The opinion of the Court was delivered by
Gibson, C. J.It was not denied that the plaintiffs had proved part performance on the part of Richard Green, whose title they claim, as well as the terms of the contract so far as it was sought to be enforced. The defect supposed to be in their proof was, that it did not show all the terms of the contract which were to be performed by Innis Green, under whom the defendants claim. The agreement on the part of Richard was to convey to Innis the tavern, with the lot appurtenant; and he performed it. On the part of Innis, it was to convey to Richard the tract in contest, and “ to take on himself to pay some debts on the tavern property;” the nature and amount of which, or the names of the creditors to whom due, were not shown. Now if Richard were insisting on the agreement to pay the debts, the particulars would be material, and the terms of the agreement in respect to them would have to be shown. But why bind the plaintiffs to show a part of the agreement on which nobody insists, and which is therefore obsolete! I admit that where an entire contract is partially within the statute of frauds, the whole is avoided by it; as in Cooke v. Tombs, (Anstr. 420); Lea v. Barbor, (Ib. 425, n.); and Chater v. Becket, (7 T. R. 201); yet it was admitted in Buckmaster v. Harrop, (7 Ves. 344), that a parol purchase of several lots of land sold together to the same purchaser, but by distinct particulars, might be made available by part performance as to one of them without being so as to the others. None of these cases, however, touch the one before us. The question is not whether a part of the contract within the statute draws the rest to it, but whether the terms of more of it need be proved- than, without such proof, would be within the statute, or is sought to be enforced. The whole consideration must be proved; but was it not ! It was a conveyance of the tavern with its lot to Innis, who agreed to pay the liens; and if Richard was not personally liable for them— which does not appear — the agreement was no more than that Innis should take the property subject to the incumbrances. But even if the agreement was that Innis should pay in case of Richard’s liability, the result is the same, as Innis does not insist on that part of it. Had there been a fraudulent misrepresentation as to the amount of them, it might have been shown; but nothing of the sort was pretended. What matters it, then, how great their amount, or to whom owing! The principal part of the contract, which was the engagement to convey, was originally within the *175statute; and if it were void for that reason, the subordinate engagement to pay the liens would share its fate; but by taking the principal out of the contract by part performance and proof of its terms, the whole is made available, and an action would lie for non-payment of the liens. But there was no evidence of an engagement by Innis to pay them, or that he agreed to do more than take the property subject to them, whatever they might be; and it does not appear that the terms of the contract were not proved exactly as they had been expressed.
Judgment reversed, and venire de novo awarded.