The plaintiffs ask for the specific performance of an oral contract for the sale of land; first, on the ground that the deed which was subsequently drawn up in pursuance of the contract, but not delivered, was a sufficient memorandum to satisfy the statute of frauds; and next, because there has been part performance sufficient to entitle them • in a court of equity to the relief prayed for.
Under the full equity jurisdiction which this court now has, the plaintiffs’ right to the decree they ask is maintained by us upon the ground last named. It will not be necessary to consider whether the undelivered deed could, under the circumstances disclosed, be used as a memorandum to satisfy the requirements of the statute.
The case was heard and reserved upon the master’s report. There is nothing to control the facts found by him which have a bearing upon the alleged part performance. It appears that under the oral contract proved the plaintiffs immediately entered into the possession of the premises, exercised acts of ownership, removed fences, placed a building thereon, and made improvements far exceeding the value of the land sold. The master finds that these expenditures were made with the consent as well as with the knowledge of the defendant, and the facts reported *37justify this finding. The purchase money, it is true, was not paid at the time named in the original contract, but the plaintiffs continued in possession under the contract, and from time to time made payments which were accepted by the defendant, who after-wards tendered a deed and demanded a balance claimed by him but denied by the plaintiffs to be due under the agreement. Under this state of facts time cannot be held to be of the essence of the agreement, and there was a waiver of its stipulations in this respect. Barnard v. Lee, 97 Mass. 92. Hodsdon v. Guardian Ins. Co. Ib. 144.
There is no disposition to extend the limits to which the doc trine has been carried of enforcing in equity oral contracts upon the ground of part performance. This case is clearly brought within the class where specific performance is uniformly decreed. The plaintiffs acted under their supposed rights as purchasers of the property. What they did was consistent with the agreement proved, and can be referred to no other title or claim of title. They were induced to enter upon the execution of the agreement and to do acts upon the faith of it, as if it had been executed, with the knowledge and acquiescence of the defendant, for which there would be no redress if the agreement was to be defeated. There was possession taken, accompanied by part payment and such change of position that the purchasers cannot now be restored to their rights if the contract be abandoned. The refusal to complete it is in the nature of a fraud, and the defendant is estopped to set up the statute of frauds in defence. Glass v. Hulbert, 102 Mass. 24. Fry on Spec. Perf. § 384. Adams Eq. 86.
It is urged that the expenditures which were made upon the building under the protests and objections of the defendant cannot he relied on as in part performance of the contract, and must be regarded as made without right and at the risk of the plaintiffs. This might be so if there had been a repudiation of the verbal contract, and a refusal to perform on the part of the defendant. There was not. The objections made by the defendant had reference to the neglect of the plaintiffs to make the required payments, as is apparent from the subsequent receipt of payments, and the tender of the deed, and so the master has found.
Decree for the plaintiffs, with costs.