#### *A. J. Counts*vs. *Joseph Clarke.*

"Whatever may he the impressions of the Court as to the merits of the case, if the answer is contradicted by but one witness, the bill must be dismissed.

*Before*Dunkin, Ch. *at Barnwell, February,*1851.

Dtjnkin, Ch. This is a petition to compel the specific performance of an agreement for the sale of three lots in the town of Clinton, formerly Blackville. It is charged that, on the 22d June, 1848, defendant agreed to sell the three lots to the plaintiff for one hundred and twenty-five dollars. That the defendant drew a written obligation to that effect, which he placed in the hands of Luder F. Behling, to be delivered to the plaintiff whenever he should pay him for the defendant the sum of fifty dollars. The plaintiff and Behling both lived in Blackville. The defendant is a carpenter ; was employed on the Rail Road, and resided at the time, some three miles from Graniteville.— Plaintiff alleges that he took possession of the lots, put a fence around them, and dug a well. That the improvements thus made are worth forty dollars. That in August or September, 1849, plaintiff informed Behling that he was ready to pay the purchase money and receive a title for the lots, and requested him to write to defendant to come to Blackville, receive the money, and make him titles for (he lots ; but that defendant refused to comply. The answer of the defendant admits, that he agreed to sell two (not three) lots to plaintiff for $ 125, the plaintiff paying $50 in cash, and giving his note for $75. That plaintiff, not being able at the time to pay the cash, defendant agreed to give *419him a few days to do so, and, as defendant was leaving Black-ville, he placed in the hands of L. F. Behling, an agreement to make titles to plaintiff on receiving his note, for $75 — that this agreement was to be delivered to plaintiff on payment of the $50 ; that this paper was signed only by himself; was placed in the hands of defendant’s agent, and was never in the possession of the plaintiff; that the agreement with him was altogether in parol, and defendant relies on the statute of frauds; that some three months afterwards, having ascertained that the plaintiff had not complied, defendant withdrew the paper from Behling’s possession, and considered the matter at an end ; that plaintiff was not then in possession of the lots, and if he ever took possession, it was not rvith the consent of defendant, or under any contract, but as a trespasser; that defendant never heard any thing more on the subject, until eight or nine months after he had withdrawn the paper, and when the lots had risen in value; that the plaintiff then wished to renew the contract, but avowed his inability to pay any money; that it was not until eighteen months after he had withdrawn the paper that any money was offered to him, and after the lots had greatly risen in value, and that he refused then to renew the agreement. The witness, Luder F. Behling, proves the contract as alleged, and that a note or agreement to make titles was left by defendant with the witness, to be delivered to the plaintiff on payment of $50. This was in June, 1848. That it remained in witness’s possession until April or May, 1849 ; that defendant then came to Clinton, asked to see the paper, read it and kept it.— That the plaintiff let the witness have money to pay for the lots, but whether this was before or after he had given up the agree ■ ment to the defendant, he cannot say; that two or three months after the agreement, plaintiff fenced in the lots and dug a well; he has put thirty or forty dollars worth of work on them.

It appeared from the evidence of this witness, and others, that the real estate in Clinton had risen in value one hundred per cent, within the last two years. These lots are now worth $250 to $300 j the annual rent is worth $20. The evidence is all in *420writing, and has only been partially incorporated into the statement.

It is difficult to maintain on this testimony, that there was any such written agreement between the parties as is required by the provisions of the statute. Assuming the construction insisted on by the plaintiff, there was a parol agreement on the 22d June, 1848, that on the payment of fifty dollars within a reasonable time, he was to receive the written engagement of the defendant to make titles, on payment of the balance. Until payment of the fifty dollars all was in parol. After the tender of the fifty dollars, and the refusal of the defendant to give his obligation to make titles, there was the breach of a parol contract — no more. Suppose the defendant had agreed to make him a title on payment of $125, and in order to be ready had prepared and executed a conveyance, which he put in his desk, and three or six months afterwards, finding that the plaintiff had not called to comply, he took out the deed and put it in the fire. Could the plaintiff, on afterwards tendering the money, allege that there was any written agreement, or give any strength to his claim in consequence of the execution of the conveyance *1*But it is scarcely urged by the plaintiff that the evidence establishes any concluded written agreement between the parties. It is said, however, that there are acts of part performance which take the case out of the statute. The requisites which will authorize the interposition of a Court of Equity, to compel the performance of a parol contract for the sale of lands, are enumerated in *Thomson*vs. *Scott,*(1 McC. Ch. 38). It is there said, that when the plaintiff relies on *part*execution, he must show that the part execution was by *mutual consent.*If the purchaser took possession, that he was put in possession by the vendor, or that he went in by his consent. If this is not shown, that then his entry partakes more of the nature of a *trespass*than a *part execution*of the contract. The party seeking the performance of the contract must also make out, by proof, that he has done all that good faith required of him. The appeal to this Court is to make an exception to the statute, and cam *421only be successfully invoked in f avor of good faith, as well as diligence, and to prevent fraud.

The evidence leaves great doubt in some important points. The agreement was made in June, 1848. The fifty dollars was to be paid within a reasonable time, says the plaintiff. This payment seems to have been intended as well to bind the bargain, as to secure the defendant in the balance.

It is rather apparent that, in April or May of the following year, the plaintiff had not paid the fifty dollars, or offered to do so. If he had, Behling would have delivered him the note or obligation to make titles, for up to that time it was still in his possession for that purpose. But the plaintiff does not allege or aver that he offered to comply until August or September, 1849, and it is very certain, from Behling’s testimony, that four months before that time, the defendant had withdrawn the paper from his possession. In the interim, since the contract of June, 1848, real estate had risen greatly in value. Then as to the possession: Clarke says there was no contract that the plaintiff should take possession ; that if taken, it was not with his consent, and that the plaintiff was not in possession, to his knowledge, when he withdrew the paper in April or May, 1849. It is not easy to infer from. any part of the testimony that the plaintiff took possession or was in possession, with the consent or even with the privity of the defendant. Behling says that, *“*defendant knew plaintiff was in possession *when he refused to deliver up the*paper, and long before.” But this is very indefinite. “ It is necessary,” says Mr. Sugden, “ that the act (of taking possession) should unequivocally refer to, and result from the agreement, and such that the party would suffer an injury amounting to fraud, by the refusal to execute that agreement.” — (Sugden, 118). He then shows that, if the act be such as easily admits of compensation without executing lhe agreement, the provisions of the statute must be maintained, and refers to 2 Sch. & Lef. 6, in which Lord Redesdale thought it was absolutely necessary for Courts of Equity, in these cases, to make a stand and not carry the decisions further. The im*422provements made by the plaintiff are worth thirty or forty dollars, and the annual rent of the lots is worth twenty dollars; any injury, therefore, done to the plaintiff in consequence of taking possession, not only “ admits easily of compensation,” but the remedy is, perhaps, in his own hands.

It is ordered and decreed that the petition be dismissed, each party to pay his own costs.

The petitioner appealed, on the following grounds.

1. Because there was sufficient writing, and sufficient evidence of it, to take the case out of the statute of frauds.

2. Because there was sufficient performance'on the part of the plaintiff, in taking possession, (by at least the implied consent of the defendant,) and offering to pay the money, even before demand made, to authorize the Court to compel a specific performance of the contract on the part of the defendant.

*Owens,*for appellant.

*Bellinger,*contra.

Johnston, Ch.

delivered the opinion of the Court.

There was but one witness to contradict the answer, in any of the particulars to which it relates: — either as to the parol agreement, or as to the terms of the written agreement, — or the conditions upon which it was placed in the hands of Behling ; or as to the fact of the possession being taken under the agreement (whether considered as parol or written). The rule of evidence in this Court, therefore, necessarily compelled it to dismiss the bill; whatever might be its impressions as to the merits of the case.

It is ordered that the decree be affirmed and the appeal dismissed.

Dunkin, Ch. concurred.

*Appeal dismissed.*