M'Kee v. Phillips

9 Watts 85

• Court: Supreme Court of Pennsylvania
• Decided: September 15, 1839
• Status: Published

Opinion

The opinion of the Court was delivered by

Rogers, J.

It seems formerly to have been thought, that a deposit, or security, or payment of the purchase-money, or at least of a considerable part of it, was such a part performance as took the case out of the statute of frauds and perjuries. But that doctrine was open to much controversy, and has been finally overthrown. 2 Story’s Con. of Laws 64, and the authorities there cited; Sug. Vend. ch. 8, sect. 3, p. 112. The distinction taken in some of the cases between the payment of a small part, and a payment of a considerable part of the purchase-money, seems quite too refined and subtle. For, independently of the difficulty of saying what shall be deemed a small, and what a considerable part of the purchase-money, each, upon principle, must stand on the same reason, that it is a part performance in both cases, or not in either. Nothing is to be considered a part performance which does not put the party into a situation, which is a fraud upon him, unless the agreement be performed. As, therefore, payment of part or the whole of the purchase-money, admits of full and direct compensation, there is no reason on that ground to take the case out of the act. And although a party may become insolvent before a judgment at law can be executed, yet it is better to submit to that inconvenience than to relax the requirements of the statute. The modern decisions seem to evince a disposition in the courts to restore the reading of the statute to its proper and legitimate limits. But be this as it may, in other states, yet after the decision of Peifer v. Landis, 1 Watts 392; M’Farland v. Hall, 3 Watts 37; Stewart v. Stewart, 3 Watts 253; and Haslett v. Haslett, 6 Watts 464, this is not now an open question in Pennsylvania. In these cases it is ruled that an exclusive possession is an indispensable ingredient in a case for specific performance of a parol contract for the sale of land, in effect deciding that nothing short of a possession taken in pursuance of the contract, will take a case out of the act.

' Judgment affirmed.