ON PETITION FOR A REHEARING!.
Worden, J.The appellee has filed an earnest petition for a rehearing in this case, and we have again considered the question involved, with such care as, from its importance, it seemed to demand. He has cited, and relies upon, the case of Eastburn v. Wheeler, 23 Ind. 305, to show that the alleged acts of part performance take the case out of the statute of frauds. The case in 23 Ind., not having been cited in either of the original briefs of the parties, was overlooked by the court in the original consideration of the cause.
That case was as follows: A. filed a complaint against B. to foreclose a mortgage executed by the latter to the former. B. filed a cross complaint, alleging, in substance, that a third party was desirous of purchasing some real estate of him, but wished him to take in part payment therefor a lot in Lafayette at three hundred dollars, and had made him an offer accordingly. This B. declined, and thereupon A., who was informed of the facts, agreed with B. that if the latter would accept the offer thus made and take the Lafayette lot at the price named, he, A., would take the lot of B. at the same price, and credit B. with the amount on the mortgage. B., thereupon, accepted the offer that had been thus made to him by the third party, took a conveyance of the Lafayette lot, and tendered a deed therefor to A., and demanded the credit on the mortgage, which was refused. It was held that the alleged acts of part performance took the case out of the statute of frauds.
Without undertaking to determine whether the decision *24in the above case might not have been placed upon different ground, we may observe that it cannot, in our opinion, be upheld upon the ground upon which it is placed. We have examined the case of Chambers v. Lecompte, 9 Mo. 575, much like that of Eastburn v. Wheeler, and disapproved in the latter case, and it seems to us to have been correctly decided. The authors of Leading Cases in Eq., vol. I, p. 736, in speaking of the Missouri case, say: “There can be little doubt of the soundness of this decision, because to take a contract for the sale or conveyance of land out of the statute by performance, the performance must be on or "about the land in question, and be so far founded upon the contract, that it would be wrongful had no contract been made. Hence, an oral agreement between the owners of two adjacent lots, that each will build upon the same line a certain number of feet back from the street, will not be rendered binding by the erection of a building on one of the lots, in compliance with the agreement, because this might obviously have been done, had no agreement been made, and consequently cannot show that an agreement exists.” Wolfe v. Frost, 4 Sandf. Ch. 72.
In the case cited from Sandford, the court say: “-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 have been done solely with a view to the agreement being performed. If they are acts which 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.”
The tendency of modern decisions is to restrict the doctrine to the limits established, rather than to extend it. Thus, in the case of Phillips v. Thompson, 1 Johns. Ch. 131-46, it was said by Kent, Chancellor: “This case, like many others, shows the utility of the statute of frauds, and the danger of relaxing the sanction of its provisions. I agree with those wise and learned judges, who have declared *25that the courts ought to make a stand against any further encroachment upon the statute, and not go one step beyond the rules and precedents already established.”
We quote, on the subject of part performance, the following paragraph from Browne on the Statute of Frauds, secs. 455,457:
“Vice-Chancellor Sir Lancelot Shadweix says: ‘It is in general of the essence of such an act that the court shall by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights, they would be in if there were no contract. Of this a common example • is the delivery of possession. One man, without being amenable to a charge of trespass, is found in the possession of another man’s land. Such a state of things is considered as showing unequivocally that some contract has taken place between the litigant parties. And it has, therefore, on that specific ground been admitted to be an act of part performance. But an act which, though in truth done in pursuance of a contract, admits of explanation without supposing a contract, is not in general admitted to constitute an act of part performance to take the case out of the Statute of Frauds; as, for example, the payment of a sum of money, alleged to be purchase-money. The fraud, in a moral point of view, may be as great in one case as in the other, but in the latter case the court does not in general grant relief.’
“ Another rule, and the last which seems to require notice as laid down upon this subject, is that the acts of part performance must have been done in execution of the contract, or, as Mr. Roberts well expresses it, ‘must appear to be done with a direct view to perform the agreement, and tend inceptively toward its accomplishment.’ This rule seems to be suggested by the very words, ‘ part performance;’ and if it did not prevail, and any act, however disconnected with the agreement, which a plaintiff might proceed to do upon the '.aith of the agreement, were to be regarded as a reason for *26the interposition of equity, because prejudicial to him, known to the defendant, and incapable of adequate compensation in damages, the inconvenience would be serious and manifest. Great danger of fraud and perjury would be incurred in admitting proof that the plaintiff had in fact been induced by the agreement to do the acts relied upon; and, moreover, the important characteristic of an act of part performance, that it • shows of itself an agreement of some sort concluded between the parties, could scarcely.be said to exist to such a case.”
We make a quotation from another author: “ 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 which 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. On this account, acts, merely introductory or ancillary to an agreement, are not considered as a part performance thereof, although they should be attended with expense. Therefore, delivering an abstract of title, giving directions for conveyances, going to view the estate, fixing upon an appraiser to value stock, making valuations, admeasuring the lands, registering conveyances, and acts of the like nature, are not sufficient to take a case out of the statute. They are all preliminary proceedings, and aré, besides, of an equivocal character, and capable of a double interpretation; whereas acts, to be deemed a part performance, should be so clear, certain, and definite in their object and design, as to refer exclusively to a complete and perfect agreement, of .which they are a part execution.” I Story Eq., sec. 762.
In Johnston v. Glancy, 4 Blackf. 94, the court say: “ But even these acts of part performance must be done with a direct view of the agreement being performed, and be such acts as could be done with no other view, or the agreement will not be taken out of the statute.”
*27These principles are elementary, and are sustained by the adjudged cases, so far as we have had leisure to examine them.
Tested by these principles, it is clear that Thompson has done no act of part performance, such- as will take the case out of the statute. He has made his exchange with Eunice Moffitt, and has procured from her the title to the land. But from this act it cannot be inferred that there was any contract whatever between him and the defendants. The act which he has performed is equivocal, and admits of ample explanation without supposing any contract of any kind whatever with any one else than with her. He may have made the exchange with her without intending, in any manner, to perform the contract between himself and the defendants, and with the purpose of disposing of the property in a totally different manner.
If the authorities, which we have quoted at perhaps unusual length, are not wholly at fault in the statement of legal principles, the supposed acts of part performance on the part of the appellee cannot take the case out of the statute of frauds.
It is sometimes said that equity will not permit a suitor to make use of the statute against frauds as a means of perpetrating fraud, for the reason that to do so would be.to defeat the very purpose for which the statute was enacted. This may be illustrated by what was said in the case of Clinan v. Cooke, 1 Sch. & Lef. 22, 41. The Lord Chancellor says: “But I take another reason also to prevail on the subject. I take it that nothing is considered as a part performance which does not put the party into a situation that is a fraud upon him, unless the agreement is performed; for instance, if upon a parol agreement, a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser if there be no agreement. This is put strongly in the case of Foxcraft v. Lister; there the party was let into possession on a parol agreement, and it was said that he ought not to be liable as a wrong-doer, and to *28account for the rents and profits, and why? because he entered in pursuance of an agreement. Then for the purpose of defending himself against a charge which might otherwise be made against him, such evidence was admissible, and if it was admissible for such purpose, there is no. reason why it should not be admissible throughout. That,. I apprehend, is the ground on which courts of equity have proceeded, in permitting part performance of an agreement to be a ground for avoiding the statute; and I take it therefore that nothing is to be considered as part performance which is not of that nature. Payment of money is not part performance, for it may be repaid; and then the parties will be just where they were before, especially if repaid with Interest. It does not put a man who has parted with his money into the situation of a man against whom an action may be brought; for in the case of Foxcraft v. Lister, which first led the way, if the party could' not have produced in evidence the parol agreement, he might have been liable in damages to an immense extent.”
On this subject we venture, at the risk of some prolixity, to make another extract from Browne on the Statute of Frauds, sec. 439: “ The fraud against which equity will relieve, notwithstanding the statute, is not the mere moral wrong of repudiating a contract actually entered into, but which, by reason of the statute, a party is not bound to perform for want of its being in writing. This' was early laid down by Lord Macclesfield, Chancellor, in a case arising, upon a promise of a defendant, about to marry, that his wife should enjoy all her own estate, to her separate use after the mar.;.dge, which promise, as one made ‘ upon consideration of marriage,’ could not regularly be enforced. His Lordship declared that, ‘ in cases of fraud equity should relieve, even against the words of the statute, as if an agreement in writing should be proposed and drawn and another fraudulently and secretly brought in and executed in lieu of the former; in this or such like cases of fraud, equity would relieve; but where there was no fraud, only relying upon *29the honor, word, or promise of the defendant, the statute making those promises void, equity will not interfere.’ ”
In the case under consideration the appellant is charged with no fraud except the failure or refusal to comply with his contract. This is not such a fraud as entitles the appellee to any relief.
We have not examined as to whether-the appellee has any other remedy than an action upon the contract, but upon this point we have been referred by counsel for the appellant to the following authorities: Thomas v. Dickinson, 14 Barb. 90; King v. Brown, 2 Hill N. Y. 485; Kidder v. Hunt, 1 Pick. 328.
The petition for a rehearing is overruled.