When the Statute of Frauds requires that a contract shall be evidenced in writing, that will be a fourth requisite to the specific exe. cution of it. In such case tbe contract must be in writing awl certain in its terms; but it will not matter in what form the instrument may be, for it will be enforced even if it ap pear only in the consideration of a bond se cured by a, penalty. 6 Gray, Mass. 25 ; 2 Story, Eq. Jur. 751.
6. In applying the equity of specific per formance to real estate, there are some modi fications of legal rules, which at first sight appear inconsistent with them and repug nant to the maxim that equity follows the law. The modifications here referred to are those of enforcing parol contracts relating to land, on tbe ground that they have been already performed in part; of allotting time to make out a title beyond the day which the oontract specifies ; and of allowing a conveyance with compensation for defects. Adams, Ecy. 85.
7. The principle upon which it is held that part-performance of a oontract will in equity take a case out of the operation of the Statute ot Frauds, is that it would be a fraud upon the opposite party if the agreement were not carried into complete execution. 11 Cal. 28 ; 30 Barb. N. Y. 633 ; 24 Ga. 402 ; 28 Mo. 134 ; 40 Me. 94. What will be a sufficient part-performance must depend on circumstances. The taking possession of the land and making improvements thereon will answer, 10 Cal. 156 ; 8 Mich. 463 ; 6 Iowa, 279; 30 Vt. 516; 5 R. I. 149; 33 N. II. 32 ; 4 Wisc. 79 ; though the payment of a part or even the whole of the purchase-money will not. 14 Tex. 373 ; 22 643 ; 4 Kent, Comm. 451. See 8 Wisc. 249 ; 1 Dev. Eq. No. C. 180, 341, 398. If the purchaser have
entered and made improvements upon the land, and the vendor protect himself from a specific performance by taking advantage of the statute, the plaintiff shall be entitled to a decree for the value of' his improvements. 14 Tex. 331 ; 1 Dev. & B. Eq. No. C. 9 ; 1 Jones, Eq. No. C. 302, 339.
The dootrine of allowing time to make out 71 title beyond the day vrhich the contract specifies, and which is embodied in the maxim that time is not of the essence of a contract in equity, has no doubt been generally adopted in the United States. It certainly has in North Carolina. 1 Dev. & B. Eq. No. C. 237; 3 Jones, Eq. No. C. 84, 240. But to en title the purchaser to a specific performance he must show good faith and a reasonable diligence. 4 Ired. Eq. No. C. 386 ; 3 Jones, Eq. No. C. 321.
S. The third equity, to wit, that of al lowing a conveyance with compensation for defects, applies where a contract has been made for the sale of an estate, which cannot be literally performed in toto, either by rea son of an unexpected failure in the title to part of the estate, 34 Ala. N. s. 633 ; 1 Head, Tenn. 251 ; 6 Wisc. 127, of inaccuracy in the terms of tbe description, or of diminu tion in value by a liability to a charge upon it. In any such case, the court of equity will enforce a specific performance, allowing a just compensation for defects, whenever it can do so consistently with the principle of doing exact justice between the parties. Adams, Eq 89 et seq. This doctrine has also been adopted in the United States. See 2 Story, Eq. Jur. 794-800; 1 Ired. Eq. No. C. 299. See 20 N. Y. 412 ; 35 Penn. St. 381; 1 Head, Tenn. 251 ; 2 id. 221 ; 8 Rich. Eq. So. C. 241.