a false apprehension on another by our silence, where silence is treacherously expressive. In equity, therefore, where a man has been silent when in conscience he ought to have spoken, he shall be debarred from speaking, when conscience requires him to be silent. (65) Thus, in the case of Raw v. Potts,(r) affirmed in the House of Lords, where A being tenant in tail, with remainder to B in tail, and not knowing of the remainder over, made a settlement upon his wife for life, by way of jointure, which B, who knew of the intail, engrossed, B, after the death of A, recovered at law against the widow by ejectment, but the widow was relieved in chancery by perpetual injunction. And thus in a case where a mother, who was absolute owner of a term, (the same having been limited to her in tail) having been present at a treaty for her son's marriage, and having heard him declare that the term was to come to him at his mother's death, had attested the deed, whereby the reversion of the term was settled upon the issue of the marriage, she was compelled in equity to make good the settlement. The same principle of relief has always opposed the application of the provisions of the statute of frauds, whenever they have been attempted to be made use of for the purposes or protection of fraud.(s) It is said, that the first case of this sort of relief occurred in the time of Lord Nottingham, where, there being an ab› solute conveyance executed, and a defeasance prepared, according to agreement, but not executed, the defendant being called upon to execute it, refused, relying upon the *statute; but he was overruled, and compelled to execute it in equity.() The next step in the progress of this equitable opposition to the abuse of the statute is said to have been made in the time of Lord Jefferys, by whom it was adjudged, that putting the party in possession, was such an execution of the agreement, as that it should be considered as good against a subsequent purchaser. So where A stands by, says the same book, and sees a party lay out his money in building on his (A's) ground, he (A) will be bound (r) Prec. in Ch. 35. ment, 423. (t) Ibid. () 5 Vin. Abr. tit. Contract and Agree, Of the application of this principle of relief to the cases arising upon the sta tute, where it is attempt. edto be made a protection tion of fraud. [131] (65) See (if the egotism may be pardoned) my book upon Fraudu lent Conveyances, 529. That the relief against the statute formance * [ 132 ] thereby. The bill, as it seems, in the case alluded to, in the time of Lord Jefferys, was brought to compel the defendant to make a lease according to his promise, the plaintiff having laid out money on the premises; the defendant insisted upon the statute, there having been no agreement in writing, nor any certain terms settled between them; and alleged, that what the plaintiff had laid out was not on lasting improvements; but admitted, that he had built a stable, which had cost him about 107. It was proved, that the defendant had told the plaintiff, that his word was as good as his bond, and promised him a lease, when he should have renewed his own with his landlord. The Lord Chancellor said, that the defendant had been guilty of a fraud, and ought to be punished for it, and decreed a lease to the plaintiff, though the terms were uncertain; and adjudged, that the time for which he should hold the premises, should be in the plaintiff's election, and that he might choose to hold during the defendant's term, at the old rent; and the plaintiff was decreed to pay costs. It is very clear that the relief against the statute in these cases, of part-performance, was originally founded on the fraud and dein the cases ceit usually characterising the circumstances, and arose naturally of part-per- and necessarily out of the jurisdiction of the court. The present was original Lord Chancellor of Ireland,(u) when at the bar, observed, in arguly founded on fraud. ing for the defendant, in Whitbread v. Brockhurst,(x) that courts of equity had, in some cases, decreed a specific performance of parol agreements, but *that the only ground upon which they had so decreed was fraud. "The first case," continued he, " was before Lord Nottingham.(y) It was an agreement for an absolute conveyance and a defeasance; the conveyance being executed, the other party refused to execute the defeasance. There one thing was obtained, where another was intended, and that being a species of fraud, the court relieved. Some other cases followed upon the same ground; among the rest, Sir George Maxwell's case.(z) So, where the execution of the agreement is prevented by fraud, as was the case in Foxcraft v. Lister.(a) That was followed by several cases, all of the same nature, disclosing some circumstance that makes the refusal to execute the agreement fraudulent." a make improvements on an estate, under the expectation of a lease or conveyance, was an early ground of re lief. There does not seem, indeed, to be any satisfactory foundation That the fraud in en for this doctrine of part-performance, without the intermixture couraging of fraud; and upon this ground, where an owner has encourag- another to ed another to go on with his improvements on the estate under false expectation of a conveyance or lease, raised in him by the assurance of the party entitled, it is agreeable to the general course of equitable relief to disappoint the contrivance, by compelling the deceiver to realize the expectation he has created. This protecting jurisdiction has indeed stretched itself to those cases where the illusory hope has been raised, not by words and assurances, but simply by looking on in silence, while false impressions, which we are able either to correct or verify, are inducing a fruitless expenditure on improvements. This equity is strong and salutary; and the jealousy of jurisdiction has shut out the statute of frauds, where this principle of relief applies. Some cases to illustrate this doctrine were produced a little above, to which we may add the instance of Hanning v. Ferrers, reported in the Abridgement of Equity Cases,(6) from which it [133] appears, that if J. S. encourage a person to take a long lease from a tenant for life, to whom J. S. stands next in remainder, and to build and make improvements, and the tenant for life dies before the lease is out, chancery will not suffer the lessee to be turned out of possession before the lease is expired. Whether, in the first instance, it was reasonable and benefi cial to make fraud à ground for letting in evidence to prove a particular agreement in terms, so as to execute it in the teeth of the statute, it would now be of little service to inquire, as I conceive there is hardly any rule of equity more established on authorities. To the common observation, that the statute was made to pre- Even this vent and not to assist fraud, one is tempted, however, to oppose relieving. ground for the remark, that, if the law lays down certain conditions, upon against the which it stipulates to afford its protection and assistance, in a compelling statute by particular case, (conditions calculated, as we ought to presume, specific performance, to render its protection nad assistance more generally effectual) may perhaps an individual neglecting to entitle himself to the benefit thereof, be open to criticism. (b) 375. trine is now established But the doc and chusing rather to put himself upon the honour of the party, seems to have no right to complain of the consequences of a risk, to the peril of which he has voluntarily submitted. On the other hand, the public may have a better right to complain, if, by the variable application of a law, useful only as long as it is uniform, men are encouraged to hazard the consequence" of neglecting it. on a perfect ly intelligible principle. Observations of the late Lord Alvanley on this subject. [134] On this subject, the late Lord Alvanley, when Master of the Rolls, expressed himself in terms which cannot fail of making much impression.(c) "I admit, said his lordship, my opinion is, that the court has gone rather too far in permitting part-performance and other circumstances to take cases out of the statute, and then, unavoidably perhaps, after establishing the agreement, to admit parol evidence of the contents of that agreement. As to part-performance, it might be evidence of some agreement; but of what must be left to parol evidence. I always thought the court went a great way. They ought not to have held it evidence of an unknown agreement, but to have had the money laid out repaid. It ought to have been a compensation: these cases are very unsatisfactory. It was very right to say the statute shall not be an engine of fraud; therefore, compensation would have been very proper. They have, however, gone further, saying, it was clear there was some agreement, and letting them prove it. But how does the circumstance of a man's having laid out a great deal of money prove that he is to have a lease for 99 years? The common sense of the thing would have been to have let them bring an action for the money. I should pause upon such a case." But these instances of encouragement, either tacit or express, to make improvements,(66) incur expense, or exercise acts of (c) 3 Vez. jun. 713, Forster v. Hale. (66) In Hollis v. Whiting, 1 Vern. 151, the bill sought to compel the execution of a parol agreement for a lease of a house, setting forth, that in confidence of this agreement, the plaintiff had laid out and expended considerable sums of money. The defendant pleaded the statute of frauds, and the plea was allowed. And again, in Dean v. Bard, and Hollis Edwards, 1 Vern. 159, on which cases bills were exhibited, to have an execution of parol agreements, touching leases of houses, stating, that in confidence of these agreements, the plaintiffs had expended great suins of money on the premises, the Lord Keeper dominion, which must turn to the prejudice of *the mistaking party, if his expectation is disappointed, are not proper cases of part-performance, but of actual fraud, which courts of equity have always been forward to relieve against. Such injustice is held in equity to impose upon the conscience the duty of reparation, and the court will supply an agreement out of the fraudulent suppressions, as well as misrepresentations of the party deceiving, who is considered as virtually agreeing to make good the expectation he has raised. Thus, if I persuade another to act upon a confidence that I can make him a grant, or give him an interest which, at the time of such promise made, is out of my power, and afterwards, by an unforeseen accident, I am enabled to do the thing promised, a court of equity will compel me to the performance. But still it seems hardly reconcilable with sense to call 'improvements made upon the faith of a parol agreement, for granting an estate or interest in the land, a part-performance, unless Distinction it is supposed, that to make such improvements was an article of between the the agreement itself; for it is the doctrine of part-performance, that the acts done must appear to be done with a view to perform the agreement.(d) go cases where there is an ingredient of fraud, and where there is merely the part-per Where the transaction is itself fraudulent, the courts will very far in presuming any thing to prevent its success, and parol formance, evidence of an agreement, assisted by this presumption, is let in for this purpose. The courts do not, in such case, execute the agreement for the sake of the agreement, but they at once presume it, and enforce it, for the sake of disconcerting the fraud. But in the case of mere part-performance, the fraud they go upon is the unconscientiously insisting upon the statute: The very notion, therefore, of part-performance, supposes the fact of an antecedent agreement to be established, and has reference there(d) Ambler, 586, Gunter v. Halsey. if fraud was the ques took a difference (not a very intelligible one, |