The verbal contract relied upon is not a contract for the sale of land where the purchaser has gone into possession in pursuance of it and made valuable improvements, nor is it a contract to give or execute a mortgage or other instrument with a view to creating a lien upon the premises, but it is set forth as itself creating the lien, and reliance is had thereon solely for the equitable relief prayed for. It is conceded that the county or probate court had no power or authority to adjudge a lien uponthe realty of the estate in favor of plaintiff so as to bind the heirs, and its order or decree is not relied upon as within itself impressing the lien.

A verbal contract for a mortgage, based upon a consideration, where there has been part performance in pursuance of the contract, may be specifically enforced, upon the same principle as equity will enforce a verbal contract for the sale of realty. The ground of the equity is well stated in Dean v. Anderson, 34 N. J. Eq. 496, 500: "Where an agreement has been executed or in part performed by the complainant, and the acts done place him in a situation which is a fraud upon him unless the agreement is executed, equity will not permit the defendant to protect himself from executing his part of the agreement by pleading that it was not in writing. The ground upon which this court acts in cases of part performance is fraud in refusing to perform after performance by the other party, and the court will interpose and grant relief, notwithstanding the statute, when the complainant shows a performance on his side, by which he would suffer an injury amounting to fraud by the refusal to execute the agreement on the part of the defendant." The doctrine is well settled: King v. Williams, 66 Ark. 333 (50 S. W. 695); Irvine v. Armstrong, 31 Minn. 216 (17 N. W. 343); Hicks v. Turck, 72 Mich. 311 (40 N. W. 339); Baker v. Baker, 2 S. D. 261 (49 N. W. 1064, 39 Am. St. Rep. 776). But such is not the case here. There is no agreement for a mortgage or other lien, and part performance in pursuance thereof. The agreement is direct and explicit between the parties, and itself constitutes the lien, or else there is none. The condition is the same as if one party had attempted by purely verbal arrangement to create a mortgage in favor of another upon realty for

the security of a sum loaned. Could the agreement be enforced, not having been entered into in writing? A mere statement of the proposition shows it so clearly to come within the statute of frauds that it is scarcely necessary to dilate upon the subject. Were such a transaction tantamount to an equitable mortgage, the formal written mortgage would not at all be necessary, and the statute of frauds, as it relates to mortgages of realty, would be a dead letter. A mortgage is in form a conveyance: Watson v. Dundee Mtg. Co. 12 Or. 474 (8 Pac. 548). And it should be in writing, and executed with like formalities as a deed; and to permit a debt to be charged upon realty as a lien by verbal agreement would be evasive of the statute. If there has been part performance or possession given, it has been in pursuance of an agreement that never created a lien, and the acts of part performance will not create it. Acts of part performance, as they relate to a contract of sale, will usually create an equity that will afford relief by way of specific performance; but, where neither the contract nor the acts of part performance are tantamount to the creating of a lien, there can be no enforcement of it. The debt in question was not contracted on the credit of the property, and, the agreement being insufficient to impress a lien on account of it, equity will not afford the relief sought: Bennett v. Nichols, 12 Mich. 22.

The further contention is made that the defendant should be held to be a trustee ex maleficio of the legal title, subject to the lien of plaintiff for his claim of $3,440.42. The principle invoked is that it would be a fraud upon the plaintiff to allow the defendant to retain the land, or his part of it, freed of the incumbrance of the indebtedness of the estate, because in reliance upon the alleged agreement the plaintiff was induced to forego his right to sell the land in probate for its payment of such indebtedness. The statement of the complaint is somewhat vague, which is that in order to effect a final settlement of the estate, and get the same out of court, it was agreed that said sum should be and remain a lien upon the real estate in the nature of an equitable mortgage; that plaintiff should enter into possession of the real estate, and that said sum, with interest, should be paid out of the rents and profits thereof, or the sale

of the premises in case sale thereof was made; and that the balance of the property should be divided equally among the parties. The agreement provides for no sale, but that if one should be made, the proceeds should be applied towards the indebtedness, and one would suppose that the intendment was that the rents and profits should finally cancel the demand; the defendant assuming no personal obligations to pay any part of it. Defendant's ownership of the legal estate comes to it naturally enough by descent and purchase, and none of plaintiff's funds have been employed in its acquirement. So there can arise no resulting or constructive trust out of the situation. The only element of mala fides that can be injected into the transaction is that it would be a fraud upon the plaintiff not to let him get his money out of the property, because it was agreed verbally between the parties or their predecessors that the estate's indebtness should be and remain a lien upon the real estate in the nature of an equitable mortgage. But this brings us back to the first question, which is whether the agreement is within the statute of frauds, and this we have resolved against its validity.

It is urged that plaintiff was induced to waive his lien upon the land for the money due him from the estate, but that stands as the only consideration for the verbal agreement, and, being performed on his part, stands in no stronger light than if he had loaned the money direct to the defendant, and thereupon entered into a verbal agreement depending upon it alone to constitute the lien, or, as it is termed, an equitable mortgage. The agreement is wholly incompetent to impress a lien of any sort, and part performance cannot help the situation. So, too, the entering into possession could not avail for the purpose. If any rights have arisen by virtue of possession and the making of improvements upon the land by assent of the defendant, they do not operate to confer a lien through the verbal agreement which constitutes the very groundwork of his cause of suit.

The cases of Paine v. Wilcox, 16 Wis. 215, and Cutler v. Babcock, 81 Wis. 195 (51 N. W. 420, 29 Am. St. Rep. 882), so much relied upon, do not seem to us to be in point. In each of these cases the party complained against had obtained the legal title to the property under conditions that it was accounted a fraud

to permit him to retain it, and he was therefore held to be a trustee ex maleficio. But here the conditions are quite the contrary. The defendant has simply come into its own, with a verbal agreement that a lien should be continued thereon; and, while it may be a breach of a void contract for it to disavow the agreement, it has acquired nothing that it would be a fraud upon the plaintiff to permit it to retain. Mortgages do not usually arise ex maleficio, but a trust might.

For these reasons, we do not think the complaint sufficient, and the decree of the trial court will therefore be affirmed. AFFIRMED.

Decided 10 July, 1905.

ALDEN. GRANDE RONDE LUMBER CO.

81 Pac. 385.

EVIDENCE-ADMISSIONS OF AGENTS-PAST TRANSACTIONS.

1. In an action against a corporation for the loss of certain horses hired to it by plaintiff, alleged to have been killed or permanently injured by the negligence of defendant's servants, admissions or declarations made by defendant's agents as to the manner in which the horses were used and injured, not a part of the res gestæ, but mere historical narrative of past Occurrences, are inadmissible.

ASSUMED RISK OF EMPLOYMENT-LIABILITY FOR NEGLIGENCE.

2. Where plaintiff let certain horses to defendant corporation for logging purposes, plaintiff assumes all the ordinary risks incident to such employment, and is not entitled to recover therefor, unless the horses were killed or injured through the negligence of defendant or that of its agents and servants.

From Union: ROBERT EAKIN, Judge.

Action by J. F. Alden against the Grande Ronde Lumber Co. From a judgment for plaintiff, defendant appeals. REVERSED.

For appellant there was a brief and an oral argument by Mr. Charles H Finn.

For respondent there was a brief over the name of Crawford & Crawford, with an oral argument by Mr. Thomas Harrison Crawford.

MR. JUSTICE BEAN delivered the opinion of the court.

This is an action to recover damages for the loss of three horses hired by the plaintiff to the defendant to work in its logging camp, and alleged to have been killed or permanently injured by the negligence of its agents and servants. The plaintiff was a witness in his own behalf, and testified that one of the horses [38-46 Or.]

was killed at Camp No. 2, in charge of one Johnson as foreman, and the other two were injured at Camp No. 1, in charge of Bean; that after the horses were killed or injured he had a conversation with Johnson and Bean about the matter, and was thereupon asked by his counsel the following question: "You may state whether he (Johnson) told you about it" (meaning the killing of the horse), and over the objection and exception of the defendant he answered that he did. He was then asked: "Now you may state what he told you concerning the matter, and how the horses were killed." This question was likewise objected to, but the objection was overruled, and the witness answered: "The horse ran off a bridge and was killed." He was then asked: "Now, in the conversation you had with him on the day you went up and found the horse was killed, and on the day afterwards, or a few days afterwards, state whether or not in either one of these conversations he stated to you what was the cause of the horse being shoved off the bridge." An objection was likewise made and overruled to this question, and the witness answered: "Johnson claimed the load was not balanced right. That was his opinion. He was not there. He was there afterwards." The court, on motion of the defendant, struck out so much of the testimony as referred to Johnson's opinion, and allowed the remainder of it to stand, and witness was permitted, over defendant's objection and exception, to answer similar questions as to the conversation with foreman Bean concerning the injury to the two horses at Camp No. 1, and the way in which such injury occurred. The testimony was followed by evidence tending to show that, if the accident occurred, or the horses were killed or injured in the manner stated by Johnson and Bean, it was due to the negligence of the defendant and its servants.

1. The evidence as to the statements of Johnson and Bean to the plaintiff concerning the accidents to the plaintiff's horses and the manner in which they occurred were not binding on the defendant, or competent as evidence, because they related to past transactions, and were in the nature of mere historical narrative of past occurrences. The admissions or declarations of an agent are sometimes binding on his principal, but it is only when the act of the agent will bind the principal, and the representations