42 A. 271 | N.H. | 1893
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,
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,
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 *587
(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,
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,
Case discharged.
All concurred.