delivered the opinion of the court:
The only lots in controversy in this case are the four lots numbered from 47 to 50 inclusive, which lie in the south-east corner of the block embracing, lots from 35 to 68 inclusive. The bill was filed by the appellee for the purpose of enforcing the specific performance of an oral contract to sell and convey said four lots, alleged to have been made by the appellant, Stough, with the appellee, Raftree. 'Appellee purchased all the lots, except the four lots in question, from Benjamin V. Page, and received from Page a warranty deed therefor. It is conceded, that Page had no record title to the four lots in question, although it would appear that he claimed to have been in possession thereof. The appellee, however, took from Page a quit-claim deed of these four lots. The record does not show what title Stough had to the lots in question. Stough introduced in evidence a warranty deed, executed to him by Paul Haag and wife, dated November 13,1885, and recorded December 1,1885, conveying to him the four lots in question. It clearly appears, however, that Stough claimed the title to these four lots, and had an interest therein, which appellee deemed it advisable to purchase. Whether Stough had a good title or not, appellee seeks to compel him to make a deed of such title as he had.
If any contract was made by Stough to sell the lots in question to appellee, it was merely a verbal contract.
It is a well settled rule that, where a bill is filed for the specific performance of an oral contract to sell and convey land, the contract must be certain, clear and unambiguous in its terms and in all its parts. When it is vague and uncertain, or the evidence to establish it is insufficient, equity will not enforce it; the terms of it must be mutually binding upon the parties, and based upon a valuable consideration. In order to take a case out of the operation of the Statute of Frauds—which has been pleaded in this case—a parol contract to convey land should be clear and unmistakable in its terms, and should be established by testimony of an undoubted character. The contract must not only be clear, definite, and unequivocal in its terms, but it-must be established by com-patent proof, and the burden, of proof is upon the party seeking to enforce it. (Pond v. Sheean, 132 Ill. 312; Tink v. Walker, 148 id. 234; Geer v. Goudy, 174 id. 514).
It makes no difference what has been done in part performance of an alleged oral contract to sell land, if it is not first shown that such a contract exists. The evidence in the present case does not show clearly, that the oral contract sought to be enforced was ever made.
Tie appellee swears that, some time in the summer of 1887, between July 15,1887, and'August 2, 1887, the appellant, Stough, agreed to sell him the four lots in question for $400.00, to be paid Whenever appellee should find it convenient to do so, with interest at the rate of six per cent per annum. The appellant, Stough, swears that hé never made any agreement with the appellee to sell him his interest in the lots in question. Stough swears that he offered to sell the lots to appellee, but that appellee never accepted his offer, or promised to pay him any money. The only testimony besides that of appellee and Stough is the testimony oí H. G. Middaugh and the appellant, James H. Ballagh. Middaugh, who appears to have been an agent .or representative of the appellee, swears that appellee told him that Stough had agreed to sell the lots to appellee for $400.00. The declarations of appellee, thus testified-to by Middaugh, were not made in the presence of the appellant, Stough, or of the appellant, Wright, and, therefore, were not competent evidence, and should not have been admitted. (Geer v. Goudy, supra). The testimony of Ballagh, who appears to have been an agent of Stough, tends somewhat to confirm Stough’s statements. Ballagh swears that, in the fall of 1890, long after the oral contract is alleged to have been made, Raftree told him that he had long before that had some talk' with Stough about buying the lots in question, but ‘that such talk had amounted to nothing, and that he wanted to make to Stough another proposition for their purchase. Ballagh further says, that appellee did then make him a proposition for the purchase of the lots, and that he submitted the same to Stough, but that Stough declined to accept it.
If a valid contract was made for the sale of the lots in July or August, 1887, it is singular that the appellee should have made a proposition for their purchase in 1890. It is manifest, from the statement thus made of the proof as to the making of the contract, that the existence of. any such contract is not clearly established. It is supported by the testimony of the appellee alone, because the testimony of Middaugh was, as has already been stated, incompetent, and mere hearsay. The making of the contract is denied by the appellant, Stough, and the testimony of Ballagh confirms that of Stough. We are, therefore, obliged to conclude, that the court below erred in finding that the oral agreement, set up in the original and amended bills, was established by the proof in the case.
Appellee contends, however, not only that the agreement of sale, as set up in his bill, was made, but that it was in writing. This contention is based upon certain letters written by Stough to the appellee, which were introduced in evidence. In the first of these letters, dated September 3,1887, Stough says to appellee: “I am liable to have to go west any day now. Do you want to say anything more to me about block 5 before I go?” Again, in a letter written by Stough to appellee, dated September 6, 1887, he says: “Yours at hand. My object in writing was that any day I am liable to be off for Cal., to be back next May or June, and it occurred to me that you might want it done before I went. I am satisfied to wait. What is the price of your place? I might find you a buyer among'my many callers.” On November 7, 1887, Stough says: “Will buy your house, half cash half lots, if you use the cash to build at Stough. Will lend you the money to build at Stough. Will let you sell lots at Stough at big commission.” These are the only letters written by Stough and relied upon as written evidence of the contract. There is nothing in these letters inconsistent with the statement of Stough, that he offered to sell the lots to Raftree, but that Raftree never accepted his offer, or offered to pay him any money. The appellee swears, and the theory of his bill is, that the oral contract was made in July or in August, 1887. The letters introduced certainly show that some negotiation, which had been going on between the parties, was in- . complete as late as September, 1887. It is proven that Stough was a large owner of lots in Hinsdale, and was engaged in selling.his own lots. It, also, appears, that, in 1889, he left Chicago and Hinsdale, and went to California, being at the time more than seventy years of ag'e. Appellee owned a house upon Lincoln street in Hinsdale, which he desired to sell with a view to building a new house upon the lots purchased from Page. Stough offers in one of the letters to sell this house for appellee, and in another to buy it from him, and offers, also, to lend him money to build his new house. The new house was not built upon the four lots in question, but upon other lots upon the west side of Stough street, which had been purchased from Page. The letters do not establish any .such contract as is set up by appellee, but are entirely consistent with the theory of the appellants. Appellee seeks to support his contention as to a written contract by stating the contents of a letter, which he claims to have written to Stough in answer to the latter’s letter of September 3, 1887. But this testimony as to the contents of his own letter was incompetent, as no notice was given to the appellants to produce the original of the letter written by the appellee; and, therefore, no proper foundation was laid for proving its contents by parol. It is not claimed, that the whole of the contract, alleged to have been made, was in writing, but the portions thereof, which were claimed to be embodied in writing, were sought to be added to, and made complete, by oral testimony. It is, however, a well settled rule, that “the entire contract must be in writing to satisfy the statute; it will not be sufficient that the greater part of the contract is in writing; it must all be in writing.” (Cloud v. Greasley, 125 Ill. 313). “The contract itself cannot be partly in writing and partly in parol. ” (Farwell v. Lowther, 18 Ill. 252; Lane v. Sharpe, 3 Scam. 566; Seymour v. Belding, 83 Ill. 222).
The oral contract in question is not only not established by sufficient proof, but, if it were proven, it is indefinite and uncertain in its terms, as they are set up in the bill, and sworn to in the testimony of the appellee. According to the terms of the contract, no time was specified when the sale was to be completed, or the deed to the lots was to be delivered. Appellee says, that Stough agreed to allow him to pay the money whenever it should suit his convenience to do so. Appellee says, that he was to pay interest at the rate of six per cent, but it does not appear from what date' the running of the interest was to begin, or at what date it was to end. (Farwell v. Lowther, supra; Story’s Eq. Jur. sec. 764).
Even, however, if there was such an oral contract as the appellee insists upon, the Statute of Frauds is set up in the answers, and, as that statute requires all contracts for the transfer of land to be in writing, the statute is applicable, unless such acts of part performance under the contract are shown as take it out of the statute. We have frequently decided that an oral sale of real estate may be taken out of the Statute of Frauds “by a payment of the purchase money, being let into possession, and the making of lasting and valuable improvements.” (Holmes v. Holmes, 44 Ill. 168; Ferbrache v. Ferbrache, 110 id. 210; Pond v. Sheean, 132 id. 312). In Holmes v. Holmes, supra, we said: “While the cases may not all go to the length of requiring all of these acts to constitute such a part performance of the contract, as to require a decree for the specific execution of the contract, still we are aware of no well considered case which has dispensed with the payment of the purchase money. This is regarded as. essential to take a case out of the operation of the statute.” Where a promise is made by a parent to a child to convey land, the rule requiring payment of the purchase price is sometimes relaxed. (Bright v. Bright, 41 Ill. 97). But, in such case, the relationship of the parties constitutes a sufficient consideration. Here, however, no such relationship existed; the contract, according to appellee’s contention, was purely and simply an oral contract for the sale of land; and the evidence is clear that no part of the purchase money was paid or tendered.
Next to the payment of the purchase money, the other acts of part performance, which take the contract out of the Statute of Frauds, are the taking of possession, and the making- of lasting and valuable improvements. But the rule in regard to the taking of possession is, that possession must be taken under the contract, and in performance of the contract. The improvements also must be made under the contract of purchase, and not otherwise. It is well settled, that the acts relied on to show part performance will, not operate to defeat the Statute of Frauds, unless they are done under the contract itself, and for the purpose of performing it. (Wood v. Thornly, 58 Ill. 464; Clark v. Clark, 122 id. 388; Pond v. Sheean, supra; Cloud v. Greasley, supra). In the case at bar, there was a fence which enclosed the lots when appellee made his purchase from .Page. Page had previously made a lease of all of the thirty-four lots, constituting the block, to one Anderson. Appellee took a quit-claim deed of these four lots from Page, and swears—and the other testimony shows—that he entered into possession under Page and under the quit-claim deed which he received from Page, and not under any oral contract made with Stough, or for the purpose of performing" such oral contract.
It appears that the block already referred to consisting of the thirty-four lots from 35 to 68 inclusive, was an irregular and uneven piece of ground. There was something like a hill, and there were other elevations, at the point north of these four lots, where appellee subsequently built his house and barn and chicken-house. He was obliged to level this hill or these elevations, in order to make the improvements mentioned. There was a ravine or gully, not deeper in any one place than three or ' four feet, running across a part of these four lots in the south-east corner of the block, and south of the alley. Some of the dirt, obtained from leveling the hill or elevations, was placed in the ravine or gully referred to. This disposition of the dirt, however, was as much for the convenience of the appellee in leveling the ground where his houses were built, as it was an improvement of the four lots in question. Appellee also put in some tiles and drains, which extended from the lots, on which his houses were built, down to the four lots in question; but these drains were more for the convenience and improvement of the lots north of the alley, than of those lots which were south of the alley. It is said, also, that the appellee built a sidewalk in front of these lots, and leveled the street in front thereof, but this was for his own convenience in going from his home to the depot which is situated to the south of these four lots. It, also, appears that the appellee used these lots for pasturing purposes. We do not deem it necessary to decide whether the filling in of this ravine, and the putting in of these drains, and the building of the sidewalk, constituted such valuable and lasting improvements, as the authorities hold to be necessary, in connection with the payment of the purchase money and the taking of possession, to show such acts of performance as will take the contract out of the operation of the Statute of Frauds. We are satisfied, not only that no purchase money was paid, but that no possession was taken and no improvements were made under this contract and in performance of it. Even if, therefore, there was a contract, it is not clear that there were such acts of part performance as take it out of the statute.
In view of what is said, it makes no difference whether Wright, who purchased the lots from Stough, had notice of the contract or not. The evidence tends to show that he had no such notice. But, if he did have such notice, the law is that notice, actual or constructive, of a contract which is void under the Statute of Frauds, will not prevent the person, having such notice,- from becoming a purchaser of the property from the original owner. Where the owner may lawfully refuse to perform a contract, he may lawfully sell and convey .to another, and, by so doing, repudiate the contract; and a purchaser from him will not be affected by the prior sale, rendered void by the Statute of Frauds. (VanCloostere v. Logan, 149 Ill. 588).
It is objected by the appellee, that the Statute of Frauds is not properly pleaded in the answers filed by appellants below. This objection is without force. One of the answers expressly refers in terms to the Statute of Frauds as such; and the other pleads it in the language set forth in the statement preceding this opinion. The averments here are regarded as sufficiént. “In pleading the Statute of Frauds an express reference to the statute by its title or otherwise is not necessary. * * * But sufficient facts should be stated to show that the defendant seeks the protection of the statute. And the plea or answer setting up the statute should expressly aver that the contract was not in writing", else it will be presumed to be so.” (9 Ency. of PI. & Pr. pp. 713-715). Here, the answers aver, that the contract was not in writing, and state sufficient facts to show that the protection of the statute is sought.
The decree of the circuit court is reversed, and the cause is remanded to that court with instructions to proceed in accordance with the views herein expressed.
'Reversed and remanded.