Opinion
Decided December, 1892.
Part payment of the purchase-money alone is not such part performance of a verbal agreement to convey land as is required to take the case out of the statute of frauds.
BILL IN EQUITY, by a creditor of William R. Bullock, who has recovered judgment against him and levied on certain land as his, and now seeks to enforce an oral agreement of one Ansel Dickinson to convey the land to Bullock. Ansel Dickinson is dead, and the defendant is administratrix of his estate. The land was occupied by Bullock at the time of Ansel's purchase, and has been occupied by him ever since. Facts found by a referee.
Hosea W. Brigham and Waterman, Martin Hitt (of Vermont), for the plaintiff.
Batchelder Faulkner and Don H. Woodward, for the defendant.
Bullock was living on the farm when Dickinson bought it. It was agreed between them that he might remain on the place without paying rent; that he and his boys might cut the lumber upon the farm, Dickinson furnishing what additional help was needed, and paying bills incident to cutting and marketing the lumber, so far as the work was done by others than the Bullock family; and that Dickinson would use or sell the lumber, and give Bullock the privilege of buying the place by paying an amount that would make Dickinson whole. It was an arrangement to enable Bullock to purchase the farm for what it cost Dickinson, and to pay for it by the labor of himself and his boys in cutting and marketing the lumber. Bullock and his sons proceeded to cut, and Dickinson furnished money as it was needed for supplies, and sold the lumber, keeping an account of the receipts and expenditures on account of the farm and lumber transactions until his death. The amount due on the price of the farm December 20, 1890, was $754.50. Bullock made no improvements upon the farm, and did nothing to change his position except furnishing labor and a team to cut and draw a part of the lumber, which was done as payment towards the purchase-money of the farm. He simply paid a part of the price of the land; and mere part payment of the price did not entitle him to a specific performance of the parol agreement for the sale of the farm. It is no answer to the statute of frauds pleaded by the defendant. Ham v. Goodrich, 33 N.H. 32. It is immaterial that the payment was made in labor. Bullock had no attachable interest in the land, and the plaintiff took nothing by his attachment and levy. If anything is due Bullock for labor, it can be recovered in an action at law. Howe v. Day, 58 N.H. 516.
Bill dismissed.
ALLEN, J., did not sit: the others concurred.