Flinn v. Manning

It is claimed by the plaintiff that Judge Elinn never actually gave the: property to the defendant, though he permitted defendant and wife to occupy it. -It is- also claimed that, as Manning was in possession when tiiia verbal transfer of the property, in 1865, is said to have been made, the statute of frauds is a complete bar to a recovery, within the principle of the cases of Armstrong v. Kattenhorn, 11 O. R. 265; Crawford v. Wick, 18 O. S. 190.

*112By the statute of frauds a parol contract for an interest in real estate can not be enforced. But where there has been a part performance by a change of possession, in pursuance of such parol contract, a court of equity will interfere and enforce the performance of the contract, to prevent what would be a fraud in the party who seeks to escape such a contract.

The principle of the cases cited, viz: Armstrong v. Kattenhorn, Crawford v. Wick, is that where the party who makes a parol contract for land is already in possession, the rule can not apply, and the statute of frauds operates to prevent the enforcement of the contract.

As Manning was in possession of an undivided half of this property, by the sufferance of Flinn, in 1865, when it is claimed that Manning, by a parol contract with Flinn, acquired title to that half, we think that the principle of the case of Armstrong v. Kattenhorn applies, and that this defense is valid as to that undivided half which the defendant claims to have acquired in 1865 by a parol contract.

The evidence satisfies us that Flinn and Manning were teuants in common in equity, however the title may stand on the record. From the evidence befoi'e us, as well as the uncontradicted statements contained in the elaborate briefs, we are satisfied that the plaintiff'is entitled to a decree fin-an undivided half of the property, and that the defendant should be quieted in his title to the other undivided half; and that the costs of the suit and cross-suit should be paid equally by both.