SMALL VS. OWINGS. 369

ment." And it is clear, upon the authorities which have been
cited, that if the bill does not contain such allegation, the evi-
dence is inadmissible, and must be excluded.

Upon examining the bill in this case, it will be found to be
destitute of any averment of part performance of the agree-
ment, the specific execution of which, it seeks to have enforced.
There is no allegation in it, or in either of the exhibits filed
with it, of payment of any part of the purchase money, or of the
delivery of possession, or of any other act which can by possi-
bility be regarded as a part performance of the contract. The
act of part performance, it is to be remembered, "must not be
merely introductory, or ancillary to the agreement, but a part
execution of the substance of the agreement, and which would
not have been done, unless on account of the agreement; an
act unequivocally referring to, and resulting from the agree-
ment, and such as the party would suffer an injury from,
amounting to fraud by the refusal to execute the agreement."
And unless an act, or acts of this kind, are charged in the bill,
and proved or admitted, the court will not decree a specific
execution of the agreement.

The bill simply alleges, that the complainants purchased of
the defendant, 0 wings, through her agent, Alexander Turn-
bull, about six acres of ground, including the piece first pur-
chased, and which six acres are described in a plat filed with
the bill; but it does not allege, that one dollar of the purchase
money was paid to the vendor, or that they, the vendees, were
placed in, or took possession of, or made improvements, or ex-
pended money on the property, or did, or suffered any act,
whatever, which could by any possibility be injurious to them,
in case the contract remains unexecuted. The ground upon
which the court proceeds, in decreeing the specific performance
of a parol agreement in relation to lands, notwithstanding the
statute of frauds is, that in the case of a clear part performance
of such an agreement by one party, it would be a fraud in the
other to refuse to perform the agreement on his part. It would
be perverting the statute from a shield against, into an instru-
ment of fraud. Hamilton vs. Jones, 3 G. & J., 127; Mary-