| Ill. | Jun 15, 1889
delivered the opinion of the Court:
The only questions presented by this appeal are those arising upon the plea of the Statute of Frauds. It appears from the declaration that, prior to the date of the contract upon which the suit is brought, the plaintiff and defendant entered into an agreement in writing, by which the defendant, in consideration of a certain sum of money then paid to him by the plaintiff, and of certain other payments thereafter to be made, agreed to convey to the plaintiff certain lands in Vermilion county; that the plaintiff thereupon entered into possession of said lands; that while so in possession he sold an undivided half of the lands to one McCabe, the defendant conveying said undivided half to McCabe at the plaintiff’s request; that after such conveyance was made and while the plaintiff was still in possession of the remaining undivided half, the plaintiff and defendant entered into a verbal agreement whereby the plaintiff agreed to sell and surrender to the defendant said undivided half still in his possession, the defendant agreeing, in consideration thereof, to pay the plaintiff the sum of $3500; that the plaintiff thereupon surrendered to the defendant the possession of said undivided half of said premises, and that the defendant retained the same in his possession, and afterwards sold and conveyed it to a third person, with the plaintiff’s knowledge, for the sum of $4000. The suit is brought to recover of the defendant the consideration of said verbal agreement.
The second section of the Statute of Frauds of which the defendant seeks by his plea to avail himself is as follows: “No action shall be brought to charge any person upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, for a longer term than one year, unless such contract or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person thereunto lawfully authorized in writing signed by such party.”
The execution by the defendant to the plaintiff of the written contract of sale alleged in the declaration vested in the plaintiff an equitable interest in the lands therein described/ and there can be no doubt that such interest was an interest in or concerning lands within the meaning of said statute. That the statute of frauds embraces equitable as well as legal interests in land is well settled. Browne on Statute of Frauds, sec. 229. As said by Mr. Justice Stoby in Smith v. Bwrnham, 3 Sumner, 435, “A contract for the conveyance of lands is a contract respecting an interest in lands. It creates an equitable estate in the vendee in the very lands, and makes the vendor a trustee for him. A contract for the sale of an equitable estate in lands, whether it be under a contract for the conveyance by a third- party, or otherwise, is clearly a sale of an interest in lands, within the Statute of Frauds.” See also Richards v. Richards, 9 Gray, 313; Hughes v. Moore, 7 Cranch, 176" date_filed="1812-03-18" court="SCOTUS" case_name="Hughes v. Moore">7 Cranch, 176; Simms v. Killian, 12 Ired. 252; Dial v. Crain, 10 Tex., 444" date_filed="1853-07-01" court="Tex." case_name="Dial v. Crain">10 Texas, 444; Catlett v. Dougherty, 21 Ill. App. 116" date_filed="1886-05-21" court="Ill. App. Ct." case_name="Catlett v. Dougherty">21 Ill. App. 116; Jevne v. Osgood, 57 Ill. 340" date_filed="1870-09-15" court="Ill." case_name="Jevne & Almini v. Osgood">57 Ill. 340.
The plaintiff contends that the acts performed by him under his oral contract to sell and surrender his interest in said lands to the defendant constitute such a performance as should take the case out of the statute. The only act of performance alleged in the declaration is the delivery of possession of the premises sold to the defendant. There is no allegation of any cancellation or surrender of the defendant’s contract to convey the lands to the plaintiff on payment of the purchase money, nor is the cancellation of said contract averred, either directly or inferentially. It will therefore be presumed that said contract is still held by the plaintiff as a valid and subsisting legal obligation against the defendant. The averments of the declaration therefore, as we interpret them show a partial and not a complete performance.
The doctrine of part performance is a doctrine of equity and does not prevail at law. Mr. Browne, in his Treatise on the Statute of Frauds, sec. 451, says: “It is settled by a long series of authorities, that a part execution of a verbal contract within the Statute of Frauds has no effect at law to take the case out of its provisions/’ and in support of this statement a large number of cases are cited in a note. To same effect see 2 Beed on the Statute of Frauds, sec. 548, and authorities -cited in note. The same rule has been frequently announced by this court. Warner v. Hale, 65 Ill. 395" date_filed="1872-09-15" court="Ill." case_name="Warner v. Hale">65 Ill. 395; Wheeler v. Frankenthal, 78 id. 124; Creighton v. Sanders, 89 id. 543.
The plaintiff’s contention is, that the facts averred in the -declaration amount to a rescission of the defendant’s contract to convey, and that such rescission, coupled with a delivery of possession, should be held to be tantamount to a complete performance. The difficulty with this view is that no rescission is averred, either directly or inferentially. The only averment is that the plaintiff had surrendered the possession to the defendant who already had the legal title, and that the -defendant subsequently conveyed the land, with the plaintiff’s knowledge, to a third person. A surrender of possession did not necessarily involve a rescission of the defendant’s contract, since such surrender of possession may be entirely consistent with an intention on his part to retain the defendant’s contract with a view of subsequently enforcing it against -him. The pleading must he construed most strongly against the pleader, and as the declaration contains no averment of a rescission or of any facts from which a rescission must be necessarily implied, it must be presumed that none was made or intended. If the plaintiff relied on the theory of a rescission he should have averred it, and not having done so, he cannot recover upon a theory not supported hy his declaration.
We are unahle to see that any special force is to he given, ■in this connection, to the averment that the defendant had -conveyed the land to a third person with the plaintiff’s knowledge. It might perhaps have been different if such conveyance liad been made with the plaintiff’s consent and approbation. The legal effect of the conveyance, so long as it does not appear to have been made with the plaintiff’s consent, is merely to place it out of the defendant’s power to perform his contract to convey the land to the plaintiff, but it has no tendency to work a rescission or cancellation of the contract, or-to absolve the defendant from his liability thereon, and this, is in no way affected by the mere knowledge of the plaintiff' that the conveyance was being made. We are of the opinion that the demurrer to the defendant’s plea was properly overruled. The judgment of the Appellate Court will therefore-be affirmed.
Judgment affirmed.
Mr. Justice Wilkin took no part.