Peckham v. Balch

Mabston, J. Under the allegations of the bill and testimony in this case, the complainant could not compel a conveyance to him of the property in question by Mrs. Balch. Even if the agreement was made by her husband and the consideration received by him with her full knowledge and consent, as wo are inclined to think, still the contract was void under the statute of frauds, and there was no such part performance as would take the case out of the statute. Payment of the consideration alone will not be sufficient in a case like the present, and the complainant being a tenant in common of the property, his continued possession would not be sufficient. It is not payment alone that will take a case out of the statute, but this with possession and acts •done as owner in reliance thereon, that cannot ordinarily be compensated in damages, which entitles a party to an enforcement of a verbal agreement relating to the sale of lands. • There is still another serious difficulty with the present case. The bill does not set out the facts relied upon or necessary ■showing such a part performance as would take the case out of the statute. Bomier v. Caldwell 8 Mich. 463. The fraud of the defendant "Winter in purchasing from Mrs. Balch, cannot make out an otherwise defective case for the complainant. If he could not have enforced specific performance as against Mrs. Balch, neither can he against her fraudulent grantee. The decree must be reversed with costs and the bill ■dismissed. The other Justices concurred.