Mr. Justice Brown,
after stating the case, delivered the opinion of the court.
The sole question is whether the plaintiffs have made out such a case as entitles them under the statute of frauds to. a specific performance of the alleged agreement- for the sale of-the homestead property in square 199, and an equal division of the proceeds.
Thomas Niggles, the ancestor, ivas possessed of two parcels of land in Washington, viz.: Certain lots in square 199, containing the homestead, worth from six to eight thousand dollars; and a large number of lots in square 179, then unimproved, and worth about forty thousand dollars.
TJie lots in square 199, the homestead, he left to his widow for .life, for the benefit of herself and her four children; after her death, to his executors, for the benefit of 'his four children until the youngest should become of age, and then to his son Thomas, charged with the care and support of the unmarried daughters by his second wife; and in case of the death of Thomas before his sisters, the property was to be sold and the proceeds equally divided among these sisters.
The lots in square 179’were also charged with the maintenance and necessary expenses of his wife and her four children during her life, and after her death, with the support of the" children, until the youngest, should become of age. The executor was given power to dispose of all of 179 if, in his discretion, it. should become necessary to apply the same to. such úse, and any surplus that should remain was to be divided among testator’s children by his first wife, but should such residue remaining from 179 be more than the value of the homestead property, the children by the second wife should receive from such proceeds such portions as to make their shares alike or equal to each other, and the shares of the other children.
Thomas Biggies, Jr., son of the second wife, died December 27, 1883; Catharine Biggies, widow, died November, 1884. Hannah Biggies Erney, by the death of her brother and sisters, is the sole survivor of the children of the second wife, and entitled to the homestead under the will.
Plaintiffs’ testimony tended to show that, at a meeting of the widow and all the heirs of the estate in June, 1873, it was agreed that the entire estate should be equally divided among the widow and children; that the lots in square 179 should be immediately sold, and the net proceeds, after payment of incumbrances, taxes, and assessments upon the whole estate, should be divided between the widow and all the' children; and that the homestead lots in square 199 should be retained for the use of the widow and her children until her death, or the death or'marriage of the daughters, when this property should also be sold, and the proceeds divided among all the children. This agreement, so far as it concerned lots in 179,
Avas carried out; so far as it concerned square 199 it was denied and the statute pleaded.
But if the contract tvas made, as claimed, the sale and division of proceeds of the lots in square 179 Avas a part performance of such contracts under the decisions both of this court and of Maryland. The case of
Caldwell
v. Carrington, 9 Pet. 86, is not dissimilar. This Avas a bill filed by Carrington’s heirs in the Circuit Court for the District of Kentucky, claiming certain lands in that State, under a parol agreement, by Avhich Carrington agreed Avith Williams for an exchange of lands Avhich Carrington OAvned in Virginia for certain military lands in Kentucky. Williams took possession of the lands in Virginia and sold, a part of them. The bill prayed that the heirs of Williams should be decreed to convey the military lands in Kentucky. This court held that, although the statute of frauds avoids parol contracts for lands, yet the complete execution of the contract in this case by Carrington, by conveying to Williams the lands he had agreed to give him in exchange, prevented the operation of (¡lie statute. See also
Galbraith
v. McLain, 84 Illinois, 379 ;
Paine
v.
Wilcox,
16 Wisconsin, 202. So in
Neale
v.
Neales,
9 Wall. 1, a parol gift of land Avas made to a donor, Avho took possession, and, induced by the promise of the donor to give a deed of it, made valuable improvements on the property. . It Avas' held that the donor, having stipulated that the expenditure should be made, this should be regarded as a consideration or condition of the gift, and a specific performance Avas decreed. To same effect is
Hardesty
v.
Richardson,
44 Maryland, 617. So in
Bigelow
v.
Armes,
108 U. S. 10. Armes proposed inAvriting to Bigelow to exchange his real estate for BigeloAv’s Avith a cash bonus. The latter accepted in Avriting. Armes complied in full; BigeloAV in part only. It was held to be unnecessary to determine Avhether the Avritten memorandum was sufficient, as it was the duty of the court, in view of the full performance by Armes, to decree performance by BigeloAV. There are other cases.-in this court in which the evidence Avas deemed insufficient to justify a decree for specific performance, but the principle of the cases above cited has never been tines
tioned.
Colson
v.
Thompson,
2 Wheat. 336;
Purcell
v.
Miner,
4 Wall. 513;
Grafton
v.
Cummings,
99 U. S. 100. Indeed, the rule is too well settled to require further citation of authorities, that, if the parol agreement fie clearly and satisfactorily proven, and the plaintiff, relying upon. such agreement and the promise of the 'defendant to perform his part, has done acts in part performance of such agreement, to the knowledge of the defendant — acts which have so altered the relations of the parties as to prevent their restora: - tion to their former condition — it would be a virtual fraud to allow the defendant to interpose the statute as a defence and thus to secure to himself the benefit of what has been done in part performance.- It must' appear,, however; that the acts done by the plaintiff -were done in pursuance of the contract, and for the purpose of carrying it into execution, and with the consent or knowledge of the other party. While, acts done prior to- the contract or preparatory thereto, such as delivering abstracts of titles, measuring the land, drawing up deeds, etc., are
not
regarded as sufficient part performance, it is otherwise with such acts as taking open possession of the land sold, or making permanent or valuable improvements thereon,.or doing other acts in relation To the land.manifestly inconsistent with any other theory than that of carrying out the parol undertaking.
Plaintiff introduced the testimony of three witnesses, all of which tended to show that a meeting of all the heirs was held the last of May, 1873, at the homestead, at which it was agreed to sell square 179, pay off the indebtedness, and divide the balance. The' indebtedness consisted of taxes upon square 179 and a mortgage debt upon it, the indebtedness of the widow, and the taxes due upon the homestead occupied by her in square 199.
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Mr. Justice Brown,
after stating the case, delivered the opinion of the court.
The sole question is whether the plaintiffs have made out such a case as entitles them under the statute of frauds to. a specific performance of the alleged agreement- for the sale of-the homestead property in square 199, and an equal division of the proceeds.
Thomas Niggles, the ancestor, ivas possessed of two parcels of land in Washington, viz.: Certain lots in square 199, containing the homestead, worth from six to eight thousand dollars; and a large number of lots in square 179, then unimproved, and worth about forty thousand dollars.
TJie lots in square 199, the homestead, he left to his widow for .life, for the benefit of herself and her four children; after her death, to his executors, for the benefit of 'his four children until the youngest should become of age, and then to his son Thomas, charged with the care and support of the unmarried daughters by his second wife; and in case of the death of Thomas before his sisters, the property was to be sold and the proceeds equally divided among these sisters.
The lots in square 179’were also charged with the maintenance and necessary expenses of his wife and her four children during her life, and after her death, with the support of the" children, until the youngest, should become of age. The executor was given power to dispose of all of 179 if, in his discretion, it. should become necessary to apply the same to. such úse, and any surplus that should remain was to be divided among testator’s children by his first wife, but should such residue remaining from 179 be more than the value of the homestead property, the children by the second wife should receive from such proceeds such portions as to make their shares alike or equal to each other, and the shares of the other children.
Thomas Biggies, Jr., son of the second wife, died December 27, 1883; Catharine Biggies, widow, died November, 1884. Hannah Biggies Erney, by the death of her brother and sisters, is the sole survivor of the children of the second wife, and entitled to the homestead under the will.
Plaintiffs’ testimony tended to show that, at a meeting of the widow and all the heirs of the estate in June, 1873, it was agreed that the entire estate should be equally divided among the widow and children; that the lots in square 179 should be immediately sold, and the net proceeds, after payment of incumbrances, taxes, and assessments upon the whole estate, should be divided between the widow and all the' children; and that the homestead lots in square 199 should be retained for the use of the widow and her children until her death, or the death or'marriage of the daughters, when this property should also be sold, and the proceeds divided among all the children. This agreement, so far as it concerned lots in 179,
Avas carried out; so far as it concerned square 199 it was denied and the statute pleaded.
But if the contract tvas made, as claimed, the sale and division of proceeds of the lots in square 179 Avas a part performance of such contracts under the decisions both of this court and of Maryland. The case of
Caldwell
v. Carrington, 9 Pet. 86, is not dissimilar. This Avas a bill filed by Carrington’s heirs in the Circuit Court for the District of Kentucky, claiming certain lands in that State, under a parol agreement, by Avhich Carrington agreed Avith Williams for an exchange of lands Avhich Carrington OAvned in Virginia for certain military lands in Kentucky. Williams took possession of the lands in Virginia and sold, a part of them. The bill prayed that the heirs of Williams should be decreed to convey the military lands in Kentucky. This court held that, although the statute of frauds avoids parol contracts for lands, yet the complete execution of the contract in this case by Carrington, by conveying to Williams the lands he had agreed to give him in exchange, prevented the operation of (¡lie statute. See also
Galbraith
v. McLain, 84 Illinois, 379 ;
Paine
v.
Wilcox,
16 Wisconsin, 202. So in
Neale
v.
Neales,
9 Wall. 1, a parol gift of land Avas made to a donor, Avho took possession, and, induced by the promise of the donor to give a deed of it, made valuable improvements on the property. . It Avas' held that the donor, having stipulated that the expenditure should be made, this should be regarded as a consideration or condition of the gift, and a specific performance Avas decreed. To same effect is
Hardesty
v.
Richardson,
44 Maryland, 617. So in
Bigelow
v.
Armes,
108 U. S. 10. Armes proposed inAvriting to Bigelow to exchange his real estate for BigeloAv’s Avith a cash bonus. The latter accepted in Avriting. Armes complied in full; BigeloAV in part only. It was held to be unnecessary to determine Avhether the Avritten memorandum was sufficient, as it was the duty of the court, in view of the full performance by Armes, to decree performance by BigeloAV. There are other cases.-in this court in which the evidence Avas deemed insufficient to justify a decree for specific performance, but the principle of the cases above cited has never been tines
tioned.
Colson
v.
Thompson,
2 Wheat. 336;
Purcell
v.
Miner,
4 Wall. 513;
Grafton
v.
Cummings,
99 U. S. 100. Indeed, the rule is too well settled to require further citation of authorities, that, if the parol agreement fie clearly and satisfactorily proven, and the plaintiff, relying upon. such agreement and the promise of the 'defendant to perform his part, has done acts in part performance of such agreement, to the knowledge of the defendant — acts which have so altered the relations of the parties as to prevent their restora: - tion to their former condition — it would be a virtual fraud to allow the defendant to interpose the statute as a defence and thus to secure to himself the benefit of what has been done in part performance.- It must' appear,, however; that the acts done by the plaintiff -were done in pursuance of the contract, and for the purpose of carrying it into execution, and with the consent or knowledge of the other party. While, acts done prior to- the contract or preparatory thereto, such as delivering abstracts of titles, measuring the land, drawing up deeds, etc., are
not
regarded as sufficient part performance, it is otherwise with such acts as taking open possession of the land sold, or making permanent or valuable improvements thereon,.or doing other acts in relation To the land.manifestly inconsistent with any other theory than that of carrying out the parol undertaking.
Plaintiff introduced the testimony of three witnesses, all of which tended to show that a meeting of all the heirs was held the last of May, 1873, at the homestead, at which it was agreed to sell square 179, pay off the indebtedness, and divide the balance. The' indebtedness consisted of taxes upon square 179 and a mortgage debt upon it, the indebtedness of the widow, and the taxes due upon the homestead occupied by her in square 199. There was another meeting in June, at which there was-a deed read which had been prepared. John Niggles, who appeared for the first wife, objected to the deed upon the ground that it was' not in accordance-with the will, when Mr. Evans,, who appeared on behalf of the children pf the second wife, promised that the children should share and share alike in the house at the death of the mother, and said
“ that it would not be fair for the children of the last wife to do all the waiting and the children of the first wife get their share at once; that it would only be equitable for the children of the first wife to do part of the waiting and share equally with them, so that it. would be literally carried out, and we consented to divide equally upon that basis, and would have refused to have- sold any more than sufficient to pay off the indebtedness unless they would agree to this equitable division, which was agreed to by all the heirs without any objection.”
This agreement, so far as concerned square 179, was carried out, and defendant Hannah was paid about $3000 as her share óf the proceeds of the sale. Mr. Evans, who, as before, stated, appeared for the children of the second- wife, among whom-was defendant Hannah, after_ stating that it was understood that'the homestead Avas to be sold, says that “it was a distinct and positive verbal agreement, thoroughly understood and consented to by all without reservation; we did not wish to send the deed back for a change, fearing that delays, were dangerous; Ave Avere anxious to settle. Q. Do you know that Hannah Higgles Erney understood positively that she was consenting and agreeing to break the terms of her father’s will? A. I do not know that she did. ... As I said before, I represented the children by the second wife, and my Avife’s interest, like Mrs. Erney’s, I was bound to protect in every way. I, therefore, consulted Avith her, explained the terms of the deed, read the Avill to her, and asked her, as Avell as the other heirs by the second wife, if she thoroughly understood and consented to selling the property. She was satisfied, and so expressed herself.”. This testimony Avas also corroborated by Sarah A. Turton, one of the children by the first Avife.
The only testimony to the contrary is that of defendant herself, Avho always understood that the land Avas sold “to pay the indebtedness of mother, and then it was to be divided equally, and that is all.” She remembered of but one meeting, but acknoAArledged that Mr. Evans Avas her representative in the transaction. She denied entering into any contract con
cerning the disposition of the land, but her testimony is quite unsatisfactory and her memory evidently defective.
By the terms of the will square 179, after being charged with the maintenance and support of the widow and her four children during her life, and after her death until the youngest should become of age, was to be sold and the proceeds to be divided between the children of the first wife, with a proviso that, if the lands so sold should exceed the value of the homestead lands, the children of the second wife should receive enough to make the shares of all equal.
The ultimate objects of the will were,
first
to provide for the.maintenance and expenses of the wife and younger children until they became of age; and,
second,
that the property should then be equally divided between them. This equality would certainly be defeated, if the defendant Hannah were permitted to share equally in the proceeds of square 179, and in addition to receive the whole of the proceeds of square 199. It seems to us altogether improbable that the children of the first wife would have entered into this arrangement, without an understanding that they were also to share in the proceeds of the homestead.
The decree of the court below is, therefore, reversed, and the case remanded for further proceedings -in conformity with this opinion.
Me.-Justice Bkewek and Me. Justice-"White dissented from this opinion. • '