The court, however, do not deem it necessary to determine this cause upon the principles of the common law, as applicable to our circumstances and state of society; as we are of opinion, that at the time when the exchange relied on in this case took place, there were statutory provisions in force, regulating the conveyance of real estate.

The ordinance for the government of the territory of the United States, north west of the river Ohio, passed July 13, 1787, after providing that the governor and judges shall adopt such laws of the original states as they may deem best suited to the circumstances of the district, subject to the approval of Congress, provides, "that until the governor and judges shall adopt laws, real estates may be conveyed by lease and release or bargain and sale, signed, sealed and deliv ered by the person, being of full age, in whom the estate may lie, and attested by two witnesses."

The ordinance provides for the conveyance of real estates, and points out the manner in which such conveyances may be made by deed duly executed, thereby clearly excluding all parol conveyances of land, under whatever cir. cumstances they may be made, or with whatever solemnities attended—expressio unius est exclusio alterius. It evidently was not the intention of Congress merely to legalize those modes of conveyance which are mentioned in the ordinance, leaving it at the option of owners of real estate within the territory, upon the sale of their lands, to convey the same either by the ancient common law mode of feoffiment, with livery of seizin, or by deed duly executed; but to provide that every conventional transfer of real estate by vendor to vendee, should be evidenced only by deed. And this opinion is strengthened by the provision of the ordinance that "personal property may be transferred by deliv. ery," and by the clause saving to the French and Canadian inhabitants in certain parts of the territory, "their laws and customs now in force among them, relative to the descent and conveyance of property."

The governor and judges, in 1795, executed the powers vested in them by the ordinance, and adopted a law directing the manner of executing, proving and acknowledging deeds, as well as providing for recording them. In 1802 the territorial legislature made further provisions upon this subject, and gave effect to deeds for lands in the territory where such deeds were made out of the state, but executed and proved or acknowledged in the manner prescribed by the laws of the state where made, and recorded in the county where the land lies.

The provisions of these laws are substantially enacted in the act of 1805, which provides for the whole subject of executing, acknowledging, proving and recording deeds, and directs, among other things, that the deed shall be recorded in the county where the land lies.

None of these acts provide, in express terms, that land shall only be conveyed by deed; but they are all evidently framed on the hypothesis that real estate cannot be transferred by parol. The latter act contains many provisions which can be neither literally nor substantially complied with, if a parol conveyance be effectual in law to vest a legal estate. Such (for example) is the provision that conveyances, whereby any lands, tenements or hereditaments shall be affected in law or in any manner incumbered, shall be recorded. It is claimed that the exchange proved in this case, accompanied as it was with possession,

amounts to a conveyance of the estate in the lands exchanged; and if it can have any legal effect, it must be as a conveyance of the estate, and, as such, must, by the positive enactment of the statute, be recorded. Yet it is, in its very nature, incapable of being recorded.

The care of the legislature, in providing in each county an officer for the recording of deeds of real estate, in providing for the formal execution of such deeds, and in requiring them to be acknowledged before some judicial officer, is idle and vain, if a mere parol conveyance, necessarily unaccompanied with these formalities, will vest in the purchaser a valid legal estate.

Admitting, then, as contended for by the defendant, that that part of the ordinance which points out the mode of conveying real estate, had ceased to be effectual by the act of the governor and judges of 1795, made in pari materia, being a substantial compliance with the provision which limits its duration to the time of the governor and judges' adopting of laws,-yet its provisions are substantially re-enacted in the act of 1805, which was in force when this exchange of lands was made. The ordinance was the first of a series of legis!ative acts respecting the transfer of real estate, and its provisions, with little variation, have been incorporated into all subsequent statutes. We are satisfied that, upon a fair construction of the legislative acts in force at the time the parol exchange, relied upon by the defendant, was made, no conveyance would pass a valid legal title to real estate, except such conveyance were by deed. If the defendant acquired any interest in the land in dispute, by the exchange with Wilkins, it is an equitable and not a legal interest, and his right must be asserted in a different manner and before another tribunal. It cannot avail him as a defence in the action of ejectment, when the legal title to the land in controversy is in the lessor of the plaintiff.

The motion for a new trial must be overruled.

WILBER v. PAINE.

JUDGES HITCHCOCK AND BURNET.

1824.

A party in possession of land under a parol contract may maintain trespass against the owner. Possession given under a parol contract for leasing lands, and performance by the lessee takes the case out of the statute of frauds.

The facts were these. The defendant in error made a parol contract with one E. Shearer, that he (Shearer) should clear and fence a certain lot of ground, in consideration of which, he should be permitted to raise on the premises, a crop of corn. Shearer, in pursuance of the contract, took possession of the lot, cleared and fenced it, and raised his crop; but before it was gathered, he sold it to the plaintiff, Wilber, for a valuable consideration, and authorised him to gather and remove it. Notice of this sale was given to Paine, who afterwards went on the premises, gathered the corn, removed it, and converted it to his own use, for which this act of trespass was brought.

The declaration contains two counts. The first is laid with a quare clausum

fregit. The second with an exportavit only. Plea not Guilty-The court of Common Pleas (the President dissenting) decided, that the case was within the statute of frauds and perjuries, and gave judgment against the plaintiff below, to reverse which this writ of error was brought.

Douglass, for the plaintiff in error. Brush, for the defendant.
By the COURT.

The objection to the form of the action cannot be maintained. The nature and object of the contract required, that Shearer should be put into possession of the lot, which appears clearly to have been the fact. The sale by Shearer to Wilber, transferred all his right in the crop, and if the contract had contained no stipulation in relation to the possession, it would nevertheless have transferred that right, as far as was necessary to protect, gather, and remove the crop; which could not have been done without an entry on the premises. The sale of a growing crop, without the right of entering on the premises, upon which it is growing, would be of no avail. The contract would be a perfect nullity. As Shearer's right of possession, by the terms of his contract with Paine, was to terminate when the crop was removed, and as the crop, with the right of removing it, was sold to Wilber, there can be no doubt as to the real intention of the parties. The possession passed with the crop. Shearer had no right or interest remaining, and Paine, by entering and removing the corn, was a trespasser. As between the parties to this suit, there was no contract. Wilber was not privy to the agreement with Paine. He entered by virtue of a right derived from Shearer, and his proper remedy was trespass. We do not consider it necessary however to maintain this action, that the plaintiff should have the full and exclusive possession of the premises. A possessory right under an agreement is sufficient. The grantee vestura terræ or herbagii terræ, may maintain trespass quare clausum fregit though he have not the soil, Co. Lit. 4 b. an exclusive right of digging turf, is a sufficient interest in the soil, to maintain trespass. 3 Burr. 1824. So he who has the exclusive right to the herbage or pasture of a close, may maintain trespass against the owner, or a stranger. Moore 355; 5 Term Rep. 329. So the person entitled to the exclusive enjoyment of a crop growing on land, may maintain trespass against the owner of the land, although the agreement only authorises the cutting and carrying of it away. 6 East 602. But in this case Shearer had the entire and exclusive possession of the lot, delivered to him under his contract with Paine, and Wilber, by his agreement with Shearer, succeeded to that possession. Paine, therefore, had no right to enter, till the expiration of the term, which was to continue till the crop was gathered and removed.

But the defendant principally relies on the fifth section of the act for the prevention of frauds and perjuries, which is in these words: "that no action shall be brought, whereby to charge the defendant on any contract, for the sale of lands, tenements, or hereditaments, or any interest in, or concerning of them unless the agreement, upon which such action shall be brought, or some memorandum, or note thereof, shall be in writing, signed by the party to be charged therewith, or some other person, thereunto, by him or her lawfully authorised.” As the contract which gave rise to this action, and on which the plaintiff claims

the right to sustain it, is for an interest in land, it comes within the operation of the statute; and if either party had wholly refused to execute it, neither could have sustained a bill for a specific performance; but this court has repeatedly decided that part performance may take a case out of the statute, and although the policy of such exceptions has been questioned, we are induced to believe, that, if they be admitted with caution, they have a salutary tendency; and that they are sometimes necessary to prevent the statute from confirming and legalizing the frauds it was intended to suppress. No case has been decided in this court, from which any general rule can be inferred, as to the description of part performance, that will take an agreement out of the statute. It has been settled in England, that payment of money alone will not do it, because by the repayment of principal and interest, the parties may be placed in statu quo; and because their statute has said, in relation to goods, that payment of money shall prevent its operation. This provision, existing in the statute, and being confined to one class of cases, they infer the intention of parliament that it should not extend to any other. In the construction of our statute, this distinction cannot arise, because it does not exist. The statute does not contain any provision by which payment of money, in any case, shall prevent its operation. It is not necessary, however, to express an opinion on this point, as it is not presented by the case before us. The circumstance relied on by the plaintiff in error, is, that he was put in possession of the lot, and that he has performed the contract fully on his part. In the case of Clinan v. Cooke, Lord Reddesdale lays it down as a rule, that nothing should be considered as a part performance, that does not put the party in such a situation as that it would be a fraud on him not to perform the agreement, and cites a case similar to the one before us, to illustrate his meaning, and show the propriety of the rule. In Foxcraft v. Leister, (2 Vern. 436,) it was said, that the party who had been let into possession, ought not to be liable as a wrong doer, because he entered in pursuance of an agreement-that for the purpose of defending himself against a charge that might be brought against him, parol evidence was admissible, and if admissible for one purpose, there was no reason why it should not be admissible throughout.

In the Earl of Aylesford's case, 2 Stra. 673, there was a parol agreement for a lease of twenty-one years. The lessee had entered and enjoyed for a part of the term; and then the Earl brought a bill to oblige him to execute a lease for the residue of the term. The lessee pleaded the statute, which was overruled, because the agreement had in part been carried into execution.

The cases cited from 1 L. Ray. 11 East. 1 Bos. and Pul. and 3 Day, might be in point in a case between Wilber and Shearer, but as between these parties, we do not see their application.

It has frequently been held, on the circuit, that the delivery of possession, on a parol agreement, was sufficient to take it out of the statute, and we see no reason to reverse the rule, or to reject the principle on which it is founded.— When the existence of a contract, is evidenced by a change of possession, which must result from the joint act of the parties, the mischief intended to be reme died by the Statute, is scarcely to be apprehended. The fact, as far as it goes, is as satisfactory evidence of the existence of a contract, as a memorandum in writing could be, and it may be added, that under such circumstances, to enforce

the statute, and leave the party who has been put into possession, by virtue of an agreement, to be treated as a wrong doer, would not only be repugnant to justice, but would make the statute a shield and protection for injustice.

In giving a construction to any statute, the court must consider its policy, and give it such an interpretation, as may appear best calculated to advance its object by effectuating the design of the legislature. The great object of the stat ute in question, is clearly expressed in the title prefixed to it. It is for the prevention of frauds and perjuries. It is not therefore to be presumed that it was intended, in any instance, to encourage fraud, and we may infer, that any construction which would have a certain tendency to do so, would counteract the design of the legislature, by advancing the mischief intended to be prevented. Most of the decisions restricting the statute, 29 Charles 2d, and taking cases out of its operation that might be brought within it, by a literal construction of its terms, have been made on the same principle, as for example: although the statute requires that all contracts for the sale of lands, should be in writing, yet defendants in equity have been, and are permitted to introduce parol evidence, varying or discharging such contracts, or for the purpose of avoiding them for fraud, accident, or mistake, notwithstanding they are for the sale of land.

The reason commonly assigned, in support of these cases is, that the statute is intended for the benefit of the party to be charged, yet it is easy to perceive that the decisions may be ascribed to the license of construction before referred to, and that they depend on the same principle, that the contract, as it appears in writing, cannot be enforced, without a fraud on the defendant. In the case before us, we cannot forbear to enforce the contract, without sanctioning a fraud on the plaintiff. It is also the constant practice, to permit a complainant to vary his written contract, by parol, if he can make out a clear case of fraud, such an one as in the language of Lord Thurlow, "comes among the string of cases where it is considered a fraud upon the rule of law."

Such cases as these, and such as are founded on the fact of part perform. ance, shew it to be the impression of Courts in Great Britain, and in this country, that for the due administration of justice, it is necessary, by the use of a sound legal discretion, so to interpret statutes, as to advance the remedy and suppress the mischief.

On this principle, we have decided, that a parol lease of a farm, for one year, after the lessee had been put into possession, was valid, and that the tenant might defend his possession, against his landlord, as well as against a stranger. In the case now before us Shearer was not only put into possession, but was per mitted quietly to occupy till he made all the improvements that were agreed upon as a substitute for the rent, and until he had raised his crop and sold it to the plaintiff for a valuable consideration, then the defendant entered, and removed the crop, on the ground that his contract was void, and to protect himself in this act of fraud, he sets up the statute against fraud. We have no hesitation in saying that the defence attempted is against conscience, and that the facts in this case, take it out of the statute.

The judgment of the Court below, therefore, must be reversed.