*282 By the Court.
Flandrau, J.The questions presented by this case are whether the District Court had power under the Territorial organization, to arrest the entry of a judgment after verdict, and if so, whether that power has been properly exercised in this action.
The power has always been exercised, by the common law Courts in England and this country, as necessarily appurtenant to their control over the causes depending in them, and after verdict where the declaration was insufficient the suit was dismissed altogether; and where the verdict was for the Defendant, where the plea confessed the cause of action, the Courts would render judgment for the Plaintiff without regard to the verdict, which was called a judgment non obstante veredicto. 2 Chitty’s Pleadings, 656.
Blackstone says that “ notwithstanding the issue of fact being regularly decided, if it appears that the complaint, was not actionable in itself, or not made with sufficient precision and accuracy, the party may supersede it by arresting or staying the judgment.” 3 Blade Com. 299.
It would seem that the same powers were intended to be vested in the District Courts of the Territory as necessary to them proper administration of Justice. There are some defects in pleadings which cannot even by the consent of the parties be waived or rectified, and to allow a judgment to be entered upon such a basis would be simply absurd. The Courts must have the power to arrest the judgment when the verdict leaves the cause of action or defence without any foundation in law. For instance, if the complaint shows that the Court has no jurisdiction of the subject matter of the action, and the verdict is for the plaintiff, it would be an .idle farce to allow judgment to be perfected upon the verdict. See R. S. page 337, Sec. 65, also page 360, Sec. 67 & 68; Sec. 39 on p. 356, as amended on page 11 of the amendments, expressly and in terms recognizes the power of the Court to entertain a motion in arrest of judgment after verdict.
The remaining que'stion narrowed itself down to the one point, of whether the agreement set out in the complaint, has been partly performed, so as to take it out of the operation of the statute of frauds. The Defendant has not waived’the effect *283of the statute of frauds as claimed by the Plaintiff. He was only bound to plead it in defence when it did not appear in the complaint 'that the contract was by parol. Where it does so appear and no part performance is alleged to take it out of the statute, the Defendant is not bound to plead the statute, the complaint is demurrable, and materially defective. See Cozine vs. Graham & Bleeker, 2 Paige, Ch. R. 177; Harris vs. Knickerbocker, 5 Wend. 638.
■ The complaint shows that the Plaintiff had settled upon government lands, and had improved an eighty acre piece to the amount of seven hundred dollars, and was in the possession of it, on the 18th of November, 1852, at which time he allowed his brother to enter it at the land office in his own name, under the parol agreement that he would convey it to him when he paid the purchase price. I do not see how it can materially effect the question, whether the Plaintiff borrowed the money from the Defendant and paid the price of the land with it, or whether the Defendant paid the price with his own money, because in the first case no trust could have arisen from the fact in favor of the Plaintiff under our statutes, because Sections 1 and 8 of Chapter 44, of the B. S. page 202-3 expressly declares that no such trust shall result, and in the latter case, if the Defendant paid for the land with his own money, then his agreement that he purchased for the Plaintiff could create no trust, because express trusts concerning lands can only be created for certain purposes and by “ deed or conveyance in writing subscribed by the party,” &c. H. S. page 203, Sec. 11, Also page 267, See. 6. So in neither view can I see how the arrangement can be held to create, or result in a trust in favor of the Plaintiff. It is simply a parol agreement to convey the land to the Plaintiff, when he should pay the Defendants the purchase price which he had paid out for it. This contract is clearly within the statute of frauds standing alone and cannot be enforced unless it has been partly performed.
I have searched the complaint with great care to find some act of the Plaintiff performed under the contract, in order to relieve him from the effect of the statute, but all that appears to have ever taken place subsequently to the contract is the allegation in the beginning of the third folio that the Plaintiff *284has “ continued to improve and cultivate the same, and has resided thereon with Ms family up to the present time;” which in the connection in which it is used in the complaint, includes the time since he first settled upon the land until the commencement of the action, or in other words that the Plaintiff remained upon the land after the agreement up to the time of the commencement of the suit, in the same manner in which he had previously been upon it. This is all that appears to have been done by the Plaintiff, in reference to the land after the purchase by the Defendant. Does this take the case out of the statute ?
“ In order to make the acts such as a court of Equity will deem part performance of an agreement within the statute, it is essential that they should clearly appear to be done solely with a view to the agreement being performed, for if they are acts that might have been done with other views they will not take the case out of the statute, since they cannot properly be said to be done by way of part performance of the agreement.” 2 Story Equity Jurisprudence, Sec. 762, and numerous cases cited.
In Phillips vs. Thompson, 1 John, Ch. Rep. at p. 149 marginal, Chancellor Kent says, “ It is well settled that if a party sets up part performance to take a parol agreement out of the statute (of frauds) he must show acts unequivocally referring to and resulting from that agreement, such as the party would not have done unless on account of that very agreement, and with direct view to its performance,” and he cites many authorities in his support. The same doctrine is frequently held through the Chancery Beports and there is no doubt about its being the correct one.
■ Under these rules it is hard to see how the mere continuance in the possession of land, can be attributed to the making of the contract, and as in performance of it; and it is quite easy to see that it was the result of the original entry and possession. The silence of the complaint as to the purpose with which the possession was continued seems to destroy all reason for supposing that it was done in performance of the agreement. If such had been the case in fact the pleader would not ' have omitted to have so alleged it, as it was the vital fact to *285the support oí his cause of action. I have endeavored to make the point for the Appellant that the defect in the pleadings is cured by the verdict, and am willing to go as far in this case as any I have ever considered to reverse the order arresting the judgment; but in order to do so, this Court must presume that the defect in the complaint of the want of an allegation of part performance of the contract has been supplied by the proof at the trial. If the case came to this Court directly from the verdict on Appeal or by writ of Error, I should find no difficulty in so presuming, as the* allegation that the Plaintiff “ continued to improve and cultivate the same, and reside thereon with his family up to the present time,” standing alone, leads the mind to believe that the fact that it was done in part performance of the contract, although not pleaded, was proven on the trial, and would justify the presumption; but in the shape in which this case comes to us the presumption is destroyed. The record shows that a motion was made for a non-suit, on several grounds, among which was one that “ no proof had been-offered to show a part performance of the alleged contract,” bringing to the mind of the Court the question whether this defect had been supplied- by proof or not. The motion in arrest of judgment was, then, made before the ■ same judge who tried the cause, and who knew whether or not such proof had been made, and was by him granted. As the question of part performance having been proved is the one upon which the motion must have turned, or was one which could not have failed to have been considered by the Court, it would be quite too violent a presumption for this Court to make that it had been proven, when the judge who tried the case held that it had not.
The Plaintiff, in his fraternal but misplaced confidence, has submitted his property to his brother’s keeping, relying on his honor, affection and integrity to restore it, and if he feels willing to incur the odium of sending his name to posterity as a violator of so sacred a trust, we must reluctantly confess our inability under the law to prevent him.
The order should be affirmed.