#### BASIL SAIN *against*WILLIAM M. DULIN.

Where the answer to a bill for a specific performance of a parol contract to convey land, and in the alternative for compensation for improvements, denies the terms of the contract as set out in the bill, and alleges a different *196one, which was not performed on account of the improper conduct of the plaintiff, and the defendant also insists on the statute of frauds, it was *held*that the plaintiff was not entitled to compensation for value added to the land by such improvements.

Cause removed from the Court of Equity of Davie county.

The plaintiff alleged that the defendant had agreed by pa-rol to sell to him a certain piece or parcel of land lying in the said county of Davie, on Dutchman creek, at the price of $7.50 per acre, which land is described in plaintiff’s bill, and he alleges that after some disagreement as to one of the lines, they agreed finally as to the limits of the tract, and plaintiff went into possession and kept it for a year; that during that time, he built a house on the premises worth $125, and cleared and otherwise materially added to the value of the land by making other improvements on it; that he held a note on the defendant for over $300, which it was agreed should be taken up by the defendant as a part of the price of the land; that plaintiff has always been ready and willing to make payment of the remainder of the purchase-money, and has offered to do so, but that the defendant without any plausible excuse for such breach of faith, has sold and conveyed the said land to another. The prayer is for a specific performance of the agreement. “ Or if that agreement is not in law valid, and cannot be executed,” he prays that the defendant be decreed to account with him for the value of the improvements added *to*the land, and for general relief.

The answer of the defendant sets out that he did make a contract with the plaintiff for. a parcel of land at $7.50 per acre, according to particular boundaries agreed on between them, and he avers that he has been always willing' to comply with the agreement, but that the defendant after such agreement was entered into, insisted upon a boundary altogether different from that agreed on, and became offended with defendant, and refused to speak to him for some time, and acted in such a manner as to induce' him to believe that he would not accept a deed on the real terms of the contract; lhat the defendant did not offer to give him up' the said $300 *197note, nor to pay the remainder of the purchase-money, .and he admits that he has sold the land to one Gaither.

The defendant insists on the statute of frauds in bar of plaintiff’s claim to relief. The cause was- set down for hearing on bill, answer and proofs taken in the cause, and sent to this Court by consent.

*(Jlement,*for the plaintiff.

No counsel appeared for the defendant in this Courts

Battle, *J'.*

The object of the bill is to obtain compensar tion for improvements which the plaintiff alleges that he made upon a certain parcel of land, which the defendant had agreed by parol to convey to him. A prayer for specific performance is, indeed contained in the bill, but the plaintiff anticipating that such relief could not be had, relies altogether upon the secondary equity for which he sets up a claim. Were the contract which he states admitted by the defendant, but repudiated because of its being by parol, his claim for compensation on account of the value which he added to the land by his improvements, would be clear, as has been long since settled by the leading case of *Albea*v. *Griffin, 2*Dev. and Bat. Eq. 9. But the answer denies the contract, as set out in the bill, and alleges one which he avers he was willing to have executed, had he not been prevented from doing so by the misconduct of the plaintiff himself. Under these circumstances, the case of *Dunn*v. Moore, 3 Ired. Eq. 364, is a direct authority against the claim of the plaintiff to any relief at all. In that case, it was decided that part performance, as by paying part of the purchase-money, and entering into -possession and making improvements, will not take the case out of the statute; but when there is such part performance, if the defendant admit the contract as stated by the plaintiff, and also the part performance, but relies on the statute of frauds, the Court will order an account, and decree a compensation to the plaintiff for his payments, and for the value which his expenditures have added to the land; but if the *198contract be denied, tbe Court cannot grant any relief, because it cannot go into proof of a contract variant from that which is stated in the answer. The principle thus stated we approve, and it is decisive of the present case against the plaintiff.

Our attention has been called to the cases of *Thomas*v. Kyles, 2 Jones’ Eq. 302, and *Love*v. Neilson, Ibid 339, decided at the Morganton term, 1854, which are supposed to be in opposition to the principle extracted from *Dunn*v. *Moore.*The first would seem to be so, but the part of the case which relates to the present question, was comparatively an unimportant one in the cause, and was manifestly not much considered, either by the counsel or the Court. Besides, it does not appear from the report, that the alleged contract of purchase for the five acres of land was- denied in the answer, it being only stated that “ it was not admitted,” which, as the maiD dispute was upon another point, may have meant that the answer had not noticed the allegation of the contract.— However, this may be, we cannot give the case the effect of over-ruling, or essentially modifying that of *Dum/n*v. *Moore.*The other case of *Love*v. Neilson, came before the Court upon the plea of the statute of frauds in bar of the plaintiff’s claim for the specific performance of a parol contract for the purchase of one half of a mill. The plea was sustained, but the Court said that the plaintiff might have relief for his expenditures in improving the mill-site of the defendant, and to that end, remanded the cause to the Court below in order that the defendant might there file his answer. As it could not be known whether the answer would admit or deny the contract set forth by the plaintiff, it was manifest that the decision of the Court is not necessarily opposed to'the principle adjudicated in *Dunn*v. *Moore.*

Pee CuexaM, Bill dismissed with costs.