Green v. Finin

Butler, J. Two errors are assigned upon this record, neither of which is manifest. 1. The first is, that parol evidence was not admissible to prove the contract set up by the defendant in his cross-bill. The claim would be correct if the evidence had not also shown a sufficient part-performance to relieve the case from the operation of the statute of frauds. But, where under a contract for the sale of lands possession is delivered and held, and especially if a part or all of the purchase-money is paid and the vendee makes improvements upon the estate, the contract of sale, in connection with evidence of the delivery of posses [182] sion and subsequent occupancy, is provable by parol. This rule has always been recognized in this state, and was fully and clearly examined and illustrated by the present Chief Justice, in the case of Eaton v. Whittaker, 18 Conn., 222. Since then it has not been an open question in this court. The rule is clearly applicable to the case at bar. The evidence proved, as the committee found, the contract of sale, and that in pursuance of it Finin entered into possession and made improvements, and subsequently made payments, pursuant to the contract. The contract was made with Page. The delivery was made by him to Finin, and the payments, on account of the purchase-money, by Finin to him, and Page subsequently conveyed to Green, the petitioner. But Green purchased with full knowledge of all the facts and with the understanding that he was to fulfill the contract between Finin and Page. His position is no better, nor is Finin’s any the worse because of the conveyance. No clearer case for the application of the rule can be found in the books, or could well exist. 2. The second error assigned is, that the court erred in overruling the claim of the petitioner, that Finin was barred of his right to a specific performance by reason of the lapse of time. The committee found that Green purchased of Page in 1848, that at the time of the purchase he expected to fulfill the contract between Page and Finin, and that the purchase-money would be paid by the labor of Finin for Green. Undoubtedly a considerable period elapsed between 1848 and 1864, when Finin asked for a deed and offered to pay whatever remained due, but during all this period Finin was living upon the property, expending considerable sums in improvements, with the knowledge of Green, and without any objection from him. Moreover Finin worked as a laborer for Green from time to time, and for considerable periods of time, and it does not appear that there was anything to prevent Green from making an application of that labor upon the contract, nor does it, in fact, appear that he did not make such application. The committee found that Finin was illite [183] rate and unable to keep accounts, and Green produced no accounts, and he did not therefore find any balance due Finin, applicable as payment for the place. Non constat but that if Green had produced his books, they would have shown an application of labor to a greater or less extent, in payment of the sum due for the place, pursuant to the understanding of the parties. The facts that Finin continued to occupy and make improvements, increasing the value of the property far beyond the purchase-money and interest due, or likely to be due, and without any claim of rent by Green, and with his knowledge and apparent acquiescence, and that Finin labored for Green, at times, during the whole period, pursuant to the agreement, and Green had the opportunity, if he did not, in fact, avail himself of it, to make applications of labor upon the debt due for purchase-money, if not sufficient to authorize a presumption of payment, are quite sufficient to show a waiver, and estop him from making any claim under the statute of limitations or lapse of time. There is no error in the judgment complained of, and it is affirmed. In this opinion the other judges concurred.