POLAND v. O'Connor.

ant's denials, and that the acts of part performance took the case out of the statute. He cited Willard's Eq. Juris. 283, 285, 287; 2 Story's Eq. Juris. §§ 759–764; Fry on Spec. Perf. 47; Phillips v. Berger, 2 Barb. S. C. 608; Plype v. Wardell, 3 Edward's Ch. 47; Stuyvesant v. The Mayor of New York, 11 Paige, 414: Neville v. Gillespie, 1 How. (Miss.) 108.

J. M. Woolworth and E. Wakely for the appellee.

I. The contract is not proven. On the preliminary question of Clarke's agency, on which depends the contract, the proof is contradictory, while many circumstances tend to disprove the claim of the plaintiff, on that point.Fry on Spec. Perf. 266-8; 2 Story's Eq. Juris. §§ 764– 766-769; Willard's Eq. Juris. 286; Colson v. Thompson, 2 Whea. 336.

II. Neither the payment to Clarke of the $25, nor the plaintiff's possession such as it was, were sufficient to take the case out of the statute.-Fry on Spec. Perf. 260, 251; 2 Story's Eq. Juris. § 759; Clynan v. Cooke, 1 Sch. & L. 22; Watt v. Evans, 4 Young, &c. Ex. 579; Main v. Melbourn, 4 Vesey, 720; Jackson v. Cutright, 5 Munf. 308; McMurtrie v. Bennett, Harring. Ch. (Mich.) 124; Johnston v. Glancy, 4 Blackf. 94; Sites v. Killer, 6 Ham. (Ohio)

483.

CROUNSE, J.

The bill was rightly dismissed.

The statute has said, that no person shall be charged with the execution of an agreement relating to the sale of land who has not personally, or by his agent signed a written agreement.-§ 62, page 292, R. S. And when done by an agent, that the authority of such agent must

POLAND v. O'Connor.

also be in writing.-§ 84, page 297. The record shows no such case as should relieve the complainant from the operation of the statute.

1. The existence of a contract clear, definite and unequivocal in its terms should have been admitted by the answer, or satisfactorily established by competent proof.— Story's Eq, Jus. § 764. Here, however, the very authority of the agent, who assumed to sell the property, is explicitly denied by the answer. To establish it we have but the unsupported testimony of the real estate agent himself, whose interest, next to that of securing his fee, seems to have been to serve the purchaser rather than the vendor; to combine with the former in tying up and hurrying the transfer of the property from one to the other. Opposed to this is the testimony of the respondent in direct contradiction-affording a striking exhibition of the evils against which the statute was designed to provide. One of the most important objects of the statute was, to prevent the introduction of loose and indeterminate proofs of what ought to be established by solemn written contracts.Storey's Eq. Jus. 764.

2. Not regarding the contract as established, has there been such a part performance of it as entitles the complainant to the relief sought? The payment of the twenty-five dollars does not effect it.-Clynan v. Cooke, 1 Sch. & Lefr. 40; Story's Eq. Jus. 760; 2 Pars. on Con. 552. Neither is there such unequivocal and satisfactory evidence of possession given and entered upon, or of any acts clear, certain and definite in their object, and having reference to the contract made, as is required. Under the contract relied on, a deed was to be given in ten days. At the expiration of this time, Poland was advised that O'Connor disavowed the agreement of Clarke, and of his refusal to make a deed. What Poland may have done subsequently to that time therefore, was without warrant, and defiantly.

POLAND. O'CONNOR.

The proofs leave it quite uncertain as to what acts of possession, if any, transpired under the agreement during that time. From the testimony of Poland it appears that the vacant lot in question, adjoining the warehouse of himself and partner, Patrick, was used subsequently to the time of agreement for storing lumber, wagons and like articles of himself, the firm and others held on commission. It is quite probable that not only during the ten days, but both prior and subsequent thereto, such use would be made of an unoccupied lot adjoining a warehouse. This is far short, however, of that improvement, that open, visible and unequivocal possession under the contract, necsssary to take the case out of the statute.-Fry. Sp. Per. § 403, p. 237.

As to the purchase of the house to put upon the lot: it may be remarked that the defendant is not to be bound by every possible act of the complaining party done with reference to the contract. He should be affected by those only to which he has been induced by positive action or permission, of the vendor; or, at most, by those results which naturally flow from the agreement. He certainly should not be concluded by the folly of the vendee.

Here, possession was not an expressed part of the agreement. It does not appear that the purchase of this lot was for the purpose of erecting or building thereon; much less with the design of moving one already constructed thereon. The building, in fact, never was moved on the premises. It is not shown to be lost or depreciated in value. No damage of any character appears to have resulted from its purchase. Still, had the investment proved an entire loss, the complainant's conduct has not been such as to challenge the consideration of a court of equity. To purchase a valuable lot through a real estate agent who can show no authority, with the owner of the property living on the next block; to pay

POLAND v. O'Connor.

but the amount of the agent's fee as earnest; and in the next hour to purchase a building ready constructed to place thereon, without consent of or conference with the vendor, is an attempt at sharpness or an exhibition of folly which courts do not favor.

The decree of the court below is affirmed.

Decree affirmed.

SMILEY V. SAMPSON.

Smiley v. Sampson.

1. JURISDICTION. The power to hear and determine a matter in controversy, is jurisdiction. It is coram judice, whenever a case is presented which brings the power into action. It may be exercised according to the rules of the common law, or by special direction, or informally.

2.

8.

-: Of land officers. The register and receivers of the local land office and their superiors in the land department, form a special tribunal for some purposes and to a certain extent.

-:

They have jurisdiction to determine questions of settlement and improvement, between different preëmption claimants, which are questions of fact; and their decision thereon is conclusive upon the parties and the courts.

:

They have not jurisdiction to determine conclusively questions arising between one settler and the government, which are generally questions of law. On these questions the courts are not concluded by their decisions.

5.

-:

Their decision on an application to preëmpt, when made exparte without the presence of the party interested adversely to the applicant, is not conclusive.-Lindsey v. Hawes, 2 Black. 554, examined and distinguished.

6. FILING TWO DECLARATORY STATEMENTS. The act of Sept. 4, 1841, requires the filing of a declaratory statement of intention to preëmpt a tract of land, only when the tract claimed is subject to private entry.

7.

The act of March 3d, 1843, prohibits a second filing, only under the act of '41; i. e., only on lands subject to private entry.

8. STATUTORY CONSTRUCTION. General words of a statute will be restrained when they clearly were not intended to include a particular act or thing.

9.

-: The mischief. Where a matter is clearly out of the mischief intended to be guarded against, and thus is out of the spirit, although it be within the letter of the act, it is the duty of the court in construing the act, to limit the effect of the terms employed.

10. LAND IS NOT WITHDRAWN, from preëmption by the circumstance that a company has endeavored to build a town thereon, after the enterprise has been abandoned.