(dissenting). It is with regret that I dissent from the conclusions reached by my learned associates. The manifest injustice which results in this particular case, and may result in other injustices, if the views expressed in the ruling opinion become settled law in'this jurisdiction, compels me to point out in three particulars, especially, where my associates have erred in their pronouncement of the law.
I desire to point out now, and to elaborate upon more fully later, the three chief instances in which the ruling opinion, in my judgment, does not state the law:
Eirst. In intimating, if not deciding, that delivery of possession (emphasizing Purcell v. Miner, 4 Wall. 513, 18 L. Ed. 435, on this point) was indispensable to taking the case out of the statute of frauds.
Second. In refusing to consider the testimony of plaintiff concerning her agreement with deceased when the same was in the record, without objection, and after it had been •considered by the court below, and an affirmative finding made by it that the contract was clearly proved.
Third. In deciding that plaintiff’s relations were not so changed as that the failure to specifically enforce the contract would perpetrate a fraud upon her.
This was a suit'in equity in the Supreme Court of the District of Columbia against the heirs of Joseph Chivell, deceased, for specific performance of a parol contract made by ChiveE with the plaintiff to convey or devise to her three houses in the city of Washington upon the consideration that plaintiff would continue to devote her time and services to his business and care for him as long as he lived. At the conclusion of plaintiff’s testimony the court dismissed the biE. The opinion of the court was filed July 14, 1923, and is as follows:
“The contract made after plaintiff’s marriage is clearly proved, but cannot be enforced, unless the law as laid down by the Supreme Court of the United States is ignored. In Purcell v. Miner, 4 Wall. 513, 517, 18 L. Ed. 435, the court says: ‘The statute, which requires such contracts to be in writing, is equally binding on courts of equity as courts of law. Every day’s experience more f uEy demonstrates that this statute was founded in wisdom, and absolutely necessary to preserve the title to real property from the chances, the uncertainty, and the fraud attending the admission of parol testimony. It has been often regretted by judges that courts of equity have not required as rigid an execution .of the statute as courts of law.’ After stating that in many instances courts of equity have relaxed the rigid requirements of the statute, the court states that several things must be shown before equity wiE grant relief and one is that delivery of possession has been made in pursuance of the contract and acquiesced in by the other party: Subsequent cases in that court and in the Court of Appeals have not departed from the rule. Brown v. Sutton, 129 U. S. 238, 9 S. Ct. 273, 32 L. Ed. 664; Townsend v. Vanderwerker, 160 U. S. 171, 16 S. Ct. 258, 40 L. Ed. 383; Whitney v. Hay, 181 U. S. 77, 21 S. Ct. 537, 45 L. Ed. 758; Cherry v. Whalen, 25 App. D. C. 537. Eor a valuable discussion of the question by Prof. Pound, see 33 Harvard Law Review, 933; also 1 WEliston, Contracts, § 494.”
Joseph ChiveE, 20 years prior to his going into the commission business, seEing fish and sea foods, had been a fisherman and an oyster runner up and down the Potomac river, and sold his produet to the commission houses in Washington. He had little, if any, *757education, and knew very little about business. He could not write, and was taught to sign checks in an indifferent manner by the plaintiff during her employment by him, which employment covered a period of 16 years.
Plaintiff, known as Miss Annie by all the old fishermen and boatsmen at the wharf, liegan working for Capt. Chivell when she was about 15 years of age, or about the year 1905. The witnesses describe her at that time as a little girl in knee dresses, with a plait hanging down her back. Capt. Chivell could not keep the accounts himself. She taught him a little, but he never learned to write, except his name, and when she began to work for him he kept no books at all. Miss Annie had no one to teach her how to keep the books and accounts, but she worked out a plan to do so. She handled the bills, kept the books, put the money in the bank, waited on customers, got up orders for hotels, counted out barrels of clams, washed them, and oftentimes bought them and went down into the holds of vessels for that purpose. She grew into the business and became a part of it, and from the evidence it would seem that she became the main part of it. She regarded Capt. Chivell as her foster father, called him “Papa,” and he regarded her as his daughter, having no children of his own or near relatives for whom he eared, judging from the will, éxeept his wife, who is not concerned with this action.
Capt. Chivell’s business prospered. He was paying Miss Annie $5 per week until the war broke out in 1917, and the telephone company offered to hire her at $17 per week Capt. Chivell was alarmed at the prospect of her leaving, and stated he would have to close up the business if she quit him, and begged her to remain. The testimony as to the date of the first contract is not clear, but there are fair inferences that at this time, or at some subsequent time, and prior to her marriage, he made an oral agreement with her to the effect that, if she would stay with him until he died, he would give her the three pieces of property in controversy. She worked for him until her marriage for $15 per week, when most young women in Washington were receiving, for eight hours’ work $1,200 and larger sums per year.
Capt. Joe as a fisherman had been in the habit of going without a coat in cold weather, and he was careless about looking after the requirements of health. The plaintiff testified that, thinking as much of him as she did her own daddy, she would go out after him and make him keep his coat on; that she made him take his medieine, ’phoned the drug store for the medieine, and ordered the coal for his residence, at the request of Mrs. Chivell.
Miss Annie was married on January 5, 1920. Prior to her marriage, Mr. Paunce, her husband, talked with Capt. Chivell about his wife leaving him in the event they were married. Chivell again stated that, if she stayed with him, he was going to give her the houses. After Mrs. Paun'ce was married, her husband demanded that she quit the employment and go with him to Norfolk, Ya. Capt. Chivell solicited and obtained the in-termediation of their mutual friends on the wharf to persuade Mrs. Paunce to stay with him, often repeating that he could not get along without her and would, close the business if she quit. After talking to mutual friends who approached her on the question, she again had a talk with Capt. Chivell, and he again stated to her, if she would stay with him, he would give her the three houses on L street, and she. then told him she would stay with him upon those terms until he or she died.
As the business grew, and as Capt. Chivell became more infirm, the responsibility of earing for the business and caring for him became a greater burden upon her. Before he was stricken with paralysis in December, 1919, she not only did most of the buying and conducted most of- the business, although he was present most of the time, but she cared for his personal comforts and looked after him as a daughter would her own father. After he was stricken with paralysis, he and Mrs. Chivell seemed to lean on Mrs. Paunce as their chief support and comforter, not only in a business way, but with reference to many of their personal needs. The record is full of praise from every witness that touched the question of her tireless devotion and self-sacrificing services to these old and dependent people. On numerous occasions Capt. Chivell declared his intentions of giving her the real estate, and on some occasions spoke of it as if he had already done so.
After her marriage, and after the paralytic stroke, she went to work at 6 o’clock in the morning and took care of the business, and attended to the wants of the old people in an exceptional and unusual way. She assumed entire responsibility of the business, hired and discharged the employees, and remained at the commission house until the drivers of the delivery wagons had returned and reported. Then, at 6 or 7 o’clock at night she would take books and papers and go to the Chivell home, and talk with him *758for an hour or two about his business, and satisfy his mind and comfort him. She had no regular hour to quit work. After he became sick, she borrowed the money necessary for the handling of the business, and she wrote all the cheeks. One witness testified that he heard Capt. Chivell say that she was more than a daughter to him, and that she saw to it that he took his medicines regularly, made him change his shoes when his feet were wet, saw to it that he did not go out without his coat on, made him go to the dentist, and saw to getting the automobile out, for his recreation, and that she looked after him in every manner. The husband, Raymond T. Faunee, frequently urged his wife to quit the employment and go with him, but she steadfastly refused to do so, and he finally acquiesced in the situation and agreed with her that it was her duty to stay. After her marriage, and during the time she worked for Capt. Chivell, the plaintiff did not have a home of her own, but lived with her mother-in-law. After Capt. Chivell died, she kept house for her husband, and a part of the time helped her husband in his business at the market.
During the.latter years of his life, Capt. Chivell stated, to those who asked him why he did not make the deed, that he intended to do so, but he wanted to be sure she did not leave him. Months before he died, at Chivell’s request, Thomas P. Brown, defendant, caused to be prepared, by James A. Toomey, defendants’ lawyer in this ease, a deed conveying the real estate in controversy to Mrs. Faunee, and also a will which does not dispose of the land covered by the deed to Mrs. Faunee, in which will he bequeathed to Thomas P. Brown the fish and oyster business as a trust to be managed by him for the benefit of Mrs. Chivell and plaintiff in equal shares, during the life of his wife, and at her death to convey and turn over the entire business to the plaintiff. The remainder of his estate was also turned over to Thomas P. Brown for trust purposes, and to eventually go to plaintiff and to persons other than the defendants. The defendants, who were distant relatives, through a deceased half-sister, were to receive $10 each.
On the day Chivell died he stated to a witness, while standing in front of witness’ house, just across the street from his own house: “I am waiting for Brown to come down here, I want to sign some papers, my will; he promised to bring them down last week, and when he came he said he had forgotten them. I am going home and let it go.” About a couple of weeks before he died he told this witness that he had told Brown to draw up the papers. By stipulation Brown’s testimony is admitted as follows: “On several occasions in a period of four months prior to Joseph H. Chivell’s death, he (Chivell) had requested me to prepare^ deeds conveying to the plaintiff the real' estate described in the bill. Chivell, told me that he had promised the real estate described in the bill to the plaintiff. I had the deedfe and the will prepared, and went to Chivell’s house on the day of his death, but at the time I arrived there he was unconscious. Mr. Chivell directed the deed to be drawn to me as trustee during Mr. Chivell’s lifetime, as the deed now appears. He also dictated and directed the terms of the will as it now appears in that paper. Mr. Toomey drew the deed and the will.”
The sole question for determination in this case is: Will a bill in equity lie for specific performance of .the oral agreement affecting the title and control of the re’al estate under such circumstances as are disclosed by the admitted facts in this ease, when the statute of frauds is interposed as a defense? Section 1117 of the Code of the District of Columbia is similar in every particular to the English statutes and to those in most jurisdictions, and is as follows: “No action shall be brought * * * upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them * * * unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, which need not state the consideration, and signed by the party to be charged therewith or some other person thereunto by him lawfully authorized.”
I approach the question under the above unusual statement of facts with full consciousness that there are few, if any, statutes that have received so much consideration by the courts, resulting in so much conflicting reasoning and results. The statute of frauds and perjuries has found its permanent place in English and American law by reason of the imperative necessity for this kind of legislation, in order to prevent fraud and perjury, and the resulting uncertainty in property rights. No legislative enactment has been more stoutly defended by the courts, or has received more unqualified approval by them, than have these few plain, but forceful, words. Their commanding mandate throughout the years has perplexed the judicial mind in its effort to mete out justice and equity without destroying their beneficent influence. The statute applies *759both in eases at law and in equity. Equity courts, however, have certain inherent power not exercised by courts of law. These powers are only exercised in the sound discretion of the court, where remedies at law are inadequate.
The statute itself says nothing about “part performance” or “delivery of possession” making an exception to the general provisions of the statute, so that oral agreements may be the basis for an action, and yet the books are full of well-considered decisions, from the lowest to the highest courts of our land, where in equity parol agreements without a single written word have been enforced, regardless of the positive and definite wording of the statute. The court below dismissed the bill of equity, apparently and solely upon the ground that possession of the real estate in controversy had never been delivered to the plaintiff, and upon the authority of Purcell v. Miner, 4 Wall. 513, 18 L. Ed. 435.
It is my view of the case that the court misinterpreted the meaning of this decision when it held in substance. that no specific performance could be ordered by a court of equity for the transfer of real estate upon an oral agreement, in any instance, unless possession was delivered. True enough, some appellate courts have likewise been influenced somewhat by this view of the decision. I think, as applied to this ease, that the following general principle 'of equity is supported by the weight of authority, and is the law, under statutes similar to the one at hand, for the guidance of this court. Equity courts will in this class of cases specifically enforce a parol agreement, if the same agreement in writing could be so enforced, at the insistence of a complainant who has completely performed, and has so fully performed as to irretrievably change his situation to his disadvantage, so that the failure to perform would work a fraud upon him and leave him with no adequate remedy at law. Williams v. Morris, 95 U. S. 444, 24 L. Ed. 360; Sears v. Redick, 211 F. 856, 128 C. C. A. 234; Brown v. Sutton, 129 U. S. 238, 9 S. Ct. 273, 32 L. Ed. 664; Whitney v. Hay, 181 U. S. 77, 21 S. Ct. 537, 45 L. Ed. 758; same case below 15 App. D. C. 164; Cooper v. Colson, 66 N. J. Eq. 328, 58 A. 337, 105 Am. St. Rep. 660, 1 Ann. Cas. 997; McKinley v. Hessen, 202 N. Y. 24, 95 N. E. 32, 68 N. Y.; Rhodes v. Rhodes, 3 Sand. Ch. (N. Y.) Star Page 279; Hall v. Gilman, 77 App. Div. 459, 79 N. Y. S. 303; Johnson v. Riseberg, 90 Neb. 217, 133 N. W. 183, 38 L. R. A. (N. S.) 752; Teske v. Dittberner, 70 Neb. 544, 98 N. W. 57, 113 Am. St. Rep. 802; Schoonover v. Schoonover, 86 Kan. 487, 121 P. 485, 38 L. R. A. (N. S.) 752; Svanburg v. Fosseen, 75 Minn. 350, 78 N. W. 6, 43 L. R. A. 427, 74 Am. St. Rep. 490; Lothrop v. Marble, 12 S. D. 511, 81 N. W. 885, 76 Am. St. Rep. 626; Howe v. Watson, 179 Mass. 30, 60 N. E. 415; Berg v. Moreau, 199 Mo. 416, 97 S. W. 901, 9 L. R. A. (N. S.) 157; Gladville v. McDole, 247 Ill. 34, 93 N. E. 86; Townsend v. Vanderwerker, 160 U. S. 171, 16 S. Ct. 258, 40 L. Ed. 383; McQuitty v. Wilhite, 247 Mo. 163, 152 S. W. 598,; Pomeroy on Specific Performance, See. 107, p. 152; Newbold v. Michael, 110 Ohio St. 588, 144 N. E. 715; Cherry v. Whalen, 25 App. D. C. 537.
This now well-settled doctrine has been impelled by the force of the equity principle, which has become a maxim, that the statute of frauds, being designed to prevent fraud, will not be permitted to work a fraud upon one asking equitable relief. Regardless of whether this is court-made law or not, or legislation by the courts, so indeEbly has it become a part of our well-settled law that it is no longer to be questioned. The courts early arrived at the conclusion that the legislative bodies never intended the statute of frauds to be used as an instrument of fraud. Courts of equity, who must look to the substance and not to the form, have given relief from the statute of frauds where its provisions have weighed down with crushing effect upon the supplicant for justice upon the theory that the law wiE work injustice to no one. “Lex nemini operatin' iniquum.” So in all the eases worthy of notice, where the courts have upheld an oral agreement, disregarding the letter of the statute, it has been' on the theory, either expressed or implied, that to permit the statute to compel denial of the relief would work an unconscionable fraud.
In Purcell v. Miner, supra, it is true that the court stated that delivery of possession pursuant to the contract was essential, but a careful reading of the ease will disclose that the question of possession there was interlinked with and a part of the evidence to sustain the proof of the making of the oral agreement, and the court said that the possession under the facts in that ease must be acquiesced in by the other party, and that proof of a litigious possession would not be satisfactory. In other words, if the complainant relied upon evidence of possession to establish the fact that an oral agreement was entered into, or if he relied upon de*760livery of possession as proof that the complainant, by part performance of the oral agreement, had been placed in a position where it would be a fraud upon him for the agreement not to be carried out, then that proof of possession must be of the character indicated.
In my judgment, this case does not hold that the only part performance which will take a ease out of the statute of frauds is the delivery of possession. The same court, 11 years later, with one-half of the same personnel, said: “Diversity of decision undoubtedly exists; but this court decided, in the ease of Purcell v. Miner, 4 Wall. 513, that the proof as to the terms of the contract must be clear, definite, and conclusive, and must show a contract, leaving no jus deliber-andi or locus pcenitenti®; that it cannot be made out by mere hearsay or evidence of the declarations of a party to mere strangers to the transaction, in chance conversation, which the witnesses have no reason to recollect from interest in the subject-matter, and ■which may have been imperfectly heard or inaccurately remembered, perverted, or altogether fabricated; that the proof must' also show that the consideration has been paid or.tendered, or that there has been such part performance of the contract that its rescission would be a fraud on the other party, which could not be compensated by the recovery of damages; or that the delivery of possession has been made in pursuance of the .contract, and has been acquiesced in by the other party. (Italics mine.) Tested by these considerations, it is clear that the attempt to prove a written contract utterly fails, and that there is no satisfactory evidence to prove any such part performance 'of the supposed contract as will take the ease out of the. operation of the statute. Where the attempt is to take the case out of the statute upon the ground of part performance, the party making the attempt must show by clear and satisfactory proof the existence of the contract as laid in his pleading, and the act of part performance must be of the identical contract which he has in that manner set up and alleged. It is not enough that the act of part performance is evidence of some agreement; but it must be unequivocal and satisfactory evidence of the particular agreement charged in the bill or answer.” Williams v. Morris, 95 U. S. 444, 24 L. Ed. 360.
In Purcell v. Minor, a real estate trade was involved where possession would ordinarily be delivered at once, while in cases like the one at bar possession is not contemplated until after death of the promisor. See Gladville v. McDole, 247 Ill. 34, 93 N. E. 86; Schoonover v. Schoonover, 86 Kan. 487, 121 P. 485, 38 L. R. A. (N. S.) 752. The rule is different in.these two classes of eases, according to some authorities. Gladville v. McDole, supra. Usually the unconditional' delivery of possession and acquiescence in the possession will put a party in a position where a failure to carry out the agreement would leave him without a remedy at law, and would perpetrate a fraud upon him, but under the authorities the delivery of possession even though not litigious, and even though absolute and acquiesced in, in many cases would not be sufficient part performance within itself. There must be other equities and other conditions recognized by the-courts as indispensable.
Let us look to the logic of the question-Does the statute make an exception in cases where possession is delivered? No; no more-than it does where the complainant is otherwise led into irreparable damage. Then upon what logic would the court hold that taking possession was indispensable to taking-the case out of the statute of frauds, when other acts and facts, far more convincing of" irreparable harm and of the actual making-of the agreement, would be rejected?
In the case at bar there cán be no other reasonable belief than that Capt. Chivellt entered into the oral agreement to give complainant the real estate. That the agreement, was definite and certain, and that to his dying hour he had intended to carry it out, is-nowhere denied, except in the formal answer-of the defendants. That no successful denial, of its existence could be made is too plain, to permit of controversy. The deed and will,', though unsigned, admitted in evidence without objection, drawn by one of the attorneys-for defendants at the request of one of the-benefieiaries in the will, removes all possibility of even a suspicion that Mrs. Faunce has-made false claim against the heirs of the deceased. No delivery of possession is necessary to establish the contract, nor is it, in. my view of the facts, necessary to sustain the-contention that Mrs. Faunce has been' placed' in a position where the failure to carry out the specific agreement would work an unconscionable fraud upon her.
If there was any reasonable doubt in the-mind of the trial court that the contract might not have been made, and' that there was room for perjury and fraud against the heirs-of the deceased, clearly it would be its. duty to refuse to grant the prayer.’ Berg v. Moreau, 199 Mo. 416, 97 S. W. 901, 9 L. *761R. A. (N. S.) 157. And while the courts in some jurisdictions have permitted the parol contract to he established by evidence upon which I would not look with favor, I wish to emphasize that, since the statute is designed to prevent fraud, it is only in a case where there is no probability of fraud (and I am .almost constrained to say no possibility of fraud) that the courts should enforce a parol agreement.
The majority opinion and the court’s finding against appellant is chiefly based upon and controlled by the proposition that the .agreement between the parties was not clearly proved. I will not review the evidence here, but the numerous statements and facts in the record tending to prove the agreement between the parties are so- conclusive and -convincing that the making of the agreement is not questioned in the trial of the ease, and that there was an agreement, clearly proved, was affirmatively found by the court below.
The ruling opinion concludes that there is but one question and answer in the evidence which, if considered by this court, could be regarded as proving the agreement. This was the question propounded to and answered by the plaintiff, Mrs. Faunce. To this question and answer there was no objection, nor was there, at any time, any motion to strike out same, nor was there, at any time, any question raised as to" its competency. The majority opinion finds that she was •an incompetent witness to testify concerning her agreement with Chivell. With this I will agree, if proper objection was made. I disagree with the statement that “it will be presumed that the learned trial justice, in entering his decree, considered only the competent evidence that had been adduced, whether objections were interposed or not.” Since the lower court found affirmatively that the contract was clearly proved, I would presume that it took cognizance of the question and answer, to which there was no objection made.
The appellate court has no right to refuse to consider evidence which would be incompetent if objected to, but which is in the record without objection or without motion to strike out. It would seem hardly necessary to cite authorities on this almost primary principle of law. There are no citations supporting the position taken in the majority opinion. The rule seems to be universally adhered to in all jurisdictions that objections cannot be made, for the first time in the appellate court, to incompetent evidence, made incompetent by statute. The failure to object to incompetent evidence waives its incompeteney, and on appeal courts have no right to disregard it. The reason for this would seem to be manifest. The party being entitled to object might desire the-evidence for some purpose of hi's own. By failing to object he might obtain the benefit of it. He may, under the Code of this District, call the witness and make her competent, or, by cross-examination, he could so open up the question as to make competent her testimony as to the full conversation between her and the deceased.
The proposition that the testimony of a party to a transaction with a deceased person, if not objected to in proper time, is waived, and will be considered and given such weight as his interest in the suit and other circumstances will allow, is sustained by the decisions in all jurisdictions in which I have examined the opinions. Chapman v. Peebles, 84 Ala. 283, 4 So. 273; Doty v. Doty, 159 Ill. 46, 42 N. E. 174; Hipple v. De Puie, 51 Ill. 528; Wingo v. Caldwell, 35 S. C. 609, 14 S. E. 827;1 Clarke v. Alexander & Wright, 71 Ga. 500; Howatt v. Green, 139 Mich. 289, 102 N. W. 734; Moody v. Dryden, 72 Iowa, 461, 34 N. W. 210; Carney v. Carney, 95 Mo. 353, 8 S. W. 729; Simmons v. Simmons, 33 Grat. (Va.) 451; Bartlett v. Burden, 11 Ind. App. 419, 39 N. E. 175; Parrish v. McNeal, 36 Neb. 727, 55 N. W. 222; Harwood v. Hunt, 221 Mich. 349, 191 N. W. 19; Imboden v. Trust Co., 111 Mo. App. 220, 86 S. W. 263; Cowles v. Cowles, 81 Vt. 498, 71 A. 191; 40 Cyc. 2351, 2352; 1 Wigmore on Evidence, § 18.
Practically every one of the eases above cited were concerned with the evidence of a living party interested in the litigation as against the interest of one deceased. The nearest approach to a decision on this question, by this court, which I have been able to find, as affecting section 1064 of the District Code, is in Mankey v. Willoughby, 21 App. D. C. 314, which held that evidence, such as is in consideration here, would not be admissible if excepted to. If the conclusion adopted by the majority opinion is the law with reference to the consideration appellate courts will give evidence, to which there has been no objection, I have been unable to find a statement of it in any of the authorities examined. Section 1064, which says, “the other party thereto shall not be allowed to testify as to any transaction,” etc. is in substantially the same language as has *762been written into tbe law of almost every state in the Union.
In construing these words I cannot give my consent to a statement of law, unsupported by authority, which makes the rule for the District of Columbia different from that in all other jurisdictions. Having arrived at what I believe to be the law governing this ease, let us see if the facts bring us within the law. Was the contract made? Yes; beyond the peradventure of a doubt; Was it fully performed on the part of plaintiff? Yes; and in such a way as to no doubt pull at the heartstrings of the trial court, who felt, by reason of what it believed to be the settled law, that it was unable to grant relief. A reading of the record during the taking of the testimony discloses how the unquestioned equities of the complainant appealed to the trial court in such a way that, had it believed that possession was not essential, it would have unhesitatingly granted the decree prayed for.
Capt. Chivell had no children, and this faithful, devoted foster-daughter, who became indispensable to him in both a business and social sense, was doubtless by him led to believe that her unusual sacrifices would be repaid in the generous manner promised. It is essential, I think, to the recovery in this case, that the services were rendered in performance of the contract and were consistent therewith. Williams v. Morris, supra. The length of service, if sufficient to justify the equitable demand and also sufficient to change the station in life, or the future of the complainant, is not material. Hall v. Gilman, 77 App. Div. 459, 79 N. Y. S. 303; Howe v. Watson, 179 Mass. 30, 60 N. E. 415. The first 12 years of the service has little to do with the ease, except that in summing up the equities I am not unmindful of the fact that the property in controversy and the prosperous condition of the old captain at the time of his death surely were largely due to the unusual service of the young girl, and these years of service, showing as they do, the relations between the parties, fortify the evidence to the effect- that the contract was made, and reflects upon -the indispensability and value of her services after the contract was made. Courts of equity, in eases where the contract relates to service (although I have found none exactly similar to the ease at bar), refuse to grant equitable relief where the services rendered were not of unusual character, and leave the complainant to his remedy at law. Cooper v. Colson, 66 N. J. Eq. 328, 58 A. 337, 105 Am. St. Rep. 660, 1 Ann. Cas. 997; New-bold v. Michael, 110 Ohio St. 588, 144 N. E. 715.
In the case of Cooper v. Colson, supra, in a jurisdiction where this question has repeatedly been considered with much care and ability, the above conclusions are most forcefully stated. There the services consisted of a woman acting as housekeeper only a short time upon a parol promise to convey all property. The court, after announcing the well-settled rule, properly held that her services were in no sense unusual, and that she had “in no way changed her mode of living, or course of life, or life work.” If, however, the services are of unusual character and the party rendering them in conformity to the agreement, has been placed in the position where he does not have an adequate remedy at law and has changed his station in life, then the courts, on the ground that it would be a fraud against the complainant to deny the relief, have compelled specific performance. Rhodes v. Rhodes, 3 Sand. Ch. (N. Y.) *279.
This leads me to the only question in the case that might be the subject of conflicting opinion. Were the services of Mrs. Faunee unusual, or such that could not be readily estimated in an action at law, and was she by her services and her full performance of her part of the contract so changed in her course of life as will warrant the intervention of equity? Her services were most unusual, not only in a business way, but unusual in the loving care and devotion to the personal ties of friendship and daughterly relation that existed between them.
Ordinary wages paid for clerical or.domestics help, as far-as I have ever known, do not secure services of the character here rendered, nor can such unusual services, which brought great happiness and prosperity to the deceased, be adequately measured ip damages, or compensated for in an action at law. How would a jury estimate the value to his business interests of the late hours, of the drudgery, of the self-sacrificing application, prompted by a sense of duty and love, that does not characterize clerical or domestic 'service in general? No matter what instructions were given by the court, by what measure would a jury estimate the value of the comfort and peace of mind to this old gentleman in the closing years of Kis life, which came-from this service of kindness and attentiveness, both at his place of business and at his home, when he was worried and restless because of his inability to keep in touch with his own affairs? What instructions could the court give which would insure *763a fair and proper valuation of the services? The figure arrived at would he the result of speculation and a compromise between emotion and practicability. The only adequate remedy is the payment to her of the price both parties intended. She had no remedy at law, because a remedy that is inadequate, illogical, and unfair is not a remedy. 21 Corpus Juris, 50.
Did her services materially change her position in life? We do not need to speculate as to what she might have done when the war came on. With her conceded ability and energy, and the opportunities that were before her, she no doubt would have so shaped her course that her life would have been at least different. Suppose the deceased had not urged and caused others to urge her husband to agree to her services, and suppose she had refused to accept the terms of the agreement, and had obeyed her husband and gone to Norfolk, and had either gone in business or had kept house for her husband; can there be any reasonable doubt that her life would have been different? At the time Mrs. Faunce testified, she was 34 years of age, a middle-aged woman. The shadow of her long, hard service was still over her. Her performance of the contract changed her station in life, no doubt, mentally, physically, and financially, and it would be an unconscionable fraud upon her to deny her the full measure of compensation agreed upon.
The statute of frauds, while universally conceded to be wise and wholesome in its purpose and application, is not sacrosanct. The courts have found its terms sufficiently flexible to admit of such application as to prevent fraud and injustice in clear and appealing eases. Statutes of Limitation are equally positive in their terms and indispensable for the security of property rights; yet, where a party, through fraud, has been led not to bring the action within the time specified, the courts will uphold an action brought after the limitation has expired. To do otherwise, in my judgment, would be to admit the impoteney of our judicial system to render justice between men.
It may be urged that, on the whole, it is better for the welfare of the citizen that the letter of the statute be carried out, even if some injustice prevails, and that to make an exception is to invite the final destruction of the wholesome law. It is too late to make this argument here. The courts for many generations past have softened the harshness of its literal application. The question, within certain limitations, must be left to the sound discretion of the equity court, and sympathy alone must not be controlling. He should and must be guided by .those wholesome principles, tested by logic and experience, and laid down in the books for our guidance.
The cases of Newbold v. Michael and Cooper v. Colson, supra, are strongly relied upon by appellees, not as supporting the ease of Purcell v. Miner, supra; but they are urged as controlling on the theory that the services rendered and the consideration for the oral contract in the ease at bar were not unusual, and could be compensated for in an action at law. These two eases probably more clearly state the crystallized principles of law on the question of the enforcement in equity of parol agreements affecting real estate than any other decisions found in the books, and the conclusions of law. arrived at by me here are largely based upon, and I believe in entire harmony with, them. In the Newbold Case, the question of possession was not involved. A woman, for a year and a half, kept house for an old man. The court held that this was a common occurrence, and that actions at law were frequently brought in this kind of ease, and that it was the province of the jury to fix the value of the ordinary things of life, and of ordinary service. In the Cooper Case, the same kind of housekeeping service for an old man by a housekeeper was viewed, no doubt, with equal suspicion, and the court held there that her services were not unusual, and that they did not change her course in life or mode of living, and that the services she rendered were of such character as to be easily and adequately compensated on the quantum meruit.
If the services in the ease at bar were no more unusual, and would as easily admit of compensation, as were the services in the two cases, supra, I would he constrained to decide against the appellant. Here no undue influence, or the possibility of fraud, can be entertained for a moment, and the services were most unusual and extraordinary.
The decree of the court below should be reversed, with instructions to enter a decree in this ease, ordering and directing the defendants to execute and deliver to the plaintiff a deed in fee simple, conveying the premises described in the bill, with title, clear, free, and unincumbered, which decree should specify that, in ease of default on the part of defendants, the decree be ordered and directed to operate as such deed.
Reported in full in the Southeastern Reporter; not reported in full in South Carolina Reports.