Neale v. Neales

Messrs. Davidge and P. Phillips, for the father, appellant in the case, contended–– 1. That after publication had passed, and the case had been set down for hearing, the bill could not be amended in any other respect than by making new parties. That here the original bill alleged that possession was given to both husband and wife, and accepted by both, and the house erected by the husband with moneys which had been reduced into possession by him; that the whole scheme of it was for the recovery of property in which a married woman might have an interest subject to the marital rights of her husband, whereas the amended bill set up a claim adverse to said marital rights; that this changed the framework of the bill, and made a new case. 2. That to take a case out of the statute of frauds upon the ground of part performance, it was indispensable, not only to show that there was some contract, but to show a contract, clear, definite, and unequivocal in all its terms; that here the terms, as set out in the original bill, were to give and convey, in consideration of the marriage of the complainants, to both of them, or one or the other of them, one or part of one of the lots whereof defendant was seized, to the end that with money then belonging or expected to belong to the oratrix, they might erect thereon a dwelling-house for their habitation and home. How could such a contract be specifically performed? Here were three distinct and inconsistent contracts averred in the bill, and each alleged to have been made in reference to real estate, but to what real estate was left wholly uncertain by the contract. If the contracts were to be regarded as in the alternative, which was not alleged, to which of the three parties belonged the election as to how it should be executed, and when was that election to be exercised?1 That, independently of all other things, as a repayment of whatever money of the wife had passed into the lot, would make a her whole, the case, if a case for anything, was one for damages, and not for specific performance.