The Plaintiff filed his bill praying the enforcement of a parol contract for the sale of a tract of one hundred acres of land, situate in the County of Wood, made with him by the Defendant, William Buffington. The contract is alleged to have been made in February, 1868, and for a hundred acres of land of the share of Defendant, William, in a much larger tract, which was the property of Solomon Buffingon, deceased, at his death,, who was the father of Defendant William. The bill also alleges that Defendant William, was the owner of two univided thirds of the large tract, subject to the dower interest of Defendant, Matilda Buffington the mother of William. Edward Buffington, the brother of William and the owner of one undivided third of the large tract is made a party defendant. The bill, alleges that Plaintiff purchased the one hundred acres of land of Defendant William, at the price of five dollars per acre; that he was put into possession of the land about the time of the contract, under, and on faith thereof, by Defendant, William; and that on faith of the contract he has • made valuable improvements upon the land, paid a large part of the purchase money, and offered to pay the resi •due, before commencing suit, to Defendant William; that *255"^the Summer of 1868, the Defendant, William, employed a surveyor to survey, and run out the one hundred acres of land, sold to Plaintiff, and that the surveyor employed did make the survey, and made a plat thereof which is filed with the bill; that Defendant, William, refuses to receive the balance of purchase money, and perform his contract with Plaintiff.
The answer of William Buffington denies all the material allegations of the bill, and relies on the statute of frauds as a defence. The answer of Defendant, Matilda Buffington, denies most of the material allegations.
Upon a careful examination of the evidence I think it proves, and sustains the material allegations of the bill, and disproves the answers of Defendant, William, and his mother.
The remedy of specific performance refers itself chiefly to contracts for real estate, and it follows such cases frequently fall within the influence of statute of frauds, which declares void all contracts for land which are not reduced to writing, and signed by the party sought to be charged. But it is well settled that where there has been a part peformance of the contract by the purchaser being put into possession of the property, and payment of the purchase money, or a part of the purchase money, and an offer to pay the residue, and valuable .improvements have been made by the purchaser on faith of the contract, that the statute of irauds cannot be successfully pleaded in bar to the performance in a Court of Equity. 1 This principle has been so frequently determined, and sanctioned by the Supreme Court of Appeals of Virginia, and of this State, and is so familiar to the legal profession, that I deem it wholly unnecessary to quote, or cite, authorities in its support. Applications to the Court to compel specific performance, are addressed to its discretion; hut it is not an arbitrary or capricious discretion, but a sound judicial discretion *256regulated by the established principles of the Court. 2nd Vol. Tucker’s Com. Book 3, side page 464. 1 Mad. 286, 287. St. John vs. Benedict et als. 6 Johns. Chy. 111, Seymour vs. Delaney, 6 Jons. Chy. 225. To justify a decree for specific performance, the contract must be clearly, and distinctly ascertained, or the Court cannot decree, Graham vs. Hendren, 5 Munford, 185. If the agreement can be reduced to a certainty, it -will be enforced; and when no time is fixed, performance in a reasonable time will be decreed. 1 Mad. 337. 2nd Vol. Tucker’s Com. side page 464.
When a defendant in equity shall, in his answer, deny material allegations of the bill, the effect of such denial, shall only be to put the plaintiff on satisfactory proof of the truth of such allegations, and any evidence which satisfies the Court or Jury of the truth thereof shall be sufficient to establish the same. Code of West Va. section 59, Chapter 125. The fact that the large tract of which the two hundred acres form part has not been partitioned I think is no reason for refusing the specific execution of the contract under the circumstances attending this case, as it is evident the share of Defendant, William, amounts to largely more than the one hundred acres. I am of opinion, also, that the Court below did right in directing partition of the lands, and the assignment of the widows dower.
For these reasons the decree of the Circuit Court of the Count)'- of Wood rendered in this cause on th 18th day of April, 1872, must be affirmed, and the Appellee recover against the Appellants his costs in this Court, together with $30 damages, and the cause must be remanded to the Circuit Court of Wood County, for further proceedings therein to be had.
Hoppmast, Paule, and Moore, Judges, concur in the foregoing opinion.