17 N.J. Eq. 180 | New York Court of Chancery | 1864
The bill is filed to enforce the specific performance of a contract for the sale of real estate. The contract rests in parol. The complainant alleges, that on the day of the contract, and in part performance thereof, he surrendered the occupation of the premises to the purchaser, and put him in the full possession and enjoyment thereof. The defendant, by his answer, denies the making of the contract and the delivery of possession of the premises, as set out in the complainant’s bill. The burden of proving both issues is upon the complainant.
The material terms of the contract, so far as the negotiation proceeded, are not disputed. The contract was for the purchase of a stable, for which the defendant was to pay $1075. The deed was to be made in a few days thereafter, and the purchase money was to be paid on the delivery of the deed, by the defendant’s check therefor, payable in sixty days. Thus far the parties agree. But the defendant alleges that the contract was not closed. That during the negotiation he had objected that the location of the premises was hazardous, the building being peculiarly exposed to danger from fire, and that the defendant was at liberty, before the delivery of the deed, to satisfy himself upon that point, and that if his investigation did not prove satisfactory, he was- under no obligation to take the title. That his investígation proved unsatisfactory, and upon that ground he declined to accept the title. The material question presented by the issue between the parties is, whether the contract was, or Was not, finally closed. No one was present at the close
A specific performance will not be decreed, unless the existence and the terms of the contract be clearly proved. • It must be shown that a contíact has been concluded. If it be reasonably doubtful whether the contract was finally concluded, equity will not interfere by decreeing a specific performance, but will leave the parties to their remedy at law. Huddleston v. Briscoe, ll Vesey 691 ; Stratford v. Bosworth, 2 Ves. & B. 341; Fry on Spec. Perf., § 164.
But admitting the contract to be satisfactorily proved, has there been such part performance as to take the case out of the operation of the statute of frauds ? The allegation of the bill is, that on the day that the agreement was made, and in part performance of the- contract, the complainant surrendered to the defendant the occupation of the premises, and put him in the full posession and enjoyment thereof, and delivered him the key of the Stable, and that the defendant has ever since been in posession of the premises, under and by virtue of the contract. These facts are explicitly denied by the answer. The admitted facts are, that on the day on which the contract was made, the defendant, with the assent
That the purchaser, in anticipation that the contract would
If the situation of these parties was reversed; if the purchaser was here seeking to enforce this contract against the vendor, upon evidence on his part, similar to that now before the court, there could be no hesitation as to the result. The court could not hold that the vendor, before parting with his title, or receiving any part of the consideration, and while in the actual occupancy of the major part of the premises, had delivered legal possession to the purchaser, and held only as tenant at sufferance under him. Nothing but the most unequivocal testimony could justify such conclusion. Where the evidence is conflicting, the extreme improbability of the fact alleged must be decisive of the controversy.
The statute prohibits the maintenance of an action upon a contract for the sale of land, unless the agreement, or some memorandum or note thereof, be in writing. The wisdom of the provision is abundantly vindicated by the evidence in this case. Courts of equity are as much bound by the provisions of the statute as courts of law, and are not at liberty to disregard them. 1 Story’s Eq. Jur., § 753.
The policy of permitting the express provisions ofi the statute to be thus evaded in any case, has been seriously questioned. It should be tolerated only where there is no reasonable room for doubt. The complainant’s evidence does not bring his case within the operation of the principle.
The bill must be dismissed.