
    William N. Bartlett v. Edward Bartlett.
    
      ;Statute of frauds — Parol agreement for sale of lands — Part performdnce — Summary proceedings.
    
    In summary proceedings to recover the possession of lands, instituted by the holder of the legal title, the defendant cannot set up as a defense a verbal agreement made by him with the owner for the purchase of the land, coupled with evidence of part performance on his part, his remedy, if he has any, being in equity.
    Error to Jackson. (Peck, J.)
    Argued October 24, 1894.
    Decided December 22, 1894.
    Summary proceedings to recover the possession of land. Defendant brings error.
    Affirmed.
    The facts are stated in the opinion.
    
      L. B. Tompkins (Herbert H. Winsor, of counsel), for appellant.
    
      Barkworth & Blair, for complainant.
   Long, J.

This action was commenced before a circuit court commissioner, under the provisions of How. Stat. § 8395, relative to summary proceedings for the recovery of lands. The trial resulted in favor of complainant. The cause was appealed to the circuit, and, after a full hearing, that court directed a verdict in favor of complainant.

The defense to the action was that, prior to the year 1881, the complainant owned the land in controversy. It consisted of a farm of 315 acres. The defendant, who is the son of the complainant, claims that during that year he was living with his father upon the farm, and at that time announced his intention of leaving and going west, when his father made the following arrangement with him; That he (the defendant) was to take the whole of the farm and work it, to have charge of and occupy the same, improve and fix it up, clear off certain land which was not cleared,, keep the stone drawn off, and furnish the complainant and his wife a home and a comfortable support on the-farm; that the expense of running t;he farm was to be-first paid off the farm before anything else; that the families of both were to have their living and support and such reasonable amount of money as was necessary forth eir personal expenses out of the proceeds of the farm;, that the debts were then to be paid, consisting of a mortgage of $3,500, then on the north 96 acres; that, when such debts were paid, complainant was to execute to defendant a good and sufficient deed of the north 96 acres of the farm, and that the defendant was to have the possession of said farm until such debts were fully paid; that this indebtedness was in the year'1883, by mutual consent, increased $1,000, to raise money to build a barn; that the-barn was built, but not upon the 96 acres, at a cost of' $1,350. The defendant went into possession of the farm under his claimed agreement; and he claims to have carried out, so far as he could, the terms of it, when, on Decernber 30, 1892, the complainant served him with a three months' written notice to quit. Claiming rights under this contract in the premises, he refused to surrender possession; and on September 1, 1893, this proceeding was commenced.

The court below, in directing the verdict in favor of complainant, stated that this agreement, as claimed by defendant, was too indefinite and uncertain to be enforced. This was the point upon which the case was ruled below, and the brief of counsel for defendant is devoted almost entirely to that subject. We think that question has no bearing upon the rights of the parties, as such contract cannot be set up as a defense to this action. The complainant, on December 30, 1892, gave the defendant a three months' written notice to quit, and, in the following September, commenced this proceeding. The legal title is in complainant. He has never made any agreement in writing to convey. The whole defense rests upon the oral contract set forth. It is claimed that the possession of the premises by the defendant under it, and its part performance by him, may be shown in this action as a complete defense. We think not. How. Stat. § 6181, provides:

“ Every contract for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void, unless the contract, or some note or memorandum thereof, be in writing, and signed by the party by whom the lease or sale is to be made, or by some per.son thereunto by him lawfully authorized by writing.''

But it is further provided in section 6183 that—

“Nothing in this chapter contained shall be construed to abridge the powers of the court of chancery to compel the specific performance of agreements in cases of part performance of such agreements."

By the terms of this statute, all contracts for the sale of lands or any interest in lands are void unless in writing, and signed by the party by whom the sale is to be made. or by some person thereunto by him lawfully authorized in writing. In an action-at law, an oral contract for such sale cannot be set up either as a ground of action or as a ■defense. In a note to Dwight v. Cutler, 3 Mich. 566, it is said:

“This language renders the oral contract as unavailable as a ground of defense as it is as a ground of action/'’

It is only by virtue of section 6183 that courts of chancery have compelled specific performance of such oral contracts; and it is held that even in a court of chancery, to authorize a decree for specific performance of a parol contract to convey, etc., there must be (1) a contract, the terms of which are so clear and complete as to allow of no reasonable doubt respecting the enforcement of it according to the understanding of the parties; (2) such acts of part performance as, according to equitable principles, will -justify its employment; (3) payment of purchase price. Kinyon v. Young, 44 Mich. 339. Though it is held that, where possession of the land has been given and ■ taken in pursuance of a verbal agreement, the part performance is sufficient to authorize a specific performance (Davis v. Strobridge, 44 Mich. 157), and it has been repeatedly held that giving and taking possession in pursuance of a verbal contract of sale, and making valuable improvements in reliance thereon, will constitute part performance and an equitable ground for specific performance (Lamb v. Hinman, 46 Mich. 112), yet all these cases where specific performance has been sought have arisen in equity, and no case can be found under such a statute as ours where it has been held that in an action at law such oral agreement can be set up as a defense against the legal title to defeat recovery of possession. We need not decide in this case what interpretation would be given to the oral contract, or the right of defendant to have it specific•ally enforced, if, in the proper forum, enforcement should be sought. All we hold is that in this action it cannot ■be set up as a defense.

Judgment is affirmed.

The other Justices concurred.  