that as to so much as is executed, as to so much time as the plaintiff has labored, he labored under the contract, and the price stipulated is to govern. But he relies upon the contract, not only so far as it is executed, but so far as it is still executory. He seeks first to establish the parol agreement as a valid subsisting contract, and then to charge the plaintiff with a breach of it.

A construction of the statute which would sanction this use of the contract, would lose sight of the obvious purposes of the statute. It would adhere to the letter at the expense of the spirit. It would operate unequally upon the parties. The weight of authority is against it. Exceptions overruled.1

COLEMAN, J., IN NELSON v. SHELBY MANUFACTURING COMPANY.

96 ALA. 515, 526.-1892-93.

In many English cases, and in some of the states, it is held that money paid on a purchase of land cannot be recovered back, if the vendor is able and willing to carry out the contract of sale, although he may be under no legal obligation to perform. We are of opinion that this principle has never prevailed in this state. In Flinn v. Barber [64 Ala. 1931, it is said that the validity of the contract does not depend upon the willingness or election of the vendor, but upon the sufficiency of the written note or memorandum of the contract of sale, subscribed by him, to make it obligatory upon him, or upon such a part performance by the vendee, as to remove the contract from the operation of the statute of frauds, so that it be

1 Accord, Freeman v. Foss, 145 Mass. 361 (1887).

In Riley v. Williams, 123 Mass. 506 (1878), the action was brought upon a quantum meruit and the evidence tended to show a special contract, not in writing, by which the plaintiff agreed to do certain work for the defendant. and to receive in payment therefor a lot of land, to be selected by him out of a number of lots owned by the defendant, and blacksmith's work to a stated amount from a firm of blacksmiths; and that the plaintiff, after performing the labor, refused to accept payment as stipulated in the contract. The court said: "Under the instructions given, the jury must have found that, although the services as claimed by the plaintiff were actually rendered, yet he had agreed that he should be paid in the manner stipulated in an executory contract which the defendants are ready and able to perform. If he was to be paid partly in a lot of land belonging to the female defendant, and partly in blacksmith's work to be furnished by Cameron & Emerson, and the jury were satisfied that the defendants were ready and willing at all times to convey the land at its fair market value and Cameron & Emerson were always ready to furnish the blacksmith's work for him when called for at agreed or reasonable prices. it is not for the plaintiff to object that this special contract was not binding because it was not in writing. It was wholly immaterial that no action could be maintained on this special contract, because it was not reduced to writing, if the defendants were ready and willing at all times to carry it into full effect. The plaintiff cannot force the defendants to take their stand upon the statute. Coughlin v. Knowles, 7 Met. 57. Wetherbee v. Potter, 99 Mass. 354. 361."

WOODRUFF'S CASES-8

came mutually binding. We find nothing in the earlier or present statutes of frauds which supports the conclusion that a contract not enforceable against a vendor as provided in the former, or which is declared void as to him by the present statute, because there is no sufficient written note or memorandum of the agreement to comply with its mandates, subscribed by him, and which affords the vendor complete protection against his vendee, may, by his election or willingness to perform, avoid the statute, and convert a contract it declares void into a valid agreement, enforceable against a vendee, who has subscribed no note or memorandum of the agreement, and has done no more than pay a part of the purchase-money. In such a case neither party is bound, and the contract is void by the terms of the statute itself. A contract void under the statute of frauds is void for all purposes.1

IMPROVEMENTS.

LONG v. FINGER.

74 N. C. 502.-1876.

THIS was a civil action, in the nature of ejectment.

RODMAN, J.-The plaintiff has the legal title to the land in controversy, and is therefore admittedly entitled to recover unless the defendant has some equity to restrain him. The defendant alleges that the plaintiff by parol agreed to convey the lot to him on the payment of $150; that he thereupon entered into possession and put up improvements to the value of $150; he admits that he has never paid the plaintiff the purchase money and is unable to do so. He contends that he ought to be allowed the value of his improvements, or at least that the premises be sold and any excess they may bring over the purchase money, and damages for withholding the possession, and the costs of this action, may be paid to him.

It may be observed that although the contract was originally by parol and could not be enforced, yet as the plaintiff in his replication acknowledges the contract and offers to perform his part of it on performance by the defendant, the defendant does not need any decree of a court to give him that relief. It is competent for him to sell his estate in the premises, and if he can obtain for them a price in excess of the just demands of the plaintiff, the excess will be his, unless the plaintiff will have in that event a right to tack on his subsequent loan of $100. As no case is before us calling for any opinion as to the plaintiff's right in that respect, we express none. If the defendant cannot sell his estate in the premises subject to the plaintiff's claim, for anything, the inference is clear that al

Accord. Scott v. Bush, 26 Mich. 418 (1873), 29 Mich. 523 (1874); Koch v. Williams, 82 Wis. 186 (1892).

though his improvements have cost him something, they have added nothing to the value of the lot.

Beyond the remedy indicated, the defendant has no equity or title to relief. He relied in the argument on the case of Albea v. Griffin, 2 Dev. & Bat. Eq. 9, and others, to the effect that if a vendee by parol paid part of the purchase money, or entered and made improvements, although he could not enforce a specific performance on the ground of part performance, yet the vendor would not be allowed to turn him out without repaying what of the purchasemoney had been paid and making compensation for the improvements. Obviously the present case does not stand on the same footing. Here the vendor does not set up the statute of frauds, but waives it, and is both willing and able to comply. The defendant alone is in default. There is no error and the plaintiff is entitled to judgment for the possession of the premises on the pleadings.

* * * *

Per CURIAM. Judgment affirmed, with costs to the plaintiff in this court.1

MASSON v. SWAN, ADM'X, et al.

6 HEISK. (TENN.) 450.-1871.

NICHOLSON, CH. J.-In May, 1857, William Swan agreed to sell to Paul Masson a vacant lot in Knoxville for $600. The agreement was in parol, no note given for the purchase money, and no time fixed for its payment, and no written memorandum of the terms of sale. Masson took possession of the lot and proceeded to make permanent improvements upon it by erecting buildings thereon for a residence. From the 25th of December, 1857, to the 25th of December, 1860, he occupied the premises as a residence. No payment on the purchase money was made, and no application to Swan for a title. Swan died in March, 1859.

The bill was filed May 2, 1860, making no tender of purchase money, and asking for no execution of the contract by title from the heirs of Swan, but assuming that the contract was void because not reduced to writing, and claiming compensation for the permanent improvements to the amount of the enhanced value of the property, setting off against such the rents, after deducting the amounts. paid for taxes and insurance. The widow of William Swan, as his

1 Accord, Farnam v. Davis, 32 N. H. 302 (1855), in an action of assumpsit for improvements. In Hawkins v. Beal, 4 Dana (Ky.) 5 (1836), the vendee filed a bill in equity to recover the value of improvements, he having defaulted upon the oral contract and been evicted. The court said: "Had it clearly appeared that the non-execution of the contract was attributable altogether to his wilful delinquency or fault we should be indisposed to concede to him any right in equity to any compensation whatever." But it not being clear that the vendee's default was wilful he was allowed to recover.

administratrix, and his heirs, were made defendants. The heirs answered-those who were adults answering for themselves, and those who were minors by their regular guardian, the service of process on them being waived by him. By reference to the clerk and master the amount of the enhanced value of the lot was ascertained, to which was added the amount of taxes and insurance paid, and from the aggregate sum the amount of the rents was deducted. For the balance a decree was rendered, and an order of sale of the lot for its satisfaction.

Both sides have appealed.

It is said that there is no equity in the bill, and that complainant has no right to the aid of a court of equity to enable him to rescind the contract. By the recent decisions of this state the contract of sale was not absolutely void, but voidable upon the election of either party. Roberts v. Francis, 2 Heis. 128. Swan, the vendor, did not elect to avoid the contract, nor did his heirs after his death. Complainant made no tender of the purchase money, and could not claim a title until he had done so. He rested upon the parol contract, made the improvements, and occupied the property as his own under the parol contract until May 2, 1860, when he elected to avoid the contract and claim compensation for his improvements. He had the right to make his election, and as the improvements were made under a subsisting parol contract, he had the right to come into a court of equity to have his claim for compensation enforced. The equity springs from the fact that the contract is not void but voidable, and that either party has the right to avoid it. Rhea v. Allison, 3 Head 176.

The equity of complainant is the amount of the enhancement of the value of the lot in market, resulting from the permanent improvements made upon it; this value to be estimated at the time he made his election to avoid the contract. The amounts actually expended in making or superintending the improvements do not furnish the criteria for ascertaining the enhanced value, though they may be looked to as legitimate evidence in the investigation. But as complainant seeks the enforcement of an equity, he is bound to do equity; hence, he is required to account for the benefits derived from the use and occupation of the property. As he elects to repudiate the contract, and along with it the payment of the purchase money, equity requires him to account for reasonable rents. During the occupation of the lot the law imposed taxes on the property. These were encumbrances, for the removal of which he ought to have credit upon the amount of the rents. But the insurance paid upon the property stands on a different footing. He insured the property voluntarily and for his own protection, and while he was holding and treating the property as his own. We see no equity in allowing him a credit for this expenditure. The balance due to complainant will bear interest from the filing of the bill.

The only remaining question is as to whether the enhanced value should be paid by the administrator or the heirs? It cannot be re

garded as a debt against the administrator. The liability arose upon the election of complainant to avoid the contract, and it is a liability arising out of no default on the part of the intestate or his administratrix. For all we can see, the intestate was ready at any time to make title if complainant had entitled himself to it by tendering or paying the purchase money. Not electing to do this during the lifetime of the intestate, and only making his election to avoid the contract after the legal title had descended to the heirs of the intestate, at which time his equitable claim for compensation came into existence, we think it clear that the liability attaches to the property itself out of which it sprung, and that it cannot be viewed as a debt of the estate to be paid by the administratrix. The real estate and not the personal is benefitted by the improvement, and equity necessarily fixes the liability for the benefit on the real

estate.

With the modifications indicated the decree of the chancellor is affirmed. The heirs will have four months with which to pay the amount ascertained to be due. The clerk of this court will make report of the amount due to the present term. The costs will be paid by complainant.1

ii. Defendant in Default.

RICHARDS v. ALLEN.

17 ME. 296.-1840.

ASSUMPSIT for a quantity of bricks delivered in 1829, and a yoke of oxen delivered January 27, 1832. The writ was dated January 27, 1838. Eighteen or twenty years before the commencement of the suit, the plaintiff contracted verbally with the defendant for the purchase of a farm, and entered upon the farm under that verbal contract, and lived thereon until the time of trial. The bricks and the oxen were delivered at the respective times charged in part payment of the farm, under the verbal contract for the purpose thereof. WESTON, C. J.-The contract between the parties in regard to the farm, was one, which being by parol, could not be enforced at law. It was however morally binding; and payments made by the plaintiff on account of the purchase could not be reclaimed so long as the defendant was in no fault. But if he, without any justifiable cause, repudiated the contract, and refused to be bound by it, a right of reclamation would accrue to the plaintiff, to the extent required

But recovery for improvements will not be allowed to the vendee in default, who has notice that the vendor was opposed to the improvements being made. Rainer v. Huddleston, 4 Heisk. (Tenn.) 223 (1871).