Whelan v. Sullivan

102 Mass. 204

Opinion

Gray, J.

The piece of land of which the plaintiff claims a conveyance was part of a larger tract owned by the defendant. The memorandum of November 17, 1862, does not, either in itself, or by reference to any other writing, contain the means of describing or identifying the boundaries of the piece to be conveyed. It was therefore clearly insufficient to take the case out of the statute of frauds. Atwood v. Cobb, 16 Pick. 227. Morton v. Dean, 13 Met. 385. Hurley v. Brown, 98 Mass. 545 Parol testimony of a previous oral agreement, which is the only means of identification referred to in the memorandum, cannot be taken into consideration in order to complete it. Waterman v. Meigs, 4 Cush. 497.

The bill does not allege, and the defendant was not bound to be prepared at the hearing to disprove, any previous oral agreement, part performance of which was intended to be relied on to take the case out of the statute. The report therefore does not -present the question whether the statutes conferring full equity jurisdiction in cases of fraud, accident or mistake, and all other cases where there is not a plain, adequate and complete remedy at law, have enabled this court to grant relief on the ground of part performance, which it had held that it could not do while its jurisdiction in equity was more limited. See Jacobs v. Peterborough & Shirley Railroad Co. 8 Cush. 223; Sanborn v. Sanborn, 7 Gray, 142; Buck v. Dowley, 16 Gray, 555; Gen. Sts. c. 113, § 2. An amendment of the bill for the purpose of presenting this question could not justly be allowed at this stage of the cause, except upon terms which would be equivalent to obliging the plaintiff to file a new bill.

Bill dismissed with costs, without prejudiced.

Footnotes

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This case was decided before Glass v. Hulbert, ante, 24.