#### Overmeyer and Wife *versus*Koerner.

1. To take a parol contract for land out of the statute of frauds, it must be distinctly proved, the land clearly designated, and open, notorious, and exclusive possession taken and maintained in pursuance of the contract.

2. Every parol contract, except where there has been such part-performance as cannot be compensated in damages, is within the statute, however clear the proof of the contract may be.

3. If the circumstances are not such as to render reasonable compensation impossible, compensation, and not execution of the contract will be enforoed.

*4.*Equity enforces such contract only where it has been so far executed as that it would be unjust to rescind it.

5. Whether the evidence is sufficient to take the case out of the statute is for the Court.

6. In ejectment, the defendant set up a parol contract for the land. The Court below denied a point of plaintiff's, viz., th'at if the jury believed the defendant had already received, by his occupancy of the premises and from other sources, more than he advanced toward the erection of the house, the plaintiff should recover. *Held,*to be error; under the facts in the case, the point should have been affirmed.

7. The evidence in this case not sufficient to take a parol contract out of the statute of frauds.

8. Moore *v.*Small, 7 Harris, 469; Frye o. Shepler, 7 Barr, 91; Hill *v.*Meyers, 7 Wright, 173; McKowen *v.*McDonald, 7 Wright, *441;*Irwin *v.*Irwin, 10 Casey, 525; Postlethwaite *v.*Frease, 7 Casey, 472; authority. ■

March —, 1875.

Before Agnew, C. J., Sharswood, Williams, Mercur, Gordon, Paxson, and Woodward, JJ.

Error to the Court ’of Common Pleas of *Lycoming*County, of January Term, 1875.

This was an action of ejectment, brought January 16th, 1873, by Samuel P. Overmeyer and Evelina his wife, in her right, against Frederick Koerner, for a lot of ground on Mulberry Street, in the.city of Williamsport. The land had belonged to Abraham TTpdegraff, who, on the 15th of July, 1850, conveyed it to Abraham Koerner. It was 52 feet front on Mulberry Street, by 208 feet in depth, and contained about one-quarter of an acre. On the 31st of May, 1853, Abraham Koerner conveyed to Evelina Overmeyer, one of the plaintiffs.

At the bringing of the suit the defendant was in possession, and the writ was served on him.

The case was tried February 6th, 1874, before Gamble, P. J.

The plaintiff gave the foregoing facts in evidence and rested.

The defendant claimed under a parol contract with Abraham Koerner, who was his brother, and gave evidence as follows:

He*testified that he had come to this country in 1850 ; his brother was then living in a small frame house on the lot on *518Mulberry Street; he had no children ; defendant lived with him for some time. Defendant received some money from Germany, and proposed to invest it in a lot on Third Street. He consulted with Abraham, who 'advised him against it, and said he thought defendant had better go in with him and build a house on the Mulberry Street lot; he proposed that defendant should put his money into it and that they should build a double house, and if defendant mai’ried he should have one part and Abraham would take the other. In consequence of this, defendant abandoned the purchase of the Third Street lot. In 1856, he joined Abraham in building a double brick house on Mulberry Street; two distinct houses, a partition all the way up between them. Defendant invested between $1200 and $1500 in the buildilig. Defendant married in 1864. Abraham came to him and said: “You are married; you can move into your house, or you can draw the rent.” Abraham’s wife brought him the first month’s rent, and the rent was paid to him that year as it became due. The next year defendant leased the north half of the building himself, with Abraham’s consent, and received the rent. Abraham had it assessed to defendant after his marriage, and he paid the taxes; and so continned till 1870. The tenant, then, was Samuel Friedenthal, who moved out in February, or March, 1870,' and delivered the key to defendant ; the house was then vacant. . Guise afterwards entered without authority from defendant. When Guise was moving out defendant attempted to enter; he was prevented by force. He took possession in November, 1872, using the key handed to him by Friedenthal to get in ■; the house was then empty: he had continued there up to the trial. The north half of the brick house was what Abraham assigned to him on his marriage; Abraham was living in the small frame house, and had leased the other part of the brick house.

On cross-examination, he said he had boarded with Abraham' about four years. The house was about .one year in building; finished in the spring of 1857. Defendant went to Kansas in 1857 ; about that time there was dissatisfaction between him and Abraham.

The wife of the defendant testified:. That the rent of the north half of the brick house had been paid by the tenant to Abraham Koerner, and was given by him to defendant; that Abraham, at his own house, in the spring of defendant’s marriage, had said to witness and defendant, that he and defendant had built the house together, and “ Frederick may have the north part, as the other part is nigh to where I live.” She testified substantially as the defendant as to the *519renting by him of the house, the taking possession of it, and continuing in it.

*Mrs. Friedenthal*testified that her family occupied half the house and paid the rent to defendant, as he had testified; that Abraham lived during the time in the frame house on the lot; that he had often told' her that the north half belonged to defendant, that he claimed no part of the lot; that she applied to Abraham for the use of a well on the lot; he said she might use it if she paid for it; that defendant paid for it.

The assessor of the ward testified, that in 1865 he went to these premises to assess; that Abraham told him he must not assess as theretofore, because his brother owned the property, and he (Abraham) had paid tax long enough for it; he would not pay any more; he said - it was.“only the house, no lot to it;” said defendant owed $200 or $800 on the house yet.

The assessment-book showed the property assessed, — lot. and one-half house to Abraham, and one-half house to defendant, from 1865 to 1871, both inclusive.

The collector testified that defendant paid him the amount charged against him during, those years.

Many witnesses testified for the defendant much to the same effect, — that Abraham said he and his brother were building the house together; he owned the lot, and defendant was to have half the house; this by some, whilst the' house was building, and also after it was finished.; that he owned the lot; defendant owned half of the house, but ■“ no lot, and no water, just the house.” ,

One who was tenant before defendant’s marriage: Abraham told him after the marriage if he wished to rent longer - he must go to defendant, that it belonged to him, defendant owned the north half. Abraham sent witness to defendant to buy his half, and offered $800 ; defendant would not sell; this was in 1866; he said lot and well belonged to himself.

In rebuttal Abraham testified for plaintiffs that he never agreed to sell to the defendant; that defendant boarded with him four years, etc. Plaintiff gave other evidence in answer to defendant’s case.

The following are points of the plaintiff, with answers of the Court:

1. “ To take the case out of the statute of frauds and perjuries the proof by parol of a contract for the sale of land must be clear and distinct. The land must have been so designated by metes and bounds as to be easily ascertained in quantity and location. Possession must be taken in pursuance of the contract, and must be open, notorious, and con*520tinuous. There must be part payment of the purchase-money, and such improvements made as cannot be compensated in damages. If the defendant’s proof essentially fails in any of these particulars, the plaintiff should recover.”

Answer: “The second point is affirmed, with the qualification that if the possession be taken under and in pursuance of the contract it is not indispensable that it should be continuous, nor is it indispensable that improvements should be made; it is when such improvements are set up as a reason why the conti’act ought not to be rescinded, that it becomes important that they are such as cannot be compensated in damages.”

3. “ To take a parol contract for the sale of lands out of the statute of frauds and perjuries, possession must be taken in pursuance of the contract at or about the time the contract was made.”

Answer: “Possession must be taken under and in pursuance of the contract, without regard to the date or time when the contract may have been made.”

4. “ Taking the evidence of the defendant as true, he has failed to make out such a case as will sustain a parol contract for the sale of lands, and the jury must find in favor of the plaintiff for the lands described in the writ.”

Answer: “ The Court declines to give the instructions asked for in this point.”

5. “ If the jury believes that the parol contract proven in this case was that the defendant joined Abraham Koerner in building a double brick house on ihe land of the latter, with the understanding and agreement between them that the defendant should have the north half of said house, but no land, it is not such proof as will take the case out of the statute of frauds and perjuries, and the plaintiffs are entitled to recover the land described in the writ.”

Answer : “ Of course if there is evidence in the case that Frederick was to have the north half of the house, *but no*land, then the plaintiff should recover, *but we do not remember any such evidence.”*

7. “ If the jury believe that the defendant has already received by his occupancy of the premises and from o'her sources more than the amount he advanced toward the erection of the house, the plaintiff is entitled to recover.”

Answer: “The Court declines to give the instructions asked for in this point.”

The jury found for the plaintiff for all the land described in the writ, except so much as is covered and occupied by the brick house erected thereon.

*521The plaintiff sued out a writ of error, and assigned for error the answers of the Court to the points.

*O. B. Reighard*and *J. J.*Metzgar, for plaintiffs in error.

The evidence did not contain the essentials to sustain a parol sale of 'land, and should not have been submitted to the jury: Poorman *v.*Kilgore, 2 Casey, 371; Charnley *v.*Hansbury, 1 Harris, 21; Moore *v.*Small, 7 Id., 461; Rankin *v.*Simpson, Id., 471; Irwin *v.*Irwin, 10 Casey, 525. The Court was bound to give controlling instructions as to what was sufficient to take a case out of the statute of frauds. To enforce a parol contract, the land must be so designated by metes and bounds as to be easily ascertained and set off: Frye *v.*Shepler, 7 Barr, 94; Ferguson *v.*Staver, 9 Casey, 411; McGibbeny *v,*Burmaster, 3 P. F. Smith, 334.

Possession must be taken contemporaneously with the contract, or immediately after: Atkins *v.*Young, 2 Jones, 24. The possession must be exclusive: Blakeslee *v.*Blakeslee, 10 Harris, 243 ; Moore *v.*Small; Frye *v.*Shepler, *supra;*Hill *v.*Meyers, 7 Wright, 172.

The improvements, etc., could have been compensated in damages, and therefore a parol contract could not be enforced: Moore *v.*Small, *supra;*Postlethwaite *v.*Frease, 7 Casey, 472; McKowen *v.*McDonald, 7 Wright, 441; Milliken *v.*Dravo, 17 P. F. Smith, 230 ; McGibbeny *v.*Burmaster, *supra.*

*J. M.*Gamble, *R. P. Allen,*and *BL. G. Parsons,*for defendant in error.

Delivery of possession in pursuance of a parol contract for sale of land, part payment of purchase-money, and valuable improvements, are sufficient to take the case out of the statute of frauds: Milliken *v.*Dravo, *supra.*There were disputed facts here, and they were for the jury: Richards v. Elwell, 12 Wright, 361.

Where one encourages another to settle on his land, to expend money and labor, he shall not afterwards take the land from him: Miller *v.*Miller, 10 P. F. Smith, 22; Meason *v.*Kaine, 17 Id., 126 ; Big Mountain Improvement Company’s Appeal, 4 Id., 371; Swartz *v.*Swartz, 4 Barr, 353 ; McKellip *v.*McIlhenny, 4 Wright, 317 ; Todd *v.*Strickler, 10 S. & R., 63; Rerick *v.*Kern, 14 Id., 267.

Mr. Justice Paxson

delivered the opinion of the Court, April 2d, 1875.

The rule is well settled, that to take a parol contract for the sale of land out of the operation of the statute of frauds and perjuries, the contract must be distinctly proved; the *522land must be clearly designated, and open, notorious, and exclusive possession must be taken and maintained, under and in pursuance of the contract: Moore *v.*Small, 7 Harris, 469 ; Frye *v.*Shepler, 7 Barr, 91; Hill *v.*Meyers, 7 Wright, 172. Every parol contract is within the statute of frauds, except where there has been such part performance as cannot be compensated in damages: Moore *v.*Small, 7 Harris, 469. If the circumstances of the case are not such as to render reasonable compensation for what has been paid or done impossible, then compensation, instead of execution of the contract, is the duty which the law will enforce: Postlethwaite *v.*Frease, 7 Casey, 472. A court of equity enforces such a contract only where it has been so, far executed that it'would be unjust to rescind it. No matter how clear the proof of such contract may be, specific performance thereof will not be decreed where adequate compensation may be' made in damages: McKowen *v.*McDonald, 7 Wright, 441. These principles are too familiar to need illustration.

Whether the evidence is sufficent to take such a contract out of the operation of the statute, is a question of law for the Court: Irwin *v.*Irwin, 10 Casey, 525. The Court below was asked to pass upon the sufficiency of the evidence, and refused the instruction prayed for in the fourth point submitted by plaintiff’s counsel. This ruling is assigned for error.

We do not think the evidence sufficient to take the contract out of the statute. The following is the defendant’s statement of what occurred at the time of the alleged agreement. “ We got some money from Germany. I thought of investing the money in a lot oü Third Street; I asked my brother if he did not think it best to do so; he said he thought not, I had better go in with him, and we would build a double house on his lot on Mulberry Street; he proposed that I should put my money in, and we should build a double house, and if I got married I should have the oiie part, and he should take the other.” There is nothing in this upon which a chancellor could base- a decree for specific performance. It is vague and uncertain. There is no clear designation of boundaries. We are left in uncertainty as to which house he was to have, nor is there a word as to how much land, if any, was to go .with it; nothing as to the estate he was to take in the house; and even his enjoyment or occupancy of it depended upon the contingency of his future marriage. We are not informed as to the cost of the house, nor with precision how much money the defendant expended upon it. That he contributed some money towards its erection is admitted. For this, a full compensation may be made *523in damages, which, is an answer to a demand for a specific performance of the contract.

The learned judge should have affirmed the plaintiff’s fourth point. He also erred in not affirming plaintiff’s seventh point. If the defendant had received, by his occupancy of the premises, or otherwise, more than he advanced towards the erection of the house, the plaintiff was entitled, under the facts of this case, to a verdict for the premises in question. We do not see any error in the remaining assign-' ments.

Judgment reversed, and a *venire facias de novo*awarded.