
    EDDY B. TOWNSEND vs. MARY C. VANDERWERKER.
    Equity Pleading; Statute of. Frauds;. Part Performance; Fraud.
    T. The 'averments of a bill in equity, when they are ambiguous, are to be taken most strongly against the complainant.
    ' 2. A bill in equity cannot be sustained upon a mere claim for damages for the failure to specifically perform an alleged contract; the remedy is at law in such a case.
    . 3. Payment of a consideration is not such a part performance of a parol contract to convey lands as will take the case out of the Statute of Frauds; and whether the consideration consists of money or personal services the rule seems to be the same.
    4. The part performance must be that sort of a partial execution of the contract which results from entering into possession, making outlays on the property, etc., so that a party cannot be completely restored to his former position.
    5. Breach of a promise to do something in the future is not such a fraud as would be an answer to the defense of limitations; the fraud must be some concealment or misrepresentation as to existing facts which prevented the plaintiff from sooner instituting his suit.
    In Equity.
    No. 12,084.
    Decided October 27, 1891.
    The Chief Justice and Justices Cox and James sitting.
    Appeal from a decree dismissing a bill upon demurrer.
    
      Decree affirmed.
    
    The. facts are stated in the opinion.
    Mr. John Goode for plaintiffs;
    In answer to the second ground of demurrer, the complainant insists that the matters stated in the bill are not triable at law, and, if they were, a Court of Equity can exercise jurisdiction if a more adequate remedy can be thus obtained than at law. Wiley vs. Coxe, 15 How., 415.
    It is not enough that there is a remedy at law, it must be as practical and sufficient to the ends of justice as the remedy in equity. Boyce vs. Grundy, 3 Pet., 210; Sullivan vs Portland and K. R. R. Co., 94 U. S., 806.
    The statute of frauds was designed to exclude oral evidence of the agreement of sale, not oral evidence of the acts of part performance or things done in execution of the agreement. Hall et ux. vs. Hall, et al., 1 Gill 383; see also West vs. Flannigan, 4 Maryland 36; Mursorf vs. Howard, 4 Maryland 459; Stoddart vs. Luck, 5 Maryland 18; Bowie vs. Stonestreet, 6 Maryland 418.
    An agreement to support or render services as a consideration for a verbal promise to convey lands, if carried out is such a definite performance of the contract as entitles the promissee to a conveyance of the promises. Hiatt vs. Williams, 72 Mo. 214; Davison vs. Davison, 13 N. J. Eq. 246; Haines vs. Spanogle, 17 Neb. 637.
    An agreement by aged persons to will their property to one who would in consideration of that promise take care of them until death was upheld in Gupton vs. Gupton, 47 Mo. 37; Sutton vs. Hayden, 62 Mo. 101; Watson vs. Mahan, 20 Ind. 223.
    In answer to the fourth ground of demurrer, the complainant submits that when an action upon a legal title to land would be barred by the Statute of Rimitations, courts of equity will apply a like limitation to suits founded upon equitable rights to the same property. Waits’ Act. & Defences, Vol. 7, 229.
    Again, it is a well settled doctrine that the acknowledgment of a debt or obligation to which the Statute of Rimitations applies takes it out of the operation of the statute. See Waits’ Act. & Defences, Vol. 7, 287, and'cases there cited.
    Again, in cases of fraud the Statute of Rimitations does not begin to run until the fraud is discovered. Moore vs. Green, 19 How., 69.
    If a party has perpetrated a fraud which has not been discovered until the statutory bar may apply to it at law, courts of equity will interpose and remove the bar out of the way of the other injured party. Storys’ Eq. PI. Sec. 751; 2 Storys’ Eq. Juris. Sec. 152!".
    
      Mere efflux of time will not of itself cause' denial of equitable relief. Merchants’ Bank vs. Thompson, 55 N. Y., 7.
    In answer to the fifth ground of demurrer, we submit that it cannot be sustained unless the facts and circumstances as stated in the bill show upon their face that the plaintiff has been guilty of gross laches and that his failure to apply for relief sooner is unexplained by any equitable circumstances. Brashear vs. Gratz, 6 Wheat., 528; King vs. Hamilton, 4 Peters, 311.
    Although there has been delay on the part of the plaintiff in the assertion of his claims, a court of equity will afford relief if a reasonable excuse for such delay be shown. Platt vs. Vattier, 9 Peters, 405.
    There is no artificial rule on the subject of laches in the prosecution of rights, but each case as it arises must be determined by its own particular circumstances. McQuiddy vs. Ware, 20 Wall., 14; Brown vs. Buena Vista Co., 95 U. S., 157.
    The sixth and last ground of demurrer is that the bill is multifarious.
    What is multifariousness?
    It was observed by Lord Cottenham in Campbell vs. Mackey, 1 Mylne & Craig, 603; and the same dectrine was affirmed by the Supreme Court in Gaines et ux vs. Ralf & Chew, 2 How. 619, and in Oliver et al vs. Piatt, 3 How. 333 that, “It is impracticable to lay down any rule as to what constitutes multifariousness as an abstract proposition; that each case must depend on its own circumstances and much must be necessarily left where the authorities leave it, to the sound discretion of the court.
    The result of all the authorities on the subject seems to be that by multifariousness in a bill is meant the improperly joining in one bill distinct and independent matters and thereby confounding them, as the uniting in one bill of several matters perfectly distinct and unconnected against one defendant or the demand of several matters of a distinct and independent nature against several defendants in the same bill. See 1 Cooper. Eq. Pl. 182; Mitf. Eq. Pl. by Jeremy 189 and note; Storys’ Eq. Pl. Sec. 271, et seq.; Adams’ Eq. 309, 310 and Daniels’ Chancery Pl. and Practice 1 Vol 384 et seq.; See also U. S. vs Am. Bell Tel. Co. 128 U. S. 456.
    Messrs. James F. Hood and J. H. Dichei'ter, for defendants.
    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.
    In the case of Riggles vs Erney, decided in General Term, February 10, 1890, this Court held “That no oral evidence would suffice to prove an agreement as to real estate when denied by the other party. ’ ’
    See also: — Repetti vs. Maisak, 6 Mackey, 366; Wristen vs. Bowles, 82 Cal., 87. Fortescue vs. Crawford, 105 N. C., 31. Ryan vs. Wilson, 55 Texas, 38.
    A contract coming within the provisions of the fourth section of the statute of frauds, and not in writing, cannot be enforced. Fallon vs. Chronicle Pub. Co.,1 Mac A., 485.
    The leading cases upon the subject decided in the Supreme Court are Purcell vs. Miner, 4 Wall., 513; Williams vs. Morris, 95 U.S., 444; Randall vs. Howard, 2 Black, 589.
    This suit is based upon, and its purpose is to enforce, a void contract. A contract for the sale of lands not in writing signed by the vendor is void. Dumphy vs. Ryan, 116 U. S., 496, 498; May vs. Sloan, 101 U. S., 237; Tilton vs. Tilton, 9 N. H., 390; Brown vs. Lord, 7 Oregon, 309.
    The least act that constitutes part performance 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.
    Moore vs. Small, 19 Penn. St., 461; Ackerman vs. Fisher, 57 Penn. St., 457; Cuppy vs. Hixon, 29 Ind., 522; Dugan vs. Gittings, 3 Gill, 139, 157.
    See also-Sage vs. McGuire, 4 Watts & S., 228; Heflin vs. Milton, 69 Ala., 354; Owings vs. Baldwin, 8 Gill, 356; Drury vs. Connor, 6 H. & J., 292; Brown vs. Ford, 7 Oregon, 312; Ward vs. Stuart, 62 Texas, 355; McKee vs. Phillips, 9 Watts, 86; Danforth vs. Laney, 28 Ala., 278; White vs. Watkins, 23 Mo., 428; Anderson vs. Simpson, 21 Iowa, 404; Neal vs. Neal,, 69 Ind., 423; Reed on Statute of Frauds, Sec. 578; Pomeroy on Contracts, Sec. 112.
    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.
    . The cases sustaining this proposition are summed up and cited in — Story’s Eq. Jur., Sec. 761; Pomeroy on Contracts, Secs. 112, 114; Browne on Statute of Frauds, Sec. 461; Reed on Statute of Frauds, Sec. 592; Lester vs. Foxcroft, 1 Lead. Cas. Eq., notes.
    The following are selected as examples from “an unbroken current of authorities” on this subject: Glass vs. Hulbert, 102 Mass., 28, 30; Blodgett vs. Hildreth, 103 Mass., 486; Temple vs. Johnson, 71 Ill., 16, 17; Forrester vs. Flores, 64 Cal., 26; Carlisle vs. Brennan, 67 Ind., 19, 20; Peckham vs. Balch, 49 Mich., 181; Townsend vs. Fenton, 30 Minn., 531; Ex. parte Storer, Davies, 294; Humbert vs. Brisbane, 25 S. C., 510; Crahill vs. Marsh, 38 Ohio St., 338; Eaton vs. Whitaker, 18 Conn., 229; Kidder vs. Barr, 35 N. H., 255; Cole vs. Potts, 10 N. J. Eq., 69; Horn vs. Ludington, 32 Wis., 73; Jackson vs. Cutwright, 5 Munf., 316, 318; Edwards vs. Estell, 48 Cal., 196; Wright vs. Puckett, 22 Grattan, 374, 377; Greene vs. Jones, 76 Maine, 567.
    Part performance consists in an act done ozdside of and beyond the contract. It must be an act indicative of existing ownership. Adams’ Equity * 86.
    To constitute part performance the act must show an agreement and the nature of the agreement. Stoddert vs. Tuck, 4 Md. Ch., 482; Semmes vs. Worthington, 38 Md.,. 326.
    The complainant has been guilty of laches — his claim is stale and such as a court of equity will not countenance.
    The Supreme Court has expressed the law upon this subject in many cases. McKnight vs. Taylor, 1 Howard, 161; Wagner vs. Baird, 7 Howard, 234; Lansdale vs. Smith, 106 U. S., 392; Badger vs. Badger, 2 Wall., 87. To the same effect are — Speidel vs. Henrici, 120 U. S. 377, 387; Richards vs. Mackall, 124 U. S. 183, 189; Holt vs. Rogers, 8 Peters, 433; Rider vs. White, 3 Mackey, 310; Godden vs. Kimmell, 99 U. S. 201, 211; Marsh vs. Whitmore, 21 Wall., 178, 185; Hume vs. Beale, 17 Wall., 336; Brown vs. Buena Vista Co., 95 U. S., 157, 167; Bowman vs. Wathen, 1 Howard, 189, 193-4; Piatt vs. Vattier, 9 Peters, 416; Stearns vs. Page, 7 How., 819; Hanner vs. Moulton, 138 U. S., 492, 495; Underwood vs. Dugan, 139 U. S., 384.
    What constitutes a stale claim depends upon the circumstances of each case, and no definite or particular time is fixed to govern all cases. Sullivan vs. Portland R. R. Co., 94 U. S., 811; McQuiddy vs. Ware, 20 Wall., 14, 20; Hayward vs. Eliot Nat. Bank, 96 U. S., 617-9; Harwood vs. R. R. Co., 84 U. S., 79; New Albany vs. Burke, 78 U. S., 108; Lupton vs. Janney, 13 Peters, 385; Pratt vs. Carroll, 8 Cranch, 471; Twin Lick Oil Co. vs. Marbury, 91 U. S., 587.
    See also—Hume vs. Beale. 84 U. S., 336; Clegg vs. Edmonson, 8 De Gex. M. & G., 810, 813; Clabaugh vs. Byerly, 7 Gill, 364; Perkins vs. Lane, 82 Va,, 59; Hodge vs. Weeks, 9 S. E. Rep., 953; Combs vs. Scott, 45 N. W. Rep. 532.
    In cases of this kind the death of parties who could explain the transaction has always been regarded as a controling circumstance. Mackall vs. Casilear, 137 U. S., 566; Godden vs. Kimmell, 99 U. S., 210; Jenkins vs. Pye, 12 Peters, 254.
   Mr. Justice Cox

delivered the opinion of the Court.

This is a bill filed in equity upon an alleged agreement entered into between the complainant and one Mrs. Julia Marvin. The suit is brought against the heirs and administrator of Mrs. Marvin. It came before the Court below on demurrer ; the demurrer was sustained ; a decree was passed dismissing the bill and an appeal taken from that decree to this Court. On the argument it was urged that in the the consideration of this demurrer the court was not confined to the exact facts stated in the bill,but might assume that other facts were capable of being proved under the general aver - ments of the bill; in other words, it was sought by the complainant to take advantage of the ambiguities of the bill.

We do not understand the law to be to that effect. The bill is ambiguous 'in some respects, but the averments of the bill are to be taken most strongly against the complainant himself, and any ambiguity in them must operate to his disadvantage instead of to his benefit.

Now, the facts substantially stated by the complainant are : First, that Mrs. Marvin was seized in her lifetime of sub-lot i, square 179, and in March 1879 — before that we are bound to suppose that she was seized of it — an agreement was entered into between fhe complainant and Mrs. Marvin,by which the complainant agreed to contribute in money, and in work and labor, one-half of the original cost of the piece of land and of a dwelling house to be erected thereon, and in consideration thereof, Mrs. Julia Marvin undertook and agreed to convey to the complainant a half interest in the said piece of ground and the dwelling house to be erected thereon, so that the same should be jointly owned by the complainant and the said Julia A. Marvin. At the time of the making of said agreement there was no note or memorandum thereof in writing, but, in the performance of the, same, on the part of the complainant, he gave his personal attention to the purchase of the materials for said dwelling and the erection of the same, and also paid, laid out and expended a large sum of money, to wit; the sum of $4,000, in defraying the cost of the erection of the said dwelling house. The bill goes on aver that the complainant rendered his personal services in the year 1879 and paid the sum of $4,000 towards the cost of the dwelling in different amounts,and through a period of over six years, the last of the payments being in the year 1884. He avers that $4,000 and the value of his services in selecting and purchasing the material, and superintending the erection of the building, are equal to one-half of the cost of the lot and building. He then proceeds to say that subsequently Mrs. Marvin received the rents from the building from the year 1879 until her death, which took place early in 1890 or in 1889; and in 1888 she executed a deed of trust on the premises to secure $10,000 to one Amos B.White for money borrowed. That is the substance of the case stated by the complainant. There are other matters stated which I shall allude to presently, which were very little more than explanatory of the delay on the part of the complainant in the institution of the suit. Now, upon this statement of the complainant’s case, we would be prepared to expect a prayer for a decree for specific performance, but that is not the relief prayed. The prayer is, first, that the cause may be referred' to an auditor to take and report to the court the following accounts:

1. “An account of the debt claimed by plaintiff to be due and owing to him from the estate of the said Julia R. Marvin.
2. “An account of the debt due and owing to the said Amos C. White from the estate of the said Julia R. Marvin and all other debts and demands against the same.
3. “An account of the value of the said piece or parcel of land in the City of Washington, and the dwelling house erected thereon, and also an account of any other real estate of which the said Julia R. Marvin died seized and possessed and the value thereof; and that it be also referred to the auditor to ascertain who are the next of kin and heirs at law of the said Julia R. Marvin, deceased.
4. “An account of the rents of the said house and lot received and collected by the said Julia R. Marvin in her lifetime, and also a further account of any rent due and unpaid since her death.
5. “An account of the transactions of Thomas B. Hood, administrator, showing the collections made by him from the sale of the personal estate of the said Julia R. Marvin, or otherwise, and what disposition has been made of the same’’

He next asks that ‘ ‘the court will make a decree directing the payment to the plaintiff of a sum equal to one half the value of the said house and lot hereinbefore mentioned and described, and one half of the rents of the same received and collected by the said Julia R. Marvin in her lifetime and accruing since her death; that a decree may be made directing the sale of the said house and lot for the purpose of paying the debt claimed by the plaintiff to be due and owing to him from the estate of the said Julia R. Marvin, and the distribution of the balance of the proeeeds of such sale among those entitled, according to their respective rights and interests; that a decree may also be made for the sale of the other real estate of which the said Julia R. Marvin died seized and possessed, if the same shall be necessary for the payment of her debts,” and then there is a prayer for process and that the plaintiff may have “such other and further aid and relief as equity and good conscience may dictate and the nature of his case may require.”

It will be observed that the specific prayers for relief do not refer to a specific performance of an agreement to convey one half of this property to the plaintiff. He claims that the estate of Mrs. Marvin is indebted to him for two things; first, a sum equal to one half of the value oHthe property which she, according to the statement in the bill, was to convey to him; and secondly, one half of the rents and profits which she collected from the improvements. Of course this is purely a matter of the collection of a claim for money due him on account of money laid out and expended by him, or a claim for damages for not conveying the house to him. It is a claim which might have been asserted at law, and it is one of the grounds of demurrer in the case, that there is an adequate remedy at law, and that is the proper remedy for the collection of this kind of an account. There is no ground whatever for coming to a court of equity for damages for the failure to specifically perform the alleged contract. There are cases in which on the failure to obtain specific performance, compensation has been allowed in damages. A party, for instance, goes into possession under a contract which cannot be performed; he is entitled to be allowed compensation for his outlays and actual losses, which would be ascertained by an issue of q^lantum damnificatus, but there is no ground for going into equity, broadly claiming damages for the non-performance.

This question of damages was discussed in the case of Hempsball vs. Stone, in 5 Johnson’s Chancery Reports, page 193. In this case there was a contract to purchase land, but the purchaser was slow in making his payments and the defendant conceived himself released from obligation to complete the contract and sold the property to a third person, who bought it without notice of the first contract. The plaintiff filed his bill in a court of equity for specific performance and under that he sought to recover damages as compensation. The Court says: “The jurisdiction of the Court on this point was discussed in the case of Hatch vs. Cobb, 4 Johnson’s Chancery Reports, page 559, and it was considered that the Court ought not, except in very special cases, to sustain a bill merely for the assessment of damages. The more I have reflected on the subject, the more strongly do I incline to that opinion. Rord Eldon intimated in Todd vs. Gee, 17 Vesey, page 273, that the whole course of previous authority was. against the decision of Rord Kenyon in Denton vs. Stewart, 1 Cox, page 258; and in that case Rord Eldon said the defendant had disabled himself pendente lite from performing the agreement, and that fact materially distinguishes that case from this. When the defendant had disabled himself before the filing of the bill and the plaintiff knew of that fact before he commenced his suit (and I consider such knowledge a material circumstance in such case), it is then reduced to the case of a bill filed for the sole purpose of assessing damages for a breach of contract which is a matter strictly of legal, and not of equitable jurisdiction. The remedy is clear and perfect at law by an action upon the covenant; and if this court is to sustain such a bill, I do not know why it might not equally sustain one in every other case sounding in damages and cognizable at law. This court is not the ordinary and appropriate tribunal for such actions.”

There are certain other objections to this claim for one-half of the value of the property, and one is that of the Statute of Rimitations, which was also one of the grounds of demurrer. The services rendéred by the plaintiff, he says, were rendered in the years 1879 an(l 1880, and this bill was filed in 1890, ten years afterwards. The payments .made by him run. through six years, the last one being, I think, in 1884, six years before the bringing of this suit, so that the claim for compensation for the rendition of those services is clearly barred by the act of limitations. But it is claimed that there were acknowledgments made by Mrs. Marvin in her lifetime, which would be an answer to that defense. The bill, however, does not aver any acknowledgment by her of any pecuniary debt, but it avers that she repeatedly acknowledged that she was under obligations to the defendant, and said that she looked upon the house as belonging jointly to him and her, and that she had made her will giving the whole of it to him at her death. There was no real acknowledgment that she was pecuniarily indebted to him.

In addition to the claim for half of the value of the house and lot, he claims one-half of the rents collected by Mrs. Marvin and her heirs since her death. This claim for rents also would be barred by the Statute of limitations to a certain extent. It is not averred in the.bill that a conveyance of an interest in the property was to be made before he had completed his part of the contract by making the payments. The payments for the house and lot were not completed until 1884, so that there could not have been a right to claim a conveyance until that time. If we understand the averments of the bill, no rents could be recovered before that time and this defense of limitations would prevail against the recovery of rents accruing before three years before the suit was instituted. that the claim, under any circumstances, would be limited to rents received from June, 1887. But there is a further objection to this. As I have stated, the claim for rents would only be on the theory that the plaintiff would be entitled to a specific performance of the contract to convey the land. It is possible, and it may be admitted, that a joint tenant, co-parcener or a tenant in common, would have a right to file a bill in equity for an account of rents received by a co-owner, and he would not be confined, perhaps, to an action at law to recover as for money had and received, but that must be a’ case in which the parties are admittedly joint owners.

But where a bill is filed for the purpose of compelling •specific performance, I have never known a case in which a •court recognized the right of a party to an accounting of rents received by the defendant from the time that the alleged contract to convey was made. The right to a specific performance is not a strict right but one depending on the sound discretion of a court of equity, and therefore the complainant has no right, strictly, to claim a part of the income as if he and defendant had been the joint owners of the' land, when he becomes the owner only from the time when the court decrees specific performance. But it is quite clear that if he could claim the rents and profits at all, it would only be on the theory that he is entitled to the land itself, and to a specific performance of a contract to convey it. I should state here that it is at least doubtful whether the relief by specific performance could be given under this general prayer for relief, because that is really contrary to the whole scheme of the bill. It is not the relief that the plaintiff wants. Since a contract was made with him, as he alleges, Mrs. Marvin conveyed her property to secure a debt of $10,000 which is. about one-half of the value of the laud. She has practically conveyed then one-half of the value, retaining an equity which is only about one-half the value, and if the court would decree a conveyance of one-half of the interest remaining in her heirs, it would give the plaintiff only one-fourth the value of the land. He claims that he is entitled to one-half of the value, and for that reason, probably, instead of asking a decree for the conveyance of an undivided half interest which would be subject to that deed of trust, he asks for a sum of money equal to one-half of the entire value of the land. So that a decree of specific performance seems to be entirely outside of the scheme and scope of this bill of complaint, and it is not that relief which is sought by the bill. But suppose, however, that he does ask for specific performance. He is met at once with the objection of the Statute of Frauds. That is relied upon as one of the grounds of demurrer. The objection is attempted to be overcome by proof of part performance of the contract. But it is very well settled that payment of a consideration is not such a part performance as will take the case out of the Statute of Frauds, and, whether that consideration consists of money, or personal services, the rule seems to be the same. Authorities have been cited which I will refer to if necessar3r, but it was conceded on both sides that mere payment either by personal services, or money, is not the kind of part performance which will furnish an answer to the objection of the Statute of Frauds. The part performance must be that sort of a partial execution of the contract which results from entering into possession, making outlays on the property, etc., where a party cannot be put back into the condition in which he was before; or, at least, completely restored to his former position. It that case the court would decree specific performance. That is not the case presented here, because the bill here shows that Mrs. Marvin herself was in possession from the time that this house was erected and has always received the rents, and it does not show that the plaintiff ever took possession at all, and still less, that he did so in pursuance of any contract for the purchase of an undivided moiety.

One thing which seems to be relied upon is that the plaintiff had been misled and defrauded by Mrs. Marvin, by her repeated representations that she would take care of him when she made her will, and would leave the whole property to him after her death., By these representations he says he was lulled into security and failed to take any steps to have his rights settled. This promise on her part was to do something in the future which does not constitute a fraud, and which would not be an answer even to the defense of limitations. The kind of fraud that would be an answer to the defense of limitations must be some concealment or misrepresentation as to existing facts which prevented the plaintiff from sooner instituting his suit. We do not think, therefore, that there is any way of getting over this defense which has been interposed by way of demurrer. It might be further remarked herd that the case does not present a very strong one for relief. It is not stated what the value of the ground was or what estimate was agreed upon as the value of the plaintiff’s services to be rendered, or what the house cost, or when the deed was to be executed, conveying the interest to the plaintiff, whether at the time of the agreement, or after the services were rendered; and a court of equity would hesitate, on a bill for specific performance, to enforce such a contract as that after the death of the party said to be jointly interested, when she cannot be heard from and when the contract can only be proved by the testimony of the plaintiff himself, there being no witnesses to it, and no declaration of hers proved to have' been made to other persons, at any time, as to the terms of this alleged agreement. A court would find a great deal of difficuly in enforcing a contract so vague in its terms.

We are, therefore, of the opinion that the ruling of the Court below on the demurrer must be sustained.  