"on necessary and urgent occasions," could in his discretion dispense with penal statutes.55 If for good reasons James II might dispense with a statute of Charles II requiring public officers to take a test oath, Lord Jeffreys might well feel that James's chancellor, for good reasons, could dispense with another statute of Charles II, requiring contracts for the sale of land to be in writing. It is significant that at first there was a tendency to take cases out of the statute very freely, analogous to the tendency with respect to the Statute of Limitations already spoken of.56 In the fore part of the nineteenth century there was a wholesome reaction, exactly as in case of the Statute of Limitations. Later, chiefly in the United States, there was a return to the older attitude and a movement to let down the bars with great liberality, - largely under the influence of attempts to rationalize the subject of part performance by means of theories of "fraud." In England a generation ago there was a second reaction toward stricter holding to the statute, and there are now signs of a movement in the same direction in the United States.

In so many jurisdictions the specific cases which will obviate the bar of the statute are so well settled that it may seem futile to essay any general theory. And yet many things remain unsettled. Hence some general idea as to the basis on which courts should act and some analytical conception of the subject of taking cases out of the Statute of Frauds, as a whole, will be useful in preventing the growth of further anomalies, in preventing the extension of old ones, and in laying the foundations for an ultimate putting of the subject into better order, whether by legislation or otherwise. From this point of view, what account may be given of the types of case heretofore considered? First we have the cases of "fraud” in the stricter sense. These may well stand, if we except certain dicta, on the familiar principle of that much-enduring word "estoppel" that one who makes a representation for the purpose of inducing another to act on it, if the other so acts to his injury, must make good that representation. Second, we have the cases of possession, now become "part performance." Originally these went on the ground that there had been the substance of a com

55 Godden v. Hales, Comb. 21, 2 Shower, 475 (1686).

56 Seagood v. Meale, Prec. Ch. 560 (1721); Lacon v. Mertins, 3 Atk. 1 (1743); Dickinson v. Adams, cited in 4 Ves. 722 (1799).

mon-law conveyance. As this was overlooked or forgotten, new explanations were sought. An early theory was that taking possession and holding it as owner, with the assent of the vendor, was something solely referable to a contract between the parties as to that very land, and hence calling for an explanation which would let in evidence of the contract.57 Another was that taking possession is an act of part performance because "the party might be treated as a trespasser if he could not invoke the protection of the contract." 58 That is, being, as it were, seized through the substance of a common-law conveyance, the purchaser may go into equity to protect his equitable ownership quia timet. But we have here a transition to the idea of "fraud," and in consequence American courts have often called for something more than taking possession.59 Thus we are led to the view well expressed by Lord Cottenham in Mundy v. Jolliffe:

60

"Courts of Equity exercise their jurisdiction, in decreeing specific performance of verbal agreements, where there has been part performance, for the purpose of preventing the great injustice which would arise from permitting a party to escape from the engagements he has entered into, upon the ground of the Statute of Frauds, after the other party to the contract has, upon the faith of such engagement, expended his money or otherwise acted in execution of the agreement."

Pomeroy developed this argument into a theory of "equitable fraud" as the basis of the doctrine,61 which has had a wide influence in the United States and has given Lord Cottenham's theory general vogue in hard cases not admitting of the taking of possession.62 I have already pointed out the effect of this gradual ex post

57 Sir William Grant in Frame v. Dawson, 14 Ves. 386, 387-388 (1807); Wigram, V. C., in Dale v. Hamilton, 5 Hare, 369, 381 (1846); Seitman v. Seitman, 204 Ill. 504, 68 N. E. 461 (1903); Hersman v. Hersman, 253 Mo. 175, 161 S. W. 800 (1913). 58 Field, J., in Arguello v. Edinger, 10 Cal. 150, 159 (1858).

...

59 "In several jurisdictions . . . this reason, as applied to mere possession, is rejected as artificial and untrue in fact." I POMEROY, EQUITABLE REMEDIES, 2 ed., § 2239. See also id., § 2243.

60 5 My. & Cr. 167, 177 (1839).

613 POMEROY, EQUITY JURISPRUDENCE, § 1297 (citing Mundy . Jolliffe); 4 id., § 1409, n.; Gallagher v. Gallagher, 31 W. Va. 9, 5 S. E. 297 (1888).

62 Wright v. Wright, 99 Mich. 170, 58 N. W. 54 (1894); Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 4 (1899); Nowack v. Berger, 133 Mo. 24, 34 S. W. 489 (1896); Pflugar v. Pultz, 43 N. J. Eq. 440, 11 Atl. 123 (1887); Lothrop v. Marble, 12 S. D. 511, 81 N. W. 885 (1900); Bryson v. McShane, 48 W. Va. 126, 35 S. E. 848 (1900).

facto development of a theory in producing an artificial differentiation of cases according to the possibility of taking possession, and in fostering loose notions of possession in cases of contracts for support where vendor is to live on the land during his life and the purchaser is upon the land with him. The cases as to service rendered the vendor are also palpably influenced by the older decisions as to taking cases out of the statute by payment. May we give any satisfactory analytical account of such a situation? At any rate we may note that the prevailing theory, whether put as Lord Cottenham put it, or in terms of "equitable fraud” with Pomeroy, is not applied by courts to one of the strongest cases for its application, namely, payment of the purchase money to an insolvent vendor,63 and this, it is significant to note, because such cases admit of taking possession. In truth it was devised to explain the cases where the situation does not admit of taking possession, just as the theory of acts solely referable to a contract as to the land was devised to explain the cases where possession is held to suffice. And this leads to the suggestion that each contains a part of the truth in that we really have two things to consider: (1) whether the policy of the statute is saved, and (2) whether there is something in the particular case that calls for dispensing with a formal compliance with the statute, its policy being saved, and makes it more equitable to go forward and complete what the parties have begun. The theory of acts solely referable to a contract as to the land shows us how to meet the policy of the statute. Lord Cottenham's proposition or the doctrine as put by Pomeroy, shows us how to determine what to do, if and when our first condition is satisfied. Lord Selborne in effect combined the two along this line in Maddison v. Alderson, and gave us, it is submitted, the best rationalization of part performance to be found in the books. Thus the tendency of American courts to require something more than merely taking possession under the contract and the refusal of many courts to grant relief even in hard cases of service, where no possession is taken, without some act solely referable to the contract, are well justified and are in the right line of progress toward a satisfactory law upon this subject.

68 Townsend v. Fenton, 32 Minn. 482, 21 N. W. 726 (1884); Bradley v. Owsley, 74 Tex. 69, 11 S. W. 1052 (1889); Miller v. Lorentz, 39 W. Va. 160, 19 S. E. 391 (1894). 4 8 App. Cas. 467, 475-476 (1883).

We may now examine the decisions of the past year in the light of the foregoing discussion.

Nothing new is brought out by the cases involving taking of possession. None of them involve possession without more. Doty v. Rensselaer Insurance Co. is a case of possession coupled with expensive improvements, within the settled New York doctrine.66 Pearson v. Gardner 67 and Kemmerer v. Title & Trust Co.68 are cases of possession coupled with part payment. Page v. Cave 69 is a case of possession plus the rendition of services. In Hudgins v. Thompson 70 there was possession along with part payment and substantial improvements. In Sizemore v. Davidson 71 vendor was in possession under a contract to purchase public land. He sold by parol to purchaser who took possession. Under the doctrine prevailing in Kentucky, where part performance does not take a case out of the statute, it was held that after vendor had acquired a patent he could be prevented from asserting his legal title against purchaser until the equities between the parties had been adjusted. In other words, vendor was treated as equitable owner, and his contract with purchaser as a conveyance of his equitable ownership within the Statute of Frauds.

72

Nor is there much new in the cases of continuance in possession or possession referable to some relation between the parties. Ashcraft v. Tucker 73 and Casady v. Casady 74 are ordinary cases of continuance in a prior possession. In the former there was the added circumstance of part payment, which standing alone, however, could not suffice.75

65 188 App. Div. 29, 176 N. Y. Supp. 55 (1919).

Dunckel v. Dunckel, 141 N. Y. 427, 36 N. E. 405 (1894).

67 202 Mich. 360, 168 N. W. 485 (1918).

68

90 Ore. 137, 175 Pac. 865 (1918).

69 106 Atl. (Vt.) 774 (1919).

70 211 S. W. (Tex.) 586 (1919).

71 183 Ky. 166, 208 S. W. 810 (1919).

72 This is universally held in such cases. Russ v. Crichton, 117 Cal. 695, 49 Pac. 1043 (1897); Aldrich v. Aldrich, 37 Ill. 32, 36 (1865); Egbert v. Bond, 148 Mo. 19, 49 S. W. 873 (1899). Yet the contract is not enforceable in equity against the state nor indeed judicially at all, unless by way of mandamus where some ministerial act of an administrative officer is all that is required to pass title.

73 136 Ark. 447, 206 S. W. 896 (1918).

74 169 N. W. (Ia.) 683 (1918).

75 So also in Starrett v. Dickson, 136 Ark. 326, 206 S. W. 441 (1918). In Hawley v. Wood, 184 Pac. (Cal.) 9 (1919) purchaser in an oral contract claimed that a tenant at will of seller had attorned to him. This was held insufficient. It may be sup

In King v. Hartley 76 and Le Vee v. Le Vee 77 the contract was between tenants in common. The possession was referable to the relation and there was nothing to show any change in its character. In Formby v. Williams 78 a tenant in possession under a lease spread fertilizer over the land before the lease expired, relying on an oral contract for a new lease. Specific performance was denied on the ground that the acts relied on were not exclusively referable to the contract nor such as could "not be explained consistently with any other contract." Here, unlike Mundy v. Jolliffe,79 the acts were such as the lessee could lawfully do by virtue of his tenancy, although it was not likely that he would unless he expected to stay beyond the term of his lease. They did not necessarily show a change in the character of his possession. Brown v. Western R. Co.80 involved a contract to build a spur track and to give an easement of storing lumber on defendant's right of way. Plaintiff had seriously changed his position for the worse in reliance on the contract and had stored lumber on the right of way under it. In an able opinion, Lynch, J., points out the difference between such a case, where there is an actual contract, whether to lease the right of way for storage or to give an easement of storage, and the cases of parol licenses acted on. Here the storing of the lumber was necessarily referable only to some contract between the parties as to the use of the land by plaintiff, and the great hardship upon plaintiff after all that he had done made it more equitable to go forward than to try to undo it. The most notable thing about this group of cases is the strict insistence upon acts solely referable to a contract as to the very land or indubitably showing a change in the character of a pre-existing possession.

A number of cases involve contracts to devise land in return for services to be rendered during the owner's life. In Taylor v. Holy

ported on the ground that what took place did not establish a change in possession amounting to the substance of a common-law conveyance. But Shaw, J., dissenting, argues convincingly against the technical criterion of the California cases, which call for such a possession as would make purchaser "liable for trespass."

76 123 N. E. (Ind. App.) 728 (1919).

77 181 Pac. (Or.) 351 (1919). Starrett v. Dickson, 136 Ark. 326, 206 S. W. 441 (1918), is similar. The alleged possession was referable to a joint occupancy with vendor by virtue of the relation of husband and wife.