The contract upon which the plaintiff relies, not being in writing, is void under the statute of frauds (G. L., c. 220, s. 14, P. S., c. 215, s. 1), unless it falls within some exception which equity recognizes. The plaintiff relies upon part performance of the contract to take it out of the statute. Part performance is not sufficient for this purpose, unless it places the party in a situation that will operate as a fraud upon him if the agreement is not performed. Tilton v. Tilton, 9 N.H. 385, 390; Kidder v. Barr, 35 N.H. 235, 255. In 2 Sto. Eq. Jur., s. 761, the author says, — "If upon a parol agreement a man is admitted into possession, he is made a trespasser, and is liable to answer as trespasser, if there be no agreement valid in law or equity. Now, for the purpose of defending himself against a charge as a trespasser, and a suit to account for the profits in such a case, the evidence of a parol agreement would seem to be admissible for his protection; and if admissible for such a purpose, there seems to be no reason why it should not be admissible throughout."
It is settled in this state that equity will decree specific performance of a parol contract for the conveyance of land, if a party on the faith of the contract has gone into possession of the land and made valuable improvements upon it. Newton v. Swazey, 8 N.H. 9; Tilton v. Tilton,9 N.H. 385; Burnham v. Porter, 24 N.H. 570, 580; Kidder v. Barr,35 N.H. 235; Seavey v. Drake, 62 N.H. 393; Brown v. Prescott, 63 N.H. 61. In this case the plaintiff went into possession of the farm relying upon the parol contract, and, besides supporting and caring for Darius as he had agreed, he expended a large sum of money in making improvements and betterments upon the farm. The case clearly comes within the foregoing authorities. It is distinguishable from Ham v. Goodrich, 33 N.H. 32, which is relied on by Darius. In that case the conveyance agreed upon was not to take effect until the death of the owner, and, it not appearing that possession of the land was to be surrendered by him in the meantime, possession not being necessary for the fulfilment of the proposed conditions, it was held that the possession of the other party to the agreement in the lifetime of the owner was not delivered in part execution of the agreement, and hence might be trespass, even if there was a complete execution of the agreement. In this case the plaintiff was admitted to possession in pursuance of the agreement by which he was to have a deed at once, and unless the agreement protects him he would be liable as a wrongdoer. Ham v. Goodrich is an authority for the plaintiff instead of for Darius.
The fact that the plaintiff was to give his father "a life lease" of the farm did not affect the plaintiff's possession, for this instrument
(whether properly termed a life lease or not) was intended to be mere security for the performance of the plaintiff's part of the agreement. The plaintiff could not even begin performance of the agreement without moving upon and taking possession of the farm. The effect of the life lease was to be like that of mortgage. When land is conveyed, and mortgaged back with a condition for the support of the mortgagee during life, the mortgagor is entitled to the possession until the condition is broken or waste is committed. Hartshorn v. Hubbard, 2 N.H. 453; Dearborn v. Dearborn,9 N.H. 117; Flanders v. Lamphear, 9 N.H. 201; — and see Smith v. Moore,11 N.H. 55, 60.
The agreement is sufficiently definite and certain to warrant decree of specific performance. Unless the support and care to be furnished to Darius was different from what would reasonably be required for a man of his age, health, and station in life, there was no occasion to be more specific regarding the same. In all other respects the agreement is explicit.
Leroy had constructive notice, at least, of the agreement between the plaintiff and Darius. The facts apparent to common observation were such as to put a man of ordinary prudence on inquiry in respect to the plaintiff's rights in the property and such inquiry would have led to a knowledge of the agreement. The plaintiff's possession of the real estate was of itself sufficient for the purpose. Smith v. Moore, 11 N.H. 55, 65. The plaintiff's act in reproaching Leroy for making the purchase shows that he did not assent to it. Leroy took nothing by his deed from Darius, as against the plaintiff. His deed provided that he should pay Darius's note to Smith for $166, dated October 6, 1886, and secured by a mortgage of the lot, dated October 10, 1887. It seems that this note was given one year, and the mortgage two years, after the plaintiff took possession of the farm under the agreement with his father. It does not appear whether the mortgagee knew of the agreement between Darius and the plaintiff, nor whether the mortgage was given with the knowledge and assent of the plaintiff. The plaintiff is entitled to decrees establishing his title to the farm subject to the Smith mortgage; and, if he so desires, he should have a further trial in respect to the validity of that mortgage, and such decree relating to it as he may be entitled to.
Case discharged.
All concurred.