Tilghman C. J.
The defendants have gone to no expense, in erecting buildings, or making improvements on the premises, but rely on the circumstance of possession, to take their case out of the act for the prevention of frauds and perjuries. This, they say, is a performance of the contract in part, and, therefore, within the principle of cases which have been adjudged by this Court. That a performance in part, takes the case out of the act, has certainly been decided $. although it has not been settled, that every performance in part, will be sufficient. Payment of a considerable part of the purchase money,' is very different from payment of a [546]*546shilling by way of earnest. Such a payment of mere earnest money, would not be regarded ; but yet, it might be said to be part performance. We have considered the delivery of possession, as a strong circumstance. In Ebert v. Wood 1 Binn. 216, the contract was held good upon possession alone. There, however, the delivery of possession, was mutual, upon a parol partition between tenants in common. In Syler's lessee v. Eckhart, a parol gift by father to son, with possession delivered, and improvements made by the son, was held valid. 1 Binn. 378. But, in order to give weight to the circumstance of possession, it must be a possession delivered in pursuance of the parol agreement set up, a possession, which cannot be accounted for, but by supposing the agreement to have been made. Possession delivered upon a lease for more than, three years, is not so strong, as possession delivered upon a contract to sell; because possession is incident to every lease, although but for a year, or even at will, and the object of the act of assembly seems to have been, to reduce all parol leases for more than three years, to leases at will, although possession was delivered. I will not say, however, that according to adjudged cases, a parol lease for more than three years, may not be taken out of the act, by delivery of possession, if the agreement be clearly proved. If attended with improvements by the lessee, it certainly would be established. If strengthened by no circumstance, but the bare possession, for a short time, I decline giving any opinion, because it is not the case before us. I have said, that to give weight to the bare possession, it must be a possession delivered in consequence of the agreement. Possession had before the agreement, and continued after it, is of too doubtful a nature to be considered as proof of part performance. A lessee who continues in possession after the expiration of his lease, may be supposed to retain the possession, by permission of the landlord, on the terms of the old lease. It would not be sufficient evidence of part performance of an agreement to purchase the land, or of a new lease, for more than a year. This distinction between possession before and after the agreement, is taken, in 1 Fonbl. 175. In the case of Gunter v. Halsey, Amb. 586, it is said, that the acts done in part performance, must be such as could be done with no other vietv, than in performance of the agreement. The same principle is affirmed by Lord Hard[547]*547wicke, in Lacon v. Mertins, 3 Atk. 4. I confess, I am not for extending the law in favour of parol agreements, though I hold myself bound by the decisions heretofore made, because property has been acquired on the faith of them. In the present case, it is stated, that Perkins, under whom the defendants claim, was in possession prior to the agreement now sought to be established. Possession, therefore, was not delivered in pursuance of the agreement, and is not to be considered as- part performance. Had Hornketh, or the defendants, made improvements, or incurred considerable expenses, on the faith of the agreement, that, together with the possession, would have been sufficient, because it would have been fraudulent for the lessor, under such circumstances, to avoid the lease. But the case stands upon the naked fact of possession. I am of opinion, that to establish such a contract, would be going farther than can be gone, and farther than can be justified. Judgment, therefore, should be entered for the plaintiff.
Gibson J.
The first three sections of the English statute
frauds, correspond, almost word for word, with the first section of our act of assembly on the same subject. In giving a construction to the latter, I feel myself bound by the authority of English decisions antecedent to our revolution. That authority has been constantly recognised in our Courts, and is not now to be questioned. Delivery of possession in pursuance of a parol contract for an interest in land has uniformly been considered such a performance as to take the case out of the statute. Butcher v. Stapely fsf Butcher, 1 Fern. 363. Pike v. Williams, 2 Fern. 455. Lackey v.Lockey,Prec.in Ch.S18. Lacón v. Mertins, 3 Atk. 4. The Earl of Aylesford’’s case, 2 Str. 783, and Ebert v. Wood, 1 Binn. 216. No English decision, since the. American revolution, has shaken the authority of these cases ; but if any such did exist, not being authority here, it would have no effect on my opinion, believing as I do, that a rigid enforcement of the act would, in most cases, prove a protection to, rather than a prevention of, fraud ; and it ought not to be forgotten the statute was made for the prevention of frauds as well as perjuries. Lord Aylesford’s was a case of naked possession, in pursuance of the contract, and is full to the point. There was a parol agreement for a lease of twenty-one years, upon [548]*548which the lessee entered and enjoyed for six years, and then the earl brought a bill to oblige him to execute a counterpart for the residue of the term. The lessee pleaded the statute of frauds, which was over-ruled, the agreement being in part executed. So in Ebert v. Wood, partition by parol between tenants in common, accompanied with separate possession of the purparts, was held good. The case of Seagood v. Meale Leonard, Prec. in Ch. 560, cited in opposition to these authorities,'was decided on a different ground ; and Smith vt Turner, therein cited, does not support the position of the Master of .the Rolls, that a promise of a lease, accompanied with possession, is within the statute. That was the case of a lessee by parol who agreed to take a lease for a term of years certain, and continued in possession on the credit thereof; there being no writing to make out this agreement, it was held directly within the statute. This statement of the case by the Master of the Rolls is obscure as to the particulars. But I take it to have been the case of a tenant already in possession at the time of the agreement; and it is fully settled, that a bare holding over is not a possession under a new agreement to take a case out of the statute. Retaining possession after the expiration of a lease, is an act ambiguous in its nature, and does not necessarily refer to any agreement. But where there has been a change of the possession at the time of, or subsequent to, the agreement, it is different.
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Tilghman C. J.
The defendants have gone to no expense, in erecting buildings, or making improvements on the premises, but rely on the circumstance of possession, to take their case out of the act for the prevention of frauds and perjuries. This, they say, is a performance of the contract in part, and, therefore, within the principle of cases which have been adjudged by this Court. That a performance in part, takes the case out of the act, has certainly been decided $. although it has not been settled, that every performance in part, will be sufficient. Payment of a considerable part of the purchase money,' is very different from payment of a [546]*546shilling by way of earnest. Such a payment of mere earnest money, would not be regarded ; but yet, it might be said to be part performance. We have considered the delivery of possession, as a strong circumstance. In Ebert v. Wood 1 Binn. 216, the contract was held good upon possession alone. There, however, the delivery of possession, was mutual, upon a parol partition between tenants in common. In Syler's lessee v. Eckhart, a parol gift by father to son, with possession delivered, and improvements made by the son, was held valid. 1 Binn. 378. But, in order to give weight to the circumstance of possession, it must be a possession delivered in pursuance of the parol agreement set up, a possession, which cannot be accounted for, but by supposing the agreement to have been made. Possession delivered upon a lease for more than, three years, is not so strong, as possession delivered upon a contract to sell; because possession is incident to every lease, although but for a year, or even at will, and the object of the act of assembly seems to have been, to reduce all parol leases for more than three years, to leases at will, although possession was delivered. I will not say, however, that according to adjudged cases, a parol lease for more than three years, may not be taken out of the act, by delivery of possession, if the agreement be clearly proved. If attended with improvements by the lessee, it certainly would be established. If strengthened by no circumstance, but the bare possession, for a short time, I decline giving any opinion, because it is not the case before us. I have said, that to give weight to the bare possession, it must be a possession delivered in consequence of the agreement. Possession had before the agreement, and continued after it, is of too doubtful a nature to be considered as proof of part performance. A lessee who continues in possession after the expiration of his lease, may be supposed to retain the possession, by permission of the landlord, on the terms of the old lease. It would not be sufficient evidence of part performance of an agreement to purchase the land, or of a new lease, for more than a year. This distinction between possession before and after the agreement, is taken, in 1 Fonbl. 175. In the case of Gunter v. Halsey, Amb. 586, it is said, that the acts done in part performance, must be such as could be done with no other vietv, than in performance of the agreement. The same principle is affirmed by Lord Hard[547]*547wicke, in Lacon v. Mertins, 3 Atk. 4. I confess, I am not for extending the law in favour of parol agreements, though I hold myself bound by the decisions heretofore made, because property has been acquired on the faith of them. In the present case, it is stated, that Perkins, under whom the defendants claim, was in possession prior to the agreement now sought to be established. Possession, therefore, was not delivered in pursuance of the agreement, and is not to be considered as- part performance. Had Hornketh, or the defendants, made improvements, or incurred considerable expenses, on the faith of the agreement, that, together with the possession, would have been sufficient, because it would have been fraudulent for the lessor, under such circumstances, to avoid the lease. But the case stands upon the naked fact of possession. I am of opinion, that to establish such a contract, would be going farther than can be gone, and farther than can be justified. Judgment, therefore, should be entered for the plaintiff.
Gibson J.
The first three sections of the English statute
frauds, correspond, almost word for word, with the first section of our act of assembly on the same subject. In giving a construction to the latter, I feel myself bound by the authority of English decisions antecedent to our revolution. That authority has been constantly recognised in our Courts, and is not now to be questioned. Delivery of possession in pursuance of a parol contract for an interest in land has uniformly been considered such a performance as to take the case out of the statute. Butcher v. Stapely fsf Butcher, 1 Fern. 363. Pike v. Williams, 2 Fern. 455. Lackey v.Lockey,Prec.in Ch.S18. Lacón v. Mertins, 3 Atk. 4. The Earl of Aylesford’’s case, 2 Str. 783, and Ebert v. Wood, 1 Binn. 216. No English decision, since the. American revolution, has shaken the authority of these cases ; but if any such did exist, not being authority here, it would have no effect on my opinion, believing as I do, that a rigid enforcement of the act would, in most cases, prove a protection to, rather than a prevention of, fraud ; and it ought not to be forgotten the statute was made for the prevention of frauds as well as perjuries. Lord Aylesford’s was a case of naked possession, in pursuance of the contract, and is full to the point. There was a parol agreement for a lease of twenty-one years, upon [548]*548which the lessee entered and enjoyed for six years, and then the earl brought a bill to oblige him to execute a counterpart for the residue of the term. The lessee pleaded the statute of frauds, which was over-ruled, the agreement being in part executed. So in Ebert v. Wood, partition by parol between tenants in common, accompanied with separate possession of the purparts, was held good. The case of Seagood v. Meale Leonard, Prec. in Ch. 560, cited in opposition to these authorities,'was decided on a different ground ; and Smith vt Turner, therein cited, does not support the position of the Master of .the Rolls, that a promise of a lease, accompanied with possession, is within the statute. That was the case of a lessee by parol who agreed to take a lease for a term of years certain, and continued in possession on the credit thereof; there being no writing to make out this agreement, it was held directly within the statute. This statement of the case by the Master of the Rolls is obscure as to the particulars. But I take it to have been the case of a tenant already in possession at the time of the agreement; and it is fully settled, that a bare holding over is not a possession under a new agreement to take a case out of the statute. Retaining possession after the expiration of a lease, is an act ambiguous in its nature, and does not necessarily refer to any agreement. But where there has been a change of the possession at the time of, or subsequent to, the agreement, it is different. It is contended by the counsel for the plaintiff, that the act itself relied on as part performance must indicate, that a written lease was in the contemplation of the parties, and, that possession alone is too equivocal for that purpose, for it may be that nothing more than a lease for years was intended, which would be good by parol. But to this it may be answered, it is not true that the act relied on as part performance must indicate the nature and extent of the contract. It is sufficient if in its nature it imply some agreement, 1 Fonbl. 185, (in noth.) Where there has been an execution of some agreement between the parties, parol evidence will be admitted to explain it. Ibid. If the defendants, therer fore, or he under whom they claim, had come into possession in pursuance of the parol contract, they would have had a good case ; but it distinctly appears from the case stated, that Perkins, the assignee of Hornketh, was in under a prior. lease, and continued so after the agreement of lease in q.ues[549]*549tion. The judgment, therefore, must be for the plaintiff. The question, whether delivery of possession only be a sufficient part execution of the contract, does not directly arise here. But,.as it seems to be doubted by the bar, whether other circumstances, such as payment of purchase money, improvements, &c. be not also necessary; I have given that question a full consideration, and am clearly of opinion, they are not, but that possession alone, in pursuance of the contract, is sufficient to take the case out of the statute.
Duncan J. gave no opinion, not having heard the argument.
Judgment for the plaintiff.