MARY A. WILLIAMS v. JAMES R. CARTY.

Rugg, J. This is a suit in equity, by which the plaintiff seeks to enforce specific performance of a contract for the sale

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of land. The bill alleges an oral agreement on the part of the defendant to convey and of the plaintiff to purchase a certain farm called the "old Ephraim Hatch place," (with the exception of about two acres not now material,) an integral part of which was a valuable orchard called the "Taylor lot" containing about seventeen acres, and dissuasion on the part of the defendant from having the title of the property described in the deed searched by the plaintiff before delivery thereof; that the defendant in fact caused to be executed and delivered to the plaintiff, by false and fraudulent representations, a deed which omitted from its description the Taylor lot, for which she paid the consideration by a small cash payment and a large mortgage to the defendant, supposing that the deed conveyed the entire farm including the Taylor lot; that the plaintiff took possession under the deed believing "that she had taken possession of the whole of the said Hatch farm"; and that she moved her household furniture and belongings from another town to the buildings upon the farm, and that in further reliance upon the representations of the defendant she with her husband gave up a comfortable home, and profitable employment and business, which constituted a valuable means of livelihood; that since taking possession of the farm she has made valuable improvements by way of ditching, fencing, fertilizing, clearing, cultivating and otherwise, for which no adequate compensation can be made; that thirteen days after taking possession she learned that the deed did not convey the Taylor lot. It is not distinctly alleged whether any of these improvements were made before the discovery of the defendant's fraud in making the deed. The defendant demurred on the ground that the bill asks the enforcement of a contract for the sale of lands without the memorandum required by the statute of frauds. In the Superior Court [Note p397-1] a decree was entered dismissing the bill. The plaintiff's appeal brings the case here.

The defendant strenuously contends that under the authority of Glass v. Hulbert, 102 Mass. 24, the decree was rightly entered. The principle there laid down was that the conveyance of land cannot be decreed in equity by reason merely of an oral agree-

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ment therefor against a party denying the alleged agreement and relying upon the statute of frauds in the absence of evidence of change of situation or part performance creating an estoppel against the plea of the statute of frauds. It may be noted that there is a difference between the initial fraud alleged in the present bill and that in Glass v. Hulbert. In the latter case the deed expressed the agreement of the parties, but the agreement was induced by fraud. In the present case it is alleged that the deed failed to express the real agreement of the parties by reason of the fraud and imposition practised by the defendant upon the plaintiff. For this reason what is said in that opinion, briefly and without elaboration (102 Mass. at page 28), to the effect that possession by the purchaser under such a deed is according to title thereby conveyed, has no application to the present facts. The entry for the purpose of possession in that case was thought to be no more extensive in its operation than the description contained in the deed, because the description in the deed corresponded with the agreement, the alleged fraud touching the agreement and not the deed. In the present suit the fraud alleged relates only to the deed. The agreement is alleged to have been for the sale of a unit of real estate, namely, the Hatch farm, of which the omitted lot was but a fraction. Hence the allegation of the bill, in substance, that the plaintiff took possession by intent of the entire farm, means that she took possession of that which had been described to her in the oral agreement as a farm including the lot omitted from the deed, and that the entry made and possession taken were as wide as the oral contract and made in reliance upon the misrepresentation of the defendant that the deed was in accordance with it. It was not necessary for her to go upon every foot or acre of the farm in order to take valid possession of the whole of it. The moving of her household into the buildings and making such use of the estate as indicated proprietorship of it was sufficient. The defendant by turning over the possession to the plaintiff under a deed, which, by his own fraud, failed to express the agreement of the parties, may be presumed to have given up possession of the whole under the oral contract. It may therefore be assumed upon the allegations of the bill that the plaintiff took such possession as was reasonable in view of all the circumstances of the entire

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farm including the lot in question in reliance upon the misrepresentation.

The removal of the home of the plaintiff to the farm in reliance upon the terms of the contract must also have been contemplated by the defendant. This was not a collateral undertaking, but a primary purpose of the purchase by the plaintiff. A necessary result of assuming a new home was the abandonment of the old. The reasonable consequences of such a change of domicil might so affect the condition of the plaintiff that it would be inequitable to deprive her of the advantages she would gain by having the contract specifically performed. It is not necessary in a case of this sort that the loss to the plaintiff shall be a corresponding gain to the defendant.

It is alleged that the plaintiff abandoned a profitable business in another town, in reliance upon the oral contract, for the purpose and at the time of the taking possession of the land contracted for. Although it is not alleged that this was known to the defendant, it was or may be found to be an act "growing out of" the "contract with the defendant to which it could be exclusively referrible" and to have been induced by the act of the defendant. Graves v. Goldthwait, 153 Mass. 268, 270. While this circumstance standing alone would not constitute a part performance, yet where there is payment in full and a taking possession, both of which are technical part performance, then such attendant conditions may be considered for the purpose of ascertaining whether the parties can be restored to their original position, and whether money damages will be adequate compensation to the one injured.

It is probable that in the brief time elapsing between the taking possession and the discovery by the plaintiff of the defendant's fraud no extensive improvements could have been made upon the farm, but her situation was peculiar after this discovery. She was rightfully in possession. We are not inclined to hold her strictly to the management of the farm at her peril. If it was reasonable husbandry to go forward and make the improvements, her position may have been such as to justify her in doing so.

The result we reach is not in conflict with the principles laid down in Glass v. Hulbert, 102 Mass. 24, and is within the rule

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there stated and often applied that where an oral agreement respecting land, originally unenforceable by reason of the statute of frauds, has been partly performed by the party seeking to enforce it by paying the purchase price, by taking possession and by suffering substantial loss either through changed situation or the making of improvements upon the estate, and where he cannot be restored to his original situation, specific performance may be granted. Potter v. Jacobs, 111 Mass. 32, 37. Low v. Low, 173 Mass. 580. Harrell v. Sonnabend, 191 Mass. 310. Sarkisian v. Teele, 201 Mass. 596, 608.

Decree reversed.

J. J. Higgins, (A. A. Schaefer with him,) for the plaintiff.

P. Keyes, for the defendant.