
    Hezekiah Thomson v. William Scott and John Bostick et al.
    A testator must have a legal or equitable title in lands devised at the execution of the will.
    
      William Scott died in January i&S&fseised and pos- ” sessed of several tracts of land set forth in the bill and answer. He left neither wife nor child, but several sisters, of whom complainant, Thomson, married one, and the following nephews and nieces, children of his deceased brother Samuel Scott, his heirs a£ law : to wit, Joseph Scott, William, John, Samuel, Jarnos, Sarah, Mary and Jane Scott. The bill was filed for partition of the above lands, to which William Scott acquired a legal title after the date of his will. Partition of these lands was not resisted by the defendants, except of the tract conveyed to William Scott by William Watts, as to which the following facts were proved. In February 1820 the testator purchased this tract' from Watts, and received possession; but no titles were executed at the time. The testator put John Bostick in possession as his tenant. In June 1820 the testator executed his last will and testament, by which, after giving some pecuniary legacies to his sisters, he devised the whole of his estate, real and personal, to his nephews and nieces above named. On the 24th of November 1820 William Watts executed titles for the lands in question to the testator.
    In what cases the Court will decree a specific performance of a contract to', buy lands. '
    Feb.' 1825.
    The complainant contended, that the testator was not seised of the Watts’ tract at the date of his will, and that the same did not pass under it, but was subject to partition among his heirs at law.
    
      Isham Woodward, the only witness examined, said that Scott took possession immediately after the 7th of February 1820. He rented it out, the same year, 1820, in February or March, to John Bostick ; and he knew that Bostick made a crop on it that year.
    1825.
    
      Columbia.
    
    Thompson, Chancellor.
    The bill charges that the late William Scott made his will on the 28th of June 1820. That subsequently to the execution of his will he purchased several tracts of land, all of which, the defendants admit, are liable to distribution, except one tract of six hundred acres purchased of Thomas Watts. Wood-war^ a witness on this part of the case, states that Wil-Ham Scott purchased the land of' Thomas Watts prior to the 20th of February 1820; that John Bostick pur-4 chased for Scott, but he does not know why a deed was not made for it at the time of the purchase. Titles were not executed, however, until about the 24th of November 1820. The defendants resist the partition of this tract of land, contending that this tract was purchased previously to making the will, but it no where appears that the contract made between Bostick and Watts was ever reduced to writing until the making of the titles in November 1820. This conveyance must be considered as the only evidence of the purchase. It is therefore ordered and decreed that a writ of partition do issue, to be directed to--, to'divide the said tract of land, as well as the other tracts mentioned in the answer, between and among the several parties in the will named, according to their several rights and ■interests,
    29 April 1825’
    A motion was now made to reverse the decree of the Chancellor, on the ground that as the purchaser had taken possession, it was such an execution of the contract as gave him an equitable title, and therefore the land passed under the residuary clause of the will.
    
      W. F. Be Saussure, for the appellants.
    The • heirs at law of William Scott seek partition of several tracts of land acquired by the testator after the making of his will; and, among others,.of a tract which he had contracted to purchase, had received possession of and rented out, anterior to the execution of his will. Some of the defendants, who are gpneral residuary legatees of the testator, resist the partition of the last tract among all the heirs at law, upon the ground that the testator had a devisable interest therein, and that it passed to them under the general residuary clause. The testator might have enforced specific performance. Possession given and received, in reference to a contract, is sufficient part performance. It has been denied, that * 1 . n payment of the purchase money is part pertormance, but where possession has been given and received in pursuance of the contract, it has always been deemed part performance. Clinan v. Cook, 1 Scho. & Lefr. 41, and Foxcraft v. IAster there cited.
    . The rule stated most strongly against the legatees amounts to this, “ That no act shall be considered such a part performance as will take the case out of the statute, but one which would render a refusal to perform on the other side a fraud.” Apply the rule to this case. If the seller denies that a contract is made, Scott becomes a trespasser. He received possession, and leased out the land, acting upon the faith of the contract, and-the lessee, upon eviction, would have a right to sue him. Ambler, 586. If the testator could have enforced specific performance at the date of his will, had he a devisable interest1?
    In Roberts on Wills, 296, it'is said, the testator must be seised in fee. The word “ having” in the English statute is so construed ; but if the land would descend to the heirs, no disposition being made by will, it is surely subject to be devised by the testator. The one is the disposition of the law, and the other of the party. To this effect are the later cases. Roe v. Jones, 1 H. Black. 30. And Lord Kenyon says, 3 T. R. 88, that “ having,” in the statute, means “ having an interest,” and that the distinction is between such a contingent interest and a mere possibility or hope of succession, as that of an heir from his ancestor ; between a bare possibility and a possibility coupled with an interest. Real estate, contracted for, is in the purchaser from the date of the contract, and is devisable. See Attorney General v. Vigors, 8 Yes. 256. Roberts on Wills, 297. And if the contract fails, the devisee shall have either money or land. 4 Bro. C. C. 31. He cited Cruger v. Heyward, 2 Desaus. Rep. 422, to shew that contingencies and remainders are devisable. Does not the title, which was executed after the date of the will, have relation back to the time of the contract, which was before *?
    The words of our statute are, “ any' person having right or title to any lands, tenements or hereditaments, &c. may dispose thereof by will.” Pub. Laws, 491. The testator had a right to the land, though he had not the title at the date of the will. These words do not mean the same thing, and effect must be given to every word.
    
      Stark, contra.
    
      Bostick was tenant of Watts. He purchased for Scott, and continued in possession under Scott. Watts had done no act in part performance. The title in the testator must be more than an equitable one, to be devisable. The act of 1789' says, any person having “right or title” using the words as synonymous. Under the English statute it must be a seisin. 1 Roberts on Wills. Bunter v. Cook, 1 Salk. 237. Brydges v. Chandos, 2 Ves. Jun. 427.
    
      Miller, on the same side.
    The statute of distributions of this state says, expressly, that real property acquired after making a will shall not pass. By the statute of frauds, all contracts for the sale of lands are void, unless in writing. A man cannot convey what he has not. A will is a common law conveyance. In this way, a residuary legatee might always defeat the heir at law; and a legal estate might thus be defeated by parol: No matter, whether it would have beenafraudin Watts, or whether Scott could have enforced performance or not. Parol evidence was not admissible against the heir at law.
    
      A testat0r haye.a áut^'execu-of the will,
    wi^th^ápa-i°! agreement for saie 0f lands, even executed^rtat equity would cific perform-“de^aMe*3™ interest >
    
    
      De Saussure in reply.
    Whatever evidence would have been admissible between the original parties was admissible between their representatives.
   Cuma, per

Nott, J.

That land acquired after the execution of a will does not pass under it is a position not denied by the defendants. It is conceded, on the other side, that lands to which a testator has only equitable title may be devised. Langford v. Pitt, 2 Wms, 630. M’Kinnon v. Thompson, 3 John. Cha. Rep. 307. So that the only question is, whether the testator 1 . - . . , TIT- • 1-such an equitable title to the land in question as qualified it to pass under the residuary clause of his will 1 By the statute of frauds it is declared, that no parol contract, for the sale of land, &c. shall convey any greater estate therein than an estate at will; nor shall any action be brought upon any agreement for the sale of lands, &c. unless the same be in writing, &c. But it is contended that, in equity, where a parol contract has been partly executed on one side, the performance of it, on the other, will be enforced. And that as the testator went into possession of the land in this case, it was such a part performance, on his part, as would have authorized him to compel a specific performance on the other side. And therefore he had such an equitable title as rendered the land capable of passing by devise. I do not know that it has ever been held that a parol agree-men t for the sale of land, even when it had been so far executed that a Court of Equity would decree a specific performance of it, would convey a devisable interest, Neither do I think it necessary to look into the question, as I do not consider this case as coming within the principle. I admit that it is now a settled equity doctrine, that when the parol contract is admitted or proved, and has been carried into execution, on one part, as far as the party claiming the benefit of it can carry it into effect, that a Court of Equity may compel a performance 0f ¡t on the other side. But this doctrine is directly in ^e ^ace °f statute of frauds, and ought not to be extended by judicial legislation. I concur in the opinions expressed by Lord Eldon and Lord Redesdale, that we ought not to go further on that subject than we are compelled by former decisions. Cooth v. Jackson, 6 Vesey, Jun. 37. Lyndsay v. Lynch, 2 Scho. & Lefr. 4. The ground upon which Courts of Equity thought themselves authorized to compel the performance of a parol contract for the sale of lands is, that the object of the statute was to prevent fraud, and. they would not give it such a construction as to enable a person to effect the very object which the statute was intended to prevent. The cases on this subject are somewhat contradictory, and do not appear to me to define, with the Prec's‘on which is desirable, the rule by which the Courts ought to be governed. But I think from the spirit of them, as far as they have come within my observation> the following requisites will be found necessary to authorize the interposition of a Court of Equity to compel a specific performance,

^ specific peí'-parol** contract for the sale of be clearly ve agreement was.

That it has carried ^into execution on with° the S'ap-’ Another of

who comesto formanceP6r" must shew that he has performed on tha/he’has been able and still was ready part^f0 the”8 contract.

That it must be clearly shewn what the agreement was.

2d. That it has been partly carried into execution on one side, with the approbation of the other. And

3d. That the party, who comes to compel a perform-anee, must shew that he has performed on his part, or ^at ^as keen, and still is, able and willing to perform his part of, the contract. 1 Maddock’s Ch. 377, ~ q

With regard to the first, we have only heard that a parol contract respecting the sale of the land had been made, but the terms of that contract we have not learn-e<^" We know not the price to have been given for the land, nor the terms of payment. We know not, ££ whether it was a lease for years, for life, or a fee.” With regard to the part execution of the contract, we must not be led away by the sound of words, without giving them some rational construction. By part execution must be understood that,by mutual consent, some part of the contract has been carried into efFect. Now it is proved, that the purchaser took possession ; but there is no evidence, that he was put into possession by the vendor, or that he went in by his consent. His entry, therefore, partook more of the nature of a trespass than a part execution of the contract. I admit that when a purchaser is suffered .to continue in possession, and to make improvements, with the knowledge of the vendor, consent may be inferred ; but the purchaser, in this case, was never in actual possession. It is said, he had a tenant there, who made one crop. Titles were afterwards made, but whether in pursuance of that contract or another does not appear.'

Part execution must be by mutual consent.

where a purchaser is suffered to continue in possession and to make improvements with the knowledge of the vendor, consent may be inferred.

It seems actual possession is necessary.

The Court acts upon the ground of fraud in refusing to perform, after performance by the other party.

He who asks equity must shew that he has done equity.

Performance will be compelled when the vendee has performed his part, and gone into possession with consent of vendor.

Lastly, we have no evidence, that any part of the contract was performed on the part of the purchaser. How then could he ask performance on the other side. The ground, Mr Maddock observes, on which the Court acts, in these cases, is fraud, in refusing to perform, after performance by the other party. 1 Mad. 379.

He, who asks equity, must shew, that he has done every thing, on his part, to entitle him to it. When the purchaser has done every thing, on his part, which, by the contract, he was bound to perform, and has gone into possession with the consent of the vendor, a Court of Equity will compel titles to be made, because a ven dor shall not be permitted to convert into a trespasser one who has gone into possession under a contract, and with his own consent. The case therefore is not such that the Court would have decreed a specific performance of the contract, if that were now the question before us. I do not say that such a case might not have been made out, if all the parties had been brought be-fore the Court for that purpose. But such a case has not been made out. , It must be a very strong case in-deed, which would induce the Court to determine the question in this collateral way. I do not think that the had any such title, either legal or equitable, at the time of making the will, as that the land would pass under it. He must be considered as having died intes-^ate, as to this land, and the heirs at law are entitled to 3 . a partition, according to the act. - ,

strong induce the termine the6" question of specific performance in a collateral way.

Johnson, J. concurred.

Colcock, J.

dissentiente. I am constrained, though with great reluctance, to differ from my brethren in this case. I had endeavoured to reconcile the decision on the ground that it is in accordance with the provision of the statute of frauds, which, I feel satisfied, never should have been departed from. But when I reflect that it is of more importance to a community that the rules of law should be settled than that they should be, in all respects, in accordance with the abstract principles of justice ; that in fact, the eátablished rule of law becomes, in such cases as the present, the rule of justice; I cannot subscribe to the opinion.

I take it to be the settled doctrine of the Court of Equity that possession, given with reference to a contract, is such part performance of it as will authorize the Court to compel a complete and specific performance. This doctrine is broadly laid down by Mr Mad-dock in his Treatise on Equity, p. 377, 80, and supported by cases almost innumerable. The case of Foxcrqft and Lyster is considered the leading case, but some other ground, it is said, was introduced into that case. The case, however, of the Earl of Aylesford, in Strange, 771, Geo. Í. rested solely on that ground, and it is recognized, in at least five cases, by Lord Redesdale, in the Reports of Schoales and Lefroy. And, in the case of Clinan and Cook, he goes into a parallel between possession and payment of the consideration money or part of it, in which he assigns some reasons why possession ought to be considered as more conclusive of part performance than the payment of money. But the state of our country, and the various changes which the law on the subject of real estate has undergone, as well as the fact, w'ell understood here, that personal property is as valuable as real, and that possession gives a title to the one almost as soon as to the other, furnish, in my judgment, strong additional reasons why it should be so considered. The Court of Equity, in the case of Boykin v. Cantey, took this ground and, on the possession alone, decreed a specific performance.

If then there was an absolute right in the testator at the time of making his will, what is there to prevent such right from passing under the will % I am aware of the old doctrine founded on the word “ having” in the British statute, and that the cotemporaneous expositors of that statute have said it means nothing less than being seised in fee; and this may be granted without affecting the case : for we have two statutes of our own on the subject; the latter of which, from its phraseology, was, as I believe, expressly intended to avoid all the difficulty which has arisen in England from the technical construction of their statute. But even in England the rigid rule of construction has been relaxed, and the later cases expressly say, an equitable interest may be devised; and in our own Court of Equity, in the case of Cmger and Heyward, the Judge says, that it is now agreed that a mere possibility may pass by will.

The words of the act of 1789 are, when any one has “ any right or title,” he may devise; meaning, beyond all doubt, something less than a fee simple estate. I would ask, can it be said that the devisor had no “right,” because he had no “title”1? Why did the legislature put the words in the disjunctive, if they did not mean a right without a title ? If Scott had died before the titles were made, could Watts or his heirs have taken the land ? Would they not have been compelled tó make titles; and what would then have become of the land, if Scott had not made a will*? Would it not have gone to his heirs ? It surely would. It was then a right, which might accrue to the benefit of his heirs, and could not pass to his devisees. With all the evils of having departed from the plain meaning of the statute of frauds staring me in the face, I cannot think of departing from the plain meaning of the act of 1798; and I am constrained to think that the testator had a right in this land which was devisable. If it were necessary to the support of this opinion, I think I am warranted, from the testimony, to conclude that the consideration money was paid when the possession was given; for the witness says, “ I do not know why the deed was not executed at that time.” Now, if he knew that the consideration money was not paid, he would have known why the deed was not made; and it was made in a short time after, and the title completed in the testator before he died.

Decree affirmed.  