## Facts

- Winecellar Farm, Inc. operated a farm on land adjoining the Bedard Farm, owned by siblings Leo and Eva Bedard.
- Winecellar’s owners and the Bedards had a close relationship, and Winecellar expressed interest in buying the Bedard Farm if it were sold.
- In 2004, the parties signed a memorandum of understanding giving Winecellar the right to harvest hay from parts of the Bedard Farm annually in exchange for maintaining access ways (including snow removal); it stated the arrangement would continue “in perpetuity.”
- In 2006, the Bedards signed a letter of understanding leasing certain pastures to Winecellar for a buffalo operation and referring to an “opportunity to purchase” if the Bedards decided to sell.
- The Bedards died in 2006; their heirs succeeded to the property and sought to end or limit Winecellar’s use, including objecting to the buffalo operation.
- Winecellar sued seeking (i) specific performance of an alleged right to purchase the Bedard Farm, (ii) enforcement of the alleged purchase right under part performance despite the statute of frauds, and (iii) recognition of a perpetual haying right binding on successors.

## Issues

1. Whether the trial court abused its discretion by denying a decree pro confesso based on the heirs’ untimely answer.
2. Whether the parties’ writings and conduct created an enforceable contract to convey the Bedard Farm warranting specific performance, including under the part performance doctrine.
3. Whether the 2004 “in perpetuity” haying arrangement created an enforceable interest in land binding on successors, or instead was an unreasonable restraint on alienability.

## Decision

- The Supreme Court of New Hampshire affirmed.
- The trial court acted within its discretion in denying a decree pro confesso; a late answer did not require an automatic decree awarding specific performance.
- The evidence supported the finding that no definite contract to sell the Bedard Farm existed; the writings did not commit the owners to convey at defined price and terms.
- Part performance did not justify enforcing an alleged oral sale contract because Winecellar’s acts were consistent with tenancy or neighborly arrangements rather than unequivocal purchase performance.
- The purported “perpetual” haying right was not enforceable as a property interest running with the land against the heirs because treating it as perpetual would impose an unreasonable restraint on alienability.

## Legal Principles

- Entry of a decree pro confesso is discretionary; untimely pleading alone does not entitle a claimant to an automatic decree compelling conveyance of real property.
- Specific performance to compel a land sale requires a definite, enforceable agreement with sufficiently certain essential terms.
- Part performance may overcome the statute of frauds only upon clear and convincing evidence of an agreement to convey; performance that is ambiguous and consistent with a non-owner role is insufficient.
- A contractual clause granting land-use rights “in perpetuity” may be denied effect as a property interest binding successors when it operates as an unreasonable restraint on alienability.

## Conclusion

The court upheld the denial of default-style relief and specific performance because the record did not show a definite contract to sell the farm or unequivocal part performance, and it refused to recognize a “perpetual” haying clause as a transferable land interest because it would unreasonably burden the property’s alienability.


Winecellar Farm, Inc. v. Hibbard, 27 A.3d 777 (N.H. 2011)