
    George D. Sites v. Keller and Skinner.
    Upon parol contract for the sale of lands, mere payment of the consideration does not take the case out of the statute of frauds and perjuries.
    This cause was adjourned from the county of Hocking, upon the following state of case: The bill charges that the defendant, Keller, being possessed in fee of the northwestern quarter of section 25, town 14, range 16, on or about April 1, 1831, contracted with, ■complainant through the agency of one Jonas Criglow, who was thereunto duly authorized by complainant, *and for the [484 ■consideration of a certain stallion known by the name of “Paymaster,” which said stallion was there and then delivered by said •Criglow to the defendant, agreed to sell and convey complainant, by deed in fee simple, to be delivered to complainant within a reasonable time, the tract of land aforesaid. The complainant •confiding, etc., by his said agent bargained with the defendant, and agreed to give and deliver said stallion to him for the consideration of said land so to be conveyed as aforesaid, and did there and then by his said agent, in full performance of his part of said agreement, deliver said stallion as aforesaid to the defendant, who received said stallion in full of the price and consideration of said land.
    That said defendant (as complainant is informed and charges) after said contract was made, and with a view to the performance thereof executed a deed for said tract of land to complainant, and delivered the same to one Daniel Skinner to be by him delivered to complainant, but that said defendant, at the time he delivered said deed to said Daniel, instructed him not to deliver it to complainant, unless he (complainant) would pay said Daniel for the use of defendant twenty-five dollars, which complainant avers he was in nowise bound to do the contract aforesaid. That said Daniel being thus limited has not yet delivered said deed, but refuses so to do, unless complainant will pay the twenty-five dollars. That a reasonable time has expired for the performance of said contract by the defendant, but that he has wholly neglected, and now refuses to perform the same.
    That defendant Keller, further intending, etc., has recently bargained with the defendant, Skinner, and agreed to convey said tract of land to him. That such conveyance is not yet made, and that said Skinner has not paid to said Keller any part of the purchase money by him agreed to be paid for said land, and that said Skinner has full notice of complainant’s equitable right in the premises.
    Prayer for process against the defendants for a specific performance by Keller of his contract with complainant, and for general relief.
    The defendant, Keller, plead, that neither he, nor any person by him lawfully authorized, did ever make or sign any contract or agreement in writing, for making or executing any deed or other conveyance to said complainant of said tract of land or any part thereof, or to any such effect, as by the bill is suggested, or 485] any note or memorandum thereof in writing, etc. *And that he did never execute a deed, and deliver the same to ono Daniel Skinner, to be by him delivered to the said complainant, with a view to the performance of said pretended contract; but with a view if practicable of disposing of said tract of land on terms, upon a consideration yet to be fulfilled and complied with, and in such event to be delivered, otherwise of no validity, etc.
    The case came before the court for hearing on the bill and plea.
    Hunter, for complainants:
    Upon the state of the pleadings now presented to the court, the distinct and only question is, whether “ full payment of the purchase money is a sufficient part performance of a parol contract for the sale and conveyance of lands, to take it out of the statute of frauds.”
    W e have not been able to find any case in England or America, in which this question has been presented, except a case referred to in Freeman, 281, decided by Lord Nottingham. Frequent references are made to this case, but the one stating the point decided most distinctly is in a note (1 Sch. & Lef. 40), where it is said to have been decided by Lord Nottingham, “when the purchase money was paid, and the deeds refused to be sealed, that they should be sealed.” All of the cases on this subject in England, in which there would seem to be much conflict of opinion, have been cases in which part only of the purchase money has been paid. And although there is undoubtedly a difference of opinion to be found in the cases, it is yet quite obvious that the weight of authority is in favor of the position, that payment of a substantial part of the purchase money will take a case out of the statute.
    In the note above referred to, 1 Sell. & Lef. 40, New York edition of 1808, the authorities on both sides are stated. Opposed to the position that payment will take a case out of the statute, are the following cases,, viz : Seagood v. Meale, Prec. Chan. 560; Lord Fingal (or Pengal) v. Ross, 2 Eq. Cas. Ab. 48, and what is said arguendo in Coles v. Trecathic, 9 Ves. jr. 242, to which list may be added the case of Clinan v. Cooke, 1 Sch. & Lef. 40. On looking into these eases it will be seen the part payment relied upon has been but *an inconsiderable sum. In the first case, Sea- [486 good v. Meale, the payment was one guinea.
    The cases referred to on the other side aro Lacon v. Morton, 3 Atk. 1; Main v. Melbourn, 4 Ves. jr. 720, and Buckmaster v. Harrop, 7 Ves. jr. 341. In truth, the case of Main v. Melbourn should perhaps have been enumerated with them in support of the other side of the proposition, as the decree in the case was against the relief, on the ground that the part payment relied'upon, being only •five per cent, of the purchase money, was too insignificant a part. But it was proper at the same time to be referred to, as an authority in support of the other position, that payment of a sub■stantial part does not lay the foundation for relief. The language of the chancellor is strong and decided that way. He says: “ Payment of part of the purchase money is certainly a part perforiu•ance; but this five percent, is mere earnest.” And, again, he says: “ It is not disputed that if part of the purchase money substantially is paid, that it takes it out of the statute,” etc. This case was decided in 1799, and is the last of note before the case of Clinan v. Cooke, decided by Lord Redesdale, in 1802. There are many other cases touching this point besides those referred to in the cases above cited, most of which, ho wever, are cited in those cases. And although it is said by Lord Redesdale, in the case of¡ Clinan v. Cooke, that “it has always been considered that payment of money is not to be deemed part of performance to take a case out of the statute,” it must be manifest his lordship was, in some degree, in error in that particular. That, in fact, at the time he made the remark, the weight of authority was clearly the other way, except in cases where the part payment was of an inconsiderable sum. Indeed, the only case referred to by his lordship, in support of the position, is that of Seagood v. Meale, in which the sum paid was only one guinea. It is true, after this decision by Lord Redesdale, it was looked upon as in some measure settling the question. It was so viewed by Mr. Sugden, in his treatise on Yendors and Purchasers. But no such sanction has ever been given judicially so far as can be ascertained.
    The case of Lacon v. Morton, above cited, was a parol contract to convey lands in consideration of three hundred pounds, two-thirds of which was paid in hand. By accident the estate became more valuable after the contract, and the vendor agreed to pay one hundred and forty pounds more. The case was held to be 487] out of the statute. And in *case of Child v. Comber, 3 Swans. 427, payment of counsel fees, drawing drafts and engrossing them, and preparing purchase money was holden to take the case out of the statute. This case is long subsequent to that of Clinan v. Cooke, and may be considered as overruling it.
    
      W. W. Irwin, for defendants:
    Section 5 of the act for the prevention of frauds and perjuries, provides that no action shall be brought whereby to charge the defendant upon any contract for the sale of lands, tenements, hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within one year from the-making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be changed therewith, or some other person thereunto by him or her lawfully authorized.
    In Great Britain, after the passage of the act of that country for the prevention of frauds and perjuries, it became a question, whether the part payment would take a case out of the statute ; and if so, what sum would suffice for that purpose. The subject underwent much discussion, and there are contradictory decisions; but it seems to be now settled that payment of the whole of the purchase money will not give validity to a parol agreement in relation to lands.
    Sugden, in his treatise of the Law of Yendors, page 80, after giving a view of the decided cases, says, “ that since the above observations were written, a decision of Lord Redesdale has appeared, in which he held clearly that payment of the purchase money is not a part performance, and although his lordship did not advert to all the cases on the subject, yet it is sincerely hoped that his decision will put the point at rest.”
    The reason assigned by the chancellor why payment will not take a case out of the statute is, that the statute has said that in another case, viz : with respect to goods, it shall operate as a part performance. And the courts have heretofore considered this as excluding agreements for lands, because it is to be inferred that when the legislature said it should bind in case of goods, and were silent as to lands, they meant that it should not bind in case of lands.
    *This process of reasoning is resorted to by the chancellor, [488 for the purpose of arriving at the intention of the legislature, and having found it, he refuses to depart from it.
    By our statute, the agreement is declared to be inoperative, unless it be reduced to writing, and signed by the party to be charged. If the legislature intended to exclude contracts, where payment' or part payment of the purchase had been made, from the operation of the statute, it certainly would have been so expressed. The design of the legislature was to prevent litigation, by rendering certain all contracts relating to land. Indeed, it may be said to be vitally important to the well being of society, to reduce disputes in relation to land titles to the smallest possible number. Will this be effected by the exclusion of this great class of cases from the provision of the act? Can any one for a moment suppose that such was the intention of the legislature.
    In the case of Phelps v. Thompson, 1 Johns. Ch. 146, it is asserted, by the chancellor, that unless the plaintiff his clearly established the contract, as charged, and also a part performance of the same contract, he has not entitled himself to the relief sought. This opinion shows the propriety of- considering the plea in connection with the answer, and is here referred to for that purpose. '
    In the course of his remarks in that case, Chancellor Kent observes, “ that (that) case, like many others, shows the utility of the statute of frauds, and the danger of relaxing the sanction of its provisions. I agree with those learned judges,” said the chancellor, “ who have declaimed that ‘ the courts ought to make a stand against any further encroachment upon the statute, and not to go one step beyond the rules and precedents already established.’ ”
    So far as I have examined the subject, it is to prevent fraud that parol agreements in relation to lands, partly performed, have been specifically decreed. When payment of the purchase money is all that has been done, then it can be recovered as in other cases when there has been a failure of consideration. But when the purchaser has taken possession, and made improvements with the knowledge and assent of the vendor, it presents a very different case. To compensate him would require an estimate of his time and expenses in taking possession ; the value of the improvements, and also an estimate of the losses and inconveniences he 489] would be put to in breaking *up his settlement and seeking a new home. The fact of the vendor’s looking on, and seeing improvements made, when he intended to avoid the agreement, amounts to a fraud, and it is upon that ground that relief ought to be afforded, and not on a strained construction of the act in search after the intention of the legislature, which neither reason nor common sense will warrant.
    The positions here assumed are fully warranted by the decision of this court in the case of Wilber v. Paine, 1 Ohio, 254. The court say, it has been repeatedly decided by them that part performance may take a case out of the statute, and although the policy of such exceptions have been questioned, they were induced to believe that if admitted with caution, they might have a salutary tendency in preventing fraud. The court further say, that no case had been decided by them from which any general rule could be inferred as to the description of part performance that would take the agreement out of the statute. The court also assert, that it has been settled in England, that payment of money alone will not do it.
    From the most attentive perusal of this case, I can see nothing to warrant the.belief that the court intended to'lay down any rule that would enlarge the class of cases that should be exempt from the provisions of the statute. So far from this being the case, the reasoning of the court has satisfied'me that it was not their intention to go farther than was absolutely necessary to prevent just the same kind of frauds that have given rise to the equity jurisdiction of this subject.
   Judge Lane

delivered the opinion of the court:

This case fairly raises the question, whether the payment of consideration, in an agreement for the sale of lands, removes it from the operation of the statute of frauds. The statute was probably intended by its makers to take away the right of action upon every executory parol agreement. But it was immediately found, that by this strict construction, a law intended to prevent fraud became the instrument to effect it. Whenever a denial of relief in equity would produce the evils which the statute was enacted to suppress, it became necessary to sustain the validity of the agreement, although not in writing. Whenever an agreement has been partly performed, and the terms of it are confessed, or ■are satisfactorily found, i-t will be enforced *notwithstand- [490 ing the statute. Acts of part execution to be attended by this ■consequence must be of the substance of the agreement, or such that the party executing “ would suffer an injury amounting to fraud” by the refusal. Possession taken and improvements made are acts of this kind. Whether the payment of the part or the whole of the purchase money produces this effect, has been the subject of contradictory adjudication. The cases are cited in the elementary books. 1 Mad. 381. The earlier decisions admit the ■dectrine; but is doubted or denied by all the later opinions, and the law is summed up in 1 Dane, 248, “ on the whole it appears, though not clearly, that merely paying purchase money does nob take the case out of the statute.” A good foundation subsists for this distinction. After such acts of performance as possession or improvements, to rescind the contract would not restore the parties to their original situation ; but full compensation for the payment of the purchase money is made by the restoration .of principal and interest.

Plea sustained. Bill dismissed without prejudice to his rights at law.  