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49 Mich. 179

Peckham v. Balch

Michigan Supreme Court

Decided October 11, 1882

Michigan Supreme Court · decided 1882-10-11

<p>.Statute of frauds— Verbal agreement to sell lands — Payment, possession and acts of ownership — Pari performance — Specifie performance — F'aud.</p> <p>A verbal agreement to convey land, being void under the statute of frauds, a Bill against a wife to compel a conveyance, even though her husband made the agreement and received the consideration with her full knowledge and consent, cannot be maintained where there is no such part performance as will take the case out of the statute.</p> <p>Payment of consideration for land sold under a verbal agreement will not always take the case out of the statute of frauds ; nor will possession, where the purchaser, as a tenant in common, merely remains in possession. Acts done as an owner and in reliance upon ownership and for which damages will not be adequate compensation are also necessary to entitle a party to the enforcement of. such an agreement.</p> <p>A bill to compel a conveyance under a contract must set up the facts relied upon.to show such part performance as will take the case out of the statute of frauds.</p> <p>Where specific performance cannot be enforced against a person who has verbally agreed to convey lands, the case will not be aided by showing that the land has been fraudulently granted to a third person.</p>

Key passage — most relied on by later courts

““The mere payment of consideration by the purchaser which is susceptible of being compensated by damages, is not sufficient to take the case out of the statute.” Grindling v. Rehyl, 149 Mich. 641 (15 L. R. A. [N. S.] 466). “It is not payment alone that will take a case out of the statute, but this with possession, and acts done as owner in reliance thereon, that cannot ordinarily be compensated in damages, which entitles a party to an enforcement of a verbal agreement relating to the sale of lands.” Peckham v. Balch, 49 Mich. 179 .”

quoted by 1 later decision, including Weiland v. Stielau

Relies on Bomier v. Caldwell

Good law ✅— No negative treatment on recordhow we know

Reversed · Decided 1882-10-11

How this case has been cited

Cited by 9 later decisions (1 by the Supreme Court) — most recently April 1925

8 state decisions

3018821890190019101920decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Mabston, J.

¶1Under the allegations of the bill and testimony in this case, the complainant could not compel a conveyance to him of the property in question by Mrs. Balch. Even if the agreement was made by her husband and the consideration received by him with her full knowledge and consent, as wo are inclined to think, still the contract was void under the statute of frauds, and there was no such part performance as would take the case out of the statute. Payment of the consideration alone will not be sufficient in a case like the present, and the complainant being a tenant in common of the property, his continued possession would not be sufficient. It is not payment alone that will take a case out of the statute, but this with possession and acts •done as owner in reliance thereon, that cannot ordinarily be compensated in damages, which entitles a party to an enforcement of a verbal agreement relating to the sale of lands. •

¶2There is still another serious difficulty with the present case. The bill does not set out the facts relied upon or necessary ■showing such a part performance as would take the case out of the statute. Bomier v. Caldwell 8 Mich. 463. The fraud of the defendant "Winter in purchasing from Mrs. Balch, cannot make out an otherwise defective case for the complainant. If he could not have enforced specific performance as against Mrs. Balch, neither can he against her fraudulent grantee.

¶3The decree must be reversed with costs and the bill ■dismissed.

The other Justices concurred.
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