#### *Lucinda Hatcher et al.*vs. *Christiana Hatcher et al.*

1. Where a party seeks in the Cciurt of Equity for the specific performance of an agreement, it is not necessary that he should make the formal allegation in his bill, (where, he has partially performed the agreement on his part,) that he is ready and willing to perform the rest. That is implied in the fact of bringing the bill.

2. Where the evidence makes out a different case, from the one stated in the pleadings, in general, it should be objected to, but not at the moment it is offered, but in the progress of the cause. If this is not done, the objection will be taken as waived, and the Court will proceed to give relief — if it presents such a case as" requires the aid of the Court.

3. The same strictness of pleading, and proof, is not required in the Court of Equity, as is required in the Court of law.

4. The payment of money cannot be regarded as a part performance of a contract. It must be such an act, as would operate a fraud upon the party, if the contract was not performed in full; money may be recovered back. Neither will the continuing in possession, after the sale, be such a part performance as would authorize the Court to enforce the contract.

5. A receipt, acknowledging the payment of money, in these words, “ in part payment of the tract of land, that I was interested in, and sold by the sheriff, and purchased by Col. C.L. G., and which land was sold by C.L.G. to Benj. Hatcher ; this in partpayment, to redeem the said land from Benj. Hatcher;” w.asheld a sufficient memorandum in writing, to compel the specific performance of the agreement.

6. Extrinsic evidence may be resorted to, for the purpose of ascertaining the price that has been paid, where the instrument, or memorandum, is certain and unambiguous.

*Heard before*Johnson, Ch. *at*Edgefield, *June Term,*1841.

The late John Hatcher, by his last will and testament, devised to the defendant, his wife, Christiana Hatcher, a tract of land, containing five hundred and fifty acres, for life, remainder in fee to his son, Edward Hatcher, the late husband of complainant, Lucinda, and father of the other complainants ; and the complainants state in their bill, that defendant, Christiana, after the death of the said John, released in writing, her estate for life, in the said lands, to the said Edward Hatcher ; that the said Edward was in possession of the said land many years before his death, which happened in 1338, but in the mean time, (1 June, 1835,) the same had been sold under an execution against, and as the property of the said Edward, and was purchased by one C. L. Goodwin, at the price of $180, who sold it to one Benjamin Hatcher, the brother of Edward, and that the said Benjamin, on the 4th January, 1836, sold it to the said Edward, at the price he paid Goodwin for it, viz;

*312$180. That on the said 4th January, 1836, the said Ed» ward, paid the said Benjamin $26, on that amount, and that the said Benjamin agreed to accept the said Edward’s interest in a tract of land, which had been granted to them jointly, at $100, that the said Benjamin, also retained ten acres of rich bottom, at the price of $100, and that the said Edward paid to the said Benjamin, in money, lumber delivered, and goods in the store of James Mosely, about $40, in full satisfaction of the price of the said land, and some other small demands.

The complainants further state, that notwithstanding the contract, for the purchase of the land, and the payment of the money as aforesaid, the said Benjamin died intestate, not having made or executed any deed or conveyance of said land, and the defendant Christiana, notwithstanding her release or relinquishment, of her estate for life in the said land, has commenced an action at law, against the complainant, Lucinda, to try titles thereto, and prays that she may be restrained from further proceeding in the said action, and that she, and the other defendants, who are the heirs of the said Benjamin, may be directed to make and execute a deed or conveyance to the complainants, for the said land, in pursuance of the aforesaid agreement.

The defendant Christiana, (the only defendant, who has answered,) admits, that the land in dispute was devised, by John Hatcher, to her, for life, remainder to Edward in fee, and that the said Edward entered upon and took possession of it, under a written agreement between them, which, as she is advised, is, in effect, a lease at her will, and not a release or relinquishment of her life estate, and that he remained in possession for several years before, and up to the time of his death, and that she gave defendant notice to quit, before the commencement of the action at law. She also admits, that the land was sold at sheriff’s sale, and bid off by C. L. Goodwin, who sold it to Benjamin, to whom the sheriff made titles, and that the said Benjamin paid Goodwin therefor, $264 90. She denies all knowledge of any contract made by Benjamin for the sale of the premises, to the said Edward, or the payment of any money or other thing, on account thereof, and insists on the statute of frauds, as a bar to any parol agreement *313for the sale, and that if a valid contract for the sale should be proved, complainants may be decreed to pay the full amount which Benjamin paid to Goodwin.

It is conceded, that the land belonged to John Hatcher, dec’d., and that he devised it to the defendant, Christiana, for life, remainder to Edward, in fee. In the agreement referred to, in, and exhibited with, the answer, which bears date in August, 1833, it is stipulated that “ the said Chris-tiana Hatcher, do agree to let Edward Hatcher build on the land willed to him by his father, at the death of the said Christiana Hatcher, the said C. Hatcher, do also agree that the said E. Hatcher, may open and make all the improvements on said land he may think proper; the said E. Hatcher, do agree not to interrupt any thing that belongs to the said C. Hatcher, in person or property; if the said E. Hatcher, should interrupt, or suffer any of his family to interrupt, any thing belonging to the said C. Hatcher, the said E. Hatcher, do agree to pay the full value in cash, or to forfeit all the improvements on the said land.” And this is the agreement relied on by the complainants, as a release or relinquishment of the defendant, Christiana’s, life estate, and by her, as a lease at will.

The proof is very satisfactory, that the land was sold ■by the sheriff, on the sale day in June, 1835, as the property of Edward Hatcher, and was bid off by C. L. Goodwin, at $180; that Benjamin Hatcher, as a kindness to Edward Hatcher, agreed with him verbally, that he would buy the land of Goodwin, and let him have it, at the price he would have to pay, and which the witness, Bartly Hatcher, afterwards understood, to be $180; that Benjamin Hatcher, in December, 1835, did contract to purchase of Goodwin, at $254 90, which he afterwards paid, and that the sheriff, instead of making titles to him, by his direction, made them directly to Benjamin Hatcher, who by his last will and testament, devised the land to defendant, Christiana.

The complainants gave in evidence, a receipt signed by Benjamin Hatcher, dated, 4th January, 1836, in which he acknowledges to have received from Edward Hatcher, $25, „in part payment, of the tract of land, that I was interested in, and sold by the .sheriff, and purchased by C, *314L. Goodwin, and which land was sold by C. L. Goodwin',, to Benjamin Hatcher; this in part payment, to redeem the said land from Benjamin Hatcher.”

It was also proved satisfactorily, that Benjamin Hatcher, Edward Hatcher, and their brother Bartly Hatcher, having ascertained, that there were 6 or 700 acres of vacant land in the neighborhood, agreed that a grant should be obtained for it, in the name of Benjamin Hatcher, at their joint expense, and that it should be divided equally between them ; that a grant was obtained accordingly, each contributing equally to the expense, and that afterwards, it was agreed between Benjamin and Edward, that the latter should renounce his interest in this land, and that the former should credit him with $100, on account of the purchase of the land, in dispute. It was also proved, that Edward obtained goods from James Mosely, to the amount of about $12, which Benjamin agreed to accept on the same account, and that he also paid to John Hatcher, for Benjamin Hatcher, $30, which he agreed to credit to that account. These sums, and no proof offered of any other payment, amount in the whole to $167.

The agreement between defendant, Christiana, and Edward Hatcher, is very inartificially drawn, and it may be, that something more was intended, than is expressed. The provision in it, that Edward should forfeit his improvements, if he interrupted her, in her person or property, or suffered his family to do it, would seem to favor that opinion; for that was unnecessary, if she could terminate his tenancy at will. The stipulation on her part, clearly imports nothing more than a tenancy at will — a license to clear and improve the land, and if any thing more was intended, there is not in the agreement, nor any thing extensive of it, to show that a lease for life was intended; and if we are left to conjecture, it is just as reasonable to suppose, that a tenancy for years was intended. The agreement can therefore, only operate as a tenancy, at the will of Christiana. This is decisive of so much of the bill as prays an injunction, to restrain the proceedings at law. The right of complainants to a specific performance of the agreement to sell, remains to be considered. It is not denied, and the doctrine is too well settled to admit of con-*315trover,sy, that Courts of Equity will, under certain circumstances enforce the specific performances of contracts, for the sale of lands, notwithstanding there he no memorandum in writing, as required by the statute of frauds. The statute was intended, as its title indicates, to prevent frauds and perjury, and the Courts have reasoned, no. doubt justly, that it ought not to be made the instrument of fraud and such would unquestionably be-the effect, if the seller was to refuse to execute the contract, when the purchaser had paid the purchase money, or when he had -entered on the faith of it, and with the consent of the seller, and expended money or labor, in improvements. But according to *Thomson vs. Scott & Bostick et ai.*1 McCord’s Ch. 38, and *Massey vs. McEhoain*et al. 2 Heils, Ch. 426, to entitle the party to a specific performance, he must show clearly:

1st. What the precise agreement was.

2d. That it had. been wholly or partially carried into execution on one side, with the consent of the other party, and,

3rdly. That the party who seeks a specific performance, has performed his part, or it may be added, that he has partially performed it, and is already willing and able to perform the rest.

The case made by the evidence is clearly within the two first rules; the receipt of the 4th January, 1836, is in itself incontrovertible evidence of a previous agreement on the part of Benjamin to sell Edward the lands in dispute, or in the language of the receipt, to suffer him to *redeem*it, and the evidence of Bartly Hatcher, which was not questioned, sufficiently and clearly shows what that agreement was. .Benjamin was to purchase the land from Goodwin, and to let Edward have it, when he was able to pay for it, at the price he paid, which the witness understood to be $180: In the precise sum to be paid, the witness was obviously mistaken, and a mistake which probably originated in confounding the amount paid by Goodwin, with the amount paid him, by Benjamin, it is inconsistent with the agreement, that Edward was to pay the price paid by Benjamin; nor is there any thing besides this in the evidence, or the nature of the transaction, indicating that *316Benjamin agreed to accept less. I conclude, therefore:,, that by the terms of the agreement, Edward was to pay Benjamin $254 90 for the, land.

That the agreement was partially performed by Edward as conclusively proven by the receipt before referred to, and other payments amounting- in all to about $167, was proved by Bartly Hatcher; but this is not enough.

According to the third rule, Edward having partially performed his part of the agreement, the complainants-were bound to show that he or they had offered, and were ready, willing, and able, to perform the rest; but there is no such allegation in the bill, no proof, on the' contrary, the complainants allege that the whole has been paid.

Reliance has been placed in the possession, and' improvements made by Edward, as evidence of part performance ; this cannot avail any thing. His entry and possession was under the argreement with the defendant, Christiana, and not in pursuance of the contract with Benjamin. All the interest which Benjamin could derive from the sale by the Sheriff, was the remainder in fee, in Edward, after the termination of the- life estate of defendant, Christiana, which has not yet fallen in. He had therefore no authority to authorize, assent to, or object to, the possession. Bill dismissed with costs.

The complainant moved to reverse the circuit decree,, on the grounds:

1st. That the written agreement between Edward and Christiana Hatcher, operated to convey her life estate bathe land, and estops her- from prosecuting her action at law.

2d. Because the Chancellor has erred in not decreeing a specific performance of the contract between Edward and Benjamin Hatcher, in relation to the land, as the complainant honestly supposed that 'her husband, Edward Hatcher, had, in his lifetime, fully performed his part of the contract, and was herself willing, and is now willing, and ready to complete on her part such performance; and if necessary she asks the.leave of the Court to amend her Ml, in order to state such readiness..

*317Griffin, for complainants. — Wardlavv, contra: — if good release, defend at law 1 M. Ch. 38 *Massey*vs. *McElwain^ 2*Hill 1 Bail. 118 *Anderson*vs. Chick, 1 Mass. Ch. 379 7 Yes. 344 *Buckmaster*vs. *Harr op.*

Curia, *per*Harper, Chancellor.

We do not think it necessary to inquire whether the instrument of August, 1833, was a lease for life, or at will. If it was the former, as contended for by complainants, it will avail them in their defence at law. The Chancellor seems to have decided on the ground, that the party seeking performance must have performed his part, or have partially performed it, and be ready and willing to perform the rest. I find no authority that a party, who has partially performed his part, must make the formal allegation that he is ready and willing to perform the rest. That is implied in the fact of bringing his bill. It is known that the Court will not decree performance in his favor, but on the condition of performance by himself. At all events, the defect, if any, being merely formal, .should have been taken advantage of by demurrer. But the complanants allege that they have performed ; and the objection is, that a different case is made by the evidence, from that which is stated by tlie bill. In general, I think that when evidence is introduced, to make out a different case from that stated, it.ought tobe objected to, I would not say at the moment it is offered, but in the progress of the cause; and if this be not done, the objection will be taken to be waived, and the Court will proceed to give relief, if the evidence makes a case for relief The same strictness of pleading and proof, certainly does, not obtain in this Court as in the Courts of law. Bills often containing a variety of complicated details, it happens, almost daily, that a casé is made out different in some degree, from that stated. The only rule which can be laid down, is, that the Court will see that the defendant is not surprised by a case which he could not be prepared to meet. But what possible surprise can be operated on the defendants, in the present case? It is alleged that there was an agreement. They are put upon the proof that there was no agreement. Complainants allege that they have performed; defendants are put upon the proof that. *318they have not performed. A certain consideration for the contract is alleged; defendants are put upon the proof of a different consideration; and they, themselves, have furnished the proof. These, indeed, were the matters in issue. What possible advantage could arise to the defendants, from permitting the complainants to amend their bill, for the purpose of stating the case according to the fact. If, in England, where a re-conveyance is necessary, a mortgagor should bring his bill for that purpose, alleging that he had paid off the mortgage, and, upon investigation, it should be found that a small balance was still due, can it be thought that his bill would be dismissed, and be compelled to bring a new bill, alleging he had paid all but 50 shillings *1*I do not think that the complainants can enforce this contract, on the ground of part performance. I think upon the preponderance of authority, that the payment of money cannot be regarded as part performance. It is said that it must be such an act as would operate a fraud upon the party, if the contract were not performed in full; and the money may be recovered back. *Clinan vs.*Cooke, 1 Sch. *&*Lef. 40; *O' Herlibey vs.*Hedges, 2 Sch. & Lef. 129.

Nor do Í think that the continuing in possession after the sale, is such a part performance as will authorize tlie Court to enforce the contract. It is said that when the tenant is in possession, at the time of an agreement for a new lease, and only continues in possession, this is no part performance. *Morphett vs.*Jones, 1 Swaust. 181. It must be some positive act, done in reference to the agreement, and intended to be in execution of it. Ib.; and see *Anderson vs.*Chick, 1 Bail. Eq. 124, and the cases there refered to.

It remains to inquire, whether the receipt of the 4th of January, 1836, acknowledging the receipt of money, “in part payment of the tract of land that I was interested in, and sold by the sheriff, and purchased by Col. C. L. Goodwin, and which land was sold by C. L. Goodwin, to Benjamin Hatcher; this, in part payment, to redeem the said land from Benjamin Hatcher,” constitutes a sufficient memorandum of the agreement. And if we are to resort to the written memorandum, we must find all the terms of the^agreement in it, and cannot help it out by parol, or extrinsic evidence, The land is very sufficiently identified *319by the memorandum. The time for the payment of the consideration money, is not fixed; but, in such case, a reasonable time is always understood, and, in the present case, I should understand it to be before titles are executed. The amount of the consideration money is not stated, but an agreement is acknowledged to permit the party to redeem the land. What is the meaning of the word *redeem?*I believe it has a very well understood meaning, to wit, to reimburse the purchaser the money he has paid for the property. In the case of a mortgagor, it means to pay the amount of money secured, with interest: and so, in the case of a pledge or pawn, to reimburse the money advanced upon it. I regard the memorandum as explicit as if it had said, “ upon the re-payment of the money advanced by me, for the purchase of the said land.” Then, can we resort to extrinsic evidence for the purpose of ascertaining the price which was so paid! It does not appear to me, to come within the rule which forbids parol evidence to be introduced, for the purpose of adding to, explaining, or contradicting a written instrument. The memorandum is certain, and unambiguous; thougii it refers to an extrinsic fact, which must be ascertained before the agreement can be carried into effect. It is analagous to the case of a deed, which, after stating a particular consideration, adds, “and for other good causes and considerations.” Here, parol evidence is received of other considerations, because the testimony is not to contradict or vary the deed, but is consistent with it, and intended to give it effect. If the agreement were to sell land, at a price hereafter to be fixed, by arbitrators indifferently chosen, I suppose there could be no doubt that, when it was so fixed, this might be shown to give effect to the agreement. So, as it appears to me, where the stipulation- is to pay such price, as I can show myself to have paid for the land ; upon making such showing, there is nothing to forbid the agreement’s being carried into effect. But, in this case, we do not resort to parol, though to extrinsic evidence, for ascertaining the fact in question. The notes and mortgage of Benjamin Hatcher, afford indisputable evidence of it; and this evidence was introduced by the defendants, themselves.

*320It is, therefore, ordered and. decreed, that so much of the bill as seeks to enjoin the suit of the defendant, Chris-tiana Hatcher, for the land in question, be dismissed; and that the defendants, the heirs of Benjamin Hatcher, upon the payment to them of so much money as was paid by the said Benjamin Hatcher, to C. L. Goodwin, for the said land, with interest from the time of the payments, respectively, execute the said complainants a good and sufficient title for the said land ; and that it be referred to the Commissioner to take an account of the said payments and interest, and of the amounts already paid by the complainants, towards their said purchase, and that he report the balance due.

WM. HARPER.

The whole Court concurred.