
    *Wright v. Pucket.
    June Term, 1872,
    Wytheville.
    Absent, Anderson, J.
    Parol Contract of Land—Specific Performance—What Three Things flust Concur.—In a suit by the purchaser, for the specific performance of a parol agreement for the sale of land, it must appear: 1st. That the parol agreement relied on is certain and definite in its terms. 2d. The acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved. 3d. The agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation. And no one of these conditions appears in this case.
    This was a suit in equity in the Circuit court of Russell county, brought in July 1868, by George W. Pucket against Milton Wright, the brother and only heir at law of Harvey Wright, deceased, to enforce the specific performance of a parol contract, which the plaintiff alleged was made by said Harvey Wright and himself, in relation to land. The bill sets out that Harvey Wright, the uncle of the plaintiff, a good many years since, purchased a tract of land on Jessee’s mill creek, in the county of Russell. That the land was unimproved, and then of little value; and that Wright was then a feeble old man, without means to bring the land into cultivation. That plaintiff was then young and unmarried; and Harvey Wright telling the plaintiff that he would have to sell part of the land to improve the residue,' and that he would rather sell it to the plaintiff than to any one else, proposed to him that if the plain-, tiff would come and help him to improve his land, he should have part of it at his (Wright’s) death, and should be well Compensated out of the land for his labor. To this the plaintiff agreed. That it was not at that time agreed fully, what part of the land plaintiff should have, only he was to be well compensated for his labor in part of the land; but the said Wright was to retain the possession and control of the whole land during his life. That plaintiff entered faithfully and diligently upon the execution of his part of the contract, and continued faithfully to labor upon the land, clearing and improving it, for about eight years, and did improve the land so that it rendered to said Wright during his life a fair support.
    The bill further states that the plaintiff then married and settled on land adjoining the land of Wright, on the east side of the creek; and by the direction of said Wright, enclosed within his own fence a large portion of the land lying east of the creek, and cleared and cultivated a part of it, for which he paid no rent, and he had kept it. so enclosed ever since, though the said Wright used it in common with the plaintiff to turn his stock in when he chose, but telling the plaintiff that was a part of the land which he was to have as compensation for his labor as aforesaid; and the said Wright afterwards laid off and designated all that portion of the land that lies east of the creek as the part which the plaintiff was to have in fulfilment of said contract; and with this the plaintiff was satisfied. That plaintiff took no writing from said Wright, having the fullest confidence in him that he would carry out what he agreed to do; but said Wright died suddenly, without making any disposition of his property, or any writing conveying the land to the plaintiff. And making Milton Wright a party defendant, he asks for a specific execution of the contract.
    The defendant appeared and demurred to the bill; but the court overruled the demurrer ; and he then answered, denying the contract set up in the bill, and calling for strict proof.
    *The evidence in the cause was wholly parol, and somewhat contradictory. One witness says, she was present and heard Harvey Wright say to Pucket, that if he would come and help improve the farm, he should have a part of the land. And on that offer Pucket came and worked with Wright a part of the time for six or eight years. And since Pucket had so worked, she had heard Wright say that a part of his farm was to be Pucket’s. Another witness said, she was present at the same interview, and she heard Wright state to said Pucket that he, the said Wright, was not able to work his farm, and that he would have to give a part of it to get it improved, and that he would rather let said Pucket have it than any one else; and that upon that offer, at the time Wright moved to his farm Pucket came with him, and worked for Wright six or eight years. And she heard Wright say, shortly before hi.s death, that at his death Pucket would get a part of his land. Another witness says that about twelve months before Harvey Wright’s death, he told witness that Pucket was always good to do anything he, said Wright, asked him to do, and that he intended Pucket to have his land on the east side of the creek. Another witness said he heard the plaintiff ask Harvey Wright where he should run a fence on the east side of the creek, and the reply of Wright was to run where he pleased—that it would all be said Pucket’s some day. This was about eighteen years previous to the giving the deposition in 1869; and plaintiff has fenced up some thirty-five or forty acres of said land, and has been cultivating a portion of it some eighteen years. And another witness says, in answer to a question by the plaintiff in reference to a mill seat on the land east of the creek, that she heard Harvey Wright say to the plaintiff, after me the land is yours. On the other hand, there was proof that in 1859 or 1860 Pucket proposed to buy some of the land on the east side of the creek, and Wright refused *tosellit; and that whilst Wright’s grave was digging Pucket said he (Wright) had neither willed the land nor sold it. There is some other evidence, but the foregoing is all that seems to bear upon the question of the contract.
    The cause came on to be heard upon the 14th of May 1870, when the court decreed that the defendant, Milton Wright, do execute a deed, with special warranty, to the plaintiff for all the land in the bill mentioned, formerly owned by Harvey Wright, lying on the east side of Jessee’s mill creek, and that the plaintiff recover his costs against the defendant. Erom this decree Milton Wright applied to this court for an appeal, which was allowed.
    Terry and Pierce, for the appellant.
    B. R. Johnston and T. R. Campbell, for the appellee.
    
      
      Parol Contract of Land—Specif ic Performance—What Three Things flust Concur.—The rule laid down in the principal case in regard to the three things that must concur in order to justify the court in granting specific performance of a parol contract for the sale of land is followed in many subsequent cases as authority upon the subj ect. See Pierce v. Catron, 23 Gratt. 598; Floyd v. Harding, 28 Gratt. 401, and note; Rhea v. Jordan, 28 Gratt. 684, and note; Lester v. Lester, 28 Gratt. 743, and note; Burkholder v. Ludlam, 30 Gratt. 260; Halsey v. Peters, 79 Va. 67; Hurt v. Prillaman, 79 Va. 263; Litterall v. Jackson, 80 Va. 613; Barrett v. Forney, 82 Va. 277; Edichal Bullion Co. v. Columbia, etc., Co., 87 Va. 646, 13 S. E. Rep. 100; Reynolds v. Necessary, 88 Va. 129, 13 S. E. Rep. 348; Hale v. Hale, 90 Va. 733, 19 S. E. Rep. 739; Gallagher v. Gallagher, 31 W. Va. 13, 5 S. E. Rep. 297; Miller v. Lorentz, 39 W. Va. 171, 19 S. E. Rep. 395.
      The principal case is cited in Boyd v. Cleghorn, 94 Va. 783, 27 S. E. Rep. 574, as authority for the proposition that equity will lend its aid to defeat a fraud notwithstanding the Statute of Frauds if there is clear and evincing proof of the contract.
    
   CHRISTIAN, J.

This is a suit for the specific execution of an alleged parol agreement for the sale of real estate, which is sought to be taken out of the operation- of the statute of frauds upon the ground of part performance.

The statute of frauds was founded in wisdom and sound policy. Its primary object was to prevent the setting up of pretended agreements, and then supporting them by-perjury. But besides these direct objects, there is a manifest policy in requiring contracts of so important a nature as the sale and purchase of real estate, to be reduced to writing; since otherwise, from the imperfection of memory, and the honest mistakes of witnesses, it must often happen either that the specific contract is incapable of exact proof, or that it is unintentionally varied from its original terms. The statute, therefore, requires in contracts of such a nature as are therein mentioned more satisfactory and convincing testimony than mere oral evidence affords. The wisdom of permitting any deviation from the terms of the statute has *been questioned by the most eminent chancellors of England and of this country. Courts of equity, however, in their efforts to do complete justice and prevent fraud, have in certain cases relaxed the operation of the statute ; and in cases where a parol agreement for the sale of land has been clearly and distinctly proved, and part performance in pursuance of the agreement established, a court of equity will decree specific execution.

But the principles upon which courts of equity have avoided the statute of frauds, upon the ground of part performance of a parol agreement, are now as well settled as any of the acknowledged doctrines of equity jurisprudence. Erom the numerous decisions on the subject the following principles may be extracted and briefly stated as follows: 1st. The parol agreement relied on must be certain and definite in its terms. 2d. The acts proved in part performance must refer to, result from, or be made in pursuance of the agreement proved. 3d. The agreement must have been so far executed that a refusal of full execution would operate a fraud upon the party, and place him in a situation which does not lie in compensation. Where these three things concur, a court of equity will decree specific execution. Where they do not, it will turn the party over to seek compensation in damages in a court of law. See Cooth v. Jackson, 6 Ves. R. 12; Phillips v. Thompson, 1 John. Ch. R. 131; Heth’s ex’or v. Wooldridge’s ex’or, 6 Rand. 605; Anthony v. Leftwich, 3 Rand. 238; 1 Lead. Cases in Equity (White & Tudor), 2d Am. Ed., top p. 557-574, and cases there cited.

Applying these well settled principles of equity jurisprudence to the case before us, there are, I think, at least three sound objections to the interference of a court of equity in this case. 1st. The agreement, as stated in the bill, and as proved by the testimony (if, indeed, any agreement is proved), is too uncertain and indefinite in its terms. 2d. The acts relied upon as part ^performance are not shown to be in pursuance of, or to result from, any agreement stated and proved; and 3d. The acts of part performance all lie in compensation.

The agreement, as stated in the bill, if it had not been denied by the answer, and had been sustained by' the proof, was not of that certain and definite character which is peculiarly necessary in a bill for specific performance.

The bill is filed by George W. Pucket against the appellant, Milton Wright, who is the sole heir of Harvey Wright, to whom, upon the death of the latter, his land descended, in which the plaintiff seeks the aid of the court to compel the defendant to execute specifically a contract which, it is alleged, was entered into between the said Harvey Wright in his lifetime and the plaintiff, by conveying to him the title to the land purchased under said agreement. The bill alleges that the said Harvey Wright, the uncle by marriage of the plaintiff, was the owner of a tract of unimproved land, and that being “a man much advanced in years, without pecuniary means, and physically unable himself to bring the land into cultivation,” approached the plaintiff, who was a young man in full strength and vigor, with the proposition “that if he would come and help him improve his land, he should have apart of it at his (Wright’s) death, and should be well compensated out of his land for his labor.” The bill further states, that “it was not at that time fully agreed what part of the land complainant should have, only that he should be well compensated for his labor in a part of the land; but the said Harvey Wright was to retain the possession and control of all the land during his life.”

This statement is followed by the allegation that “complainant entered faithfully and diligently upon his part of the contract, and continued faithfully to labor upon the land, clearing and improving it for about eight years; and did improve the land so that it rendered to *said Wright during his life a fair support. ” It is further alleged that “the said Wright after-wards laid off and designated all that portion of the land lying on the east side of the creek as the part complainant was to have in fulfilment of his contract.” But he admits that this land was used in common by Wright and Pucket during Wright’s lifetime. He admits he “took no writing from Wright, having every confidence that he would carry out to the letter what he had agreed to do, and that Wright departed this life making no disposition in any way of his property, and without making any writing conveying the land, to complainant.”

Taking the bill as true, and the agreement as stated by the appellee in his own way, there is such uncertainty and want of definiteness in the contract, that a court of equity on that ground alone, might well refuse to lend its aid for specific execution.

But all the material allegations in the bill are denied in the answer, and not sustained bj" the proof. The evidence is conflicting and contradictory. That which is most favorable to the appellee consists of certain vague expressions, loose and casual observations, used by Wright in conversations said to have taken place many years before, to the effect that he intended to pay Pucket out of his land, or that it would all be Packet’s some day, and expressions of a like character. Nor was there any proof that there was a delivery of possession of any part of the land to Pucket. The land claimed, enclosed on the east side of the creek, was in the joint possession of Wright and Pucket, used by them in common, and according to Pucket’s statement in his bill setting out the agreement, Wright was “to retain possession and control of all the land during his life;” and there was nothing in the evidence to show that the possession of Pucket was, at any time, adverse to or inconsistent with the possession of Wright.

There was clearly not such part performance as would *take the case out of the operation of the statute of frauds.

Nor has there been in this case such part performance as cannot be compensated in damages. There was nothing in the situation of the appellee to prevent his.recovering, in a suit at law, full indemnity and compensation for the services he rendered to the appellant’s intestate; and that was his plain and adequate remedy. The tendency of all the modern cases, both in England and in this country, is to prefer giving the party compensation in damages, instead of a specific performance. Wherever damages will answer the purpose of indemnity, this alternative will be preferred, as it will equally satisfy justice, and will be coincident with the provisions and in support of the authority of the statute.

I am, therefore, of opinion that no cause has been shown for specific execution, and that the decree of the Circuit court ought to be reversed and the plaintiff’s bill dismissed.

The other judges concurred in the opinion of Christian, J.

Decree reversed.  