8 Wis. 245 | Wis. | 1859
By the Court,
Admitting that the money and the mortgage were sent by the complainant to Jonathan Finch, as the agent of George Finch, and that this part of the verbal agreement was performed by the complainant, still we are of
Our statute (Rev. Stai, chap. 75, §8) provides that every contract for the sale of any lands or any interest in lands, shall he void unless the contract, or some note or memorandum thereof, expressing the consideration, be in writing, and he subscribed by the party by whom the sale is to be made. Section 10 of the same chapter provides that nothing in that chapter contained shall be construed to abridge the powers of courts of equity to compel the specific performance of agreements in cases of part performance of such agreements.
These provisions, as we understand them, leave courts of equity in this State the power to enforce the specific performance of verbal agreements for the sale of land, in cases where such courts have been accustomed to exercise this power. Section 10, above referred to^ does not, we think, give the power to enforce such contracts specifically in all cases where there has been a part performance. By its terms it gives no power, but seems to have been introduced for the purpose of preventing such a construction from being given to section eight as would prevent courts of equity from enforcing these contracts in all cases. It provides that the power of courts of equity shall not be abridged in respect to these contracts, but it does not give the courts any power which they did not possess before.
We are thus left by our statutes with the same power over these contracts that courts of equity have heretofore exercised.
The testimony introduced at the trial does not establish the material fact that the complainant went into possession of the land which the defendant, George Pinch, verbally agreed to convey, and in the absence of proof of that fact, we do not see how the complainant can specifically enforce the contract. (Clinan vs. Cook, 1st Sch. & Lefr., Story’s Eq. Juris., §§ 759,760.) The complainant has received no injury from the defendant, George Finch, in consequence of his refusal
It is only in cases where the defendant would be enabled to practice a fraud upon the complainant unless the contract is specifically executed, that a court of equity will interfere. Story’s Eq., § 761; Savage vs. Foster, 9 Wend., 37; 18 Conn. R., 222. If the complainant had gone into possession of the land he would have been liable as a trespasser, if the final agreement should be held to be void under the statute, and it would have been most unjust to subject him to an action of trespass and also a suit to account for profits when he had gone into possession of the premises in the confidence that the bargainer would have performed his contract. Tilton vs. Tilton, 9 N. H. 386. In such a case the bargainee being in possession, is placed in a situation where a gross fraud might be successfully practiced. But no such consequences can arise in this case.
It follows from the views we have expressed that the decree of the circuit court in this case must be reversed, and the bill of complaint dismissed.
