from issuing a warrant unless there is an unexpended appropriation applicable to its payment, and the judgment of the court below is affirmed. AFFIRMED.

Decided 3 July, 1905.

OF FRAUDS.

TUCKER 1. OTTENHEIMER.

81 Pac. 360.

ADMINISTRATORS-AGREEMENT FOR LIEN ON LANDS-VALIDITY-STATUTE Where an administrator and another had succeeded to all the interests of the estate, and, the personal property being exhausted, such parties agreed that the commissions due the administrator, together with moneys advanced by him individually, should be a lien on the lands of the estate, and in pursuance of the agreement the administrator entered into possession of the lands, and it was agreed that the profits should be divided according to the interest of the parties, the agreement was void, under the statute of frauds, and the administrator not entitled to enforce his lien in equity.

From Baker: ROBERT EAKIN, Judge.

Statement by MR. CHIEF JUSTICE WOLVERTON.

This was originally an ejectment action commenced by a corporation called S. Ottenheimer Estate against John A. Tucker, who answered by a cross-bill seeking equitable relief. It sets out, in substance, that the defendant, the S. Ottenheimer Estate, is a corporation, its purposes being to conduct the business of such estate, the stockholders being the heirs of S. Ottenheimer; that on July 27, 1884, one Harry A. Johnson died, leaving as his heirs at law, his mother, Samantha Johnson, his half-brother, Charles Herring, and his half-sister, Elizabeth Herring (now Baldock); that Johnson at the time of his death was the owner of certain real property, which is described; that thereafter, in 1892, plaintiff purchased the Baldock interest; that, shortly after the decease of Johnson, plaintiff was appointed administrator of his estate, and took possession of the property thereof; that he regularly proceeded with the administration, and on October 5, 1894, duly filed his final account as such administrator, which was on November 6th following settled and approved, and the plaintiff discharged; that at the time of such final settlement S. Ottenheimer had succeeded by purchase to an undivided twothirds interest in the real property, and plaintiff to the remaining one-third interest, the whole being subject to the debts of the deceased and the expenses of administration; that pending

the administration there was forced upon the administrator certain litigation, causing much expense and depreciation of the property of the estate; that at the time of such final settlement the personal property had been exhausted, and aside therefrom the plaintiff had advanced and paid out on his individual account in meeting the expenses $3,045.75; that his commissions as administrator amounted to $269.72, aggregating, with the costs of final settlement, $3,440.42, all of which were allowed plaintiff upon such final settlement; that by the express consent and understanding of the said S. Ottenheimer and the plaintiff, as such administrator, with a view to effecting a final settlement out of court, it was agreed that the said sums aggregating $3,440.42 should be and remain a lien upon the real property in the nature of an equitable mortgage, and that plaintiff should enter into possession of the same, and the whole thereof, and out of the proceeds, rents and profits arising therefrom, or from the sale of the premises, in case of a sale being made, should be paid such demands, with interest, and that the balance of the property remaining should be divided between the plaintiff and Ottenheimer according to their respective interests; that plaintiff immediately entered into possession of said real property with the express consent of Ottenheimer, and so continued in possession until the latter's death, in January, 1898, and has since remained in such possession by virtue of said agreement with him.

The plaintiff then shows some receipts for rentals by Ottenheimer, and other matters of account touching the product of the land, and also some complications arising by way of attachment, and alleges that, while plaintiff was so in possession with the consent of Ottenheimer, he made certain valuable and necessary improvements upon the land, by erecting a dwelling house thereon at a cost of about $400 a barn at $100, and clearing up and reducing to cultivation 20 acres of land at a cost of $40, and that the defendant corporation claims some interest in the land as successor to S. Ottenheimer. The prayer is that upon final hearing plaintiff be decreed to be the owner in fee of an undivided one-third of the land; that defendant be decreed to be indebted to plaintiff in the sum of $458.22, the amount due

plaintiff on account of the rents, issues, and profits, and permanent improvements, and the further sum of $2,293.60, with legal interest, being two-thirds of the amount of the equitable lien claimed upon the land; that said lien be foreclosed, and the land sold to satisfy the demand; and for other relief. A motion was filed to strike out many parts of the complaint, which was sustained, being treated as a demurrer; and, the plaintiff refusing to plead further, the cause was dismissed, and he appeals.

AFFIRMED.

For appellant there was an oral argument by Mr. Thomas Harrison Crawford, with a brief over the names of Crawford & Crawford and Ramsey & Oliver, to this effect.

I. The taking possession by Tucker and the making of permanent valuable improvements thereon under the oral contract and agreement with S. Ottenheimer was a sufficient part performance to avoid the statute of frauds: Odell v. Morin, 5 Or. 96; Whiteaker v. Vanschoiack, 5 Or. 113; Brown v. Lord, 7 Or. 302; Wagonblast v. Whitney, 12 Or. 83 (6 Pac. 399); Cooper v. Thomason, 30 Or. 161 (45 Pac. 296); Barrett v. Schleich, 37 Or. 613, 617 (62 Pac. 792) ; Pugh v. Spicknall, 43 Or. 489, 494 (73 Pac. 1026, 74 Pac. 485); Moulton v. Harris, 94 Cal. 420 (29 Pac. 706); Ford v. Steele, 31 Neb. 521 (48 N. W. 271); Taylor v. Von Schroeder, 107 Mo. 206 (16 S. W. 675); Pomeroy, Spec. Perf. § 115.

II. The facts alleged in the amended cross-bill and admitted by the demurrer, make out clearly a case of equitable fraud, upon which the court will hold the defendant ex maleficio a trustee of the legal title to these lands to be sold and disposed of under the direction of the court, for the payment of plaintiff's claim and the division of the balance of the proceeds in accordance with the contract between plaintiff and S. Ottenheimer: Perry, Trusts, § 191; Hill, Trustees (4 Am. ed.), 234; 2 Pomeroy, Eq. Jur. 1053-1055; Paine v. Wilcox, 16 Wis. 202, 217; Cutler v. Babcock, 81 Wis. 195 (29 Am. St. Rep. 882, 889, 51 N. W. 420); Laing v. McKee, 13 Mich. 124 (87 Am. Dec. 738); Wilson v. Eggleston, 27 Mich. 260; Beegle v. Wentz, 55 Pa. 369

(93 Am. Dec. 762); Seichrist's Appeal, 66 Pa. 237; Goodwin v. McMinn, 193 Pa. 646 (74 Am. St. Rep. 703, 44 Atl. 1094); Ahrens v. Jones, 169 N. Y. 555 (88 Am. St. Rep. 620, 62 N. E. 666); Brison v. Brison, 75 Cal. 525 (7 Am. St. Rep. 189, 17 Pac. 689); Hays v. Gloster, 88 Cal. 560 (26 Pac. 367); Larmon v. Knight, 140 Ill. 252 (33 Am. St. Rep. 229, 29 N. E. 1116); Rollins v. Mitchell, 52 Minn. 41 (38 Am. St. Rep. 519, 53 N. W. 1020).

For respondent there was an oral argument with a brief by Mr. William Fontaine Butcher (Butcher & Correll, counsel), to this effect.

1. The order of the county court pretending to settle this title on Tucker under an alleged trust agreement with Ottenheimer was absolutely void, for probate courts in this State have nothing whatever to do with the title to real property, being concerned only with disposing of whatever title or interest deceased had, in order to pay his debts: B. & C. Comp, § 1221; Hanner v. Silver, 2 Or. 336; Pryor v. Downey, 50 Cal. 388 (19) Am. Rep. 656); Horton v. Barto, 17 Wash. 675 (50 Pac. 587).

2. Appellant claims some kind of an equitable lien or trust and seeks some sort of performance of something not promised to be done in the alleged parol agreement, but presumed by him to be what should be the result of the alleged parol contract. It is the very essence of this conception that, while the lien continues, the possession of the thing upon which the lien is claimed remains with the debtor, subject to the incumbrance: 1 Pomeroy, Eq. Jur. § 165; 2 Pomeroy, Eq. Jur. § 1233.

3. Where, as here, the claim is of an express contract, it must be in writing (Dagget v. Rankin, 31 Cal. 321, 327; Chase v. Peck, 21 N. Y. 581, 583; McQuie v. Peay, 58 Mo. 56); and there must be a valuable and adequate consideration: 1 Pomeroy, Eq. Jur. $$ 370, 372; Eaton v. Patterson, 2 Stew. & P. 9.

4. To take this case out of the class controlled by the statute of frauds, part performance must be shown that is referable only to the contract claimed: Waterman, Spec. Perf. § 261; Morgan v. Bergan, 3 Neb. 209, 213; Cutler v. Babcock, 81 Wis. 195 (29 Am. St. Rep. 882, 886, 51 N. W. 420); Emmel v. Hayes,

102 Mo. 186 (22 Am. St. Rep. 769, 772, 11 L. R. A. 232, 14 S. W. 209); Wallace v. Rappelye, 103 Ill. 229, 252.

5. Where the contracting parties already maintain such relations as to preclude the possibility of surrendering and taking possession under and in pursuance of the contract (in the present instance the parties were tenants in common), there cannot be a part performance that will take the case out of the rule of the statute: Workman v. Guthrie, 29 Pa. 495, 511; Cutler v. Babcock, 81 Wis. 195 (29 Am. St. Rep. 882, 886, 51 N. W. 420); Emmel v. Hayes, 102 Mo. 186 (22 Am. St. Rep. 769, 772, 11 L. R. A. 232, 14 S. W. 209).

MR. CHIEF JUSTICE WOLVERTON delivered the opinion.

The only question presented by the appeal is whether the crossbill states facts entitling the plaintiff to equitable relief. The order of final settlement referred to in the complaint is made a part thereof, and shows that the estate was finally settled and the administrator discharged, and it was ordered by the court, among a great many other things, that the amount allowed the administrator over and above the receipts, to wit, the sum of $3,440.42, be declared a lien upon the real estate of the deceased. After ascertaining the present ownership of the real estate, the order further recites "that each and all the said parties are desirous and anxious that said estate should be finally settled, and that the charges thereon growing out of the administration of said estate should be ascertained herein, and that same should be made a charge upon the said real estate, to be hereinafter settled and adjusted and paid by the several owners thereof in accordance with their equities therein," and thereupon decrees that "said administrator turn over to the said parties ** all of the real estate belonging to said estate, and that the said several parties take the said real estate subject to the said lien in favor of this administrator for the said sum of $3,440.42, the same to be adjusted and settled between them in such manner and by such course or process as they may adopt therefor." There was no appearance by any of the heirs or their successors, except the administrator himself.