The opinion of the court was delivered by the

The contract proved upon the trial of tins case, or which the evidence tended to prove, was clearly within the statute of frauds and perjuries. It was a contract for the transfer of an interest in land. The plaintiff, who was tenant from year to year of his father (the defendant’s intestate), erected new buildings upon the demised premises upon the authority of his father, *216who told the plaintiff “ to go on and build, and the farm should be his,” or, as another witness testified, “ to go on and fix what he had a mind to—he had left it to him.” The evidence in the cause would have warranted the jury J.i finding that the plaintiff erected the buildings with the consent and approbation of his father, upon his express promise that the farm should be his upon his father’s death, by deed or devise. The contract to transfer the land, being within the statute of frauds, was void, and cannot form the foundation of an action. The plaintiff, therefore, clearly could not sue upon the special contract.

May the jury lawfully infer a promise to pay for the improvements in money out of the personal estate of the deceased % It is clear, from the evidence, that the erection of the buildings was not a voluntary service, nor a service rendered relying upon the generosity of the intestate to make compensation. The son expressly refused to proceed with the buildings till he had his father’s promise that the farm should be his. The case, therefore, does not fall within the familiar principle, that no promise can be implied to pay for gratuitous services or services rendered in expectation of a legacy. Grandin v. Reading, 2 Stock. 370 ; Johnson v. Hubbell, 2 Stock. 332 ; Jacobson v. Ex'rs of Le Grange, 3 Johns. R. 199; Martin v. Wright, 13 Wend. 460; Little v. Dawson, 4 Dall. 111.

I But will the law raise an implied promise to pay money when there was an express promise to pay in land ? The answer is, that the promise to pay in land was void, and therefore no 'promise If the plaintiff had erected the' buildings upon the intestate’s land at his request, the law would have implied a promise to pay for them. The plaintiff is in no worse situation because the defendant made an express promise to pay for the services in a particular mode, which promise is itself a nullity. The true principle, says Mr. Chief Just. Nelson, is this: “The contract being void and incapable of enforcement in a court of law, the party paying the money or rendering the ser*217vices in pursuance thereof may treat it as a nullity, and recover the money or the value of the services rendered under the common counts. This is the universal rule in cases where the contract is void for any cause not illegal, if the defendant be in default.” King v. Brown, 2 Hill 486.

The principle seems to be perfectly well settled, and is sustained by very numerous authorities, that where a party to an agreement void by the statute of frauds fails to execute it, the price advanced, or the value of the article delivered in part performance of the contract, whether in money, labor, or chattels, may be recovered back, Mavor v. Pyne, 3 Bing. 285; Gray v. Hill, Ryan & Moody 42; Gillet v. Maynard, 5 Johns. Rep. 85 and eases cited in note a ; Shute v. Dorr, 5 Wend. 204; Lockwood v. Barnes, 3 Hill 128; Abbott v. Draper, 4 Denio 51.

In all such cases the law raises, by implication, a promise to repay advances made upon the faith of the contract, and for which no consideration has been paid. If, as a consideration for the improvement, the intestate had agreed to devise to the plaintiff a different tract of land from that upon which the improvement was made the case would be clear of difficulty. But as the improvement is made upon the farm agreed to be devised, it may be urged that the improvement was made not for the benefit of the intestate, but for the plaintiff’s own benefit, inasmuch' as ho resided upon the farm during his life, and expected to receive it after his death.

It is true that where the vendee in possession under a parol agreement for the purchase of land makes improvements upon the premises, he cannot recover the value of such improvements in an action at law upon the refusal of the vendor to fulfil the contract. Gillet v. Maynard, 5 Johns. Rep. 85; Shreve v. Grimes, 4 Littell's Rep. 224.

The improvements in such case are not made at the instance or request of the vendee, nor for his benefit, but for the benefit of the party making them. The law, there*218foie, will imply no promise by tbe vendee to pay for them. But this case does not fall within that principié. The plaintiff was not in possession under a contract for the land, but as tenant from year to year paying rent. The improvements enured to the benefit of the intestate. -He might, upon the completion of the 'improvements, have turned the plaintiff out of possession, or demanded and received an increased rent for the premises during his life. He was instrumental in having the improvements made. The plaintiff refused to make them until he had his father’s promise that the land should eventually be his. The improvements were not only made by the procurement of the intestate, and for his use, but his estate has actually received the increased value of the improvements made by the money and the labor of the plaintiff. There seems no good reason, either in law or equity, why the jpry may not infer a promise to pay for them. If it be objected that the evidence in the cause admits of a different interpretation, and that the terms of the contract were different from those above stated, the answer is, that what is really proved by the evidence was a question of fact, and should have been submitted to the jury.

3. The legal rights of the plaintiff under the contract were in nowise affected by the agreement entered into among the heirs, after the death of John S. Smith, for the settlement of the intestate’s estate. It was expressly stipulated that nothing in the agreement should bar or release any claim which either of the heirs might have against the estate.

4. Neither the vesting of the title to the land upon whieh the buildings were erected in the plaintiff, as one of the heirs at law of the intestate, nor the assignment of a portion of the farm upon which the buildings were erected to the plaintiff under the agreement among the heirs, can be regarded as a performance of the intestate’s contract with the plaintiff. The plain sense of the agreement was, that the plaintiff should be paid for his im*219provoments; that their value should be added to his portion of the estate ; that he should have the farm and the buildings. The agreement among the heirs contemplates an equal division of the intestate’s estate among all the heirs, allowing the plaintiff no compensation whatever for his improvements more than he would have received as an heir at law had the improvements been made by him gratuitously and exclusively for his father’s benefit. An allowance, it is true, might have been made in the division of the estate by the commissioners, with the assent of the heirs, to the plaintiff for his improvements. But it is not contemplated in the agreement, and whether made or not, would be a question of fact for the jury.

The verdict should be set aside ; and a new trial granted and the Circuit Court should bo advised accordingly.

Cited in Updike v. Ten Breock, 3 Vr. 115, 117 ; Freeman v. Headley, 3 Vr. 231 ; Freeman v. Headley, 4 Vr. 538.