Frostburg Coal Co. v. Thistle

Cochran, J., delivered the opinion of this Court: The bill in this case was filed by the appellant for the purpose of obtaining the specific performance of an alleged contract for the sale of a lot of land made by George Thistle, now deceased, w?th o.nc Mohos Rawlings. The material averments of the bill are, that Thistle gave the land into Rawling’s possession in payment of a debt, and that it was afterwards sold by Rawlings to James D. Armstrong, and by Armstrong to Meschach Frost, from whom it was purchased by the appellant. The answer admits the. intermediate conveyances from Rawlings to the appellant, but denies that Thistle ever sold, or agreed to sell, the land in question to him, or that possession was given, or any act dono in part performance of such an agreement, and pleads the Statute of Frauds in bar of the relief sought by the bill. It appears from the testimony in a case between tbe same parties, reported in 10 MD. Rep., 129, which by agreement is to be read as evidence in this case, that sometime between 1830 and 1834, Thistle was indebted to Rawlings and verbally agreed to give him the lot in question with one adjoining it in satisfaction of the debt, which Rawlings agreed to receive; that the lot was wild woodland and had never been cleared, nor enclosed, nor in any way improved; and that when Thistle agreed to give the land to Rawlings for the debt, he told him to go and take possession of it, and that Rawlings subsequently walked over the land and offered it for sale. The contract shown by this evidence was clearly within the Statute of Frauds, and such as could not be enforced by decree, without evidence of some act done in part performance of it. We have therefore to determine whether, under the circumstances appearing from the evidence, there was such a payment of the alleged consideration or posses [190] sion taken by Rawlings as to take the case out of the statute on the ground of partial performance. The agreement proved was, that Thistle should pay the debt due to Rawlings by a transfer of the land, and as we understand it, the relation of debtor and creditor between Thistle and Rawlings continued, unless that agreement was legal and effective. The debt, which the transfer or conveyance of the land was intended to satisfy, could lose the character of a present subsisting claim in the hands of Rawlings, only by such a'performance of the agreement, in whole or in part, as would take it out of the Statute of Frauds, and vest in him a right to a transfer of the land. So long as the debt could be asserted as a claim against the debtor, it was not a consideration for the transfer in contemplation of the agreement; and the right of the appellant to rely upon it as a consideration delivered in part performance of the agreement, necessarily depends on the question, whether the other acts of Rawlings in the way of taking possession, constituted such a part performance of the contract as excepted it from the operation of the statute, and gave him a right to the transfer of the land, in lieu of that which he held as a creditor of Thistle. That question is free from difficulty, for the evidence of what Rawlings did, upon which it was contended that he assumed possession in part performance of the agreement, was considered in the case in 10 Md. Rep., 129, and held to be insufficient to establish a certain and exclusive possession. It is well settled that “when possession is assumed as an act of part performance of a parol contract for land, it must, appear to be a notorious and exclusive one, and that the land should have been delivered and possession taken in pursuance of the contract, and so retained and continued.” “A mere technical possession, not open to the observation of the neighborhood, and capable of being proved only by select and confidential witnesses,” if held sufficient for a decree to enforce the contract, “would manifestly afford an opportunity and encouragement for dishonest testimony. Brown’s Stat. Frauds, 472, 473. [191] (Decided Oct. 23rd, 1863.) 'We cannot find that there was such a part performance of the agreement in this case as relieves it from the bar of the statute, and the decree of the Court below will therefore he affirmed with costs to fho appellees. Decree affirmed.