Tate's Administrator, Plaintiff and Appellee, vs. Jones' Executor, Defendant and Appellant, 16 Fla. 216

The Chief-Jtjstioe delivered the opinion of the court. This suit was commenced in 1866 by Jeremiah Tate in his life time against the executor and heirs at law of Robert S. Jones, for the purpose of enforcing the specific performance of an agreement, not in writing, for the conveyance of lands in Calhoun county alleged to have been made in June, 1863, between Robert S. Jones and Jeremiah Tate.

The bill alleges that Jones and Tate entered into an. agreement, whereby Jones agreed to sell and convey to-Tate the lands described for the sum of five hundred dollars, on which land was an orange grove situated on the west hank of the Chipóla river, and that Tate paid to Jones the purchase-money in full, to wit: five hundred dollars ;.. that Jones agreed to execute the necessary deed of conveyance, and have the same recorded in the clerk’s office in a few days thereafter, he being t-hen sick; that Jones put Tate in possession of the land, which possession he has continued to hold to the time of filing the bill, believing that Jones had performed his promises, and that he had, during his occupancy, made numerous and valuable improvements upon the property.

Jones died in December, 1863, having, failed to execute the deed. The defendants answer that they know nothing of the alleged bargain and sale' of the payment of the money, and allege that Tate was in possession of the land as the tenant, or by the permission of Jones, at and before the time of the alleged agreement; and they insist.on the provisions of the statute commonly known as the statute of frauds as a bar to .the right of action for a specific performance of the alleged agreement.

After taking testimony, the casé was submitted to the court, and a decree was made upon the facts as found by the court directing the defendant to convey the premises as prayed in the bill of complaint. From this decree the defendant appealed. The only questions presented in the argument are upon the effect of the statute of frauds, and the sufficiency of the proof to take the case out of the operation of the statute.

The statute is as follows : “ No action shall be brought whereby * * charge any person upon any agreement made upon consideration of marriage, or upon any contract for the sale of lands, * * unless the agreement or promise upon which such action shall be brought, or some note or memorandum thereof, shall be in writing, and signed by the party to be charged therewith,, or by some other person by him thereunto lawfully authorized.” Thomp. Dig., 217-218, act of November 15, 1828. “ The whole class of cases,” says Story on Eq.

Jurisprudence, §741, “ of specific performance of contracts respecting real estate, where the contract is bj7 parol, and there has been párt-performance, or where the terms of the contract have not been strictly complied with, and yet equity relieves the party, are proofs that the right to maintain a suit in equity to compel a specific performance, does not and cannot properly be said to depend upon the party’s having a right to maintain a suit at law for damages.” 2 Sch. & Lef., 347-8, 684; 13 Ves., 228 ; 1 Sugden, Vend., c. 4, sec. 2, 246-7, 9th ed. “ If an agreement be by-parol, and not signed by the parties, or some one lawfully authorized by them, if such agreement be not confessed, as is said, in the answer, it cannot be •carried into .execution ; but if it be carried into execution by one of the parties, and such execution be accepted by the other, he who accepts it must perform his part.

As if A. sells his estate to B. by parol for one thousand pounds, if A. accepts the one thousand pounds, or any considerable part of it, he must convey his estate to B., for otherwise it is a fraud to accept the money of B. and not convey it.

Aird it •could never be the intent of the statute (which was to hinder bai’gains from being sworn upon men that they never .made) that men should take advantage of not completing bargains which they had made, and which were actually performed to them ; for when there is a performance the evidence'of the bargain does not merely lie upon the words, but upon the fact performed, of which they have reaped the advantage; and it is perfectly unconscionable that the party who has received the advantage of the verbal contract .should be admitted to say such contract was never made ; for the law must be construed according to natural equity, and not to create a fraud; and the person that receives money and does not convey is plainly guilty of a fraud, and therefore must not be permitted to insist that he did not sign, when he has received all the benefit he could have had by such signing, for that were to construe the statute against frauds so as to protect fraud and not suppress it.” Lord Chief Baron Gilbert, Lex Prsetoria, C.

I., 232-233, citing Leake vs. Maurice, Eq. Abr. 23, p. 20, 2 Ch. Cas., 135. The cases cited by Baron Gilbert contain the earliest

interpretation of the statute of 29 Car. II., of which the statute of Florida is a substantial copy. See also 1 Story’s Eq. Jur., §759, and authorities cited. Sir William Grant, in Frame vs. Dawson, 14 Yes., 386, says : “ It is admitted that supposing an agreement ever so clearly proved, yet, as a parol agreement, the plaintiff is not entitled to have it executed. It- is necessary, therefore, to show a part-performance; that is,

an act unequivocally referring to and resulting from the agreement, and such that the party would suffer an injury, amounting to fraud, by the refusal to execute that agreement.” And Browne on the Statute of Frauds deduces from a large number of American authorities, in

section 465, the following: “ Although payment, alone is not sufficient, yet it may serve to corroborate other acts which are generally regarded as amounting to part-performance, so as to afford ground for a decree of specific execution.

Where, for instance, it is accompanied by a purchaser’s entering into possession of land in pursuance of a verbal contract for the purchase of it, a case of part-performance is quite uniformly considered to be shown.” In Mississippi, and one or two other States, the courts have construed the statute so strictly as to refuse to enforce the specific execution of parol contracts for the sale of lands, even where there has been entire performance on the part of the purchaser by payment, and taking possession under the agreement.

The question comes before the court in this State for the first time in' the present case: If we were to confine ourselves to the strict letter of the statute, and say that no power resides in the courts of equity to decree a conveyance of land in pursuance of a parol agreement to convey, notwithstanding the fact that the seller had received the'full price agreed on, and had also in pursuance thereof put the purchaser in possession, or induced him to improve it, or fix his residence upon it, we should go far towards abdicating one of the most important functions of chancery jurisdiction; a step which, after the beneficent action of the courts in England and in this country, and in view of the principles upon which they have acted, we cannot take.

In our judgment the statute should be construed so as to give it the full force and effect intended, and nothing beyond that.

A mere parol agreement to sell lands cannot be enforced at law or in equity, but when one has agreed to sell, and has taken his price and delivered possession, he is estopped in equity from setting up the fact that he has obtained his neighbor’s money and induced him to change his situation upon an agreement which he insists may not be enforced against, himself, but the full benefit of which agreement he enjoys as fully as though he had, executed it, for the evidence of the agreement no longer rest upon mere words, but “upon the fact performed of which he has reaped the advantage,” and he “ cannot be permitted to say such contract was never made,” 'nor that he shall not complete what he had commenced to another’s injury.

Formerly it was held that payment of the purchase-money alone was such part-performance that a specific execution would be decreed, but it seems that this fact alone is not now held to be sufficient, for the payment of money is not necessarily referable to a contract for the sale of lands.' “ The principle of the case is, that the act must be of such a nature that, if stated, it would of itself infer the existence of some agreement, and then parol evidence is admitted.” Frame vs. Dawson, 14 Ves., 386.

But beyond announcing the rule which we hold should prevail in this State, where the common law of England has been enacted by express statute, and where the general principles of equity jurisprudence, derived from that country, have been recognized, it is not deemed necessary to go, nor to attempt an elaborate examination of the cases adjudicated. We adopt a rule elsewhere established. In a recent case, (Purcell vs. Miner, 4 Wallace, 513,) the Supreme Court of the U.

S. says that when a party seeks' a court of equity to save himself from the consequences of his own disregard' of the law in purchasing lands, “ he should be held to full, satisfactory, and indubitable proof: “jFirst. Of the contract and its terms. Such proof must be clear, definite, and conclusive, and must show a contract, leaving no jus deliberandi or locus pcenitenUce. “ Second. That the consideration has been paid or tendered.

But payment of the price,in whole or in part, will not of itself be sufficient for the interference of a court of equity, the party having a sufficient remedy at law to recover back the. money. “ Thi/rd. Such a part-performance of the contract that its rescission would be a fraud upon the other party, and could not be fully compensated by recovery of damages in a court of law. “Fourth. Tliat delivery of possession has been made in pursuance of the contract, and acquiesced in by the other party.” In that case one Coleman had agreed with Purcell to exchange a house in Washington for a farm in Yirginia.

The value and terms were agreed on, and Coleman delivered the key of the house to Purcell, and he, Purcell, was to prepare the necessary deeds to be executed by both parties. Purcell prepared the deeds, executed his own, and tendered it to Coleman, requesting him to execute the deed on his part; but Coleman refused, and conveyed the house to Miner. Purcell never had the undisputed possession of the house, although he had received the key. He then, upon these facts, filed his bill for specific performance.

The court remarks, that “ if either party had delivered the deed in execution of the trade or bargain, and the other had refused to fulfill his part, by making a proper conveyance, or if valuable improvements had been made by the party in possession, (under the agreement,) there would have been a case for a decree of specific execution.” But because the price was not paid, nor the deed delivered, and no actual possession had been delivered of the house itself, Coleman had taken advantage of the locus pcenitentiae and refused to receive the price, to deliver possession, and to execute his deed, and the court refused the decree.

It will be observed that neither of the parties in that case had parted with anything of value, and no actual possession had been given, and no action would lie by either party. The case of Purcell vs. Miner is cited by the appellants here, and we believe contains the rules upon which this case should be determined. In examining the voluminous testimony it will be unnecessary to give here more than the substance of it, and the conclusions which result from it. First, then, as to the proof of the agreement.

The witness, Adaline Shaw, states that she was present when a bargain •was made between the parties in June, 1363, for the sale by .Jones to Tate of the orange grove in question, situated on •the west side of the Chipóla river or Dead Lakes; that the price was $500; saw the money paid; Jones said there is ;$500 for the orange grove ; Jones wanted to sell Tate also ¡some lumber on the place, and Tate declined to buy it; 'Tate was then living on the place; Jones said he would imake a title “ as soon as Clark came over.” Mary Jones, the widow of Robert S.

Jones, says in her •answer, that some time before Jones’ death, at Jones’ house, she heard Tate and Jones speak of a contemplated purchase of the place,, but saw no money pass or any writing, and heard no contract of sale. Duncan Shaw says that in 1863 Jones told him he had sold the orange grove on the west side of the river to Jeremiah Tate for $500. Samuel W.

Davis says that in 1863 he. went to Jones to buy the orange grove property for one Captain Bryant, and Jones said he had just sold it tp' Tate for $500; Jones permitted Tate to move on before the trade was made; the purchase spoken of was before Tate built his house there, and Tate continued to occupy the premises, and sold oranges from the place that year and up to this date, (1868); Tate lived there in the fall of 1862; commenced improving the place, after .he bought it, setting out trees and pruning those already there; the place is worth about $2000, (1868); Jones got the first crop after Tate went there, and afterwards Tate had them; Tate built a common log house and enclosed five acres; I carried lumber there for Tate, and also 200 bushels of corn.

John Jones says he heard Jones say, sometime in June, he had sold both places, Jack’s Hammock and the mill place, to Tate, and had been paid for both places; that he was old and was not able to take care of them. Nathan J. Rhames says Tate had about eight acres under enclosure; the houses were small log houses. Mary Lee (daughter of Tate) says when father came home and said he had bought the place, he commenced manuring and setting out trees; the place is worth (1868) $2000; Jones’ lumber was hauled off the place, in 1863; Mr.

Jones told father to go to the place and take care of it before father bought it; about two acres were then under cultivation. Seaborn Tate says Jeremiah Tate made improvements on the “ old mill ” place while he lived there, from 1863 to 1866, cleared the orange grove, made fences, planted out trees and divided some trees; it is valuable-only on account of the orange grove; some lumber was hauled away in 1863; Tate .was put in possession by Jones to take care of it, about two acres then under cultivation; Tate built no houses or fences except for his own benefit. Robert J.

Taylor says he heal’d Jones say at the blacksmith’s shop he had sold Tate an orange grove, and had got Jfi^.^for it; don’t know what place he spokp of; Tate was living on the “ old mill place ” in 1863, on the west side of the Chipóla river; the place is valuable on account of the orange trees on it, and without the grove it is worth very little.

Roily Richards says he estimates the value of the “ old mill place ” at $2,500; Tate’s improvements were in setting out trees, fencing, and building a dwelling-house; in spring spf 1868 I held possession of the place for Tate; went away leaving a gun there, and nailed up the door; told L. Whitfield when I went away I was going across the lake but would attend to the place; am told that Redd and Rhames now occupy it, (1868).

James Register says he heard Jones say in 1863 he had sold his orange grove on the west side of the lakes to Tate, and Tate had paid him $500 for it that day, and could not make the title as he was then sick; Mrs. Shaw was there about the house; don’t think she was present at this conversation. " Alexander Hawkins says there were 50,000 oranges raised there in 1866, worth three to four cents each in the orchard; saw some lumber there, and the grove looked like it was well cared for; the place is worth (1868) $1,500; the trees in 1866 were in better condition than when Tate went there, and the place is worth more.

For the Defence.—Wm. A. Whitfield testifies that he was present in June, 1863, when Jeremiah Tate made a trade with R. S.

Jones for an orange grove in Calhoun county, at Jones’ house; saw $200 paid by Tate to Jones for an orange grove, the place where I was living at the time; it was the place called “Jack’s Hammock,” in the forks of the rivers; Tate was not living there at the time, but moved to it as soon as I moved out; I had bought it of Jones, and had not paid for it; the money paid by Tate was $200, in bills of the State Bank of Florida; Jones immediately went out into the other room with the money in his hand, and called for the bureau key; if Mrs.

Shaw saw the money it was then, before he locked it up, as she did not see it when it was paid; Tate was not living on either place at this time; there was no lumber on the place he bought; never heard Tate claimed to have bought the place on the west side of the Chipóla until after Jones’ death; the place on the west side is worth (1868) $600; Tate took possession of the “ Jack’s Hammock” place on the first of December, 1861; there was about eighteen acres of it; Tate did not make any valuable improvements on the place on the west side of the river, not enough to pay the rent.

William Eedd says heard Jones speak of having sold Tate the orange grove in the forks of the Apalachicola and Chipóla rivers; the “old mill place,” on the west side, is now (1868) worth about $300, with the orange trees on it; Mrs. Shaw was living at Jones’ while I was there, and quit before I did; she was not there when the pretended sale claimed by Tate was made for the old mill place orange grove. Bobert L.

Whitfield says I put Tate into possession of the orange grove on the west side of the river until he could build upon his own place near the orange grove, and to take care of the grove; it was in better condition when he went there than in 1866; the improvements that had been made were worth about $300; Mrs.

Shaw was not at Jones’ at the time of the pretended sale of the orange grove on west side to Tate, but was there at the time of the sale of the orange grove between the rivers; oranges were worth in 1863 to 1866, 5 to 6 cents each; about 50 to 60 thousand were produced then on the west side grove annually; Tate said if I would let him go on the place he would pen his cattle there and take care of it and keep it in repair; the place was worth $800 when he went on it, and is not worth more than $200 now (1868); it had decreased in value.

Joseph Willis says the place was in a bad state when Tate went on it; one house, one old crib, and old smoke-house— all log houses; in May, 1866, it was in about the'same condition as when he went in ; don’t think there were any more trees than when he went in; the trees were in better condition than when he went in. Stephen Page, Wm. Redd and Levi Rhames testify that the buildings on the place were of little value; that Tate made little or no improvements on it, injured the trees, set out very few, if any, new trees. Page thinks the place worth $300 when Tate took possession, and now (1868) $250. Nathan J.

Rhames says he is now occupying the place; went in in March, 1868, at the request of R. L. Whitfield, and holds it for the Jones estate; no one was there when he went in; the house was ‘open and the place abandoned, fences down, nothing in the houses; Tate lived fifty miles away and Richards five miles. There was much more testimony in the record relating to-the manner in which the premises had been treated, cultivated, improved or depreciated, of the same general character, which it is not deemed necessary to read, as it does not affect the judgment of this court.

Indeed, from the manner of taking the testimonyjmuch of it is not very intelligible. It was insisted in the argument of the case that the proof of the agreement was not satisfactory, because the testimony of the plaintiff’s witnesses was contradicted, and because it was not direct and reliable. We think it is shown that an agreement was entered into as set out in the complaint. The answer of Mrs. Jones admits that a negotiation relating to this property was going on between her husband, Robert S. Jones, and Jeremiah Tate, some time before Jones’ death, which occurred in December, 1863.

Mrs.-Shaw testifies that she was present when a trade was made, and saw the money paid, and Jones said it was five hundred dollars for the orange grove where Tate lived, (being the property described in the pleadings.) This occurred in June, 1863.. Duncan Shaw, Samuel Davis, John Jones, R. J. Taylor and James Register, all swear that about the time named, (and one or two of them on the same day on which the agreement is alleged to have been made,) they had conversations, with Jones in which he said • he had sold the property to-Tate, and had been paid for it. Mrs.

Shaw says Jones wanted. to sell to Tate some lumber on the place, and that Tate declined to purchase it. Mary Lee and John Jones say the lumber was hauled away during that summer from the place Jones sold to Tate; and the'proof further shows that Tate procured other lumber to be brought there for building purposes, and that he built a house there. This testimony shows the agreement, the terms, the identity of the property, the price paid, and two or three of the witnesses say that Jones gave as a reason why the title was not-made at the time was that he was sick. This was in June, and-Jones died in December.

Against this is the testimony of ¥m. A. Whitfield, who says that about June,. 1863, he was present when Jones sold to Tate an entirely different property on the other side of the river; that the price paid by Tate for it was $200 in notes of the State Bank of Florida; that it was'a place where he (Whitfield) lived, and that Tate took possession of it the same year when he moved away from it; that Mrs.

Shaw was present at Jones’ house, but did not hear the bargain, nor see the money paid; that Tate was not living on either place at the time; there was no lumber on the place so sold; and' finally winds up by stating that this transaction was in 1861, instead of 1863. The effort of .this witness seems to be to show that Mrs. Shaw was mistaken as to the time and subject-matter of the bargain.

If anything further was necessary to dispose of this testimony, it may be found in a. .stipulation on file in this record, signed by the respective counsel, that the payment was made, if at all, in Confederate States notes, while this witness says the payment was made in the notes of a particular description of the State Bank of Florida, which were counted out by the witness at the time. The only solittion of this may be found in the testimony of one or two of the witnesses, who state that Jones said he had sold to Tate both orange groves, and had been paid for both. The testimony of Mrs.

Shaw is also said to be shaken by that of R. L. Whitfield and William Redd, who both state that “at the time of the pretended sale” of the “old mill place” by Jones, as claimed by 'fate, Mrs. Shaw was not there, as she had stated. They do not show where she was. (It may be thought that this is an attempt to show that a circumstance stated by her did not occur at all, and that she was not present when it did occur.) James Register says, however, that Mrs.

Shaw was at Jones’ house in 1863 on the day that Jones said he had sold h:s orange grove on the west side of the river to Tate, and had been paid $500 for it on that day. Indeed the only serious attempt at contradiction is aimed at the testimony of Mrs.

Shaw, and the attempt scarcely raises an issue of veracity between the witnesses; but if such issue is raised, we find her sustained so fully and plainly by several others as to collateral facts, as to the time and terms of the agreement, the payment, the amount paid, the property bargained for, and the title to be made, that there can be no doubt of her entire truthfulness. The agreement is, therefore, found to be fully and satisfactorily proved as alleged, and the payment of the purchase-money is proved beyond question, not only by the direct testimony of Mrs.

Shaw, but by the direct declarations of Jones to several witnesses. Uext as to the possession. It appears that Tate was in possession of the premises as a tenant, or by the permission’ of Jones, at the time the agreement was made. R. L. Whitfield says he put Tate into possession of the orange grove •4£to take care of tlie place until he could build upon his own place near there.” “ Tate said he would pen his cattle there, and take care of it and keep it in repair.” This was in 1862.

It appears that immediately after the time of the ■contract, in June, 1863, Tate commenced to treat the place as one would naturally do with his own property. The lumber belonging to Jones was carried away by his servants, ■•though it was of very little value. Tate brought lumber aud materials and proceeded tp build a house, not on “ his •own place near there,” but upon the orange grove premises. That it was a log-house, and not a large or expensive one, is of little consequence.

He commenced to set out trees; to Jivide old trees and reset them, and to trim and prune them; and some were injured by too-much pruning, as the witnesses think. It does not appear that he improved “ his • own place near there ” after that time. Prior to the making of the agreement, the crop of oranges was had by Jones, .and after the agreement the crop and the proceeds were had by Tate, and it does not appear that Jones or his widow .•and heirs made any claim to the crop or to the property until after the pi’esent litigation commenced in 1866.

Tate remained there with his family, instead of going to live, as he had contemplated, upon “ his property ” near it, and no ■ complaint appears to have been made by Jones or his family of the manner in which the place was conducted by Tate. Everything that Tate did after the agreement seems to have been with reference to proprietary rights.

The erection of a dwelling-house, the enlarging of the enclosures by fences, ■and of the quantity of land cultivated, and establishing his . domicil with his family there for years, is not consistent with the idea that he was a mere tenant at will, “ taking •■■care of the place until he could build on his place near.” It cannot therefore be assumed upon all these facts that he was merely “ continuing the possession ” as the tenant of Jones.

It is claimed that he abandoned the jwssession of tlie place, and the evidence shows that he did leave with his family in 1868, two years after this suit was commenced ;, but it is shown that he left a tenant in charge of it, and that during the temporary absence of the tenant some of the de ■ fendants entered and took possession without his consent», and have continued such possession pending this litigation» There is nothing in the circumstances of Tate’s leaving.the premises in this manner which tends to weaken the claim set up by him as a purchaser in 1863.

As to the value of the improvements there is no precise rule, and none can be established, by which a certain amount of money must be expended in order to establish a. right. It has been said that if the improvements are “ valuable,” and are made in pursuance of the agreement, and are: referable to it, this will take the case out of the statute ; or-if possession has been delivered and acquiesced in by the - other party, in pursuance of the agreement, this takes the ■ case out of the statute, (Purcell vs. Miner, i Wallace,) and there is a case for a specific execution.

The witnesses for1 the defence pretty generally agree that the property in question is of very little value, and depreciated much while Tate was in possession, from June, 1863, to May, 1866, its value being fixed by them at $200 to $600 in 1868, while at the same time some of them say the place produced fifty te sixty thousand oranges annually, worth 3 to 6 cents each» The witnesses for the plaintiff agree (as to the productiveness of the orchard) with the witnesses on the other side., while they estimate the value of the property in 1868 at $2,000 to $2,500.

The testimony of the witnesses as to the improvements varies in about the same ratio. Some of them say that some-seventy-five trees were put out, and the orchard kept in good condition by Tate, while others say there are but two ©r-three trees set out by Tate, and the rest of the grove nearly-ruined by his bad treatment.

The plaintiff’s witnesses say ■ ■that Tate built a dwelling-house and outbuildings, while the defendants’ witnesses say that there were no buildings of any great value erected, the houses having been built of logs: There is no rule that houses or other improvements should be built of wood or stone’, hewed or sawed, worth $100 or $10,000; the question is whether the price being paid and possession being given or retained under the agreement to sell and convey, the fact of the improvements being-made and the character or value of them are such as to show ■that they are consistent with the theory that what has been, done has been done with reference to the agreement, and inconsistent with any other legitimate presumption.

The testimony of the witnesses on the part of the defence, .as to the value of the property, as we have seen, is somewhat extraordinary. Notwithstanding their statements that Tate’s method of treatment of the orange trees which they ■ say has depreciated the value of the place so that at the time they were testifying (in 1868) it was worth only from $200 to $600, yet they prove that some years after 1863 it . produced fifty to sixty thousand oranges annually, worth 3 to 5 cents. each, or upwards of $2,000 per annum; while Jones sold it for $500 in the prevailing currency in 1863.

Either these witnesses are mistaken in regard to the proper .treatment of the property by Tate, or they are mistaken in their judgment of the value.

Our conclusion is from all the evidence as to the possession and the improvements made by Tate after the alleged agreement, that notwithstanding he was a tenant of Jones in the first instance, yet the character of,the possession after June, 1863, and the acquiescence of Jones and his heirs’and- representatives since that time, were inconsistent with the terms of that tenancy, and were consistent with and are deemed to be evidence in support of the alleged agreement to convey to Tate.

This is consistent with the rule of equity in cases of this .character as administered in this country in all the States, except two or three in which no exceptions to the statute - are allowed. (See 1 Story’s Eq.'Jur., §§759 to 770, ll.th edition, and the English and American cases cited on this subject.) The decree of the Circuit Court is affirmed with costs. The appellants filed the following petition for a re-hearing: To lion. Edwin M. Randall, Chief Justice, R. B. Van Valhenburgh a/nd James B. Westcott, Jr., Justices of the Supreme Court of Florida: The petition of appellants in case of Jones’ executor vs.

Tate’s administrator, respectfully shows that they are advised that there is error in the judg-mént of this court affirming the judgment of the Circuit Court of Jackson county in this— 1. That there is no sufficient proof made by the appellee of part-performance of the alleged contract of sale of the-lands described in bill of complaint as will dispense with the requirement of the Statute of Frauds that such contract should be in writing. 2. That the testimony relied on to establish the verbal contract itself is contradictory and conflicting, and is not “ full, satisfactory and indubitable.” 3.

That the testimony relied on is hearsay, and declax*ations of one party or the other to strangers to the transaction, which, it is insisted, is not the character of proof required in such cases. é That it is not sufficient that the verbal contract be sustained by proof that inclines the mind to its belief, but if should be sustained beyond a reasonable doubt, such as is required in criminal cases to convict. 5.

That the same character and degree of px-oof is required to establish the facts relied on to take a case out of the operation of the Statute of Frauds, to-wit: of payment, delivery<■ of possession, valuable improvements, &c., as is required to establish the contract itself; and appellants allege that the proof, particularly of possession, and improvements referable to the alleged purchase, are tpo vague, contradictory, and unsatisfactory to bring the case within the exceptions' to the statute. 6.

Admitting that there was a verbal contract of sale by Jones to Tate, and payment of $500 Confederate money,, appellants claim that a locus pmnitentioi existed in which Jones had a right to return the money and repudiate the purchase, and in which Tate had the corresponding right to sue for and recover the purchase-money; and a sufficient reason is found for the non-exercise of this right on the part of Jones in his condition of health at the time of the alleged sale, and his early death thereafter.

A sufficient explanation of the non-action of the representatives and heirs of Jones, in dispossessing Tate of the premises, is furnished by the existence of war in the country from the death of Jones to the spring of 1865. Inter arrma silent leges. The confusion and disorganized condition of the country, and its tribunals, immediately on the close of the war, and the expectation that it is fair to assume the parties indulged, that all the rights of the parties would be fully and promptly adjudicated and settled by the decree of the court in this case, which was instituted the — day of-, A. D. 1866. 7.

That the court erred in assuming acquiescence on the part of Jones in his life-time, or his representatives after his death, in the alleged acts of ownership of Tate over the lands, inconsistent with his lights of occupancy, without proof of the knowledge by Jones, in his life-time, of such acts, and after his death and before the institution of this suit, in 1866, by his representatives.

The record (we have not access to the record, and this we state from memory,) contains no proof of any claim of ownership by Tate prior to the institution of this suit, and'of course no knowledge of finch claim can be imputed to Jones’ representatives, appellants insisting, as they have always done, that his improvements were of small value, and for his own convenience as tenant at will and entirely consistent with his tenancy. “ He was to take care of the place and pen his stock on it.” The record contains evidence of the assertion of ownership by Jones on his death-bed. (Testimony of Yon.) This is strongly corroborative of the ignorance of Jones of any claim of ownership by Tate, and disproves the alleged acquiescence of Jones. 8.

That the court erred in discarding the value of the improvements made as an element in determining whether they were made with reference to the parol contract of sale, because a party is not apt to make large expenditures on property that he holds as tenant at will, and where the improvements are only of small value, they are consistent with such tenancy, and are not necessarily referable to a purchase of the property, which appellants are advised the rule requires. For these reasons, and that justice may be done between the;,parties, your petitioners pray the said cause may be reheard by this honorable court.

And as in duty bound your petitioners will ever pray, &c. O. C. Yonge, J. F. McClellan, Solicitors fw Petitioners. The following opinion, denying the petition for a re-hearing, was delivered by The Chief Justice : The petition in this case for a re-hearing is considered 'without reference to the question of regularity as to the ■time of filing it, and without admitting that it is strictly brought within the rules. The petition is substantially a repetition of the grounds relied upon in the petition of appeal. Every point made is fully treated of in the opinion delivered at the last term.

The record of the case is somewhat voluminous, and it was no small task in the examination of it to ascertain precisely what the proof was upon many points; but the necessary labor was bestowed upon it to satisfy the court that we had possessed ourselves of every fact essential to an intelligent understanding. Upon reviewing the. record and the opinion filed, aided by the suggestions in the petition, we are unable to arrive at a conclusion upon the facts or the law of the case other than that found in the opinion.

We think nothing was •“ assumed'” by this court in regard to the facts beyond what seemed to us clearly established by the proofs in the case. The resume of the evidence contained in the body of the opinion embraces every material fact bearing upon the merits, so far as we could discover- the facts from the record, and upon a careful re-examination we do not find ourselves called upon to add to or take from the statement there made.

The testimony in regard to the assertion of ownership by Jones, •after the time of the alleged agreement, in the absence of Tate, if it clearly referred to the premises in question, was of no more importance than the, proof of the declarations of Tate, both of which were rejected as not being legitimate evidence. The petition for a re-hearing is denied.