds, 66 N. Y. 227, 234; Crabill v. Marsh, 38 Ohio St. 338; Harris v. Harris, 70 Pa. 174.

The least act that constitutes part perform ance to take a verbal contract for the sale of land out of the statute of frauds is possession taken of the land in pursuance of the contract.

Purcell v. Coleman, 71 U. S. 4 Wall. 518 (18: 436); Williams v. Morris, 95 U. S. 456 (24: 362); Moore v. Small, 19 Pa. 461; Ackerman v. Fisher, 57 Pa. 457; Cuppy v. Hixon, 29 Ind. 522; Dugan v. Gittings, 3 Gill, 139, 157, 43 Am. Dec. 306; Gangwer v. Fry, 17 Pa. 491, 55 Am. Dec. 578; Sage v. McGuire, 4 Watts & S. 229; Heflin v. Milton, 69 Ala. 354; Owings v. Baldwin, 8 Gill, 356; Drury v. Conner, 6 Harr. & J. 236; Brown v. Lord, 7 Or. 312; McKee v. Phillips, 9 Watts, 86; White v. Watkins, 23 Mo. 428; Anderson v. Simpson, 21 Iowa, 404; Neal v. Neal, 69 Ind. 423.

The payment of the purchase money— whether in money or services the value of which can be estimated—is not of itself an act of part performance to take a verbal agreement for the sale of land out of the statute of frauds. Glass v. Hulbert, 102 Mass. 28-30, 3 Am. Rep. 418; Blodgett v. Hildreth, 103 Mass. 486; Temple v. Johnson, 71 Ill. 16, 17; Forrester v. Flores, 64 Cal. 26; Carlisle v. Brennan, 67 Ind. 19, 20; Peckham v. Balch, 49 Mich. 181; Ex parte Storer, 2 Ware, 294; Humbert v. Brisbane, 25 S. C. 510; Crabill v. Marsh, 38 Ohio St. 338; Eaton v. Whitaker, 18 Conn. 229, 44 Am. Dec. 586; Kidder v. Barr, 35 N. H. 255; Cole v. Potts, 10 N. J. Eq. 69; Jackson v. Cutright, 5 Munf. 316, 318; Green v. Jones, 76 Me. 567; Ham v. Goodrich, 33 N. H. 32; Myers v. Byerly, 45 Pa. 368, 372, 84 Am. Dec. 497; Townsend v. Fenton, 30 Minn. 531; Horn v. Ludington, 32 Wis. 73; Edwards v. Estell, 48 Cal. 196; Wright v. Pucket, 22 Gratt. 374.

To constitute part performance the act must show an agreement and the nature of the agreement.

Stoddert v. Tuck, 4 Md. Ch. 482; Semmes v. Worthington, 38 Md. 326.

The appellant has been guilty of laches, his claim is stale and such as a court of equity will

not countenance.

Knight v. Taylor, 42 U. S. 1 How. 161 (11: 86); Wagner v. Baird, 48 U. S. 7 How. 234 (12: 681); Holt v. Rogers, 33 U. S. 8 Pet. 433 (8: 1000); Godden v. Kimmell,99 U. S. 201 (25:431); Marsh v. Whitmore, 88 U. S. 21 Wall. 178 (22: 482); Crosby v. Beale, 84 U. S. 17 Wall. 336 (21: 602); Brown v. Buena Vista County, 95 U. S. 157 (24: 422); Piatt v. Vattier, 34 U. S 9 Pet. 416 (9: 177); Stearns v. Page, 48 U. S. 7 How. 819 (12: 928); Bowman v. Wathen, 42 U. S. 1 How. 189 11: 97).

In the following cases the time was four, five, six, seven, nine, twelve, and seventeen years, under a variety of circumstances.

Sullivan v. Portland & R. R. Co. 94 U. S. 811 (24: 326); McQuiddy v. Ware, 87 U. S. 20 Wall. 14, 20 (22: 311, 313); Hayward v. Eliot Nat. Bank, 96 U. S. 617 (24: 857); Harwood v. Cincinnati & C. A. L. R. Co. 84 U. S. 17 Wall. 79 (21: 558); New Albany v. Burke, 78 U. S. 11 Wall. 108 (20: 159); Lupton v. Janney, 38 U. S. 13 Pet. 385 (10: 212); Pratt v. Carroll, 12 U. S. 8 Cranch, 471 (3: 627); Twin Lick Oil Co. v. Marbury, 91 U. S. 587 (23: 328).

In cases of this kind the death of parties who could explain the transaction has always been regarded as a controlling circumstance. Hammond v. Hopkins, 143 U. S. 273 (36:153); Mackall v. Casilear, 137 U. S. 566 (34: 776); Godden v. Kimmell, 99 U. S. 210 (25: 434); Jenkins v. Pye, 37 U. S. 12 Pet. 254 (9:1075).

Mr. Justice Brown delivered the opinion of the court:

1. The ultimate object of the bill in this case is the recovery of a pecuniary demand, and, if this were its only object, it would be [179 obnoxious to the general rule embodied in U.S. Rev. Stat. § 723, inhibiting the maintenance of a suit in equity where the remedy at law is plain, adequate, and complete.

The bill, however, in addition to the recovery of money, seeks to establish a trust in favor of the plaintiff and to obtain a sale of the property to satisfy his claim. The prayer is, not for a reimbursement to the plaintiff of the sums advanced, but for the payment to him of a sum equal to one half of the value of the house and lot in which he claims an interest, and of the rights accrued thereon. Had it not been for the fact that, subsequent to the outlays made by the plaintiff in improving the property, Mrs. Marvin bad encumbered it by a trust deed in favor of Amos White, in the sum of $10,000, an ordinary bill for a specific performance would have been the proper remedy; but as the court upon such a bill could only decree him one half the property subject to such mortgage, he claims in this bill the full moiety of the value of the property, as it stood when the disbursements were made and before it was encumbered by the mortgage, and prays that such amount may be awarded him from the sale of the property; and that in respect to the residue, if any, he stand as a general creditor of her estate.

tract, but that the right to compensation constituted a lien upon the money when recovered, and that this was sufficient ground for jurisdiction in equity, inasmuch as the payment of the fund to the executrix in Mexico would place it probably beyond the reach of the complainant. Still more nearly analogous in principle is the case of Seymour v. Freer, 75 U. S. 8 Wall. 202 [19: 306]. This suit was founded upon an agreement between Seymour and one Price, by which Price undertook to devote his time and judgment to the selection and purchase of land to a certain amount, with a stipulation that the lands should be sold within five years, 180] and one half of the profits should be paid to Price and the other to Seymour. It was held that Seymour took the legal title in trust for the purpose specified, and to this extent Seymour was a trustee and Price the cestui que trust; that the trust continued after the expiration of the five years, unless Price subsequently relinquished his claim, and that the land which was to be converted into money should be regarded and treated in equity as money. "The agreement," said Mr. Justice Swayne, "that the property should be sold and half of the profits paid to Price, was a charge upon the property, and gave him a lien to the extent of the amount to which he should be found entitled upon the execution of the agreement, according to its terms." In reply to the contention that Price had a complete remedy at law, be further observed: "An action at law, sounding in damages, may undoubtedly be maintained in such cases for the breach of an express agreement by the trustee, but this in no wise affects the right to proceed in equity to enforce the trust and lien created by the contract. They are concurrent remedies. Either, which is preferred, may be selected. The remedy in equity is the better one. The right to resort to it under the circumstances of this case admits of no doubt, either upon principle or authority. Such, in our judgment, were the effect and consequences of the contract."

The earlier English cases held broadly that where a vendor of land had disabled himself from carrying out a contract to sell the land to the plaintiff, by a subsequent sale to another party, a court of equity would entertain a bill as for a specific performance and award damages to the plaintiff. This was the distinct ruling in Denton v. Stewart, 1 Cox, C. C. 258, where the court directed an inquiry as to what damages the plaintiff had sustained, and decreed that such damages should be paid by the defendant. A similar ruling was made in Greenaway v. Adams, 12 Ves. Jr. 395, although the master of rolls indicated a doubt with regard to the soundness of the principle announced in Denton v. Stewart. In Gwillim v. Stone, 14 Ves. Jr. 128, the bill asserted from the first that defendant could not make a good title and asked for compensation by reason of the failure of the contract, and a decree was 181]*made for the delivering up the contract, without prejudice to an action, instead of an inquiry before the master.

In Todd v. Gee, 17 Ves. Jr. 273, the case of Denton v. Stewart was practically overruled by Lord Chancellor Eldon, who held that the plaintiff in a bill for specific performance was

not entitled generally to satisfaction by way of damages for the nonperformance, to be ascer tained by an issue or reference to a master, the court saying "that, except in very special cases, it is not the course of proceeding in equity to file a bill for specific performance of an agreement; praying in the alternative, if it cannot be performed, an issue or inquiry before the master with a view to damages. The plaintiff must take that remedy, if he chooses it at law. Generally, I do not say universally, he cannot have it in equity, and this is not a case of exception." This case was followed in Ferguson v. Wilson, L. R. 2 Ch. 77, where the plaintiff prayed the specific performance of a resolution passed by the board of directors of a railway company, under which he alleged that he was entitled to have a certain number of shares allotted to him; and also prayed that if it should appear that all the shares had been allotted to other shareholders, the directors might indemnify him out of their own shares, or might be charged with damages. All the shares having been allotted before the filing of the bill, it was held that, as no remedy by way of specific performance was possible, plaintiff's claim for damages failed also.

The principle of these cases was also adopted by Chancellor Kent in Kempshall v. Stone, 5 Johns. Ch. 193, which is strongly relied upon by the appellees in this connection. In that case, the defendant entered into an agreement with the plaintiff to sell and convey him a lot of land, and, after the time of performance had elapsed, sold the land to a third person for a valuable consideration without notice of the agreement. Plaintiff filed his bill for a specific performance, which it was held could not be decreed, the lands having passed into the hands of a bona fide purchaser without notice, and the court further held that the plaintiff's remedy was at law for compensation in damages. In this case, as well as in the English*cases[182 above cited, there was no possible lien upon the land, and no trust in favor of the plaintiff which the court could execute, and it was very properly held that his only remedy was at law.

But if the defendant has not wholly disabled himself from carrying out the contract, he may be decreed to perform specifically so much as he is still able to perform, and plaintiff may recover damages for the residue. Thus, in Burrow v. Scammell, L. R.19 Ch. Div. 175, when the defendant's title came to be investigated it was found that she was possessed of only a moiety of the premises she had agreed to lease to the plaintiff, the other moiety being vested in her son, a minor. She was decreed to specifically perform so much of the contract as she was able to perform, with an abatement of half the rent, and an inquiry as to damages was refused only upon the ground that there was no evidence that plaintiff had sustained any damages. The American cases are also to the effect that, where the defendant has only partially disabled himself from carrying out the contract, the plaintiff may be entitled to a specific performance so far as it can be enforced, and may receive compensation in damages for the deficiency. 3 Pom. Eq. Jur. § 1405, 1407; Bostwick v. Beach, 103 N. Y. 414.

In the case under consideration, Mrs. Marvin had but partially disabled herself from