
    (86 Hun, 502.)
    PAWLING et al. v. PAWLING et al.
    (Supreme Court, General Term, Third Department.
    May 14, 1895.)
    Statute of Frauds—Part Performance of Oral Contract.
    Plaintiff and one P., his father, were jointly indebted on a note secured by mortgage on lan'd owned by P. Payment of the note was demanded by the mortgagee, and P. requested plaintiff to pay it, and promised to give him a deed of the mortgaged premises if he would do so. Plaintiff paid . the note, and, at the request of P., prepared a deed for execution. P. promised to execute the deed, but died without doing it. Held, that there was such part performance of the contract to convey the land as to take the case out of the statute of frauds.
    Appeal from special term, Montgomery county.
    Action by Catherine E. Pawling, as administratrix of Henry Haskell Pawling, deceased, and others, against William M. Pawling and Margaret Pawling, individually and as administrators of Henry Pawling, deceased, and Mary Jane Herrick, for specific performance of a contract for the sale of land. Judgment was entered in favor of plaintiffs, and defendants appeal.
    Affirmed.
    Argued before PUTNAM, HERRICK, and STOVER, JJ.
    Edward P. White, for appellant Mary Jane Herrick.
    W. Davidson Jones, for appellant William M. Pawling.
    Westbrook, Burke & Hover (Z. S. Westbrook, of' counsel), for respondents.
   PUTNAM, J.

Henry Pawling, father of the original plaintiff, Henry Haskell Pawling, and the defendants William M. Pawling and Mary Jane Herrick, died in 1892, leaving said parties his only heirs, and the defendant Margaret Pawling his widow, and owning the lot of land described in the complaint. In 1874, Henry Pawling and Henry Haskell Pawling entered into a partnership, and the former conveyed to the latter an undivided half of the premises in question. In 1877 the firm borrowed from one Stairs $2,GOO, which it used in its business. For this loan Henry Pawling and Henry Haskell Pawling executed their joint and several bond secured by a mortgage on the property. In 1882 the partnership was dissolved, and Henry Haskell Pawling reconveyed to his father the undivided one-half of said premises. In December, 1889, Stairs demanded payment of said bond and mortgage of Henry Pawling, who said he would* furnish the money, and then made the proposition to Henry Haskell that, if the latter would pay off said bond and mortgage to Stairs, the said Henry Pawding would give him a deed of the property in question. Henry Haskell at first objected, but afterwards accepted said proposition, and in pursuance of the verbal contract paid said bond and mortgage, and obtained a satisfaction thereof. The amount paid was $2,865.63. Afterwards, and about June 1, 1892, Henry Pawling, being in poor health and intending to carry out said agreement, requested Henry Haskell to have a proper deed drawn to convey said premises in pursuance of said verbal contract, and promised to execute the same. Said Henry Haskell thereupon procured a deed to be drawn, and presented the same to Henry Pawling for execution. Said deed was read to and approved by Henry Pawling, and he promised to execute the same, but soon afterwards, and before he had performed his promise, died. The learned trial court, on sufficient evidence, found the facts substantially as above stated, and also found as follows:

“And the plaintiff has for the use and purpose of his said mill and business, ever since his said agreement with said decedent in December, 1889, and for some time prior thereto, taken and used the water from said dam. and maintained a pipe for his said purposes extending from his said mill and premises into said dam above, and drawing and conducting the water therefrom, and supplying his said mill therewith, with the knowledge and assent of said decedent, until the time of his death, and still uses the same for such purposes; and ever since said agreement was made in December, 1889, the plaintiff has also used and occupied a portion of the said old mill building as a carpenter shop, and a portion thereof for storage purposes, in connection with his said mill and manufacturing business adjoining on the west thereof, and with the knowledge and assent of said decedent to the time of his said death, and still uses and occupies the same for such purposes.”

The subject of the specific performance of oral contracts for the conveyance of land void by the statute of frauds has been extensively discussed by elementary writers and by courts in many cases. It is well settled that equity will, to prevent injustice, enforce the performance of a parol contract partly carried into execution, on the ground that otherwise one party would be enabled to practice a fraud on another, and that it could not be the intent of the statute to enable one party to commit such a fraud with impunity. Story, Eq. Jur. § 759; Dygert v. Remerschnider, 32 N. Y. 629-642. A parol contract for the sale of land, where the vendee has paid the whole purchase price, and entered into possession under the contract, may be specifically enforced. Pom. Spec. Perf. § 115. In Dunckel v. Dunckel, 141 N. Y. 427-435, 36 N. E. 405, Earl, J., remarks :

'‘We think it is a general rule to be gathered from the authorities that mere payment of the purchase price of land is not sufficient to authorize the specific performance of the contract of sale, unless the peculiar circumstances of the case be such that an action at law to recover back the money paid would not give the purchaser an adequate remedy. But it is also a general rule that when the consideration has been paid, and possession under the contract of sale has been taken, the contract will be specifically enforced, and to take the case out of this rule the circumstances must be peculiar and exceptional.”

A multitude of cases might be cited holding the same doctrine. Malins v. Brown, 4 N. Y. 403-410; Dugan v. Gittings, 3 Gill, 138, 139; Gregory v. Mighell, 18 Ves. 328; Fitzsimmons v. Allen, 39 Ill. 440; Shirley v. Spencer, 9 Ill. 583; Bigelow v. Armes, 108 U. S. 10, 1 Sup. Ct. 83; Fannin v. McMullen, 2 Abb, Pr. (N. S.) 224. There are some .authorities holding that the mere payment of the whole of the purchase price by the vendee, and full performance by him of the verbal contract, will entitle him to a specific performance. Will. Eq. Jur. p. 284; Morrill v. Cooper, 65 Barb. 512-517.

In this case there is no serious dispute as to the facts. The deceased, Henry Pawling, in December, 1889, was the owner of the premises described in the complaint which were subject to the mortgage held by Stairs, on which was due $2,865.63. Stairs demanded the money on the mortgage. Deceased, being unable to pay him, then made a verbal contract with his son, the original plaintiff, Henry Haskell Pawling, by which, if the latter would pay nip the mortgage, he would convey the premises in question to him. Henry Haskell accepted the proposition, paid up the mortgage, and procured a satisfaction thereof, and remained in occupation of the premises from that time until the death of Henry, in 1892. Shortly prior to this event, Henry Haskell, at the request of Henry, prepared a deed for the latter to execute, which he was prevented from doing by his death. I do not regard it as of much consequence whether Henry was legally bound to pay the whole mortgage or ■only one-half of it. The evidence indicates an understanding between the parties that it was for Henry to pay off the whole mortgage. But w'hether so or not, he was liable for his proportion of the mortgage debt, and it was clearly shown that he agreed with Henry Haskell that, if the latter would satisfy the mortgage, he -(Henry) would convey the premises in question to him; that Henry Haskell did pay up the mortgage, and remained in possession of the premises, and, according to the terms of the verbal contract, was entitled to a conveyance thereof.

I think that the parol contract entered into between the father ■and son, in 1889, and which the former was about to carry out at the time of his death, should be enforced by this court. It would be most unjust, and a virtual fraud, if the defendants, the heirs of Henry Pawling, after the acts of part performance done by the plaintiff’s intestate, could be allowed to interpose successfully the statute of frauds as a bar to plaintiff’s rights. There has been such a part performance of the original oral contract by Henry Haskell as enables this court to decree a specific performance. There has been a payment of the full purchase price, and possession of the premises under the oral contract, for a period of three years. See Pom. Eq. Jur. § 409, and note, and cases above cited. It is suggested by the learned counsel for the appellants that, although Henry Haskell remained in possession of the premises in question from the time of the making of the oral contract to the time of the death of Henry Pawling, such possession was not under or referable to the oral contract, as he was also in occupancy of the premises at the time and prior to the making thereof. It is true that Henry Haskell was in possession of the premises in question before and at the time of the making of the oral contract. It is not shown how, whether by license from deceased or as a tenant. I think, however, that on the making of the oral contract, and the payment of the purchase price according to its terms, and when Henry Haskell was entitled to a deed of the premises by the terms of said contract and to the possession thereof thereunder (Miller v. Ball, 64 N. Y. 286), that his possession should be deemed as under the contract. It is held, in reference to a tenant, that his possession after the expiration of his term, and a payment of an increased rent, are together a part performance of a verbal contract for a renewal of the lease. So possession after the term, and a payment shown, which could not be referred to the old rent, but could only be explained on the supposition of a contract, should be part performance of a verbal contract for the lessee to sell and convey the land. Pom. Spec. Perf. § 124. Henry Haskell was in possession before he made a verbal contract to buy the land. In pursuance of the verbal contract, he afterwards paid the purchase price and remained in possession, to which he was legally entitled under the contract. His possession thereafter should be deemed thereunder. In Dunckel v. Dunckel, 56 Hun, 28, 8 N. Y. Supp. 888; Id., 141 N. Y. 430, 36 N. E. 405,—the plaintiff, at the time of making the contract for a life lease sought" to be enforced in that action, was in possession of the premises, and the general term, in reversing the judgment first rendered in the action, adverted to the fact as follows:

“The plaintiff was at the time in possession and actual occupancy of the premises in question; had no occasion to move or make any change in her business or condition in consequence of the agreement. She simply continued to occupy the same' as she had done while her husband was living.” 56 Hun, 28, 8 N. Y. Supp. 888.

But the court of appeals in effect held (141 N. Y. 430, 36 N. E. 405) that, although the plaintiff was in possession of the house and lot affected by the action when the verbal contract was entered into, after the making thereof her possession was referable to and under such contract. In this case, as in the one cited, there was a possession of three years by Henry Haskell prior to the death of his father, and after full performance by him of the contract. As we have seen, on the full performance by Henry Haskell he was entitled to the possession of the premises thereunder, and it seems proper that his actual possession should be deemed taken, rather under the contract, as he lawfully could, than in any other way. See Spear v. Orendorf, 26 Md. 37-44; Wills v. Stradling, 3 Ves. 379. We conclude, therefore, that the learned trial justice properly disposed of this case, and that.the judgment should be affirmed, with costs.

HERRICK, J., concurs. STOYER, J., not acting.  