
    GEORGE A. ARMES v. OTIS BIGELOW.
    Equity. —
    No. 5319.
    Where a parol contract for the exchange of lands is clearly established by the evidence, and has been fully performed by the complainant, a court of equity will compel the defendant to execute the part of such contract which still remains executory.
    STATEMENT OR THE CASE.
    The bill was filed January 29, 1877, to compel the specific performance of a contract for exchange of real estate, and alleges, substantially, that on November 22, 1876, the plaintiff owned house number 1252 Eighth street northwest, subject to an incumbrance of $2,000, and agreed to convey it, subject to the incumbrance, to said Otis Bigelow ; that Bigelow agreed to .give him therefor house number 1138 Delaware avenue northeast, described as lot 14 in square 712, a farm in Virginia, described, and $525 in money; that a pencil memorandum was made, signed by the plaintiff' and said Otis Bigelow, showing the terms of the contract, except the description of the land, and for description of defendant’s property he gave plaintiff old title deeds; that plaintiff subsequently returned this old deed of the farm to enable defendant to make the proper description in the conveyance he was preparing, and it is now in bis (defendant’s) possession, but said old deed to the Delaware-avenue property is still in plaintiff’s possession; that on November 24, 1876, plaintiff', pursuant to said agreement, conveyed said house number 1252 Eighth street to said defendant, and delivered the deed, and was put in possession of the Delaware-avenue house; that on the 24th and 251 h of November, 1876, defendant paid the plaintiff several sums of money aggregating $505, as part of the consideration for said property; that defendant prepared deeds conveying said farm and said property on Delaware avenue to plaintiff, but did not execute them, naming in the deed for the house $1,500 and in the deed for the farm $1,000 as thé consideration; that plaintiff has fully performed his part of said agreement, but defendant has failed to perform Ms part, except the payment of $505 and giving possession of said property on Delaware avenue; that said memorandum was intrusted to the care of the defendant; that he tore it up, and plaintiff charges that it was so torn to hinder and defraud hiru of his rights in the premises.
    Defendant is interrogated as to whether he did or did not give plaintiff said old title deeds as descriptive of said farm and said Delaware-avenue property, and whether he has the deeds of the farm now in his possession or control.
    Prays specific performance of the contract and for an injunction ; that defendant be compelled to make deeds of conveyance of the property on Delaware avenue and the farm in Virginia, or, in default thereof, for compensation; that defendant be directed to deliver into the clerk’s office any and all the old title deeds he had delivered to plaintiff, as stated in the bill, &c.; that necessary accounts be taken, and for general relief.
    The answer of Otis Bigelow, filed February 6,1877, states, substantial^, as follows:
    About the middle of November, 1876, defendant told plaiutiff he bad several small pieces of real estate he would like to exchange for a large one, and showed him at least two houses for that purpose, and showed papers describing other property. Afterwards, on November 22, 1876, plaintiff' desired defendant to enter into an agreement in writing for an exchange, and defendant refused, saying if plaintiff would examine defendant’s property, and give time to examine plaintiff’s property, he would give plaintiff a fair and equitable exchange. Before leaving, plaintiff wrote on a scrap of paper, which is presented to the court, the following: “Nov. 21,1876. — I promise to give my house on Eighth street, subject to $2,000, for one house on Delaware avenue and a farm in Fairfax county, Virginia; said house to be put in good repairs and condition, or $650 cash,” and handed the same to the defendant, who, regarding it as a very indifferent proposal, threw it under his counter; that'this defendant utterly refused to make an agreement otherwise than to say, “Let us take time and make a fair trade.” Denies that he gave plaintiff possession of said premises on Delaware avenue under said agreement.
    On November 24,1876, he loaned plaintiff $5. Afterwards plaintiff besought him for an advance of five or six hundred dollars in anticipation of a possible trade. Defendant did afterwards, upon delivery of a deed in fee to him of house number 1252 Eighth street, as security for the same, loan plaintiff' $500, and though he requested defendant not to record the deed, defendant said he would record it to defend himself. Denies that he accepted said deed except as security, and has ever been willing to reconvey on payment of the loan. Did prepare certain deeds with the view of an exchange with the plaintiff, but they -were not to be executed or delivered until said trade was consummated. Denies said pretended agreement as alleged. He did tear up said pencil memorandum and throw it into the waste-basket. Denies any intention to hinder or defraud plaintiff. Answering interrogatory, says all that took place in reference to the old deeds was to enable plaintiff to examine the property with a view to a sale; and he has them under his control, he thinks.
    The parties were both examined as witnesses in the case. The complainant substantially made the same statements as in his bill, accompanied with details as to where the agreement was made, and that his brother, Charles H. Armes, was present at the conversation and heard the bargain.
    In relation to the agreement he testifies:
    “After discussing an hour or two in the back room of the bank, Bigelow agreed to give me for my Eighth-street house the farm and the Delaware-avenue house, and assume the incumbrance on my Eighth-street house, pay me $500 cash, and repair the house. When that was settled he went behind the couuter, and I remarked that we had better have a memorandum in writing; he said no, it was unnecessary. There was then some discussion as to whether he would allow a certain sum of money instead of repairs. I then took a pencil and wrote as follows, as near as I can remember:
    “ ‘I propose to give my house on Eighth street, subject to an incumbrance of $2,000, for your house on Delaware avenue and your farm in Virginia and $500 cash, and you allow me $150 for repairs on the Delaware-avenue house.’
    “He declined, and scratched out mine and put in $25 for repairs. Both signed it, my brother being present at the time, who read it and handed it over to Mr. Bigelow, saying he might as well keep it. I told him I would get an abstract from Mr. Morsell, and Bigelow said he would have one made of the Delaware-avenue property by Mr. Woodward, and would give me a certificate that the farm was all clear, and a warranty deed as soon as his wife returned to the city. He obtained his abstract from Mr. Woodward the next day, I think.
    “ Gave Bigelow deed of Eighth-street house November 24, 1876, executed by myself and wife, and told him not to record it until his wife returned; at the same time asked him for $400, as I had a note in bank due, and he gave me the $400, ordering at the same time his clerk to make out the deeds of his property to me, which, he stated, would be handed to me immediately on his wife’s return to the city. The next day I called in and asked him if he could spare another $100. He at once handed it to me, stating that he had completed m37 deeds, and everything was ready for his wife’s signature, and handed me back the deeds to the farm and house on Delaware avenue. These deeds were in an envelope, marked ‘ Colonel Armes’s papers.’ About ten days later he asked me for the deeds to the farm; said he wanted to make some corrections. I let him have them.
    “About the 11th of December I asked him for the money to repair the house. He said, ‘I will give you an order on the former tenant, who owes me nearly $50 back rent,’ and that I could have the balance. Exhibit A is the order. I was unable to get the money from the party the order was on, as he said he did not owe it. I gave Bigelow no note or memorandum for the money he gave me, and nothing was said about a note or ever refunding any of said money. Had no other property on Eighth street than number 1252. Bigelow gave me the $500 as payment of difference in the exchange of the property — the farm in Virginia and the house on Delaware avenue for the Eighth-street house. Of the $525 which he agreed to give, I have received $505 in cash. The $5 was given the day the abstract was given. I conveyed to Bigelow in pursuance of the agreement. When I got the $400 ‘there was nothing said in regard to any loan whatever. But as I had some money to pay out and his deeds were not ready to be delivered to me, I asked him to let me have the $500 at once; that $400 would do now, and I would call in to-morrow for the other hundred, and handed him my deed, stating he could have the deed in his possession, provided he would not have it recorded until his wife returned; and it was understood at the time between us both that the exchange of property was made, and that I should have the deeds for the farm and the house upon the arrival of Mrs. Bigelow.’ By the delivery of deed for Eighth-street house, I meant ‘that, as it was his property and the trade closed, he was entitled to it, and only trusted to his honor as to the delivery of his deeds.’ I entered upon possession of the Delaware-avenue property in acceptance of part of the property, ‘ and he gave me the key of the house, which I advertised for rent as my property. He gave me the bey and the old deed at the same time.’ I repaired the house. Nothing was said about a loan when I got the $100.”
    Charles H. Armes testified as follows:
    “ On 22d of November, 1876, went with plaintiff to defendant’s office. Bigelow said he would give $500 and the house on Delaware avenue and the farm in Fairfax county, Virginia, for the plaintiff’s house on Eighth street in this city, aud assume the incumbrance of $2,000 on the Eighth-street house. Plaintiff agreed to take it, and suggested making a written memorandum. Defendant said, ‘There is no use of any writings; I will do as I say.’ Plaintiff in the meantime commenced writing. While writing, a discussion arose as to repairs on the Delaware-avenue house; the plaintiff wanted $150 cash instead of repairs, and put that sum in the memorandum; but Bigelow agreed ouly to allow $25 for repairs. The plaintiff then drew his pencil through what he had written about $150 for repairs, so that the writing when signed was as follows: ‘November 22,1876. — I propose to give my house on Eighth street, subject to $2,000, for one house on Delaware avenue and one farm in Fairfax county, Virginia, and $525 in cash.’ This was signed by the plaintiff and handed to the defendant, Otis Bigelow, who, after reading it,’ w'rote upon it the word ‘accepted,’ and signed his name to it. It was agreed that the $25 should be allowed as repairs, and nothing more should he said about repairs, and each party to do his own repairs.
    “I hold the incumbrance on the Eighth-street house as attorney for the owner. The interest is payable semi-annually — January 1 and July 1. The notes were then and now long overdue. Bigelow paid $100 interest on the notes a few days before January 1, and said he could pay the principal almost any time, but would like thirty or more days’ notice. He then agreed to pa} the principal in the following February. On January 27, 1877, Bigelow said he tore up the memorandum and threw it into the waste-basket, but that the pieces might then be in the waste-basket; it had not been emptied.
    “Early in January Bigelow told me he had made out one of the deeds on a form that was signed in blank by his wife, but that, thinking such deed illegal, he had torn it up and had another made out.”
    John Cajay testified as follows:
    “The plaintiff came to me and asked about some back rent. I told him I did not owe any. I then wrote a note to Mr. Bigelow and sent it by a boy. Getting no reply, I went in the afternoon to see Mr. Bigelow and asked him about it, and he told me he had sold the house to Mr. Armes, and that the back rent he (Mr. Armes) was entitled to as a part of the transaction. I told him I did not owe any rent; that I paid it to Mr. Merrimau. Can’t say definitely how long this was after I moved out of the house. It was some time afterwards — perhaps a couple of months or so.”
    Otis Bigelow, on his direct examination, testified that “ the conversation between him and plaintiff was only with a view to a trade; that there was no trade made; that C. II. Armes was not present when Exhibit No. 1 was drawn; that the money handed plaintiff was a loan, and the deed of the Eighth-street property was given defendant.as security; gave plaintiff possession of the Delaware-avenue property as agent to rent it; never gave it as owner.”
    On the hearing of the cause, the court below dismissed the bill, and from that decree the complainant has taken the present appeal.
    
      Charles H. Armes and R. H. Thayer, for complainant.
    When a parol agreement for the exchange of lands is completely executed on the part of A by his conveying the land contracted for to B, this takes the case out of the statute of frauds of Virginia. (Carrington v. Caldwell, 9 Peters, 86, cited and approved in 5 Otto, 458.) Such part performance is shown.
    It is confidently submitted that the facts show part performance as, under the decisions in Purcell v. Minor, 4 Wall., 517, and Williams v. Morris, 95 U. S. R.., 444, will entitle the plaintiff to a full and specific performance.
    
      The contract and its terms were definite, clear, and conclusive. The plaintiff has so performed his contract that it would be a fraud on him to rescind it. The possession by each party loas not scramblin j or litigious, but was peaceable and ivas acquiesced in, and it is impossible for the plaintiff to recover back the Eighth-street house, or damages. The case is strikingly like the case in Tilton v. Tilton, 9 N. H., 386, where specific performance was decreed.
    
      S. S. Henkle, for defendant Otis Bigelow,
    cited in his brief the four rules laid down by the Supreme Court in the case of Purcell v. Minor, 4 Wall., 513, as essential considerations to enable a court of equity to specifically enforce a parol contract respecting lands, viz.: 1st. Clear, definite, and conclusive proof; 2d. Payment or tender of the consideration; 3d. Such a part performance that the rescission would he a fraud on the other party, and could not be fully compensated by a recovery of damages in a court of law; 4th. There must have been delivery of possession made in pursuance of the contract and acquiesced in by the other party. The counsel discussed each of these points with reference to this testimony.
   Cartter, Ch. J.,

delivered the opinion of the court orally, in substance i s follows:

All the judges who heard this cause are of opinion that the complainant has made out a case which- entitles him to relief. The memorandum of an agreement prepared by one of the parties at the time of the alleged bargain, and signed by both, wouiu be complete in its technical form if it identified the property to be given by the defendant in the contemplated exchange. Perhaps it is fair to consider this deficiency supplied by the deed containing a full description of the property on Delaware avenue, which Bigelow delivered to the complainant, in order to define the property which he proposed to convey; and the same remark is equally true in regard to the farm in Fairfax county, Virginia, a title deed of which had also been delivered to complainant for the same purpose.

The memorandum is in some degree informal as to the defendant’s property, for it contains no description by which it can be identified ; but if, in connection with the memorandum, the title deeds were delivered up as containing a full and complete description of the property offered in the bargain, is not that equivalent to a fuller memorandum ? One party says: “ I propose to let you have the house and lot in which I reside, on Eighth street, in this city,” and makes out a deed and delivers it. The other party, in return, proposes to give a house and lot on Delaware avenue and a farm in Fairfax county, Virginia, and furnishes his titles to both, for the purpose of describing what he proposes to sell or give in exchange. This proceeding leaves nothing, in fact, vague or indefinite between the parties. But if this is at all questionable, we are still unanimously of opinion that the contract for the exchange of land by parol is clearly made out by the testimony, and that it has been performed on the part of the complainant. Aside from the testimony of the complainant and his witnesses, the acts of the parties afford convincing proof of this. The complainant made out a deed of his house and lot on Eighth street, which he delivered to Bigelow in fee-simple, which the latter puts on record. It is true he says he had it recorded as a security for the $525 which he had advanced on account of the trade, and he asserts it was a loan. In the agreement this sum was to be paid, $25 of it to be for repairs on the Delaware-avenue property. Not a word was said about this being a loan at the time of the advance. The money was paid on two distinct occasions. The money for repairs was drawn upon a tenant, by a written order from Bigelow, and the tenant was informed, in writing, that Armes had purchased the property, and afterwards he was informed verbally to the same effect, by Bigelow himself. Indeed, there was not a solitary badge that this money was advanced as a loan. No note was given or spoken of; no period of payment was stipulated for; no interest provided for, and no repayment in any manner proposed. It was not a loan, for the simple reason that it was advanced as paid payment, in pursuance of the agreement, to make an exchange of lands. Bigelow went into possession of the house and lot on Eighth street, and has ever since continuously rented the same for his own use. The agreement has thus been wholly performed on the part of the complainant. Simultaneous with these acts the complainant took possession of the house and lot on Delaware avenue, repaired it, and offered it for rent, not as an agent, but exclusively in his own right. And it was at this time that Bigelow informed one of the-witnesses that he had sold the property to Armes. It is also in evidence that a deed in fee-simple was prepared by Bigelow, and was not fully executed by reason of the absence of his wife from the city. He has made no tender back of the title he has received, nor of the possession of the house on Eighth street, but he holds on to all he has received, and asks the court to excuse him from rendering in return what he promised to give.

The equity appears to us to be very clearly with complainant. Conceding that the agreement was entirely verbal, and therefore within the statute of frauds, yet it has been wholly performed by the complainant; and it is-now too late for Bigelow to repudiate it, and he is bound to perform what remains executory. A decree will be made compelling him to do so.

Mr. Justice MacArthur :

I am rather of opinion that it will be necessary in this case to refer to the testimony for the purpose of ascertaining the circumstance of a parol agreement. The memorandum does not sufficiently describe the subject-matter of the contract to take it out of the operation of the statute of frauds. “I propose to give my house on Eighth street, subject to $2,000,” is so described that it can be identified by reference to the circumstance that it is the only house of the party on that street. But a “ house on Delaware avenue and a farm in Fairfax county, Virginia,” is not such a description of property as identifies it otherwise than as being located in a certain county of a.neighboring State, or on one of the avenues in this city. It does not import any particular piece or parcel of real estate that is bargained for. It does not appear what land is embraced in the agreement, and it is, therefore, too vague and uncertain, either to be the basis of a conveyance or a decree. I am, however, quite clear that the evidence leaves no doubt of a parol agreement, and that the property which was the subject of the trade was'pointed out, and that each party knew of whát it consisted, and where it was situated. It is in this connection that the deed relating to the farm in Fairfax county, Virginia, can be used with effect, as containing a description of the precise piece or parcel of land which w'as included in the sale or exchange; and the deed of the house and lot on Delaware avenue is available for the same purpose. There could be no mistake as to the property to be sold according to the terms of the verbal contract. Bigelow denies the agreement, and he undertakes to contradict two witnesses — the party who files the bill and another who was present and heard the conversation, and who states the terms of the agreement distinctly and clearly. On that occasion a memorandum was made and signed by both parties. It was afterwards destroyed by Bigelow without the knowledge of the complainant, and a circumstance of this kind raises a suspicion unfavorable to his good faith; so that he is not only contradicted by witnesses, but by his own signature. There can be no doubt of the agreement. It is unnecessary to refer to all the testimony on this branch of the ease, as the chief justice has pointed it out. The conduct of the parties immediately afterwards cannot be reasonably refen*ed to any other cause. It has been performed by one of the parties, and Bigelow has received, and is now in possession of, plaintiff’s property, and proposes to keep it indefinitely. It is now too late for him to rely upon the statute of frauds; for a court 'of equity, notwithstanding that statute, will compel him to execute one conveyance after having obtained another to himself under this very agreement. It is a rule of equity, that where there is a parol agreement, by which parties thereto agree to convey lands to each other, and one of them has acquired the legal title to the lands of the other, and holds and uses the same as his own, a court of equity will compel him to perform the agreement, although it was not reduced to writing. On this principle I rest the decision of this ease, and I think that all the stringent requirements prescribed by the decision in Purcell v. Minor, 4 Wall., 513, find their complete fulfillment in the facts and testimony of this cause.

1 concur in the judgment of the court, that Bigelow should be compelled to perform.  