Thus, an agreement to cancel a written contract for the sale of land must be in writing to give it effect, because the contract for the sale gave an equitable interest, by the rules of equity, to one party, which interest, by the cancellation, is transferred back to the first party.80

The Statute extends to dower, rents and the assignments of leases.81 The interest in the land, however, must be a substantial interest, and not merely arrangements preliminary to the acquisition of interest, for example, the contract for an abstract of title.82 Such contracts require no writing.

Interesting questions arise in the determination of the necessity for writings for contracts referring to crops, trees, etc. Such products are divided into two classes. One is termed "fructus industriales" (products of cultivation), and the other is called "fructus naturales" (products of nature). The first class includes those crops, such as grain, corn, and wheat, which are produced by man to be severed. They are not considered as interests in land, but as personalty or chattels, and any contract relating to them need not be in writing because of the provisions of the fourth section of the Statute of Frauds. They may, however, fall under the provisions of the seventeenth section with reference to the sale of goods.83 The second class is interests in land, and includes

80 Hughes v. Moore, 7 Cranch 176 (U. S.); Browne, Statute of Frauds (5th ed.), § 229.

si Lenfers v. Henke, 73 Ill. 405; Brown v. Brown, 33 N. J. Eq. 650. 82 Heyn v. Philips, 37 Cal. 529.

83 Browne, Statute of Frauds (5th ed.), § 236; see subject, SALES; see

§ 92.

things such as trees and timber. These articles are planted for a permanent purpose and a contract for their sale must be in writing in order to satisfy the fourth section. But if the contract is to sever trees and to sell, they become chattels and the agreement need not be in writing.84

In general, there are four kinds of contracts concerning interests in land. First, there may be a contract merely to sell land. This agreement must be in writing.85 Second, the contract may be one to sever and sell. That is, A contracts with B to sever timber and to sell it to B. This is not in the fourth section, for the timber is then regarded as chattel property, and not as realty. Third, a contract giving the vendee possession to sever the timber would be in the Statute, for the vendee would acquire an interest in the land, namely, possession. Fourth, the contract may give a license to enter and cut, but not possession. This contract would not be in the Statute.87

86

In boundary line cases, the rules may be well illustrated. Suppose that the line between two adjoining pieces of property, called X and Y, is uncertain and that the parties orally agree to make the boundary a certain line. This contract is not in the Statute, for no interest in land is transferred. The boundary is merely ascertained and made definite. No one can say whether the owner of X receives a part of Y, or 84 See subjects, REAL PROPERTY, SALES.

85 Hirth v. Graham, 50 Ohio St. 57, LEADING ILLUSTRATIVE CASES; Lavery v. Purssell, 39 Ch. Div. 508 (Eng.).

86 Long v. White, 42 Ohio St. 59.

87 City of Berwyn v. Berglund, 99 N. E. 705 (Ill.), LEADING ILLUSTRATIVE CASES.

vice versa. 88 But suppose that the dividing line is definite, but the parties agree to make a creek instead of the former line as the boundary. This creek winds about the former line. Such a contract must be in writing, for it transfers interests in land. In some places the owner of X would acquire what had belonged to the owner of Y, and the owner of Y would acquire land that had belonged under the old boundary arrangement to the owner of X.89

89. Same subject-Clause (5)—Agreement not to be performed within the space of one year from the making thereof.-A contract does not fall under this section of the Statute unless it cannot possibly be performed within a year. The fact that it may not be performed is not enough to require the contract to be in writing, so long as it might be performed within a year. 90

In a railroad case," the company agreed orally to place and maintain as long as needed a switch opposite A's mill, if he would furnish the ties and grade the ground. The company failed to perform its agreement, and A sued on the contract. The Statute of Frauds was pleaded as a defense. The court held that the oral contract did not fall under the fifth clause of the section because the contract could be performed within a year. It is of no importance that the time is uncertain. But if the agreement had been by express terms to maintain the switch beyond one year, the statute would have applied.

88 Cavanaugh v. Jackson, 91 Cal. 580.

89 Nathan v. Diersson, 134 Cal. 282.

90 Anson, Contracts (Huffcut's 2d ed.), § 100. 91 Warner v. Texas, etc., Ry., 164 U. S. 418.

If the contract depends on a contingency, the question which arises is when can that contingency happen. Thus, where A agrees to maintain a child during life, the oral contract is not within the statute, for the child may die within a year, and the contract would thereby have been performed."2 Similarly, a promise by A not to go into a certain business for five years is not in the Statute because A may die within a year. Thereby, the terms of the oral agreement would be fulfilled within the year.93 where A orally engages the services of B for three years, although B may die within a year, yet the contract is not performed. A would not have the services of B for three years. Hence, such a contract cannot be performed within a year. It must, therefore, be in writing. Likewise, mutual promises to marry, if not to be performed within a year, must be in writing. 94

But

90. Executed contracts-Part performance.—If an oral contract has been completely executed on both sides, the rights, duties and obligations of the parties resulting from such performance stand unaffected by the Statute.95 It is the executory contract which falls within the Statute of Frauds, never the executed contract.90

96

If a contract has not been completely executed on both sides, but only one side has performed, either in

92 Souch v. Strawbridge, 2 C. B. 808 (Eng.); Carr v. McCarthy, 70 Mich. 258.

93 Doyle v. Dixon, 97 Mass. 208.

94 Ullman v. Meyer, 10 Fed. 241; Browne, Statute of Frauds (5th ed.), § 272.

95 Bibb v. Allen, 149 U. S. 481; Stone v. Dennison, 13 Pick. 1 (Mass.). 96 Browne, Statute of Frauds (5th ed.), § 116.

But if

whole or in part, the contract falls within the requirements of the Statute if the action is at law. the Statute is concerned in an oral contract in a proceeding in equity, a different rule is sometimes followed. Generally, that rule is applied only to oral land contracts. For instance, if, in reliance upon an oral contract to sell him a tract of land, A builds a house on the land and pays B the purchase price, a court of equity would not permit B to set up the Statute of Frauds as a defense, but would compel B to deed the land to A.97 But not every part performance will take a contract out of the Statute even in equity. For further discussion of the rights in equity, the reader will consult the article on Equity.98

If there has been part performance, and the other side refuses to perform, the party who has partly performed has an action in quasi-contract to recover for the services he may have rendered, the materials furnished, or the purchase price paid, as the case may be.99

Should A, however, who has paid the purchase price under an oral contract, attempt to recover the same, when B is willing to perform, the Statute will not enter into the question, and A cannot recover. In short, as B in such a case would be the party to be charged, A having performed, the Statute would not apply, for it is only the party who is to be charged who may set up the Statute of Frauds as a defense.

97 Leavitt v. Stern, 159 Ill. 526; Browne, Statute of Frauds (5th ed.), § 447.

98 See Glass v. Hulbert, 102 Mass. 24; Anderson v. Manners, 243 Ill. 405. 99 See subject, QUASI-CONTRACTS; Richards v. Allen, 17 Me. 296.