Griffith v. Abbott , 56 Vt. 356 ( 1883 )

The opinion of the court was delivered b3r

Ross, J.

This is a bill to compel a specific performance of a contract, not in writing for the conveyance of land. The facts are fully set forth in the master’s report. The defendants rely upon that provision of the Statute of Frauds which denies a right of action upon a contract for the sale of an interest in land, which is not in writing and signed by the party to be charged. The orator claims that the contract was for the sale of the note which was sued in the name of the defendant Baker and the land in question, set off upon the execution issued on the judgment obtained in that suit. lie contends that the contract was for a then present sale of the note contingent upon its payment being merged in the land in question with the title in Baker for him. The defendant contends that the contract was for the sale of the land, and not that of the note upon contingency. Although considerable might bo said in favor of the orator’s contention upon this branch of the case, without deciding the same, and assuming for present purposes that the contract was for the sale of the land, and within the operation of the provision of the Statute of Frauds set up in the answer, we think that the facts found by the master show such a part performance of the con tract by both parties, as takes the contract out of the operation of the Statute and entitles the orator to a decree in his favor. The defendant Abbott had, by endorsing tire note to Baker and directing him to bring the suit, set off the land on the execution that might be issued on the judgment that should be obtained, and if the title to the land vested in Baker under the set-off, to deed the same to the orator, on receipt of the agreed price therefor, performed all he personally was to do under the contract. The defendant Baker as his agent, had also performed in all respects, even to receiving the money from the orator, except having his deed conveying the land to the orator witnessed, acknowledged and delivered. The orator had fully performed the contract on his part, and under the direction of Baker, acting within the scope of his authority from defendant Abbott, had taken possession of the land, and done such acts thereon, that he would either be a trespasser, or liable to an action of account as tenant in common of the lands set off and in such accounting might not bo able to avail himself of all his expenditures on the land. By all the authorities such a performance takes the contract from the operation of the provision of the Statute for the prevention of frauds relied upon, and entitles the orator to a decree in his favor. Pike v. Morey, 32 Vt. 37; Stark v. Wilder, 36 Vt. 752.

The case last above cited very clearly states what is required by way of part performance of a parol contract for the purchase of land to take such contract out of the operation of the Statute of Frauds, and to entitle the purchaser, in possession, to a decree for a specific performance of the contract. It is full authority for sustaining the decree of the Court of Chancery in this case. The decree is affirmed, and the cause remanded.