the statute of frauds. Knauss v. Cahoon, 7 U. 182; 26 P. 295. The owner of certain real estate agreed to let a second party in on the deal for a loan of $200 and a further payment of $250, which condition the second party performed; held, that the contract was not within the statute of frauds. Coffin v. McIntosh, 9 U. 315; 34 P. 247. A parol partition of lands between co-heirs carried out and followed by actual possession in severalty of the several parcels, will be enforced, notwithstanding the statute of frauds, on the ground of part performance when the partition is equitable and the parties acted understandingly. Whittemore v. Cope, 11 U. 344; 40 P. 256.

For instances of trust arising by operation of law, see Haight v. Pearson, 11 U. 51; 39 P. 479. Rogers v. Donnellan, 11 U. 108; 39 P. 494. Chambers v. Emery, 13 Ú. 374; 45 P. 192. Property purchased by E., with money furnished by C., pursuant to a parol agreement between the two that such purchase should be a joint enterprise, but that the purchase should be in the name and through the agency of E.; held, to be a resulting trust and not affected by the statute of frauds; held further, that in such case he who furnished the money became the cestui que trust, and the holder of the legal title, the trustee, and that the trust may be proved by parol evidence, even after the death of the trustee. Chambers v. Emery, 13 U. 374; 45 P. 192. If the grantee, in consideration of a conveyance, promises to pay a mortgage on the land given by his grantor, he thereby makes the debt his own, and such promise is not within the statute

of frauds. Thompson v. Cheesman, C.; 48 P. 477. A contract by which an old woman in apparent good health agrees to leave all her property, worth about five thousand dollars, to a sixteenyear-old girl, in consideration of the latter's promise to live with and take care of her as long as she lives, is taken out of the statute of frauds by the rendition of the services during the lifetime of the woman, and is not void for want of mutuality and fairness; and after her death the contract will be specifically enforced in favor of the girl who performed her part of the agreement, though the woman died within three or four months after the execution of the contract. Brinton v. Van Cott, 8 U. 480; 33 P. 218.

The acceptance of rent payable monthly under a lease void under the statute of frauds converts the holding into a tenancy from month to month, and does not render the whole of the executory part of the lease valid. Utah Loan & Trust Co. v. Garbutt, 6 U. 342; 23 P. 758. Where one executor without authority from his co-executors, who were not under disability and not absent from the territory, made a lease in writing for more than one year, the lease was invalid under sections 2467, 2469, and 3910. C. L. 1888. Id. An oral agreement between a sub-tenant and the tenant, made subsequent to the written lease, and after the sub-tenant had taken possession of the property, is valid. Podlech v. Phelan, 13 U. 333; 44 P. 838.

Rights of lessee, parol lease of mine, Ruffatti v. Société des Mines, 10 U. 386; 37 P. 591.

2462. Prior section not to affect wills or implied trusts. The preceding section shall not be construed to affect the power of a testator in the disposition of his real estate by last will and testament; nor to prevent any trust from arising or being extinguished by implication or operation of law. [C. L. S$ 2832*, 3917*.

2463. Contracts affecting lands to be in writing. Exceptions. Every contract for the leasing for a longer period than one year, or for the sale of any lands or any interest in lands, shall be void unless the contract or some note or memorandum thereof is in writing and subscribed by the party by whom the lease or sale is to be made or by his lawful agent thereunto authorized in writing. [C. L. § 3918*.

2464. Fraudulent conveyances void. Every conveyance of any estate or interest in lands, or the rents or profits of lands, and every charge upon lands, or the rents or profits thereof, made or created with intent to defraud prior or subsequent purchasers thereof for a valuable consideration, shall be void as against such purchasers. [C. L. § 2833.

Penalty for fraudulent conveyances, ?? 4396, 4398.

2465. Id. Qualification. No such conveyance or charge shall be deemed fraudulent in favor of a subsequent purchaser who had actual or legal notice thereof at the time of his purchase, unless it appears that the grantee in such conveyance or person to be benefited by such charge was privy to the fraud intended.

Minn. (1894) 4205.

2466. Gifts for use of grantor, when void. All deeds, gifts, conveyances, transfers, or assignments, verbal or written, of goods, chattels, or things in action, made in trust for the use of the person making the same, shall be void as against the existing or subsequent creditors of such person. [C. L. § 2834*.

2467. Certain agreements void unless in writing. In the following cases every agreement shall be void, unless such agreement or some note or memorandum thereof be in writing and subscribed by the party to be charged

therewith:

1. Every agreement that by its terms is not to be performed within one year from the making thereof.

Every promise to answer for the debt, default, or miscarriage of another.
Every agreement, promise, or undertaking, made upon consideration of

marriage, except mutual promises to marry.

4. Every special promise made by an executor or administrator to answer damages or to pay the debts of the testator or intestate out of his own estate. [C. L. §§ 2835*, 3918*, 4219*.

The promise of the defendant for the payment of a subsisting debt of another comes within the statute of frauds; but if the effect of the contract of the defendant had been to discharge the original debt and he became the sole debtor, and there was

no debt of another to which his promise was collateral, then the contract would not have been within the statute. First Nat. Bank v. Kinner, 1 U. 100.

2468. Representation as to credit of others to be in writing. To charge a person upon a representation as to the credit of a third person, such representation or some memorandum thereof must be in writing subscribed by the party to be charged therewith. [C. L. § 3920*.

2469. Contracts for sale of goods, void when. Every contract for the sale of any goods, chattels, or things in action for the price of two hundred dollars, or over, shall be void:

1. Unless a note or memorandum of such contract be made in writing and subscribed by the parties to be charged therewith;

2. Or, unless the buyer shall accept and receive part of such goods, or the evidences, or some of them, of such things in action;

3. Or, unless the buyer shall at the time pay some part of the purchase money. [C. L. §§ 2836*; 3918*.

When the contract is executory for the sale of property to be made or manufactured, no property passes until it is finished and either delivered to

him, or set apart, and accepted by him. Robbins v. Chipman, i U. 335.

2470. Id. Sale at public auction. Whenever goods are sold at public auction, and the auctioneer, at the time of sale, enters in a sale book a memorandum specifying the nature and price of the property sold, the terms of the sale, name of the purchaser, and the name of the person on whose account the sale is made, such memorandum shall be deemed a note of the contract of sale within the meaning of the last section.

2471. When promise to answer for another need not be in writing. A promise to answer for the obligation of another, in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing:

1. Where the promise is made by one who has received property of another upon an undertaking to apply it pursuant to such promise; or by one who has received a discharge from an obligation in whole or in part in consideration of such promise.

2. Where the creditor parts with value, or enters into an obligation, in consideration of the obligation in respect to which the promise is made, in terms or under circumstances such as to render the party making the promise the principal debtor, and the person in whose behalf it is made, his surety.

3. Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor, or upon the consideration that the party receiving it releases the property of another from a levy, or his person from imprisonment under an execution on a judgment obtained from the antecedent obligation; or upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation, or from another person.

4. Where a factor undertakes, for a commission, to sell merchandise and guaranty the sale.

5.

When the holder of an instrument for the payment of money, upon which a third person is or may become liable to him, transfers it in payment of a precedent debt of his own, or for a new consideration, and in connection with such transfer enters into a promise respecting such instrument. [C. L. § 3919.

2472. Contracts by telegraph deemed to be in writing. Contracts made by telegraph shall be deemed to be contracts in writing; and all communications sent by telegraph and signed by the person or persons sending the same, or by his or their authority, shall be held and deemed to be communications in writing. [C. L. § 2303.

Telegraphic transactions, ?? 2697-2700.

2473. Sales without delivery deemed fraudulent. Every sale made by a vendor of goods or chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by a delivery within a reasonable time, and be followed by an actual and continued change of the possession of the things sold or assigned, shall be conclusive evidence of fraud as against the creditors of the vendor, or assignor, or subsequent purchasers in good faith. The word "creditors," as used in this section, shall be construed to include all persons who shall be creditors of the vendor, or assignor, at any time while such goods and chattels shall remain in his possession or under his control. [C. L. § 2837.

Delivery f. o. b. to a carrier not specially designated by the buyer is not delivery to and acceptance by the buyer. Hudson Fur. Co. v. Freed Fur. Co., 10 U. 31; 36 P. 132. Where a vendor delivered to plaintiffs in payment of a debt a quantity of wool, and afterwards, upon agreement with plaintiffs, employed a man who owed him, to haul the wool to the railroads, to be shipped in plaintiffs' name; held, prima facie evidence of sale, delivery, and continuance of possession; held also, that the change of possession upon sale of goods must be actual and not constructive or merely colorable, and must be

continuous-not merely a delivery and surrender back; held also, that after a sale and delivery, the vendee may appoint the vendor his trustee to hold them, or his agent or employee to hold or dispose of them. Everett v. Brigham, — U. —; 47 P. 75. What amounts to a delivery within a reasonable time and an actual and continued change of possession under section 2837, C. L. 1888, depends largely upon the kind and nature of the property, the situation of the parties, and the circumstances peculiar to each case. Blish v. McCornick, — U. —; 49 P. 529.

2474. Conveyances to hinder or defraud creditors void. Every conveyance or assignment in writing or otherwise of any estate or interest in lands, or in goods, or things in action, or of rents or profits issuing therefrom, and every charge upon lands, goods, or things in action, or upon the rents or profits thereof, made with the intent to delay, hinder, or defraud creditors or other persons of their lawful suits, damages, forfeitures, debts, or demands, and every bond or other evidence of debt given, suits commenced, decree or judgment suffered with the like intent, as against the person hindered, delayed, or defrauded, shall be void. [C. L. § 2838.

A person, though in debt, may sell his property to whom he pleases, if no lien exists to prevent it, and if the transaction is a fair one, made in good

faith, and for a valuable consideration. Snell v. Crowe, 3 U. 26; 5 P. 522.

Every

2475. "Creditors and purchasers" includes heirs, etc. conveyance, charge, instrument, or proceeding declared to be void by the provisions of this title as against creditors and purchasers, shall be equally void as against the heirs, successors, personal representatives, or assigns of such creditors or purchasers. [C. L. § 2839.

2476. Purchaser in good faith not affected hereby. The provisions of this title shall not be construed in any manner to affect or impair the title of a purchaser for a valuable consideration, unless it appears that such purchaser had previous notice of the fraudulent intent of his immediate grantor or of the fraud rendering void the title of such grantor.

Minn. (1894) 4225.

2477. Specific performance not affected hereby. Nothing in this title contained shall be construed to abridge the powers of courts to compel the specific performance of agreements in case of part performance thereof. $$ 2832, 3917.

[C. L.

2478. Lawful agent may sign for principal. Every instrument required by the provisions of this title to be subscribed by any party, may be subscribed by the lawful agent of such party. [C. L. § 2840.

Conveyance of real property by agent authorized by writing, 1974.

TITLE 65.

STATUTES.

CHAPTER 1.

REPEAL.

2479. Revised Statutes take effect January 1, 1898. This revision of the laws of Utah shall be known as the Revised Statutes, and may be so cited or referred to, adding, when necessary, title or section; and shall take effect on the first day of January, eighteen hundred and ninety-eight. [C. L. §§ 2985*, 2999*.

Cal. C. Civ. P. 2; Mont. Pol. C. ? 2*.

When legislative acts take effect, Con. art. 6, sec. 25.

2480. All prior laws repealed. Exceptions. All acts and resolutions passed by the legislative assembly of the territory of Utah, and all acts and resolutions passed by the legislature of the state of Utah prior to the second regular session of the legislature, are hereby repealed, subject to the limitations and exceptions herein expressed, saving and excepting the following, to wit:

1. Those providing for the issue, validation, disposition, exchange, or redemption of any bonds or warrants of the territory or state of Utah, or of any county, municipality, or school district therein, in so far as such acts or resolutions affect any such bonds or warrants now outstanding and unpaid.

2.

Those accepting grants of land, or money, or other property for the territory or state of Utah, or for any subdivision or institution thereof, together with the conditions, restrictions, and limitations attached to such grants.

state.

3.

4.

5.

6.

Those changing the names of individuals.

Those releasing any individual or public corporation from liability to the

Those of a private nature, granting any right or franchise.

"An act authorizing county clerks and notaries public to take acknowledgments of articles of incorporation of private corporations organized under the provisions of chapter one, part four, of the Compiled Laws of Utah, eighteen hundred and eighty-eight, providing for filing and recording the same, and validating and confirming the acknowledgment, filing, depositing, and recording of articles of incorporation made since the admission of this state by probate judges and clerks, and repealing all inconsistent acts," approved January twenty-fourth, eighteen hundred and ninety-six.

7. "An act authorizing the governor to appoint notaries public, confirming appointments heretofore made, and validating official acts under such appointments," approved January thirty-first, eighteen hundred and ninety-six.

8. "An act to provide for the custody of papers and records of United States and supreme court commissioners, for the continuation of actions begun before them, and the issuance of process and proceedings upon judgments obtained in their courts," approved February seventh, eighteen hundred and ninety-six.

9.

"An act providing for the transfer of causes pending in the territorial supreme and district courts to the proper state courts," approved February eighteenth, eighteen hundred and ninety-six.

10. "A resolution fixing the termination of the first session of the legislature," approved April fourth, eighteen hundred and ninety-six.

In an action founded upon a statute to recover treble damages for wilful or malicious destruction of property, no judgment can be rendered for plaintiff after the repeal of the statute giving such

damages without a saving clause. Rhemke v. Clinton, 2 U. 438. Where a law is passed as a substitute for a prior enactment, covering the whole subject of the former law, the latter is repealed

without express words of repeal. Bartch v. Meloy, 8 U. 424; 32 P. 694. A clause of an act which by general words repeals all acts and parts of acts which provide for holding elections otherwise than as in the said act stated, repeals the former acts in regard to elections by express words and not by implication. Id. Where a subsequent statute is so repugnant to a former one that the two cannot be construed reasonably together, the former statute is repealed by implication. Id. While repeals by implication are not favored, yet if it is manifest that the legislature intended to limit the powers conferred by a former act, and the latter act is full and complete on the subject, the latter limits or repeals the former by implication. O. S. L. Ry. Co. v. Standing, 10 U. 452; 37 P. 687. A subsequent affirmative statute, general in its terms, will not be so construed as to repeal by implication a prior statute, unless there is such a repugnancy between the two as to make them irreconcilable, and then the later in point of time will abrogate the former, though only to the extent of such repugnancy. In

the matter of Gannett, 11 U. 283; 39 P. 496. Armstrong v. Ogden City, 9 U. 255; 34 P. 53. Hudson Furn. Co. v. Freed Furn. Co., 10 U. 31; 36 P. 132. People, ex rel. Murphy, v. McAllister, 10 U. 357; 37 P. 578. Judge v. Spencer, — U. —; 48 P. 1097. There is no vested right in statutory provisions and exemptions. A statutory right of appeal may be taken away by repeal even as to cases previously appealed. North Point Irr. Co. v. Utah Canal Co., 14 U. 155; 46 P. 824. Two statutes not relating to the same subject and not enacted for the same purpose, are not repugnant to each other. People v. Burtlesen, 14 U. 258; 47 P. 87. The act of March 12, 1890, in terms repealing the previous act in regard to mechanics' liens, but covering the same subject and containing many identical provisions, is to be construed as a continuation of the earlier act with modifications. Bear River Irr. Co. v. Garland, 164 U. S. 1. Affirming Garland v. Bear River Irr. Co., 9 U. 350; 34 P. 368.

Decisions on construction of statutes, 2498.

2481. Laws of 1897 deemed subsequent to revision. The enactment of this revision is not to affect or repeal any act of the legislature passed at any time during the second regular session, and all such acts are to have full effect as if passed after the enactment of this revision, and so far as such acts vary from or conflict with any provision contained in said revision, they are to have effect as subsequent statutes and as repealing any portion of the revision inconsistent therewith.

U. S. R. S. (1878) 5601*. See notes to section 2 of Cal. C. Civ. P.

2482. Repeal not to affect tenure of office. Exceptions. All persons who, at the time when the said repeal shall take effect, shall hold any office under the statutes hereby repealed, shall continue to hold the same under the tenure thereof, except those offices which are abolished and those as to which a different provision is made by the Revised Statutes.

N. Dak. (1895) ? 2684, 2685*; Cal. C. Civ. P. 2 6*; Mont. Pol. C. ¿ 6*.

2483. Repeal does not affect accrued right. Procedure. This repeal of existing statutes shall not affect any act done, any right accruing or which has accrued or been established, nor any suit or proceeding had or commenced in any civil cause before the time when such repeal takes effect; but the proceedings in such cases shall be conformed to the provisions of the Revised Statutes as far as consistent. [C. L. § 2989*.

Iowa, McClain's An. C. (1888) 54; Cal. C. Civ. P. 2 8*; Mont. Pol. C. 8*.

2484. Effect of repeal on limitations. When a limitation or period of time prescribed in any existing statute for acquiring a right or barring a remedy, or for any other purpose, has begun to run before the Revised Statutes go into effect, and the same or any limitation is prescribed in the Revised Statutes, the time which has already run shall be deemed a part of the time prescribed as such limitation by the Revised Statutes. [C. L. § 2990.

Cal. C. Civ. P. 29; Mont. Pol. C. 2 9.

2485. Offenses, etc., not affected unless mitigated. No offense committed, and no penalty or forfeiture incurred under any statute hereby repealed and before the repeal takes effect, shall be affected by the repeal, except that when a punishment, penalty, or forfeiture is mitigated by the provisions herein contained, such provisions shall be applied to a judgment to be pronounced after the repeal. [C. L. § 4370*.

Iowa, McClain's An. C. (1888) 55; Cal. Pen. C. ? 6*.

Sections 4 and 5 of the penal code of 1876 provided, in effect, that former statutes concerning crimes remain in force so far as they relate to offenses committed prior to the passage of the code. An

offense committed prior to the passage of said code may be prosecuted as if that act had never been passed, notwithstanding the repeal by the penal code, of the statute creating such offense. People v. Idaho Bill, 2 U. 326.

2486. Criminal prosecutions not affected. Procedure. No suit or prosecution pending when this repeal takes effect, for an offense committed or for the recovery of a penalty or forfeiture incurred, shall be affected by the