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Burns v. McCormick

Citation. 233 N.Y. 230, 135 N.E. 273 (1922)
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Brief Fact Summary.

A man orally promised a couple they could have his property upon his death if they took care of him.

Synopsis of Rule of Law.

Acts of part performance will not make an oral agreement affecting the rights in land enforceable unless the part performance was unequivocally referable to the alleged contract.


James Halsey (Halsey) was old man living alone. He told a couple (Plaintiffs) that if they gave up their home and business, lived with him, and cared for him during his life, the house and other property would be theirs when he died. They did as he asked, and he died five months after they moved in. No writing exists to authenticate this promise. Plaintiffs requested specific performance, and the estate defended with the statute of frauds.


Will an act of part performance be sufficient to enforce an oral agreement affecting rights in land?


Not every act of part performance will move an equity court to enforce an oral agreement affecting rights in land. The part performance must be unequivocally referable to the alleged contract.
When Plaintiffs lived with Halsey, they admit to not occupying the land as owners or under claim of present right. They did not have possession. They lived with him as guest, and he could have asked them to leave at any time. Their rights were executory and in the future. Their title, then, cannot be found in possession or dominion. Plaintiffs’ care of Halsey might have stemmed from the hope that their service would ensure an indefinite reward sometime in the future. This is especially true since one of them was distantly related to Halsey.
The acts of part performance are not solely and unequivocally referable to a contract for the sale of land, even though Plaintiffs did lose some money in moving in with Halsey. Plaintiffs may be able to recover for the value of the board and services, but this loss still does not dispense with the requirement that there was no act of promise.


When a person seeks to enforce an oral promise, he must show that his part performance was in response to the contract and not based on another aspect of his relationship to the party.

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