Hoen v. Simmons

By the Court,

Bennett, J. Action by plaintiff to recover possession, and cross suit by defendants for specific performance.

It is clear that the plaintiff is entitled to recover possession of the lot in question, unless the defendants have a right to compel him to convey it to them. The counsel for the defendants made a point, that, inasmuch as the plaintiff had proved no title in himself, the defendants, being in possession, could not be ousted. This is very good law when applied to a proper state of facts, but lias no application in this case. The defendants, having entered into possession, claiming under the plaintiff and in subordination to his title, are estopped from questioning it. Their position is similar to that of a tenant, who cannot gainsay or [121]deny the title of Ms landlord, without having first restored the possession. The plaintiff must, therefore, recover, unless the defendants show a right to a specific performance, upon the principles adopted by courts of equity.

The affirmative of this latter position can be sustained only upon the ground, that there was a subsisting contract in writing reciprocally binding upon the parties ; or that there was a verbal agreement, and part performance of it by the defendants under such circumstances, that it would be a fraud on the part of the plaintiff if he were not compelled to convey.

There was no contract in writing. A paper was drawn up which might have acquired the force of a written contract, had it been signed and delivered ; but without signature or delivery, it is of no account, It was inchoate and incomplete, and neither party was bound by it.

The contract, therefore, if there was one, was merely verbal, and there is no part performance within the equitable rules which govern decisions in such cases.

A party, asking the interposition of the equitable power of the court in enforcing a verbal contract for the conveyance of real estate, should show that he has, on his part, fully complied with the substance of all the provisions which he engaged to perform. The verbal contract in this case was, that the defendants should pay $1000 down, and $4000 in two months thereafter, with interest at the rate of two per cent, per month. The period limited for the payment of the full amount had elapsed long before the commencement of the suit; and in order to entitle the defendants to a specific performance, they should have shown that they had paid or tendered the whole sum of 05000, with the stipulated rate of interest. This they have not done.