The court here considered only one of the many exceptions taken for the defendant, and the facts necessary to present it are as follows:
In his complaint as originally drawn and first amended, the plaintiff alleges that in 1872 the defendant was the owner of a tract of land situate in Haywood county and on Crabtree creek, whereon there was a valuable mill-site and convenient waterpower, which he was anxious to have improved; that with this view he made certain propositions to the plaintiff, which, after consideration, were accepted by him, and thereupon the two concluded a parol agreement to the effect that the plaintiff should erect a mill upon the premises and dig a race, and in consideration of his so doing the defendant should convey to him the said mill-seat, the race privilege, and a sufficient lot of ground for a log-way about the sawmill; that in pursuance of said agreement the plaintiff proceeded to erect, and did erect both grist and sawmills at the place, and dug the race as agreed on, and continued to use and occupy the same from that time up to 1879, when he had written notice given him by the defendant, requiring him to remove his mills and quit the place; that in his conduct in the matter the defendant had been actuated by a purpose to overreach and defraud the plaintiff, and had caused him to sustain a loss of fully one thousand dollars.
The prayer of the complaint is, that the defendant may be required to convey the property and its appurtenances to the plaintiff, according to the terms of the agreement; or if not, that
the plaintiff recover of him the sum of one thousand dollars for the losses sustained.
By his answer the defendant denies that there was ever any agreement or contract between the parties in relation to the land, but that on the contrary the plaintiff entered upon it in his own wrong and built the mills and dug the race without authority, and without any sort of understanding with the defendant that he was to have the title; that after having enjoyed the use of the premises for several years without paying or offering to pay rent for the same, the plaintiff proposed to buy it of the defendant and offered fifty dollars therefor, which the latter declined to accept because he considered it far below its real value, and that this offer is the only proposition that ever passed between the parties looking to a sale by the one and a purchase by the other of the property; that finding that the digging of the race and the flow of water through it was productive of great damage to his adjoining lands, under cultivation, the defendant gave the plaintiff notice in 1879 to remove his mills and machinery from his premises, and this he was still willing he should do, and asks the court to require him to do. He also alleges that he has been endamaged by the race and by the use and occupation of his lands to the amount of one thousand dollars, for which he asks judgment against the plaintiff.
At the trial, the plaintiff offered evidence to establish the parol agreement between the defendant and himself, as set out in his complaint, and that in pursuance thereof he had entered upon the land, built the mill, and dug the race with the defendant's knowledge and consent. He also offered the evidence with a view to show that the defendant had given the plaintiff a license to enter and occupy the premises, and that the effect of such license was to induce him to expend his money in building the mill and cutting the race.
This evidence was objected to by the defendant but admitted by the court, not (as is stated in the case) for the purpose of proving a contract by parol for the conveyance of land or any
interest therein, but to show how the plaintiff had been induced to enter upon and improve the defendant's land; and in order to make the proofs and allegations correspond, the court gave the plaintiff leave to amend his complaint, so as to charge that his entry upon the land, the digging of the race, and building the mills, were all done under a license from the defendant, and that afterwards he had given the plaintiff notice to remove the mills and machinery from the land, and forbidden him any longer to use and occupy the same until removed.
Under the complaint, so amended, issues were submitted and responded to as follows:
1. Were the improvements put upon the land with the knowledge and permission of the defendant? Yes.
2. Was the plaintiff notified by defendant to quit the premises, and did he, in consequence of such notice, quit the same before bringing his action? Yes.
3. What is the value of the permanent improvements which the plaintiff put upon the land? $150.
After judgment against him according to the verdict, the defendant appealed.
In consideration of the decisions made in Chambers v. Massey, 7 Ired. Eq., 286; Dunn v. Moore, 3 Ired. Eq., 364; and Sain v. Dulin, 6 Jones' Eq., 195, it may well be doubted whether the court can grant any relief, even so far as to give the purchaser compensation for his improvements, under a parol contract for the purchase of land, the terms of which are denied or disputed by the defendant in his answer. These cases all go to the length of saying, that if, in an action brought to enforce the specific performance of such a contract, or in the alternative for compensation for improvements put upon the land, the answer should deny that there was any contract, or
allege that its terms differed from those set out in the complaint, then the court could grant neither relief, because the statute forbids its going into proof to establish for any purpose whatsoever, a contract variant from the one admitted in the answer; and if upon that the plaintiff could get no relief, he could not get it at all.
These cases seem to have been well considered, and much pains taken in them to make known their reasons and to show wherein they differed from other decisions (and it is not to be denied that there are others) which seemed to be opposed to them. It would, therefore, require a most convincing argument to induce me, speaking for myself alone, to depart from principles so maturely considered and so clearly enunciated, and especially as they seem to be in strict keeping with the wise policy of the statute of frauds, in that, they close the door upon temptations to commit perjuries, and the assertion of feigned titles to property. It is not necessary, however, that we should now go to the full length of those decisions, as we conceive a much less stringent rule, and one sanctioned by all the authorities, is sufficient to preclude this plaintiff from the recovery he is seeking to make.
In Albea v. Griffin, 2 Dev. Bat. Eq., 9, which is so often referred to as the leading case on the subject, the right of a purchaser under a parol contract to have compensation for improvements, made under an honest expectation that the land would be his, was put expressly upon the ground that it would be against conscience to allow the owner under such circumstances to acquire and enjoy the fruits of another's labor, or the expenditure of another's money, and thus enrich himself to the injury of that other. But neither in that case nor in any other in which its principles have been adopted — and there are many such — is there even a suggestion to be found, that an action can be sustained in any form, or in any court, whether at law or in equity, for damages for the non-performance of such a contract; and that is simply what this action is, nothing more nor less. To permit it
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The court here considered only one of the many exceptions taken for the defendant, and the facts necessary to present it are as follows:
In his complaint as originally drawn and first amended, the plaintiff alleges that in 1872 the defendant was the owner of a tract of land situate in Haywood county and on Crabtree creek, whereon there was a valuable mill-site and convenient waterpower, which he was anxious to have improved; that with this view he made certain propositions to the plaintiff, which, after consideration, were accepted by him, and thereupon the two concluded a parol agreement to the effect that the plaintiff should erect a mill upon the premises and dig a race, and in consideration of his so doing the defendant should convey to him the said mill-seat, the race privilege, and a sufficient lot of ground for a log-way about the sawmill; that in pursuance of said agreement the plaintiff proceeded to erect, and did erect both grist and sawmills at the place, and dug the race as agreed on, and continued to use and occupy the same from that time up to 1879, when he had written notice given him by the defendant, requiring him to remove his mills and quit the place; that in his conduct in the matter the defendant had been actuated by a purpose to overreach and defraud the plaintiff, and had caused him to sustain a loss of fully one thousand dollars.
The prayer of the complaint is, that the defendant may be required to convey the property and its appurtenances to the plaintiff, according to the terms of the agreement; or if not, that
the plaintiff recover of him the sum of one thousand dollars for the losses sustained.
By his answer the defendant denies that there was ever any agreement or contract between the parties in relation to the land, but that on the contrary the plaintiff entered upon it in his own wrong and built the mills and dug the race without authority, and without any sort of understanding with the defendant that he was to have the title; that after having enjoyed the use of the premises for several years without paying or offering to pay rent for the same, the plaintiff proposed to buy it of the defendant and offered fifty dollars therefor, which the latter declined to accept because he considered it far below its real value, and that this offer is the only proposition that ever passed between the parties looking to a sale by the one and a purchase by the other of the property; that finding that the digging of the race and the flow of water through it was productive of great damage to his adjoining lands, under cultivation, the defendant gave the plaintiff notice in 1879 to remove his mills and machinery from his premises, and this he was still willing he should do, and asks the court to require him to do. He also alleges that he has been endamaged by the race and by the use and occupation of his lands to the amount of one thousand dollars, for which he asks judgment against the plaintiff.
At the trial, the plaintiff offered evidence to establish the parol agreement between the defendant and himself, as set out in his complaint, and that in pursuance thereof he had entered upon the land, built the mill, and dug the race with the defendant's knowledge and consent. He also offered the evidence with a view to show that the defendant had given the plaintiff a license to enter and occupy the premises, and that the effect of such license was to induce him to expend his money in building the mill and cutting the race.
This evidence was objected to by the defendant but admitted by the court, not (as is stated in the case) for the purpose of proving a contract by parol for the conveyance of land or any
interest therein, but to show how the plaintiff had been induced to enter upon and improve the defendant's land; and in order to make the proofs and allegations correspond, the court gave the plaintiff leave to amend his complaint, so as to charge that his entry upon the land, the digging of the race, and building the mills, were all done under a license from the defendant, and that afterwards he had given the plaintiff notice to remove the mills and machinery from the land, and forbidden him any longer to use and occupy the same until removed.
Under the complaint, so amended, issues were submitted and responded to as follows:
1. Were the improvements put upon the land with the knowledge and permission of the defendant? Yes.
2. Was the plaintiff notified by defendant to quit the premises, and did he, in consequence of such notice, quit the same before bringing his action? Yes.
3. What is the value of the permanent improvements which the plaintiff put upon the land? $150.
After judgment against him according to the verdict, the defendant appealed.
In consideration of the decisions made in Chambers v. Massey, 7 Ired. Eq., 286; Dunn v. Moore, 3 Ired. Eq., 364; and Sain v. Dulin, 6 Jones' Eq., 195, it may well be doubted whether the court can grant any relief, even so far as to give the purchaser compensation for his improvements, under a parol contract for the purchase of land, the terms of which are denied or disputed by the defendant in his answer. These cases all go to the length of saying, that if, in an action brought to enforce the specific performance of such a contract, or in the alternative for compensation for improvements put upon the land, the answer should deny that there was any contract, or
allege that its terms differed from those set out in the complaint, then the court could grant neither relief, because the statute forbids its going into proof to establish for any purpose whatsoever, a contract variant from the one admitted in the answer; and if upon that the plaintiff could get no relief, he could not get it at all.
These cases seem to have been well considered, and much pains taken in them to make known their reasons and to show wherein they differed from other decisions (and it is not to be denied that there are others) which seemed to be opposed to them. It would, therefore, require a most convincing argument to induce me, speaking for myself alone, to depart from principles so maturely considered and so clearly enunciated, and especially as they seem to be in strict keeping with the wise policy of the statute of frauds, in that, they close the door upon temptations to commit perjuries, and the assertion of feigned titles to property. It is not necessary, however, that we should now go to the full length of those decisions, as we conceive a much less stringent rule, and one sanctioned by all the authorities, is sufficient to preclude this plaintiff from the recovery he is seeking to make.
In Albea v. Griffin, 2 Dev. Bat. Eq., 9, which is so often referred to as the leading case on the subject, the right of a purchaser under a parol contract to have compensation for improvements, made under an honest expectation that the land would be his, was put expressly upon the ground that it would be against conscience to allow the owner under such circumstances to acquire and enjoy the fruits of another's labor, or the expenditure of another's money, and thus enrich himself to the injury of that other. But neither in that case nor in any other in which its principles have been adopted — and there are many such — is there even a suggestion to be found, that an action can be sustained in any form, or in any court, whether at law or in equity, for damages for the non-performance of such a contract; and that is simply what this action is, nothing more nor less. To permit it
to be done, would be for the courts to act in the very teeth of the statute, in defiance of the declared will of the legislature.
Wherein could consist the difference between a direct enforcement of the contract, in such a case, and the court's saying to the owner, we cannot compel you to part with your property, but should you undertake to exercise ownership over it, we will mulct you with damages? The most they can do, and all they have ever undertaken to do, is to say to him that if he repudiates the contract he must be content with the taking back what was his own, and at its own intrinsic value, unenhanced at the cost or by the labor of another.
But what sort of connection is there between that principle and this case, in which the defendant is not only content with being restored to what was his own, but invites the plaintiff to take what is his (buildings, machinery and all), and craves the aid of the court in compelling him to do so.
If we consider the contract between the parties as a license given to the plaintiff to enter upon the land, and erect and enjoy the improvements, we cannot perceive that it in the least serves to help his case. If purely a license, it excused, it is true, his entry upon the land which would otherwise have been a trespass; but it was still revocable, and its continuance entirely dependent upon the will of the owner. If intended to pass a more permanent and continuing right in the land, whereby the authority or estate of the owner could be in the least impaired, it was then not only necessary to be evidenced by writing, but could only be made effectual by deed. In Hilliard on Vendors, 124, it is said that a license which grants an estate, however short, requires a deed; and in 3 Kent, 352, the doctrine is thus stated: "A claim for an easement must be founded upon a grant or upon a presumption which supposes one, for it is a permanent interest in another's land, with a right to enter and enjoy the same"; and to the same effect are the decisions in this court in Bridgers v. Purcell, 1 Dev. Bat., 492, and Carter v. Page, 4 Ired., 424.
In any point of view that can be taken of the case, this court thinks the plaintiff must fail in his action.
Having made a contract such as the law discourages from considerations of public convenience, he must abide the consequences; and as the defendant disclaims a purpose to appropriate what is his (the plaintiff's), he must be content with getting that back without compensation for any loss he may have sustained.
The judgment of the court below is, therefore, declared to be erroneous, and the same is reversed, and judgment will be entered here that the defendant will go without day.