Saint Clair County MI Archives Court.....Burtch, Vs Hogge 1837
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Source: Cases In Chancery
Written: 1837

CASES IN CHANCERY.

Jonathan Burtch v. Hannah Hogge and others.

Taking depositions; Agent of party acting in absence of commissioner. Where 
the agent or attorney of the complainant examined witnesses and wrote their 
depositions, and the commissioner before whom they were taken was absent from 
the room several times during the examination, and the defendant did not 
appear and cross-examine the witnesses, the proceedings were held to be 
irregular, and the depositions were suppressed. (a.)

Irregularities or unfairness in taking depositions will, it seems, be taken 
notice of by courts of equity in any stage of the proceedings in the cause 
before hearing.

Parol agreement to convey lands: Specific performance. Where under a parol 
agreement to convey land the purchase money had been paid, possession taken 
and valuable improvements made, these acts of part performance were held to be 
sufficient to take the case out of the statute of frauds, and to entitle the 
purchaser to a decree for specific performance. (b.)

Inadequacy of price, effect of on specific performance. Inadequacy of price, 
where it is so gross and palpable as of itself to appear evidence of actual 
fraud, may be sufficient to induce the court to stay the exercise of its 
discretionary power to enforce a specific performance, and leave a party to 
his remedy at law; but inadequacy of price merely, without being such as to 
prove fraud conclusively, is not a good objection to specific performance. (c.)

The bill in this case was filed for the specific performance of a contract for 
the sale of real estate.

The bill charged that Robert Hogge, the husband of defendant Hannah Hogge (who 
was now dead), in May, 1832, was seized and possessed of an undivided 
interest, to the extent of seven and a half acres, in a certain tract of 
ninety-one acres, situated at the mouth of Black river, in St. Clair county; 
that on May 25, 1832, he agreed to sell to complainant seven acres of his said 
land, for the consideration of $150; that in June and July following, in 
various sums, and at different times, complainant paid to said Robert Hogge 
$129 of said consideration, for which said Robert gave his receipts, and put 
said complainant in possession of said premises; that complainant had made 
improvements on the premises to the amount of $1,500 and upwards, and had kept 
possession of said premises ever since; that some time in the month of May 
aforesaid, complainant procured a deed to be made out from Hogge to him of the 
land, but in August thereafter, and before the deed was executed, Hogge was 
taken suddenly ill and died intestate, leaving the defendant, Hannah, his 
widow, and other defendants named, his heirs at law, to inherit his estate; 
that his wife administered, and the balance of the purchase money was paid to 
her, and she acknowledged satisfaction and gave receipts therefor, and said 
she felt desirous and willing to convey the legal title to the lot, if 
authorized so to do?

And the bill prayed that defendants be compelled specifically to perform said 
agreement, by executing a conveyance of the premises to complainant.

John Nolan was joined as a defendant, and he answered, stating that he had 
been appointed administrator de bonis non of the estate of Robert Hogge; that 
he had no personal knowledge of the matters stated and charged in the bill, 
and claimed the benefit of the statute of frauds. The heirs at law, who were 
minors, interposed the usual pro forma answer by their guardian ad litem.

Hannah Hogge, the widow, answered, admitting that her husband was seized of 
the land, as alleged in the bill; neither admitting nor denying the contract 
of sale set forth in the bill, but denying all knowledge of its terms; 
admitting the payment of money to her husband and herself, as set forth in the 
bill, and the giving of receipts therefor, but claiming the benefit of the 
statute of frauds. She also denied that, on her part, she had ever agreed to 
release her right of dower.

General replication was filed to these answers, and an order entered for the 
taking of testimony before a special commissioner. Testimony having been taken 
under this order on the 16th, 17th and 18th days of September, 1835, and the 
same having been returned and filed,

Woodbridge and Backus, on behalf of the minor heirs, now moved to suppress the 
depositions taken on the first two days for irregularity.

It appeared from the certificate of Horatio James, the special commissioner 
appointed to take the testimony, that several witnesses appeared before him, 
at his office in St. Clair, on the part of the complainant, and that Ira 
Porter, Esq., appeared as counsel for the complainant, and put questions 
generally to the witnesses, and took down, in his own handwriting, all the 
answers given to such questions by the witnesses, and reduced to writing all 
the depositions taken; that neither the defendants, their agent or attorney, 
were present at the examination until all the witnesses had testified; that he 
had frequent occasions to leave the room, and was not present all the time 
during the examination; that he only administered the oaths to the witnesses 
after their depositions were fully written by Mr. Porter. 

The affidavit of John Thorn stated that he was present at the taking of the 
depositions in question, and that Ira Porter put all the questions to the 
witnesses, and wrote all the depositions; that Porter appeared to act as the 
attorney for Burtch, the complainant, in taking the testimony.

Ira Porter states in his affidavit that some time in the summer of 1835, 
Burtch, the complainant, informed him that depositions were to be taken at 
Palmer before Horatio James, a special commissioner appointed for that 
purpose, to be used upon the trial of a cause pending in chancery, wherein he 
was complainant, and Hannah Hogge and others were defendants; that Burtch 
wished him to testify in the matter, and that he, Porter, agreed to attend as 
a witness; that Burtch requested him to see something to the inclosing and 
transmitting of the testimony to Detroit, but did not employ him as counsel or 
attorney; that he was not at that time an attorney in this State or elsewhere; 
that at the solicitation of James, the commissioner, he wrote his own 
deposition and those of several other witnesses then in attendance; that John 
Doran, who appeared to be interested in the matter, either as one of the 
parties or as their agent, was present, and did not object to his writing the 
depositions; that the depositions were written by him truly and faithfully, 
and were read to, and approved of by the witnesses, and that he had no 
interest in the event of the cause.

H. T. Backus, in support of the motion.

A. D. Frazer, contra.

The Chancellor. There can be no doubt that the conduct of the commissioner in 
taking these depositions was highly improper.

Thorn, in his affidavit, states that Porter appeared as attorney, asked all 
the questions and wrote the depositions, and it is apparent that he appeared 
there on different days, and when he was not called there as a witness.

Porter himself says in his affidavit he was requested by Burtch
to see to the inclosing and transmitting the testimony to Detroit; he says he 
was not employed as counsel or attorney, and adds that he was not admitted as 
an attorney in this State or elsewhere at the time; but he does not deny that 
he was acting as the agent of Burtch, and he states that he wrote his own 
deposition and several others.

The certificate of James, the commissioner, although, perhaps, irregular, yet 
if looked into would not lead the court to place much confidence in the 
faithful execution of his duty as a commissioner. He says in his certificate 
that he was absent from the room a part of the time during the examination of 
the witnesses and the writing of the depositions. The proceedings in taking 
these depositions were clearly irregular. (See 2 Chan. Rep., 399; Hind's Ch., 
344, 348; 15 Ves., 380.)

But it is urged that the irregularities in taking the depositions are waived 
by the defendants having taken further steps in the cause; and the case of 
Skinner v. Dayton, 5 Johns. Ch., 191, is relied on as authority to support 
this position. That was a case where the notice to take testimony was claimed 
to be insufficient; no want of fairness in the execution of the commission was 
complained of, and three terms had been suffered to elapse after notice to 
take testimony had been given. An offer to cure the defect of notice had been 
made and declined, and the cross-examination of the witness had been expressly 
waived. This was a very different case from the one now under consideration.

The case cited in 3 Brown, 620, was a case on appeal, and the depositions had 
been used at the hearing in the court below. In the case of 1 Peters, 307, the 
deposition had been read without objection at the hearing; but the judge in 
that case says: "If the objection had been made to the admission of the 
deposition at the hearing, it ought not to have prevailed, because the 
opposite party appeared and cross-examined the witness." In this case it was a 
question of regularity merely, and there was no pretense of impropriety or 
unfairness in taking the deposition.

Courts have always looked with jealousy upon proceedings of this kind, and 
guarded with great care the rights of the parties against imposition and 
fraud; and under our practice, where depositions are generally taken without 
interrogatories being filed, it seems almost indispensable to the ends of 
justice that this court should scrutinize well the proceedings in taking 
depositions before it permits them to be read as evidence. I should feel great 
reluctance in deciding this case upon testimony taken as loosely as this seems 
to have been.

In 3 Atk. 812, although the affidavits had been read, the court, for the 
reason that the depositions had been unfairly taken, and for other reasons 
there appearing, dismissed the proceeding with costs, to come out of the 
pocket of the solicitor who had unfairly taken the depositions.

It seems that courts of equity do take notice of errors of the kind here 
complained of, at any stage of the proceedings in the cause before hearing.

The depositions taken in this case must be suppressed.

But as in the case of Shaw v. Lindsay, 15 Ves., 384, if it should happen that 
the witnesses could not be examined again, this order does not go to the 
length of preventing the court's directing hereafter that the depositions may 
be opened if necessity should require the rule to be dispensed with.

Depositions suppressed.

A new order was obtained to take testimony, and the testimony having been 
taken and returned, the cause came on for final hearing.

A. D. Frazer for complainant.

Inadequacy of price, unless it amounts to conclusive evidence of fraud, is not 
of itself sufficient ground for refusing a specific performance. Although this 
was the case of an auction sale, the opinion was pronounced on the general 
doctrine. (Hatch v. Hatch, 9 Ves., 292.)

In another case it was expressly "held on a bill for specific
performance, that if the parties bargained with their eyes open, and without 
imposition or surprise, mere inadequacy of price was not of itself sufficient 
to prevent the court from administering its usual equity." (Colyer v. Brown, 1 
Cox, 428.)

This, say the court of errors in the State of New York in a similar case, "is 
the doctrine of common sense and common honesty, for it may be asked with 
propriety, what right have we to sport with the contracts of parties fairly 
and deliberately entered into, to prevent them from being carried into 
effect?" The court further say: "Much property is held by contract, purchases 
are constantly made on speculation, the value of real estate is constantly 
fluctuating, and in such matters there most generally exists an honest 
difference of opinion in regard to any bargain, as to its being a beneficial 
one or not. To say, when all is fair, and the parties deal on equal terms, 
that a court of equity will not interfere, does not appear to me to be 
supported by authority." (Seymour v. Delancy, 3 Cowen, 532; King v. Hamilton, 
4 Peters, 328; Day v. Newman, 2 Cox, 77; Willan v. Willan, 16 Ves. 83.)

Woodbridge and Backus, for defendants.

H. T. Backus.

The specific execution of agreements in a court of chancery, is not ex debito 
justitice. (Attorney-General v. Day, 1 Ves., 219.) But a bill for the specific 
performance of an agreement (even where the agreement is in writing), is 
addressed to the sound discretion of the court, in the exercise of its 
jurisdiction. (Seymour v. Delancy, 6 Johns Ch., 222.) If its specific 
performance is refused, the party loses no right, for the only remedy to which 
the party has a right, is his remedy at law for damages for the breach of 
contract.

An agreement (even in writing) must be certain, specific, mutual, and for an 
adequate consideration to be specifically performed, (1 Mad. Ch., 423; 
Parkhurst v. Van Cortland, 1 Johns. Ch., 273; Benedict v. Lynch, Id., 370.) 
Where the agreement is uncertain, the court will refuse a specific performance 
(1 Mad. Ch., 426; 2 Sch. and Lef., 7, 553; Newland on Con., 151; Brownly v. 
Zeffrees, 2 Vern., 415.) Where there is any doubt as to the identity of the 
lands to which a contract relates, a court of equity ought not to decree a 
specific performance. (Graham v. Henessen, 5 Munf., 185; Calverly v. Williams, 
1 Ves., 210.) A contract must be so precise that neither party can 
misunderstand it, or it will not be specifically performed by chancery, but 
the parties will be left to their remedies at law. (Colson v. Thompson, 2 
Wheat, 336.)

Inadequacy of consideration (even in the absence of all fraud) is a sufficient 
reason for refusing a specific performance, for an agreement must be just and 
fair in all its parts, otherwise a specific performance will not be decreed. 
(Seymour v. Delancy, 6 Johns. Ch., 222; Cletheral v. Ogilvie, 1 Dessaus., 
275.) A court of chancery will refuse a specific performance where the price 
of sale is very low. (1 Mad. Ch., 425; 3 Brown C. C., 228; 2 Cox, 77; Newland 
on Contracts, 66; 10 Ves., 592; 1 Ves., 279; Fonb. Eq., 234; 3 Ves. and Bea., 
192-3.) Even a contract will be rescinded and conveyance set aside for 
inadequacy of consideration. (Sugd. on Vend., 170, 171; 2 Brown C. C., 150; 1 
Vern., 465; 1 Brown C. C., 176; 6 Johns. Ch., 222.) Inadequacy of price is 
often (even in the absence of all fraud) the ground of refusing a decree for 
specific performance, though not sufficient of itself to induce the court to 
set aside an executed agreement, but the court will leave the parties to their 
remedy at law. (Osgood v. Franklin, 2 Johns. Ch., 28; 14 Johns., 527; 1 Vern., 
472; Awbry v. Keen, Chan. Cas., 19; 1 Dessaus., 250.) Nor will a court of 
chancery decree a specific performance against a widow entitled to dower. 
(Sugd. on Vend., 142.)

But where an agreement is certain and for an adequate consideration, to be 
specifically performed by the decree of a court of chancery, it must be in 
accordance to the forms prescribed by law. (1 Mad. Ch., 372; 3 Ves., 420; 3 
Atk., 385; 1 Ves, 279; 1 Eden., 323.) The statute requires all agreements 
touching lands to be in writing. In this, equity follows the law. A letter or 
receipt may be sufficient writing within the statute; but it must specify all 
the terms of the contract. The most trifling omission is fatal (Sugd. on 
Vend., 45, 48); for an agreement cannot rest partly in writing and partly in 
parol. (1 Johns. Ch., 131, 272.) It is insisted that the case in hand is taken 
out of the operation of the statute by part performance; this exception (of 
part performance) to the operation of the statute is viewed with extreme 
jealousy, and properly so, by courts, as tending to relax a salutary rule of 
law, and open a door for all the frauds the statute was intended to guard 
against. (Foster v. Hale, 3 Ves., 712, 382.) Part or full payment of the 
purchase money (even on full and distinct proof of parol agreement) is not 
such a compliance with the spirit of the statute as a court of chancery will 
recognize and carry into execution, (1 Mad. Ch., 381; 2 Des., 190; Lord 
Pangall v. Ross, 2 Eq. Ab., 46; Leah v. Morris, 2 C. C., 135; Lord Redesdale's 
remarks in Clenan v. Cook, 1 Sch. and Lef., 40,) where he says, payment of 
purchase money will in no case amount to a part performance, nor will giving 
directions for conveyances, deeding estate, etc., take a case out of the 
statute. (Clark v. Wright, 1 Atk., 12; Whaley v. Bagnall, 6 Brown C. C., 45; 
Gwins v. Calder, 2 Dessaus., 190.)

To take a case out of the operation of the statute on the ground of part 
performance, the existence of the contract as laid in the bill must be made 
out by clear and unequivocal proof, and the acts of part performance must be 
of the identical agreement set up. (Phelps v. Thompson, 1 Johns. Ch., 131, 
149.) It is not sufficient that the act is evidence of some agreement, but it 
must show unequivocally, the existence of the particular agreement set forth 
in the bill, and that that very agreement was in part executed. (Lindsay v. 
Lynch, 2 Sch. and Lef., 8.)

W. Woodbridge,— Certainty in a contract is essential; if uncertain, a specific 
execution will be refused. (1 Johns. Ch., 273, 131; 14 Johns., 15; 7 Johns. 
Ch., 13; 1 Mad., 336-7; 1 Vern., 406; 5 Munf., 185.)

Equity will not compel a specific execution, unless when essential to justice. 
(Mitf. Pl., 119.) A hard bargain merely, therefore, will not be opened, 
especially as to infant heirs.

"Already have so many cases been taken out of the statute of frauds, which 
seem to be within its letter, that it may well be doubted whether the 
exceptions do not let in many of the mischiefs against which the statute was 
intended to guard.

"The best judges in England have been of opinion that this relaxing 
construction of the statute ought not to be extended further than it has 
already been carried, and this court entirely concurs in that opinion." (4 
Cranch, 224; 2 Peters' Cond. Rep., 96; 1 Mad., 302-3; 3 Ves., 712; 6 Ves., 32, 
37; 5 Munf., 185, 318.) In such cases the complainant should be left to seek 
his remedy at law. (1 Wheat, 197.)

Part performance implies a fraud on the opposite party. (See Story's Eq., 66, 
74; 1 Johns. Ch., 149.) Payment is no part performance. (2 Story's Eq., 64-5; 
5 Munf., 317.)

The Chancellor.—The bill in this case is filed to compel the specific 
performance of a special contract to convey land. Two questions arise for the 
consideration of the court.

First. Has there been such a contract proved as will enable this court to 
decree a specific performance? and,

Second. Has there been such a part performance as will take the case out of 
the statute of frauds?

That there was an agreement or contract for the sale of some portion of or 
interest in the McNiel tract (so-called) at the mouth of Black river, in St. 
Clair county, by Robert Hogge to Jonathan Burtch, cannot admit of a doubt. 
Several receipts have been produced by Burtch, in which Hogge acknowledges the 
receipt of money to apply as payments on the land sold by him to Burtch. 
Although these written receipts do not show what the
contract was, they are evidence of some contract between the parties 
respecting the sale and purchase of land; and it is pretty clearly shown by 
Hogge's acknowledgments that he had sold to Burtch his undivided interest of 
between seven and eight acres of land in the McNiel tract (reserving to 
himself one-half acre), for the sum of $150.

Testimony on the part of the complainant.

William H. Carleton states "that he "heard Hogge say, in 1832, that he had 
sold all his lands at the mouth of Black river, except half an acre, to 
Burtch, who had pretty much paid all up for the same." Previous to this heard 
Hogge saying "that he had bought, at the mouth of Black river, seven acres, or 
seven acres and some hundredths of an acre.

Harman Chamberlain states that he received $45 from Burtch in July, 1832, to 
pay to Hogge for land purchased by Burtch formerly from Hogge, which he paid 
accordingly. Proves the execution of Hogge's receipt for $85; also a receipt 
for $36, and two receipts for $23, by Hannah Hogge. Heard Hogge say "that he 
had sold a part of his interest in his lands at Black river, about seven 
acres, to Burtch; understood it to be of the lands purchased by him from E. P. 
Hastings. This was in the fall or winter of 1831." That Burtch was in 
possession before the death of Hogge; that Burtch has erected upon said land, 
since the death of Hogge, a store, tavern-house and one barn, the value of 
which he believes to be about $2,500, and were erected from four to five years 
since; that Hannah Hogge asked him whether she had a right or ought to give a 
deed to Burtch of the land, she being the administratrix; that Hogge's deed 
was given to Burtch to take to Detroit to have the necessary papers made out 
to obtain a deed; that Burtch has continued in possession where he built ever 
since; that Hogge, when he purchased of Hastings, supposed that he had 
purchased 30 acres, and was then ignorant of the Masten claim; understood that 
the sale from Hogge to Burtch consisted of seven acres, and that it was an 
undivided interest; estimates the seven acres in 1831 at $500; considered 
Hogge an intelligent man, and as capable of estimating the worth of property 
as most men. 

Israel Carleton testifies that Hogge told him that he had purchased a part of 
the McNiel tract, in company with a Mr. Sales; has heard him say that he sold 
his interest, except half an acre, to Burtch, and had made about $90 in the 
trade; heard him say this in various conversations in 1832; the lands referred 
to are near the mouth of Black river; testifies to the payment of $40 on the 
purchase, and proves the receipts of Robert and Hannah Hogge; that the land 
sold to Burtch by Hogge was an undivided interest, reserving half an acre.

Edmund Carleton says, that in the summer of 1832, in conversation with Hogge 
respecting a payment to be made by him and Hogge jointly, Hogge stated that he 
expected to receive $80 or $90 from Burtch, in part payment for some lands 
sold him at the mouth of Black river; said that the lands were undivided, that 
he (Hogge) had reserved half an acre. 

Ira Porter testifies that he heard Hogge speak of his purchase in December, 
1831; that the interest was an undivided interest, and purchased jointly with 
Edward Sales, and was a portion of the McNiel tract, situated at the mouth of 
Black river. Some time in January or February, or thereabout, of 1832, Hogge, 
in conversation with Harrington and others, said that he had sold out his 
interest in the McNiel tract to Burtch, reserving half an acre, for $140 or 
$150; in the spring of 1832, Hogge requested him (Porter) to make out a 
conveyance, and he did so accordingly, and gave it to Hogge; it was prepared 
in exact accordance with Hogge's instructions, and was read to him, and no 
fault found with it; he paid witness for drawing it; estimates the value of 
improvements made by Burtch and his assignees, between the date of the 
purchase and the commencement of this suit, at between $1,800 and $2,500; 
Burtch and his assigns have been in possession ever since the purchase; thinks 
the white store was erected after the date of the deed; Burtch rented to 
Sampson.

John S. Heath says that in June or July, 1832, he had a conversation with 
Robert Hogge, who then told him that he had formerly an interest in six or 
seven acres of land at the mouth of Black river, but had sold the same to 
Burtch, reserving half an acre.

Jeremiah Harrington testifies that in the year 1832 Robert Hogge told him that 
he had sold to Burtch all but half an acre of the land which he had bought in 
the McNiel tract, and had received his pay in full for it; it was from seven 
to eight acres; had two conversations with Hogge, in which he said the same 
thing.

Jacob Miller states that in 1832 he had a conversation with Hogge about the 
purchase of half an acre of land. Hogge told him he had sold to Burtch his 
land in the McNeil tract, reserving half an acre; thinks it was seven acres 
which Hogge said he had sold; Hogge said he had received some part of his pay; 
had more than one conversation with him on the subject, one of which was in 
May, 1832; knows that Burtch was in possession of some part of the McNiel 
tract a year before this conversation. 

John Thorn states that Robert Hogge called upon him to make out a deed to 
Burtch for some portion of the McNiel tract, and had his papers with him. It 
was some certain interest with the reservation of half an acre; Hogge refused 
to leave the papers on account of the price the witness would charge for 
making the deed; Hogge's deed was from Eurotas P. Hastings, who derived title 
from Sibley and Kearsley.

Defendant's witness:

John Thorn testifies that he had a conversation with Hogge in 1831 or 1832, 
about making out a deed from him to Burtch, for some certain interest which he 
had sold to Burtch in the McNiel tract, at the mouth of Black river; it was an 
undivided interest which Hogge wished to convey; that Hogge produced the 
patent to Solomon Sibley, and a transfer by Sibley, and also by Jonathan 
Kearsley as the administrator of the estate of Edward Prucell, to E. P. 
Hastings, and a transfer from Hastings and wife to Hogge; that he (Thorn) 
could not understand from Hogge how much interest he wished to convey to 
Burtch; that Hogge intended to reserve something more than half an acre; that 
Hogge gave him to understand that the reservation which he wished to make was 
subject to litigation, for the reason that he (Hogge) had been induced to 
believe, by those of whom he purchased, that he had purchased a sixth instead 
of a third part; that he (Thorn) advised Hogge that it appeared from his 
papers that he had purchased a third instead of a sixth part; that he (Thorn) 
did not make out the deed, in consequence of the uncertainty of the amount of 
interest to be conveyed, and the price which he charged for making the proper 
investigation and the deed; that Burtch was living on the McNiel tract 
previous to Hogge's purchasing any interest therein; that he estimates the 
value of the land in the McNiel tract, in 1832, with a clear title, at $10 per 
acre; at this time, $500 per acre.

On his cross-examination says: the original patent of the McNiel tract, 
containing about 90 acres, was to Solomon Sibley; it appeared by the papers 
shown by Hogge that Sibley purchased for himself and two others; that one of 
them was Edward Prucell; that Prucell's interest appeared to have been sold to 
E. P. Hastings by Kearsley, who was Prucell's administrator; that Sibley's 
interest also had been sold to Hastings; that Hogge derived his title through 
Hastings; that after Hogge had purchased Prucell's third, as he supposed, and 
paid his money therefor, those from whom he had purchased endeavored to 
persuade him that he had purchased only a sixth instead of a third; Hogge said 
the reason given by the persons from whom he derived title, why he had not 
purchased a third, was that Prucell had sold a part of his interest to Masten; 
that he (Thorn) saw the original articles of agreement between Prucell and 
Masten, at Gen. Larned's office, in Detroit, subsequently to Hogge's purchase; 
that he believes the articles were signed by both Prucell and Masten; it was 
an agreement to convey half of Prucell's interest in the McNiel tract, and the 
one-half of other lands.

It is proven by several witnesses that Hogge, in his lifetime, stated that he 
had sold about seven acres; and nearly all the witnesses speak of this as the 
quantity, reserving to himself half an acre.

Thorn says that he did not understand what the interest was which was 
reserved; that it was half an acre and something more, and that it was subject 
to litigation. I think Thorn's deposition, together with the testimony of the 
other witnesses, explains the difficulty.

It appears that nearly all the witnesses understood the interest sold to have 
been seven acres. From the deposition of Israel Carleton it appears that the 
purchase was made by Hogge and a Mr. Sales; from the deposition of Mr. Thorn, 
that it was a matter of doubt and dispute whether they had purchased the one-
third or one-sixth. They at first supposed it to have been one-third, but it 
afterwards appeared that there was an outstanding contract, made by Prucell, 
to convey one-half of his interest to a man by the name of Masten. This, I 
think, explains the seeming discrepancy, and shows clearly the understanding 
of the witnesses that the interest which was to be conveyed was seven acres, 
and that the reservation was to be something more than the half acre, and that 
it was subject to litigation. And Hogge's objection to signing the deed is 
also explained. 

It is hardly possible that so many witnesses can be mistaken as to the amount 
of interest to be conveyed. It is apparent to my mind that Hogge intended to 
convey to Burtch the seven acres; to reserve to himself all the right which he 
had to the other sixth, claimed by Masten. The land containing ninety-one 
acres and forty-one hundredths, it seems by the testimony, was originally 
divided into three shares, making thirty-one acres and forty-six hundredths 
each. One-half of this share, which was asserted to belong to Hogge, as 
appears by Thorn's deposition, had been contracted to Masten by Prucell, which
would leave, if the contract should prove a valid one, fifteen acres and 
twenty-three hundredths as the part belonging to the estate of Prucell. This, 
it appears, was purchased by Hogge and Sales together. This, then, would 
leave, without reference to the disputed one-sixth, alleged to have been 
contracted to Masten, the seven acres testified to by the witnesses, and the 
reservation of the half acre and a small fraction over to Hogge. And this 
substantially and satisfactorily explains the whole of the evidence.

From all the evidence in the case, I think it clear that Hogge had sold his 
undivided interest of seven acres in the McNiel tract to Burtch, reserving to 
himself all over the seven acres, supposing it to be about a half an acre.

Second, As to the part performance.

It appears clearly by the proofs in this case, that a principal part of the 
purchase money was paid to Hogge in his lifetime, and that the balance was 
paid to Hannah Hogge, his widow, who was administratrix of his estate, soon 
after his death.

The question whether the payment of the purchase money is such a part 
performance of a parol contract to convey land as will take it out of the 
statute of frauds, seems to be as yet unsettled. But the case does not turn on 
this point alone. It has been proved that Burtch was in possession of a 
portion of the McNiel tract at the time he purchased of Hogge, and that he has 
ever since remained in possession; that he had made valuable improvements on 
the same after his purchase from Hogge, and before the commencement of this 
suit; that these improvements were worth from $1,800 to $2,500.

There is some doubt, perhaps, as to the time some portion of the improvements 
were made; but that the most valuable and expensive were made after the 
purchase by Burtch from Hogge there can be no doubt.

The payment of the purchase money, the possession, and the improvements made 
by Burtch since the purchase, I think, are clearly sufficient to take this 
case out of the statute of frauds.

It has been urged that there was such an inadequacy of price that this court 
will not decree a specific performance.

Inadequacy of price, where it is so gross and palpable as of itself to afford 
evidence of actual fraud, may be sufficient to induce this court to stay the 
exercise of its discretionary power to enforce a specific performance, and 
leave the party to his remedy at law; but inadequacy of price merely, without 
being such as to prove fraud conclusively, is not a good objection against 
decreeing a specific performance. (See Seymour v. Delaney, on appeal, 3 Cowen, 
445, where all the authorities upon this subject are collected.)

The value must be taken at the time the contract was made.

There is some discrepancy in the testimony as to the value of the land at that 
time. Chamberlain, in his testimony, estimates its value in 1831 at $500. 
Thorn, in his deposition taken by the defendants, estimates the lands in this 
tract in 1832, with a clear title, at $10 per acre, making $70 for the seven 
acres. The price agreed upon was $150. Where witnesses vary so much, with 
equal opportunities of judging, it would certainly be going very far for this 
court to come to the conclusion that there is any such inadequacy in the 
price, which the parties themselves have agreed upon, as to amount to fraud, 
when it appears too that Hogge sold at an advance, although he only retained 
the lands from December to May following. The prayer of the bill must be 
granted or refused. Here is payment for the lands, all the possession of which 
the subject matter was capable, and an expenditure, according to the testimony 
of Chamberlain, of $2,500, and according to Porter's deposition, of of from 
$1,800 to $2,500.

The fact that the lands on which the improvements were made were undivided, 
would perhaps be entitled to some consideration. But it is not to be believed 
that Burtch made these expensive improvements without reference to his 
interest in the lands, relying upon obtaining an allowance therefor on a 
division with the other owners. There may be some doubt as to whether the 
eleven-hundredths over the half acre were to be retained by Hogge, or conveyed 
to Burtch. But the witnesses most of them designate the quantity at seven 
acres, and as the remainder would be so near the half acre, it would naturally 
be mentioned as a half acre.

The decree must be for a conveyance of Hogge's undivided interest in the 
McNiel tract, of seven acres, to the complainant, reserving to the heirs and 
legal representatives of Hogge all other right, title and interest which they 
may have in said tract, and without prejudice to the right of dower therein of 
Hannah Doran, late Hannah Hogge. (b.)

-----------------
(a.)—It is improper for a master in chancery to perform any official act as 
master in a cause in which he is solicitor or partner of the solicitor. Brown 
v. Byrne, Wal. Ch., 453.

(b.)—See Bomier v. Caldwell, post, 65; same case on appeal, 8 Mich., 463; 
Norris v. Showerman, 2 Doug. Mich., 16. Delivery of possession is an act of 
part performance. Weed v. Terry, Wal. Ch., 501; same case on appeal, 2 Doug. 
Mich., 344. But such possession cannot avail the complainant where it is 
sufficiently explained by other relations between the parties, and cannot be 
unequivocally referred to the agreement of purchase. Jones v. Tyler, 6 Mich., 
364; Story Eq. Juris., § 762, and cases cited.

The parol contract, in order to be enforced, must be certain in all its 
essential particulars. McMurtrie v. Bennette, post, 124; Millerd v. Ramsdell, 
post, 373; Bomier v. Caldwell, 8 Mich., 463. It must also be mutual. McMurtrie 
v. Bennette, post, 124; Hawley v. Sheldon, post, 420. It must be proved in the 
clearest manner, and be substantially the same set forth in the bill. Wilson 
v. Wilson, 6 Mich., 9. And the bill must set out the special facts relied upon 
as showing part performance, to take the case out of the statute of frauds. 
Bomier v. Caldwell, 8 Mich., 463. As to what is material in such a contract, 
see the case last cited. And as to waiver by the vendor of laches in 
performance on the part of the vendee, see Hunt v. Thorne, 2 Mich., 213; 
Ingersoll v. Horton, 7 Mich., 405.

(c.)—See Hunt v. Thorne, 2 Mich., 213; Wallace v. Pidge, 4 Mich., 570.

The specific performance of contracts always rests in the sound discretion of 
the court, to be decreed or not as shall seem just and equitable under the 
peculiar circumstances of each case. Smith v. Lawrence, 15 Mich., 499; 
McMurtrie v. Bennette, post, 124. It will not be decreed where the contract is 
unequal and gives the complainant an unfair advantage. Chambers v. Livermore, 
15 Mich., 381; nor will it be decreed in favor of a complainant who has laid 
by without performance on his part until there has been such a change in the 
value of the property as to render the contract unequal if made now. Smith v. 
Lawrence, 15 Mich., 499.

(b.)—Mrs. Hogge in this case appears to have been made defendant on the ground 
of having, as administratrix, received payment of part of the purchase price. 
In Richmond v. Robinson, 12 Mich., 193, it was held (following Weed v. Terry, 
2 Doug. Mich., 344), that the wife cannot be compelled to release her dower in 
lands which her husband has contracted to sell, and that she is not a proper 
party to a bill by the purchaser for specific performance.

Additional Comments:
CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN
BY ELON FARNSWORTH, Chancellor 

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