Seavey v. Drake , 62 N.H. 393 ( 1882 )

The bill alleges a promise by the defendants' testator to give the plaintiff a deed. The plaintiff offered to prove that the deceased gave him the land, and that he thereupon entered into possession and made valuable improvements. We assume that the plaintiff in his offer meant that he was induced by the gift of the land to enter into possession and make large expenditures in permanent improvements upon it. The evidence offered is admissible. Specific performance of a parol contract to convey land is decreed in favor of the vendee who has performed his part of the contract, when a failure or refusal to convey would operate as a fraud upon him. Johnson v. Bell, 58 N.H. 395; Kidder v. Barr, 35 N.H. 236, 254; Ayer v. Hawkes, 11 N.H. 148, 154; Tilton v. Tilton, 9 N.H. 385, 390; 2 Sto. Eq. Jur., s. 761. The statute of frauds (G. L., c. 220, s. 14) provides that "No action shall be maintained upon a contract for the sale of land, unless the agreement upon which it is brought, or some memorandum thereof, is in writing, and signed by the party to be charged, or by some person by him thereto authorized in writing." Equity, however, lends its aid, when there has been part performance, to remove the bar of the statute, upon the ground that it is a fraud for the vendor to insist upon the absence of a written instrument, when he has permitted the contract to be partly executed.

It is not material in this case to know whether the promissory note given up by the plaintiff was or was not intended as payment or part payment for the land, for equity protects a parol gift of land equally with a parol agreement to sell it, if accompanied by possession, and the donee has made valuable improvements upon the property induced by the promise to give it. Stratton v. Stratton, 58 N.H. 474; King v. Thompson, 9 Pet. 204; Neale v. Neales, 9 Wall. 1, 9; Freeman v. Freeman, 43 N.Y. 34; Kurtz v. Hibner,55 Ill. 514; Bright v. Bright, 41 Ill. 97; Shepherd v. Bevin, 9 Gill 32; McLain v. School Directors, 51 Pa. St. 196; Murphy v. Stell, 48 Tex. 123; Bro. St., Fr., s. 491, a. There is no important distinction in this respect between a promise to give and a promise to sell. The expenditure in money or labor in the improvement of the land induced by the donor's promise to give the land to the party making the expenditure, constitutes, in equity, a consideration for the promise, and the promise will be enforced. Crosbie v. M'Doual, 13 Ves. 148; Freeman v. Freeman, 43 N.Y. 34, 39; 3 Par. Cont. 359.

Case discharged.

ALLEN and CLARK, JJ., did not sit: the others concurred.