36 Vt. 752 | Vt. | 1864
This bill is brought principally to compel the defendant to release to the orator all claim and interest, which the defendant has in and to certain described premises, by virtue of a mortgage executed to the defendant by one Lincoln Raymond ; the orator having a subsequent mortgage of the same premises from- said Raymond.
It appears from the admitted allegations and the proof, that
It it insisted on the part of the defendant'*bthat the orator is not entitled to the relief sought, for the reason that the agreement was not reduced' to writing, and is therefore inoperative under the statute of frauds ; and that there has been no such performance of the contract on the part of the orator, and no such acts done by him under it, as can operate to take the case out of the statute.
The principle seems to be now well settled that the mere payment of the contract price by the purchaser, is not sufficient to take the contract out of the statute ; but it is equally well settled that where the purchaser pays the whole or part of the purchase money, and enters into the possession of the premises, or does acts relying upon the agreement, that places him in such a position that the refusal by the seller to execute the contract on his part, will operate to his prejudice and injury, beyond the payment of the money, so that the re-payment of the money, or the recovery of it, will not be an adequate remedy, then such acts will take the case out of the statute, and warrant a court of equity in decreeing a specific performance of the contract. A refusal under such circumstances to execute the contract, it is sometimes said in the books, operates as a fraud upon the purchaser. It certainly so operates to his injury as to entitle him to relief in a court of equity.
In this case the orator paid to the defendant, or his attorney, the full contract price, the defendant surrendered to him the possession, and although he did not go into the actual possession of the land, yet he proceeded to sell it, and executed a warranty deed of it, thereby obligating himself to defend the title to the purchaser. All this the orator did, relying upon the contract and believing the defendant had executed it on his part, and that his title was perfect and of record. This we think is sufficient to entitle him to relief.
The decree of the chancellor dismissing the bill is reversed,