Hinman, J.
In order to show that the decree of the superior court is erroneous, the defendant relies, first, upon the fact found by the committee, that the estate which was the subject matter of the agreement, belonged to the defendant’s wife, he having in her right an estate during coverture, or at most, only a life estate in it. And the claim is, that a husband has no power to lease for a term of years the estate of his wife ; and therefore, ought not to be compelled specifically to perform his agreement to lease it; and we are referred to the case of Annan v. Merritt, 13 Conn. R. 457. as supporting this claim.
[228]*228If the claim of the defendant was correct, that a husband incompetent to lease estate in which his only interest is such as the law gives him in right of his wife, it would doubtless follow, from the case cited and the authorities referred to in that case, that he would not be decreed to execute a contract to lease it. But we see nothing in that case that countenances the idea, that he cannot make a valid lease of his wife’s real estate. We did not suppose, that the rights acquired by marriage, had been varied, or in any way modified, by that decision. That he cannot convey her interest in land, is very true ; and so the law has always been ; for the obvious reason, that he can convey only such interest as he himself has in it; and the case cited shows, that the former practice of courts of chancery, of compelling him to cause or procure the title of his wife to be conveyed to his vendee, upon the presumption that he must have had her consent previous to the sale, is now exploded. But we know of no law that will prevent his selling his own interest in land, however acquired. And as the law gives him an estate during coverture, and in some cases a life estate, he can of course convey it. And although it seems to be a disputed point, whether, if he lease for a term of years, and die during the term, the lease is wholly void as against the wife, or good for the whole term, unless she, after such decease, dissent to it; yet, it is nowhere said, that it will not be good during the husband’s life. In Bac. Abridg. tit. Lease. C. i. it is said, it will be good for the whole term, unless she, by some act after the husband’s decease, shows her dissent to it; and that if she accepts rent after his decease, the lease becomes absolute for the whole term. Williams, in a note to Wollon v. Hele, 2 Saund. 180. n. 9. doubts whether the lease is not wholly void as to the wife ; but he says, it is undoubtedly good during the cover-ture. The defendant’s lease, then, will be good for the whole term, unless previously determined by his death ; and whether it is wholly void as to his wife, or only voidable, is of no importance in this suit.
2. It is insisted, that the agreement was within the provisions of the statute of frauds; and that there has been no such part performance as will take it out of the operation of that statute.
The first part of this proposition cannot be denied. It was [229]*229an agreement to build, by a specified time, a store, and when finished, to rent it, together with an adjoining wharf, to the plaintiff, for the period of three years, at the rate of 500 dollars annual rent. As such it was obviously a contract for the sale of an interest in lands ; and not being in writing, was within the express provision of one clause of the statute. This is not denied, but the plaintiff admits, that had nothing been done in part performance of the agreement, it would not have been binding, either at law or in equity. He however insists, that there has been such part performance that the parties are not now at liberty to sav they will not execute it; and this is our opinion. There is now, we believe, no dispute, any where, but that part performance of a parol agreement to sell land, will, in certain cases, take the agreement out of the operation of the statute of frauds, and authorize a court of chancery to decree the specific performance of it: as remarked by the Chief Justice, in the case above referred to, “ The authorities are too numerous and too overpowering for us to treat this as an open question.” But the difficulty is, to determine what ought, for this purpose, to be considered part performance of an agreement. Delivery of possession, accompanied by the expenditure of money upon the property by the purchaser; as his building a house, or making other improvements upon it. which he must lose, unless the agreement is executed, has always entitled a purchaser to a specific execution. 2 Sw. Dig. 32. 2 Sto. Eq. s. 761. Formerly, it is said, the payment of a considerable part of the purchase money was held to be sufficient for this purpose. But the difficulty of determining what was meant, by a considerable part of the purchase money, and the fact, that it could be recovered back at law, on the ground of a failure of consideration, has induced the courts to abandon this, as alone sufficient to relieve from the operation of the statute. But the elementary books all lay down the proposition, that delivery of possession is part performance. Pow. on Coni. 294. 2 Sw. Dig. 30. Newl. Cont. 183. 2 Sto. Eq. 763. And we know of no decision to the contrary. Chancellor Kent says, “ Generally, it may be observed, delivery of possession is part performance;” (4 Kent’s Com. 451.) And among the cases to which he refers in support of the proposition, is the Earl of Aylesford’s case, 2 Stra. 783. which is so directly in point, that if it is regarded [230]*230as law, it most controul our decision. In that case, there wa« - a parol agreement for a lease for twenty-one years ; the lessee had entered and enjoyed the premises six years. The bill was brought by the lessor, to compel the lessee to execute a counterpart to the lease, for the residue of the term. The defen-fendant pleaded the statute of frauds ; but the plea was overruled, on the ground of part performance. That case seems to be exactly like this, in all respects, except that the bill was brought by the lessor ; and in this case, it is brought by the lessee. But this is an answer to the suggestion of counsel, that there was no mutuality in compelling the defendant to execute this agreement. Undoubtedly, the obligation to perform should be mutual; but the case referred to shows that it is so. Had the plaintiff refused to take a lease, after he had induced the defendant to expend his money in erecting the store, and after possession had been taken and retained for nearly a year, upon the faith of the agreement, it would have been a most palpable fraud upon the defendant; and if, as counsel correctly claim, the obligation must be mutual, we do not see how it can be any less a fraud on the part of the defendant, for him, under the same circumstances, to refuse to give a lease. There is great uniformity in the numerous cases on this subject; but a review of them is unnecessary. The whole law applicable to the case was correctly laid down, in Morphett v. Jones, 1 Swanst. 172. That was also the case of an agreement for a lease for years; the lessee had entered, and before any lease was given, there was a subsequent agreement, by which part of the land was given up, and the lessee continued in possession of the residue at a reduced rent. The bill prayed, that the agreements, so far as the former was not altered by the latter, might be performed.
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Hinman, J.
In order to show that the decree of the superior court is erroneous, the defendant relies, first, upon the fact found by the committee, that the estate which was the subject matter of the agreement, belonged to the defendant’s wife, he having in her right an estate during coverture, or at most, only a life estate in it. And the claim is, that a husband has no power to lease for a term of years the estate of his wife ; and therefore, ought not to be compelled specifically to perform his agreement to lease it; and we are referred to the case of Annan v. Merritt, 13 Conn. R. 457. as supporting this claim.
[228]*228If the claim of the defendant was correct, that a husband incompetent to lease estate in which his only interest is such as the law gives him in right of his wife, it would doubtless follow, from the case cited and the authorities referred to in that case, that he would not be decreed to execute a contract to lease it. But we see nothing in that case that countenances the idea, that he cannot make a valid lease of his wife’s real estate. We did not suppose, that the rights acquired by marriage, had been varied, or in any way modified, by that decision. That he cannot convey her interest in land, is very true ; and so the law has always been ; for the obvious reason, that he can convey only such interest as he himself has in it; and the case cited shows, that the former practice of courts of chancery, of compelling him to cause or procure the title of his wife to be conveyed to his vendee, upon the presumption that he must have had her consent previous to the sale, is now exploded. But we know of no law that will prevent his selling his own interest in land, however acquired. And as the law gives him an estate during coverture, and in some cases a life estate, he can of course convey it. And although it seems to be a disputed point, whether, if he lease for a term of years, and die during the term, the lease is wholly void as against the wife, or good for the whole term, unless she, after such decease, dissent to it; yet, it is nowhere said, that it will not be good during the husband’s life. In Bac. Abridg. tit. Lease. C. i. it is said, it will be good for the whole term, unless she, by some act after the husband’s decease, shows her dissent to it; and that if she accepts rent after his decease, the lease becomes absolute for the whole term. Williams, in a note to Wollon v. Hele, 2 Saund. 180. n. 9. doubts whether the lease is not wholly void as to the wife ; but he says, it is undoubtedly good during the cover-ture. The defendant’s lease, then, will be good for the whole term, unless previously determined by his death ; and whether it is wholly void as to his wife, or only voidable, is of no importance in this suit.
2. It is insisted, that the agreement was within the provisions of the statute of frauds; and that there has been no such part performance as will take it out of the operation of that statute.
The first part of this proposition cannot be denied. It was [229]*229an agreement to build, by a specified time, a store, and when finished, to rent it, together with an adjoining wharf, to the plaintiff, for the period of three years, at the rate of 500 dollars annual rent. As such it was obviously a contract for the sale of an interest in lands ; and not being in writing, was within the express provision of one clause of the statute. This is not denied, but the plaintiff admits, that had nothing been done in part performance of the agreement, it would not have been binding, either at law or in equity. He however insists, that there has been such part performance that the parties are not now at liberty to sav they will not execute it; and this is our opinion. There is now, we believe, no dispute, any where, but that part performance of a parol agreement to sell land, will, in certain cases, take the agreement out of the operation of the statute of frauds, and authorize a court of chancery to decree the specific performance of it: as remarked by the Chief Justice, in the case above referred to, “ The authorities are too numerous and too overpowering for us to treat this as an open question.” But the difficulty is, to determine what ought, for this purpose, to be considered part performance of an agreement. Delivery of possession, accompanied by the expenditure of money upon the property by the purchaser; as his building a house, or making other improvements upon it. which he must lose, unless the agreement is executed, has always entitled a purchaser to a specific execution. 2 Sw. Dig. 32. 2 Sto. Eq. s. 761. Formerly, it is said, the payment of a considerable part of the purchase money was held to be sufficient for this purpose. But the difficulty of determining what was meant, by a considerable part of the purchase money, and the fact, that it could be recovered back at law, on the ground of a failure of consideration, has induced the courts to abandon this, as alone sufficient to relieve from the operation of the statute. But the elementary books all lay down the proposition, that delivery of possession is part performance. Pow. on Coni. 294. 2 Sw. Dig. 30. Newl. Cont. 183. 2 Sto. Eq. 763. And we know of no decision to the contrary. Chancellor Kent says, “ Generally, it may be observed, delivery of possession is part performance;” (4 Kent’s Com. 451.) And among the cases to which he refers in support of the proposition, is the Earl of Aylesford’s case, 2 Stra. 783. which is so directly in point, that if it is regarded [230]*230as law, it most controul our decision. In that case, there wa« - a parol agreement for a lease for twenty-one years ; the lessee had entered and enjoyed the premises six years. The bill was brought by the lessor, to compel the lessee to execute a counterpart to the lease, for the residue of the term. The defen-fendant pleaded the statute of frauds ; but the plea was overruled, on the ground of part performance. That case seems to be exactly like this, in all respects, except that the bill was brought by the lessor ; and in this case, it is brought by the lessee. But this is an answer to the suggestion of counsel, that there was no mutuality in compelling the defendant to execute this agreement. Undoubtedly, the obligation to perform should be mutual; but the case referred to shows that it is so. Had the plaintiff refused to take a lease, after he had induced the defendant to expend his money in erecting the store, and after possession had been taken and retained for nearly a year, upon the faith of the agreement, it would have been a most palpable fraud upon the defendant; and if, as counsel correctly claim, the obligation must be mutual, we do not see how it can be any less a fraud on the part of the defendant, for him, under the same circumstances, to refuse to give a lease. There is great uniformity in the numerous cases on this subject; but a review of them is unnecessary. The whole law applicable to the case was correctly laid down, in Morphett v. Jones, 1 Swanst. 172. That was also the case of an agreement for a lease for years; the lessee had entered, and before any lease was given, there was a subsequent agreement, by which part of the land was given up, and the lessee continued in possession of the residue at a reduced rent. The bill prayed, that the agreements, so far as the former was not altered by the latter, might be performed. In his opinion, the master of the rolls, after stating, that the ground of relief, in such cases, is fraud, says: “ A party who has permitted another to perform acts on the faith of an agreement, shall not insist that the agreement is bad, and that he is entitled to treat these acts as if it had never existed. That is the principle ; but the acts must be referable to the contract. Between landlord and tenant, when the tenant is in possesion at the date of the agreement, and only continues in possession, it is properly observed, that in many cases, that continuance amounts to nothing: but admission into possession, having unequivocal [231]*231reference to a contract, has always been considered an act of part performance. The acknowledged possession.of a stranger, in the land of another, is not explicable except on the supposition of an agreement ; and has, therefore, constantly been received as evidence of an antecedent contract, and is sufficient to authorize an enquiry into the terms; the court regarding what has been done as a consequence of contract or tenure.”
In the case before us, there was both the delivery of possession and a continued occupancy of the premises for nearly a year, and also the payment of rent, according to the terms of the agreement; and although payment of the consideration is not, according to modern authorities, alone sufficient to take the case out of the statute, it at least strengthens the equitable claim of the plaintiff, arising from delivery of possession. Church v. Sterling, 16 Conn. R. 388.
But again, it is said, this agreement was not to be performed within one year from the making of it; and part performance will not relieve the case from this clause of the statute ; and cases at law are referred to, in support of this claim. As the agreement was, as already remarked, within the clause of the statute relating to the sale of lands, we do not see how it could be affected, by being brought within another provision of the same statute. We suppose, also, that the specific performance of contracts is entirely a matter of equitable jurisdiction ; and that, at law, nothing will take a case out of the operation of the statute; unless, perhaps, complete and full performance, by at least one party to the contract. We are aware of a class of cases, where one of the parties, having performed his part of the agreement, may bring a suit at law, and recover the consideration promised for such performance. Such was the case of Baxter v. Gay & ux. 14 Conn. R. 119. But we know of no case, where a party has been permitted to recover, at law, for the breach of a contract which was within the statute, on the ground of part performance. The remedy has always been in chancery for a specific execution ; and1 relief is granted there, upon the principle, that at law, the other party has obtained an unfair advantage, which would operate as a fraud, unless the agreement is carried into effect. Hence, when it was suggested, in argument, in Jackson d. Smith v. Pierce, 2 Johns. R. 221. that the construction of the [232]*232statute of frauds, as to part performance, was the same in a court of law as in equity; we find Kent, J. replying, that “ there was such a dictum of Justice Butter while sitting in the court of chancery ; but it has never been regarded as law. And Boyce, J., in Squires v. Whipple, 1 Verm. R. 73. says, “ A doubt may well be entertained, whether part performance is not exclusively a ground of equitable jurisdiction.” If this suggestion is well founded, it follows, that the cases cited, being all actions at law, have no application to the case under consideration. However this may be, we do not place the case upon this ground ; because we are satisfied that this agreement was to be performed within a year.
It is claimed, that it was not to be performed within that time, because the plaintiff was to enjoy the premises for the term oil. three years, at least. Tnere are many cases, where contracts for the absolute sale of the fee of lands have been decreed to be executed, on the ground of part performance ; and it would seem not a little remarkable, for a court to hold, that a contract for a three years’ lease is, m this respect, in a worse condition than would be the sale of the land in perpetuity; But several of the cases cited by the plaintiff, are cases where there was an agreement for a term of years ; and in none of them was this claim made. The contract in these cases, is not for the occupation of the land, any more in the case of a lease for years than in the absolute sale of it. It is for the sale of the term ; and the contract is performed, when the title is conveyed. In this case, the contract, made in the fall of the year, was to be performed the succeeding April. The report of the committee finds the contract to have been, on the part of the defendant, that he should erect, on said lot of land, a substantial brick store, suitable for the grocery business, and have it completed on or before the 1st of April then next, and that he should rent or let the said store and wharf to the plaintiff, for the term of three years from the said 1st of April, at and for the yearly rent, &c. Substantially, this was an agreement to make a lease on the 1st of April, after he had erected the store, upon the usual terms. The due execution of such a lease, and of a counterpart on the part of the plaintiff would have been a complete execution of the agreement. The occupancy of the store, and the consequent payment of rent, would have followed, not from the [233]*233original agreement, but from the lease and the occupation under it.
In the lease offered by the plaintiff to the defendant to execute, there was a clause providing, that in case the store should be destroyed by fire, or rendered unfit to be used, the payment of rent should, from that time, cease, until it should be put in good order, by the defendant. There was no proof of any such agreement, in regard to the terms of the lease ; and however equitable such a provision might have been, we have no power to prescribe any but the usual terms, for instruments of this description. We do not understand this to be one of them. The defendant was not, therefore, bound to execute the lease containing this provision. But, as he refused to execute any lease, or even to read the instrument presented to him, he can take no advantage of this provision, but must be decreed to execute a lease, containing the usual provisions.
Upon the whole, there was no error in the proceedings of the superior court.
In this opinion the other Judges concurred.
Decree affirmed.