The principle upon which it is held that part-performance of a contract will in eq uity take a case out of the operation of the statute of frauds, is that it would be a fraud upon the opposite party if the agreement were not carried into complete execution; Pom. Contr. 103 ; Hitchens v. Nougues, 11 Cal. 28; McCray v. McCray, 30 Barb. (N. Y.) 633; Watkins v. Watkins, 24 Ga. 402; Dickerson v. Chrisman, 28 Mo. 134; God frey v. Dwinell, 4() Me. 94. The act which is alleged to be part-performance must be done in pursuance of the contract and with the assent of the defendant. What will be a sufficient part-performance must depend on circumstances. The taking possession of the land and making improvements thereon will suffice ; Hodges v. Howard, 5 R. I. 149; School Dist. No. 3 v. Macloon, 4 Wis. 79 ; Barrett v. Forney, 82 Va. 269; Sprague v. Jessup, 48 Or. 211; though the payment of a part or even the whole of the purchase-mon ey will not; 4 Kent 451; Odell v. Montross, 68 N. Y. 499. See, however, Townsend v. Houston, 1 Harr. (Del.) 532, 27 Am. Dec. 732; Spear v. Orendorf, 26 Md. 37.
Equity will enforce a parol gift of land where there is possession and valuable im provements have been made thereon by the donee and the terms of the contract are clear and unequivocal; Logue v. Langan, 151 Fed. 455, 81 C. C. A. 271; and so where a railroad corporation contracts to maintain a spur track and depot at a place upon the lands given by the complainant for that pur pose, if the complainant, relying upon the promise, incurs great expense in improving his property; Taylor v.' R. Co., 54 Fla. 635, 45 South. 574, 16 L. R. A. (N. S.) 307, 127 Am. St. Rep. 155, 14 Ann. Cas. 472 ; but a parol agreement to devise real estate in considera tion of support will not be enforced in the absence of possession and improvements, al thourh the uromisee furnished the surmort to the other party, who cared for the parents of both of them; Grindling v. Rehyl, 149 Mich. 641, 113 N. W. 290, 15 L. R. A. (N. S.) 466. The mere finding that possession was taken, money expended, taxes paid and serv ices rendered to the promisor by the prom isee without a finding of the amount expend ed, or that the improvements were perma nent, or the consideration of the services, will not justify specific performance of a contract to convey real estate ; Price v. Lloyd, 31 Utah, 86, 86 Pac. 767, 8 L. R. A. (N. S.) 870.
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; Boze T. Davis' Adm'r, 14 Tex. 331. The doctrine of part performance is not recognized in some states ; Luckett v. Williamson, 37 Mo. 388; Jacobs v.
R. Co., 8 Cush. (Mass.) Box v. Stan ford, 13 Sm. & M. (Miss.) 93, 51 Am. Dec. 142.
Specific performance of a parol contract for the sale of lands will not be decreed, un less the terms of the contract clearly appear, and there is sufficient part performance to show that injustice would be done, if the contract was held inoperative ; Williams v. Morris, 95 U. S. 444, 24 L. Ed. 360.
The doctrine of allowing time to make out a title beyond the day which the contract specifies, and which is embodied in the max im that time is not of the essence of a con tract in equity, has no doubt been generally adopted in the United States; Falls v. Car penter, 21 N. C. 237, 28 Am. Dec. 592 ; Scar lett T. Hunter, 56 N. C. 84; Cooper v. Brown, 2 McLean 495, Fed. Cas. No. 3,T91; Snyder v. Spaulding, 57 Ill. 480. But to entitle the purchaser to a specific performance he must show good faith and a reasonable diligence; Washburn v. Washburn, 39 N. C. 306. If during the vendor's delay there has been a material change of circumstances affect ing the rights and interests of the parties, equity will not relieve; Tierman v. Roland, 15 Pa. 429. A bill to enforce a contract of a railroad company to locate a station on the land of complainant, more than sixteen years after the time of the agreement, during which time the company had built and main tained a station near the agreed' 'place, will be dismissed; Thurmond v. R. Co., 140 Fed. 697, 72 C. C. A. 191.
The third equity, to wit, that of allow ing a conveyance with compensation for de fects, applies where a contract has been made for the sale of au estate, which cannot be literally performed in toto, either by reason of an unexpected failure in the title to part of the estate; Bell v. Thompson, 34 Ala. 633; Collins v. Smith, 1 Head (Tenn.) 251; Wright v. Young, 6 Wis. 127, 70 Am. Dec.
453 ; of inaccuracy in the terms of the de scription, or of diminution in value by a lia bility to a charge upon it. In any such case, equity will enforce specific performance, al lowing a just compensation for defects, whenever it can clo so consistently with the principle of doing exact justice between the Parties; Adams, Eq. 89. This doctrine has also been adopted in the United States. See 2 Story, Eq. Jur. 794; Leigh v. Crimp, 36 N. C. Eq. 299; Swain v. Burnette, 76 Cal. 299, 18 Pac. 394. Although a vendor has agreed to sell more than he has, the vendee is entitled to take what he can give and to demand compensation for the remainder ; Melin v. Woolley, 103 Minn. 498, 115 N. W. 654, 946, 22 L. R. A. (N. S.) 595.