#### Fisher and others vs. Moolick.

E. made a parol agreement with M. to enter for Mm forty acres of land which M. was occupying under a pre-emption claim, and to convey it to him on the payment of $50 in one year with 25 per cent, interest. After E. made the entry, M. continued in possession and made valuable improvements, with the knowledge and consent of E., who sent word to M. to come and get a written contract, but died before executing it. M. paid the purchase money to the administrator of E., who accounted for it in the settlement of the estate. *EM,*that there had been such a part performance of the contract as took it out of the statute of frauds.

*EM,*also, that in an action by the heirs of E., to recover the land, M. (who had demanded that relief in his answer), was entitled to a specific performance of the contract.

ERROR to tbe Circuit Court for *Bane*County.

Action by tbe beirs of one Fisber to recover tbe S. W. qr. of tbe N. E. qr. of sec. 19, T. 7, E. 11, in Dane county.

Judgment for tbe defendant. Tbe facts of tbe case are sufficiently stated in tbe opinion of tbe court.

*T. J. Widvey,*for plaintiffs in error,

contended that tbe land in controversy having been purchased with tbe money of Fisber, tbe alleged oral agreement under which the- defendant in error claims, was void by tbe statute of frauds, citing 9 Watts, 32 ; 10 Watts, 313 ; 1 Watts & S., 372; -Aid., 149 ; 9 id., 62; 1 Cox, 15 ; 7 Barb. (S. C.), 57 ; 4 Johns., 240; 14 id., 358 ; 3 Marsh. (Ky.), 23; 6 Dana, 332 ; 13 Ill., 227 ; 5 Johns. Cb. E., 1; 8 Sumn., 438.

*Walceley, Tenney*& *Vilas, contra,*

insisted that there had been a part performance which took tbe case out of tbe statute, citing 1 Mad. Cb’y, 373 et seq.; 6 Wis., 167; 9 N. BL, *322> 385; 8 id., 1; 2 Caines’ Cases, 87; 9 Peters, 86,103; 4 Corns., 403; 4 Wis., 79.

January 8.

*By the*Court,

Cole, J.

In tbis case tbe circuit court decided as a matter of law that Edward Eisber, tbe ancestor of tbe plaintiffs in error, acted as tbe agent and trustee of tbe defendant, in purchasing tbe lands in controversy of the United States, and that be took and held tbe title in that* capacity for the benefit of tbe defendant. Tbe correctness of tbis view was strongly combatted in tbe argument made on tbe part of tbe plaintiffs in error, and many authorities were cited to show that it could not be sustained. But without stopping to inquire whether tbe circuit court was right in tbis proposition of law when applied to tbe facts disclosed on tbe trial, we still think tbe judgment can well be sustained on another ground. And although tbe action was ejectment, or one for tbe recovery of real estate, still we are satisfied from tbe evidence that the defendant was entitled to tbe relief asked for in bis answer, and obtained on tbe trial, namely, a deed of tbe premises from tbe heirs of Edward Eisber. Eor to our minds the evidence abundantly shows that there bad been such a part performance of a parol contract for tbe sale and conveyance of real estate, as to entitle tbe defendant to a specific performance thereof from a court of equity. Such being tbe case, we fully concur in tbe judgment of tbe circuit court, which adjudged that tbe plaintiffs execute and deliver to the defendant a good and sufficient deed of conveyance of tbe premises mentioned in tbe complaint, with a covenant of warranty against their own acts, and that the legal title to tbe land be vested in tbe defendant. Tbis is what justice and equity require to be done, as tbe leading facts in the case will sbow.

It appears from tbe testimony that tbe defendant went upon the land in dispute in the fore part of the year 1851, for tbe purpose of improvement and cultivation, under tbe pre-emption laws of tbe United States. Being unable to enter tbe land within tbe year, be applied to Edward Eisber for a loan of money, to enable him to do so. Eisber agreed to enter tbe land for him, take tbe receiver’s receipt in bis *323own name, and convey tbe land to tbe defendant, upon tbe payment of fifty dollars, payable in one year, twenty-five per cent, interest. Tbe circuit court found tbat after tbe entry, Fisber promised and agreed to convey tbe land to the defendant, on being paid tbe purchase money, witb interest, as above stated, and tbat be was willing and designed to enter into a written contract to tbat effect, but died before executing tbe same; and tbis finding, we think, is sustained by tbe evidence. Further, tbat tbe defendant, relying upon tbe said purchase by Fisber, and bis promise to convey, continued in tbe occupancy of tbe land, and made valuable improvements thereon, witb tbe knowledge and consent of Fisber, after tbe entry. On tbe trial, tbe defendant also offered in evidence tbe receipts given to him, one for fifty dollars, bearing date January 13, 1853, stating tbat tbe amount was “ *to apply on contract with*Fisher,” containing, likewise, tbe following memorandum: *“*S. W. 1-4, N. E. 1-4, Sec. 19, T. 7, B.11,” signed “ J. BichakdsoN tbe other dated Nov. 30th, 1853, reading as follows: “$15,44. Be-ceived of *James*Moolicle, fifteen 44-100 dollars, being in full for payment on duplicate for south-west of north-east quarter, Sec. 19, T. 7, B. 11, held by estate of Edward Fisber on said tract of landsigned “ BichardsoN & YANSLYKE, for tbe administrator, L. J. Farwell.” Farwell testified *“*tbat be was acting as tbe special administrator of Edward Fisber, in January and November, 1853 ; tbat be received tbe money mentioned in tbe receipts, as such special administrator; tbat Bichardson and Bicbardson & Co. acted as bis agents to receive money on tbe estate ; tbat tbis money, so received, was accounted for to tbe probate court, and paid over as directed by tbat court.” Thus, there can be no manner of doubt tbat Fisber made tbe parol contract to convey to tbe defendant tbe precise tract of land in controversy, upon being paid tbe purchase money, witb interest thereon at tbe rate of twenty-five per cent.; tbat be permitted tbe defendant to continue in tbe undisturbed possession of tbe land, and to make improvements thereon, relying upon tbe execution of tbis contract; tbat Fisber treated tbe contract as a valid one in bis lifetime, and was willing and intended to reduce tbe *324same 'writin.g, but was prevented from doing so by death; that tbe full amount of the purchase money, with interest, paj¿[ by defendant to the administrator of the estate, who has accounted for and paid over the same on the settlement of his administration. A more cogent case, or one more strongly appealing to the favorable consideration of a court of equity, cannot well be imagined. For if the parol agreement to convey the land is now to be held void at law and equity, after the defendant has taken possession of the premises, or continued in possession of them, with the full knowledge and consent of Fisher, and has made valuable improvements thereon, in the confidence of the due completion of the contract, then the defendant will not only lose his improvements, but will be compelled to account for the profits of the land already paid for by him. It would certainly be a great hardship upon the defendant, if any rigorous principle of law should operate to produce these results. But we think the defendant can invoke that rule of courts of equity which will specifically enforce the performance of a parol contract for the sale of real estate, when it will be a fraud upon him, unless this is done. The contract has been partly executed, and within the doctrine of cases decided by this court, should- be fully performed. *School District No.*3 *vs.*Macloon, 4 Wis., 79; *Blanchard vs. McDougal,*6 Wis., 167.

For these reasons, we think the judgment of the circuit court must be affirmed, with costs.