The timber, bargained to the plaintiffs and Van Dyke, to be taken off within fourteen years was a part of the land. Kingsley v. Holbrook,45 N.H. 313; Howe v. Batchelder, 49 N.H. 204. The statute of frauds (G. L., c. 220, s. 14) provides that "no action shall be maintained upon a contract for the sale of land unless the agreement upon which it is brought or some memorandum thereof is in writing, and signed by the party to be charged, or by some person by him thereto authorized by writing." Ruby Baldwin was not authorized by her sons or by Chase in writing to make or sign the memorandum: it is therefore insufficient to charge them. Decisions made in jurisdictions where the authority is not required to be in writing are not in point. Whether the memorandum is sufficient under the statute to charge Ruby Baldwin herself is a question which need not be considered, because (1) in her character as administratrix she has no title to the real estate of her deceased husband, and so far as appears she has otherwise no title (Chartier v. Marshall, 51 N.H. 400); and (2) if the legal title is vested in her, she holds it in trust for Chase, charged with the obligation to convey it to him upon the payment of whatever sum remains due upon the bond. If she should convey it to the plaintiffs, they, having as the case shows full notice, would take it, subject to the same trust; they would acquire by such conveyance merely the right to receive the amount due upon the bond, upon the payment or tender of which equity would compel them to convey the land to Chase. It is said that in no case will the court enforce the specific performance of a contract which amounts to a breach of trust, even though the purchaser be without fault. 2 Perry Trusts, s. 787. However that may be, equity will not compel the specific performance of a contract to convey the legal title to real estate, which equitably belongs to one person, to a third person who has notice of such equity, but will leave the party to his action at law for damages. Spence v. Hogg, 1 Coll. 226; Connihan v. Thompson, 111 Mass. 270; Annan v. Merritt, 13 Conn. 478; Green v. Finin, 35 Conn. 178.
It remains to consider whether the plaintiffs are entitled to a decree upon the ground of a partial performance of the verbal contract with Chase. In order to entitle a party to a decree for the specific performance of a verbal contract for the conveyance of land upon this ground, he must not only establish the contract under which he claims, but also such a partial performance of the contract, relying upon its fulfilment that the non-performance *Page 586 thereof by the other party will be a fraud upon him. Tilton v. Tilton,9 N.H. 390; Kidder v. Barr, 35 N.H. 255; Malins v. Brown, 4 N.Y. 403. The acts of performance must be such as the party would not have done except by reason of the agreement, and must be done with a direct view to its performance; and the agreement set up must appear to be the same with the one partly performed. Phillips v. Thompson, 1 Johns. Ch. 149. The plaintiffs fail in both particulars. They show neither contract nor performance which can avail them. They cannot stand upon the original contract, because it was made, not with them alone, but with them and Van Dyke who must be joined as plaintiff in order to enforce it; nor as assignees of the contract, because it was not assignable. By it the plaintiffs and Van Dyke acquired nothing except a license to enter upon the land and take the timber, the sole effect of which was to protect them from an action of trespass until it was revoked. It would protect no one else. It conferred upon them a personal privilege not assignable. Howe v. Batchelder, 49 N.H. 204. No right under or interest in the contract passed by the sale to Hilliard, or by that of Hilliard to the plaintiffs.
In whatever Hilliard did he acted for himself, and not for the plaintiffs and Van Dyke. They cannot avail themselves of his acts as a partial performance of the agreement, because they were done neither in their behalf, nor in pursuance of the contract. He was a mere trespasser. Howe v. Batchelder, supra. If, after all his improvements were completed, Hilliard had brought a bill for specific performance, he must have failed, because with him there was no contract; had the plaintiffs and Van Dyke joined in bringing a like bill, they must have failed, because they did nothing in the way of performance.
If the defendants had known of and assented to the sale to Hilliard, and that of Hilliard to the plaintiffs, it might perhaps have been evidence tending to show a substitution of Hilliard in the place of the plaintiffs and Van Dyke, and of the plaintiffs in the place of Hilliard, — or, in other words, an abandonment of the old contract, and the making of a new one first with Hilliard, and finally with the plaintiffs; but nothing of that kind appears in the case.
Bill dismissed.
DOE, C. J., did not sit: the others concurred.