Mr. Justice Bailey
delivered the opinion of the Court:
The case made by the bill rests in part upon the oral agreement between John W. Barrett, the complainant, and John Barrett his father, alleged to have been entered into in the year 1866, and in parbupon the written lease executed by John Barrett to the complainant, bearing date June 8, 1889. The questions upon which the decision of the case must primarily and mainly rest relate to the oral agreement.
At the time that agreement is alleged to have been entered into, the complainant was, and for some time prior thereto had been, in possession of the eighty acre tract of land in question, as tenant of his father, or under some other arrangement with him, and the allegations of the bill are, that while he was so in possession, it was agreed between him and his father, that if he would continue to occupy and work the land as a farm, during his father’s lifetime, and pay his father $75 ' per year, and furnish him one-half of the pork and flour required for the use of himself and wife, and one-half of the feed required to keep one horse, the complainant should, at his father’s death, become the owner of the land, his father agreeing to transfer the title to him by devise.
The bill, so far as it rests upon that agreement, is in the nature of a bill for specific performance. The-complainant’s title to that species of relief is contested upon a number of grounds, only a part of which need be considered. It is claimed, in the first place, that the agreement and its terms are not sufficiently proved to justify specific performance.
It is not claimed that any witness other than the complainant and his father was present at the time the agreement is alleged to have been made. They both testify, and their testimony is directly in conflict. The complainant testifies to an agreement substantially of the terms alleged in his bill, while bis father testifies that no such agreement was made. It should be noticed that the complainant, in his testimony, attempts to relate a conversation, of which no memorandum was made, and which took place about twenty-five years prior to the time his testimony was given, and as to the details of which he is compelled.to rely solely upon his own unaided recollection. All human experience demonstrates the unreliability of testimony of this character. However honest the intention of the witness may be to repeat the language used iu a conversation had at so remote a period, or even to give the substance of the language used, the well known infirmities of human memory are such, as to throw serious and substantial doubt upon the accuracy of testimony of that character. When the further consideration is added that the witness is deeply interested in the event of the suit, it is manifest that his testimony must be received with a very considerable degree of caution.
In corroboration of his testimony, the complainant introduced several witnesses who testified to conversations which they claim to have had with John Barrett, most of them many years ago, in which Barrett made admissions and statements of an agreement, by which complainant was to have the land in question at his death, and setting forth, with varying degrees of particularity the terms and conditions of the agreement. None of these witnesses, however, attempt to state the various terms of the agreement as alleged in the bill, even in substance. Possibly, if the question to be determined had been simply whether or not an agreement of some kind by which the complainant was to have the land at his father’s, death had been entered into between them, this testimony would have justified a decision of that question in the affirmative. But whether it proved the particular agreement alleged r with all of its terms, is another matter, especially in view of the rule as to the strength and clearness of the proof required to warrant a decree awarding specific performance of an oral contract for the sale of land.
The rule is well settled, that a contract which is sought to be specifically enforced must be clear, certain and unambiguous in its terms, and must either be admitted by the pleadings or proved with h reasonable degree of certainty. As was said in Long v. Long, 118 Ill. 638 : “It is not sufficient, within the rule, to show that a contract of some kind exists between the parties, and that it has, in whole or in part, been performed by the complaining party, but all the material terms, of the contract must be satisfactorily proved or admitted.” In Langston v. Bates, 84 Ill. 524, in discussing the same question, it was said: “In order to take a case out of the operation of the Statute of Frauds, the authorities all agree, that a-contract to convey should be clear and certain in its terms, and established by testimony of an undoubted character, which is clear,- definite and unequivocal.” So in Semmes v. Worthington, 38 Md., it was said that in such case, “the proof must be clear and explicit, leaving no room for reasonable doubt;” and in Purcell v. Miner, 4 Wall. 517, it is said that the complainant “should be held rigidly to full, satisfactory and indubitable proof.” See also, Wallace v. Rappleye, 103 Ill. 248; Worth v. Worth, 84 id. 442; Waterman on Specif. Perform. secs. 291, 265. Applying this rule, we are of the opinion that the evidence fails to establish the agreement alleged in the bill and its terms, with that clearness and certainty which is necessary to entitle the complainant to its specific enforcement.
But even if the agreement were sufficiently proved, we are of the opinion that the complainant has failed to prove such acts of part performance as are sufficient in equity, to take the case out of the operation of the statute. The equitable rule that where there has been a partial performance, the statute will not be held to apply, is adopted for the same purpose for which the statute itself was enacted, viz., the prevention of frauds. Courts of equity have declined to allow a statute which was passed for that purpose to be so enforced as to defeat its own object, and it is therefore held by those courts, that where a purchaser of land under an oral contract, has entered into possession under his contract, and has paid .the purchase money, and made valuable and permanent improvements, so that a refusal to specifically perform the contract would operate as a fraud upon him, the vendor will be held to be estopped to avail himself of the provisions of the statute, and the contract will be specifically enforced.
The basis upon which the doctrine of partial performance rests is, that when a verbal contract has been made, and one party has knowingly aided or permitted the other to go on and do acts in part performance of the agreement, in full reliance upon such agreement as a valid and binding contract, and which would not have been done without the agreement, and are of such nature as to change the relations of the parties, and to prevent a restoration to their former condition, or an adequate compensation for the loss by a judgment at law for damages, then it would be a virtual fraud in the first party to interpose the Statute of Frauds as a bar to the completion of the contract, and thus secure for himself all the benefits of the acts already done in part performance, while the other party would not only lose all advantage from the bargain, but would be left without adequate remedy for its failure, or compensation for what he had done in pursuance of it.
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Mr. Justice Bailey
delivered the opinion of the Court:
The case made by the bill rests in part upon the oral agreement between John W. Barrett, the complainant, and John Barrett his father, alleged to have been entered into in the year 1866, and in parbupon the written lease executed by John Barrett to the complainant, bearing date June 8, 1889. The questions upon which the decision of the case must primarily and mainly rest relate to the oral agreement.
At the time that agreement is alleged to have been entered into, the complainant was, and for some time prior thereto had been, in possession of the eighty acre tract of land in question, as tenant of his father, or under some other arrangement with him, and the allegations of the bill are, that while he was so in possession, it was agreed between him and his father, that if he would continue to occupy and work the land as a farm, during his father’s lifetime, and pay his father $75 ' per year, and furnish him one-half of the pork and flour required for the use of himself and wife, and one-half of the feed required to keep one horse, the complainant should, at his father’s death, become the owner of the land, his father agreeing to transfer the title to him by devise.
The bill, so far as it rests upon that agreement, is in the nature of a bill for specific performance. The-complainant’s title to that species of relief is contested upon a number of grounds, only a part of which need be considered. It is claimed, in the first place, that the agreement and its terms are not sufficiently proved to justify specific performance.
It is not claimed that any witness other than the complainant and his father was present at the time the agreement is alleged to have been made. They both testify, and their testimony is directly in conflict. The complainant testifies to an agreement substantially of the terms alleged in his bill, while bis father testifies that no such agreement was made. It should be noticed that the complainant, in his testimony, attempts to relate a conversation, of which no memorandum was made, and which took place about twenty-five years prior to the time his testimony was given, and as to the details of which he is compelled.to rely solely upon his own unaided recollection. All human experience demonstrates the unreliability of testimony of this character. However honest the intention of the witness may be to repeat the language used iu a conversation had at so remote a period, or even to give the substance of the language used, the well known infirmities of human memory are such, as to throw serious and substantial doubt upon the accuracy of testimony of that character. When the further consideration is added that the witness is deeply interested in the event of the suit, it is manifest that his testimony must be received with a very considerable degree of caution.
In corroboration of his testimony, the complainant introduced several witnesses who testified to conversations which they claim to have had with John Barrett, most of them many years ago, in which Barrett made admissions and statements of an agreement, by which complainant was to have the land in question at his death, and setting forth, with varying degrees of particularity the terms and conditions of the agreement. None of these witnesses, however, attempt to state the various terms of the agreement as alleged in the bill, even in substance. Possibly, if the question to be determined had been simply whether or not an agreement of some kind by which the complainant was to have the land at his father’s, death had been entered into between them, this testimony would have justified a decision of that question in the affirmative. But whether it proved the particular agreement alleged r with all of its terms, is another matter, especially in view of the rule as to the strength and clearness of the proof required to warrant a decree awarding specific performance of an oral contract for the sale of land.
The rule is well settled, that a contract which is sought to be specifically enforced must be clear, certain and unambiguous in its terms, and must either be admitted by the pleadings or proved with h reasonable degree of certainty. As was said in Long v. Long, 118 Ill. 638 : “It is not sufficient, within the rule, to show that a contract of some kind exists between the parties, and that it has, in whole or in part, been performed by the complaining party, but all the material terms, of the contract must be satisfactorily proved or admitted.” In Langston v. Bates, 84 Ill. 524, in discussing the same question, it was said: “In order to take a case out of the operation of the Statute of Frauds, the authorities all agree, that a-contract to convey should be clear and certain in its terms, and established by testimony of an undoubted character, which is clear,- definite and unequivocal.” So in Semmes v. Worthington, 38 Md., it was said that in such case, “the proof must be clear and explicit, leaving no room for reasonable doubt;” and in Purcell v. Miner, 4 Wall. 517, it is said that the complainant “should be held rigidly to full, satisfactory and indubitable proof.” See also, Wallace v. Rappleye, 103 Ill. 248; Worth v. Worth, 84 id. 442; Waterman on Specif. Perform. secs. 291, 265. Applying this rule, we are of the opinion that the evidence fails to establish the agreement alleged in the bill and its terms, with that clearness and certainty which is necessary to entitle the complainant to its specific enforcement.
But even if the agreement were sufficiently proved, we are of the opinion that the complainant has failed to prove such acts of part performance as are sufficient in equity, to take the case out of the operation of the statute. The equitable rule that where there has been a partial performance, the statute will not be held to apply, is adopted for the same purpose for which the statute itself was enacted, viz., the prevention of frauds. Courts of equity have declined to allow a statute which was passed for that purpose to be so enforced as to defeat its own object, and it is therefore held by those courts, that where a purchaser of land under an oral contract, has entered into possession under his contract, and has paid .the purchase money, and made valuable and permanent improvements, so that a refusal to specifically perform the contract would operate as a fraud upon him, the vendor will be held to be estopped to avail himself of the provisions of the statute, and the contract will be specifically enforced.
The basis upon which the doctrine of partial performance rests is, that when a verbal contract has been made, and one party has knowingly aided or permitted the other to go on and do acts in part performance of the agreement, in full reliance upon such agreement as a valid and binding contract, and which would not have been done without the agreement, and are of such nature as to change the relations of the parties, and to prevent a restoration to their former condition, or an adequate compensation for the loss by a judgment at law for damages, then it would be a virtual fraud in the first party to interpose the Statute of Frauds as a bar to the completion of the contract, and thus secure for himself all the benefits of the acts already done in part performance, while the other party would not only lose all advantage from the bargain, but would be left without adequate remedy for its failure, or compensation for what he had done in pursuance of it. To prevent the success of such a palpable fraud, equity interposes under these circumstances, and compels the entire completion of the contract, by decreeing its specific execution. Pomeroy on Specif. Perform. sec. 104.
The evidence shows that the complainant, after the date of the alleged contract, erected one or more farm buildings and set out an orchard on the land. He also set out and has since cultivated some hedges to serve as fences on the land, and has dug two wells of no great depth, and costing relatively a small sum of money. When bis father deeded to him the six acres, he removed the building or buildings and orchard to that part of the tract, and afterwards erected his dwelling house and other improvements on the six acres. The only improvements of a permanent character left on the seventy-four acres are the hedges and the two wells, costing in all, according to the evidence, from $200 to $400.
It may well be supposed that the hedges for purposes of inclosure, and the wells to supply water to domestic animals, were only such improvements as good husbandry required, and were only such as were necessary to the proper use and enjoyment of the land for the time being. But however that may be, the evidence is clear that the complainant has been much more than compensated for his expenditures in making those improvements by the use of the land, even after deducting the annual payments made to his father. It can hardly be seen then how the refusal to specifically perform the contract can operate as a fraud upon him.
It is undoubtedly true that the complainant has expended a considerable sum of money in erecting a dwelling house and in placing other improvements on the six acres of which he has the title, and it is insisted that, as the six acres form a part of the farm, and the improvements were placed upon it with reference to their use in connection with the remaining seventy-four acres, that they should have the same effect as part performance as would be given to them if they had been placed upon any other part' of the land. This contention, in our opinion, has no force. Even if the contract as to the seventy-four acres is not specifically enforced, the complainant is not deprived of his improvements. He still has them, and if they are rendered less valuable when detached from the residue of the farm, the loss which the complainant will thus suffer will clearly be damnum absque injuria, and can not be made a ground for equitable relief. At any rate, it is sufficient to say that no authority is cited for this extension of the doctrine of part performance, and we are disinclined to adopt it.
Our conclusion then is, that the complainant is not entitled to a specific enforcement of the oral contract alleged to have been entered into in the year 1866, and that his only title to relief in this suit must depend upon the provisions of the contract of June 8, 1889. By that contract, the complainant became a tenant of the land during the life of his father, subject to the payment of certain rents, the payment of taxes, and keeping the fences in reasonable repair. The instrument also contains a recital that the complainant claims to be the equitable owner of the land, subject to a contribution to his father’s support, a claim which the other party to the instrument in no way admits, and it is declared that the complainant executes the instrument for the purpose of securing the payment of the $100 per annum therein provided for, and in consideration of the agreement therein contained that his father’s will then in existence, devising the land to the complainant’s children, should not be changed, but should remain his last will and testament down to the time of his death, and it was agreed that neither party to the lease waived any right to or claim in the premises existing at the time of the execution of the instrument. It may be admitted, in view of these provisions, that if the complainant were able to establish an equitable title to the land at and prior to the date of the lease, the acceptance of the lease could not have been invoked as an estoppel against the assertion by the complainant of such equitable title, and these provisions were doubtless inserted in the lease for the purpose of preventing the operation of the lease as an estoppel. But as the complainant has failed to establish any equitable title to or ownership of the premises, it is difficult to see how he can take anything by virtue of these precautionary provisions.
It can not be seen that the conveyances of the seventy-four acres by John Barrett to Sarah Geisinger have in any way interfered with the complainant’s tenancy, or threaten to impair his rights in such way as to entitle him to equitable relief. He was in open, notorious and visible possession as tenant, and such possession was of itself notice to the grantee of his tenancy, and any title she took was manifestly subject thereto. The effect of the deeds, as against him, was merely to convey to Mrs. Geisinger the reversion, and the conveyance of the reversion can not ordinarily work any prejudice to the rights of the tenant in possession of the particular estate. There is no allegation nor proof that Mrs. Geisinger had either attempted or threatened to interfere with the complainant’s tenancy, and even if she had, the matters involved would be such as might be remedied and adjusted at law, and would not therefore call for the interposition of a court of equity.
It is probably true that the conveyances to Mrs. Geisinger, if sustained, will render nugatory those provisions of the will of John Barrett by which the premises in question were devised to the complainant’s children, and that those children, now that their grandfather is dead, are thereby deprived of the benefit of the devise which the complainant sought to secure to them by the provisions of the contract. But that is a matter in respect to which the complainant’s children are the proper parties to complain. The loss is theirs and not the complainant’s. If any right to enforce the contract in that behalf exists, and as to that we express no opinion, that right is in them, and can not be enforced in their absence, and even if the complainant is, because of the fact of his being a party to the contract a proper party to a bill to enforce its provisions in relation to the will, it is clear that his children are also necessary parties, and that in their absence, no decree involving their rights could properly be rendered. As neither they, nor any parties authorized to represent them were before the court, the only decree, so far as this branch of the ease was concerned, that could be rendered, was a decree dismissing the bill.
After carefully considering the evidence, we are of the opinion that the Circuit Court reached the correct conclusion, and its decree will therefore be affirmed.
Decree affirmed.