| Superior Court of New Hampshire | Jul 15, 1835
The statute of December 29, 1832, confers upon this court a general “power to decree a specific performance of all executory contracts.” The clause was incorporated into the ninth section, by way of amendment, during the pendency of the bill in the House of Representatives, and was, through some mistake, inserted within a clause relating to the modes by which the chancery powers were to be carried into effect, so that its connexion with what immediately precedes and follows it, is not very apparent, but the grant of power is sufficiently distinct.
The plaintiff rests his case upon this clause of the statute p and it is only through it that he can compel a conveyance of the lands mentioned in the bill, the statute of July 2, 1822, empowering judges of probate in certain cases to license executors and administrators to execute a conveyance of real estate which the deceased had contracted to convey, not extending to a case like the present.
The defendants, by their neglect to put in an answer, in compliance with the rule, admit all the allegations in the • bill: and it is understood they have no objections to a decree siich as is prayed, if the heirs of said Gookin may lawfully be directed to join with the defendant, Swazey, in the execution of the conveyance.
It is admitted, then, that Gookin and Swazey, being seized of the land as tenants in common, bargained and sold the same to the plaintiff, and agreed to execute a writing obligatory, that upon certain conditions they would deliver him a warrantee deed ; —that the bond was drawn, and was executed by Swazey, but by mistake and accident was never executed by Gookin.
But had Gookin lived, no bill could have been maintained against him on account of the bond, because it was not executed by Mm : andas Swazey could not perform the entire agreement there stated, having title to but part of the land, there would be no propriety in entering a decree against him alone.
The bond, however, merely contained the stipulation upon which the parties had before agreed. The bill states that Gookin and Swazey sold the land to the plaintiff, and that he gave his notes ; and the bond was intended to be a security for a conveyance to him upon the payment of the notes.
: The question then is, whether this sale by parol can be enforced, or whether the plaintiff is barred from the relief he seeks, by the provisions of the statute, that all leases, estates, interests of freehold, <fcc., made and created by parol, and not in writing, shall have the force and effect of leases at will only, and shall not, either in law or equity, be deemed or taken to have any greater force ; and that no action shall be maintained upon any contract for the sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum thereof, be in writing, and signed by the parties to be charged therewith, or signed by some other person thereunto, lawfully authorized by writing.
The statute was intended to guard against fraud and perjury, and the proof of agreements, of this character by evidence very liable to mistake or misapprehension. If, therefore, there is no dispute about the agreement, the case is not within the reason of the statute ; and it is settled that when the agreement is distinctly set forth in the bill, and confessed by the answer, a court of equity will decree a specific performance, notwithstanding the agreement was not reduced to writing, unless the party insists upon the benefit of the statute. 1 Madd. Ch. 383; 1 Ves. Sen. 220, Attorney General vs. Day; 6 Ves. 37, Cooth vs. Jackson; 4 Ves. 23, Moore vs. Edwards; 12 Ves. 471, Bragden vs. Bradbear; 15 Ves. 375, Rowe vs. Teed.
In this case the agreement is confessed, not by the answer, but by the neglect to comply with the rule to put in an answer; and there is no uncertainty about the terms of the agreement. They are alleged in the bill, and were in fact reduced to writing at the time, so that there has been no ground for any misunderstanding about them, — and the defendants do not set up the statute in bar.
Again — the agreement is not only admitted, but there has been a part performance of the contract, which is held in equity not to overrule the statute, but to take the case out of it. 1 Madd. Ch. 376; 1 Vern. 160, note; ditto, 363, Butcher vs. Stapely & Butcher; 2 Vern. 455, Pyke vs. Williams; 3 Ves. 381, Wills vs. Stradling; ditto 38, note a; 18 Ves. 328, Gregory vs. Mighill; 1 Swanston 181, Morphett vs. Jones; 14 Johns. Rep. 15, Parkhurst vs. Van Cortland.
Where, however, there is an uncertainty as to the terms of the agreement, a specific performance cannot be decreed, but other relief is sometimes granted. 1 Madd. 379; 2 Eq. Cas. Abr. 46, Lord Pengall and Ross; 1 Johns. Ch.
Here has been not only a payment of part of the purchase ¡money, but the plaintiff has been let into possession, and has proceeded to make valuable improvements; and this it is well settled constitutes a part performance within the rule. 1 Madd. 380. Whether the mere payment of part of the purchase money would have been sufficient, seems not so clearly settled.
Under the existing circumstances, it would be a great hardship upon the plaintiff if he could not have the contract specifically performed ; and the only obstacle to this, in point 'of fact, has probably arisen from the decease of Gookin. But this forms no objection in law to the maintainance of a bill for specific performance, in a case where such performance might have been enforced had the party lived. The death of either of the parties to the contract does not impair its obligation. Where there is an effectual agreement for the sale of an estate, by one then entitled, the heir of the vendor is bound to perform it, and the personal representative may enforce it against the vendee. 1 Madd. Ch. 368; 2 Vern. 215, Baden vs. Countess of Pembroke; 3 Atkyns 1, Lacon vs. Mertins.
We are of opinion, therefore, that the complainant is entitled to the relief sought by the bill.