380. A mere possibility of an adverse claim is not sufficient to render a title doubtful,' nor a mere pecuniary charge, if the purchaser can be protected against it.2

It may be added here that it has been decided that a court of equity will decree specific performance if the vendor is able to make a good title at any time before final decree. But this doctrine will not be carried to the extent of holding that a vendor is entitled to specific performance if he had no title at the date of the contract, although he may have subsequently acquired one, for one who speculates upon that which is not within his control is not a bona fide contractor, and there is no mutuality between the parties.*

When a vendor has a defective title the vendee may, if he chooses to rely upon the covenants for title, compel the specific performance of the contract."

But where the vendor has no title, the vendee cannot compel a conveyance, for that would be to decree the performance of an unlawful act."

381. It was (and is) a well established rule in England that specific performance of a written contract with a parol variation will not be enforced. What is meant by this rule is this: The ordinary principle of evidence in regard to contracts which have been reduced to writing, is that the intention of the parties is to be gathered solely from the written agreement, and that no evidence can be admitted to show any verbal qualification of the writing. Cases of fraud or mistake formed, as we have

dingham, refused to follow that decision under exactly similar circumstances. A collection of examples of titles which have been held good and those which have been held bad or doubtful will be found in Watson's Compendium of Equity, 1040, 1041.

Hillary v. Waller, 12 Ves. 252. See, also, Vreeland v. Blauvelt, 8 C. E. Green, 483.

Williams, 3 Bibb, 365; Seymour v. Delancy, 3 Cowen, 445; Moss v. Hanson, 5 Harris (Pa.), 379; Tiernan v. Roland, 3 Id. 429; Richmond v. Gray, 3 Allen, 25; Luckett v. Williamson, 37 Missouri, 388; Murrell v. Goodyear, 1 De G. F. & J. 432. 4 Forrer v. Nash, 35 Beav. 167; Wilson v. Williams, 3 Jur. N. S. 810; Tiernan v. Roland, 3 Harris (Pa.), 429; Moss v. Hanson, 5 Id. 379; Fry on Spec.

2 Tiernan v. Roland, 3 Harris (Pa.), Perf. 2 875. But see Mortlock v. Buller,

441.

3 Hepburn v. Dunlop, 1 Wheat. 179; Baldwin v. Salter, 8 Paige, 473; Graham v. Hackwith, 1 Marsh. 423; Tyree v.

10 Ves. 315.

5 Harding v. Parshall, 56 Ill. 227.

6 Chartier v. Marshall, 51 N. Hamp. 400. See Adams Eq. 80, 81.

seen, exceptions to this rule. It has also been observed, in the preceding pages, that equity would not lend its aid to the enforcement of a contract into which a party had been induced to enter by misrepresentation or mistake. Hence, if from these causes a material stipulation had been omitted from an agreement, or the agreement did not express the real intention of the parties, parol evidence to establish that such was the case was admissible on behalf of the defendant, and constituted a good defence to the complainant's bill. But then the question occurred―ought equity to go one step further? Suppose a written contract had been drawn and executed, which by reason of some mistake or deceit did not properly express the intention of the parties; could the complainant show, by parol evidence, what the contract actually was, and then have a decree for the specific performance of the written agreement as modified by the parol evidence? In England this question was answered in the negative. The distinction is there well established between a party seeking, and one resisting specific performance-parol evidence to vary a written instrument being admissible in the latter case and not in the former.2

The difference between a plaintiff seeking and a defendant resisting specific performance is well illustrated by the case of Townshend v. Stangroom,3 in which both parties to a contract to lease filed bills, one to have the contract enforced as it was written, the other to have it carried out as modified by parol. Lord Eldon dismissed both bills; the first, because parol evidence was admissible on behalf of the defendant, the second because evidence of the same kind was not admissible on behalf of the complainant; and this distinction has been always recognized.*

382. In this country, however, although there has been some conflict of authority, the better opinion, perhaps, is that the English rule ought not to be strictly followed, but that in proper cases of fraud or mistake, a party ought to have the assistance

1 Ante, p. 253.

4 Darnley v. Lond. Chat. & Dov. R. R.

2 This distinction is independent of the Co., L. R. 2 H. L. Cas. 43; Fry on Spec. statute of frauds. Perf., 515 et seq.

8 3 Vesey, 328. See, also, Woollam v. Hearn, 2 Lead. Cas. Eq. 484, and notes.

of a chancellor in enforcing a written contract with a parol variation. This was laid down by Chancellor Kent, in the case of Gillespie v. Moon,' and has been recognized in several States." In others the case has not been followed and the English rule is adhered to.3

It must next be noticed that an important point which is often to be taken into consideration, in determining whether a contract shall or shall not be enforced, is the effect of the statute of frauds. In cases which fall within that statute, it is obvious that to carry the rule in Gillespie v. Moon to the extent of holding that an agreement (for example), to convey fifty acres may, for the sake of justice and equity, be construed to mean a contract to convey one hundred, would be to repeal the statute of frauds, and to give effect to a simple verbal agreement to sell land. Where, however, the contention of the complainant is that something which is actually embraced in the writing was not intended to be included therein, to suffer him to show this is not to enforce a parol contract in relation to land, it is simply to prove that a written contract did not embrace all that on its face it appeared to include. Such was the actual state of the case in Gillespie v. Moon."

383. It is well known that by the statute of frauds (the provisions of which have been adopted by legislative enactments in most of the United States), all uncertain interests in land created by parol merely had the force and effect, both at law and in equity, of estates at will only, saving always leases not exceeding three years from the making thereof. While, however, the

12 Johns. Ch. 585.

2 See Keisselbrack v. Livingston, 4 Johns. Ch. 144; Wall v. Arrington, 13 Geo. 88; Mosby v. Wall, 23 Miss. 81; Philpott v. Elliott, 4 Maryl. Ch. 273; Moale v. Buchanan, 11 Gill & J. 314; Tilton v. Tilton, 9 N. Hamp. 385; Bellows v. Stone, 14 Id. 175; Bradford v. Union Bank, 13 Howard, 57.

3 Elder v. Elder, 1 Fairfield, 80; Glass v. Hulbert, 102 Mass. 24; Osborn v. Phelps, 19 Conn. 63; Westbrook v. Harbeson, 2 McCord Ch. 112; Brooks

v. Wheelock, 11 Pick. 439; Miller v. Chetwood, 1 Green Ch. 199; Dennis v. Dennis, 4 Rich. Eq. 307; Best v. Stow, 2 Sandf. Ch. 298; Climer v. Hovey, 15 Mich. 18; and see American note to Woollam v. Hearn, 2 Lead. Cas. Eq. 684, 685 (3d Am. ed.); 1 Sug. V. and P. 243 (8 Am. ed ), and notes.

4 See American note to Woollam v. Hearn, ut sup.

5 See Glass v. Hulbert, 102 Mass. 24, where the authorities are examined and the case of Gillespie v. Moon explained.

provisions of this statute were rigorously enforced at law, it was considered in equity that a case might be taken out of the statute by peculiar circumstances which might render its application inequitable and unjust. The statute being designed to prevent frauds, equity would not allow it to be used or set up for the purpose of effecting a fraud. Hence there arose certain well-established exceptions to the statute, in which equity would lend its aid to protect a party in the enjoyment of real estate, or actively to assert his rights thereto under a parol contract. These cases may be reduced to three classes: first, where there has been a part performance of the contract; secondly, where the reduction of the contract to writing has been prevented by fraud; and thirdly, where the contract is admitted by the defendant's answer, and the statute is not set up as a defence.1

384. The doctrine of part performance is based upon the principle that where a contract is so far performed that the parties could not be restored to their original position if the contract was rescinded, it would be highly unjust to allow any technical objection to the fulfilment of the contract to be interposed. Hence, if a verbal contract is made for the sale of real estate, and is acted upon to the extent above indicated, neither party can then refuse to perform it on the ground that the provisions of the statute of frauds have not been complied with. If, for example, upon the faith of a parol agreement, the purchaser has gone into possession, has paid the purchase-money, and has made valuable improvements, the vendor will not be suffered to set up the statute of frauds as a ground for refusing to execute a conveyance. The case, as it is said, is taken out of the statute.2

385. The general doctrine of part performance is well established; and is recognized in most of the States of the Union.3

1 See Smith's Manual of Equity, 252. 2 Adams's Eq. 86.

3 In Wright v. Pucket, 22 Grat. 374, it is said that from the numerous decisions upon the subject the following principles may be extracted:

1st. The parol agreement relied on must be certain and definite, and definite in its terms:

ance must refer to, result from, or be made in pursuance of the agreement proved: and

3d. The agreement must have been so far executed that a refusal of full execution would operate as a fraud upon the party, and place him in a situation which does not lie in compensation.

These propositions seem to be fairly

2d. The acts proved in part perform- deducible from the authorities.

See,

The difficulty in most cases has been to say what will take a case out of the statute; in other words, what must be the predicament of the parties which would justify a court in saying that it would be inequitable to suffer the bar of the statute to be set up.1

It is settled that going into possession under the contract, and making improvements will be sufficient. And in some cases entry into possession alone has been held to be enough. But possession must be taken under and by virtue of the contract, otherwise it cannot avail, and indeed as a general rule anything that is relied upon to take the case out of the statute must be done in pursuance of the contract, and must not be referable to another title. If the vendee is already in possession of the property, the continuance of this possession will not be considered a part performance to take the case out of the statute."

upon this subject, Purcell v. Miner, 4 Wall. 513; Newton v. Swazey, 8 N. Hamp. 9; Annan v. Merritt, 13 Conn. 478; Parkhurst v. Van Cortland, 14 Johns. 15: Dougan v. Blocher, 12 Harris (Pa.), 28; McCue v. Johnston, 1 Casey, 306; Gough v. Crane, 3 Maryl. Ch. 119; Wilde v. Fox, 1 Rand. 165; Printup v. Mitchell, 17 Georgia, 558; Parke v. Leewright, 20 Missouri, 85; Ottenhouse v. Burleson, 11 Tex. 87; Arguello v. Edinger, 10 Cal. 150; Galbraith v. Galbraith, 5 Kans. 402. In other States, however, the rule is different; see Stearns v. Hubbard, 8 Greenleaf, 320; Patterson v. Yeaton, 47 Maine, 308; Parker v. Parker, 1 Gray, 409; Patton v. McClure, 1 Mart. & Yerg. 333; Ridley v. McNairy, 2 Humph. 174; Robeson v. Hornbaker, 2 Green Ch. 60; Wingate v. Dail, 2 Har. & J. 76; Ellis v. Ellis, 1 Dev. Eq. 341; Albea v. Griffin, 2 Dev. & Bat. Eq. 9; Allen v. Chambers, 4 Ired. Eq. 125; 1 Sug. V. and P. 225, note (8th Am. ed.).

ments must be of a permanent character; Peckham v. Barker, 8 R. Island, 17; Wack v. Sorber, 2 Whart. 387.

3 Richards v. Green, 8 C. E. Green, 32; S. C. on appeal, Id. 539; Smith v. Underdunck, 1 Sandf. Ch. 579; Pugh v. Good, 3 Watts & Serg. 56; Moale v. Buchanan, 11 Gill & J. 314; Hart v. Hart, 3 Desaus. 592; Anderson v. Chick, 1 Bailey Ch. 118; Brock v. Cook, 3 Porter, 464; Waggoner v. Speck, 3 Ham. 292; Falmer v. Richardson, 3 Strobh. Eq. 16. But see Moore v. Small, 7 Harris (Pa.), 461.

4 Wright v. Puckett, 22 Grat. 374; Robertson v. Robertson, 9 Watts, 32, 42; Phillips v. Thompson, 1 Johns. Ch. 131, 149; Smith v. Smith, 1 Rich. Eq. 130; Sanborn v. Sanborn, 7 Gray, 142, 146; Ham. v. Goodrich, 33 N. Hamp. 38; Lester v. Kinne, 37 Conn. 9, 14; 1 Sug. V. and P. 226, note (8th Am. ed.).

5 Hatcher v. Hatcher, 1 McMullan Ch. 311; Johnston v. Glancy, 4 Blackf. 94;

1 See Milliken v. Dravo, 17 P. F. Sm. Christy v. Barnhart, 2 Harris (Pa.), 260; 230.

2 Freeman v. Freeman, 43 N. Y. 34; Casler v. Thompson, 3 Green Ch. 59; Smith v. Smith, 1 Rich. Eq. 130; Perkins v. Hadsell, 50 Ill. 216. The improve

Mahana v. Blunt, 20 Iowa, 142. See, however, Blanchard v. McDougal, 6 Wis. 167; Spalding v. Conzelman, 30 Missouri, 177.