and executes the trust, he will be protected in so doing. Where one pays the consideration for land and directs the title to be taken in the name of another, the title vests absolutely in the latter without a resulting trust, unless there was fraud in the procuring or accident or mistake in the execution of the deed. Accordingly, it was held where a person, being apprehensive of arrest on a criminal charge and desirous of escaping and securing his property for the use of his family, made an absolute deed of same to his brother, there being a parol agreement between the parties that it should be held in trust, that evidence of the parol agreement could not be received, as such agreement was within the statute of frauds.

"Created, granted, assigned, surrendered or declared". - Our Supreme Court has defined a surrender to be "the effectual yielding up of an estate or interest to one having the immediate reversion or remainder wherein such particular estate may merge." Surrendering to the vendee a written contract for the purchase of land in pursuance of a mutual agreement that the bargain should be considered off and an agreement by the vendor to surrender a check given as part of the consideration for the purchase price, operates as a cancellation of all the vendee's interest and as a surrender of the check. The actual surrender of possession of leased premises by the lessee and the leasing of them by the lessor, or the taking possession of the premises by himself, is an effectual surrender of the lease by operation of law as between the landlord and the tenant, but a surrender cannot be implied so long as the tenant retains possession of the leased premises, or any material part thereof.

"Subscribed by the party".-A land contract, if subscribed by the vendor alone, may be enforced against him, though it cannot be against the purchaser until acceptance, but the acceptance of the contract binds the purchaser to pay the price therein named. The signature of the party making the sale satisfies the statute; it is not necessary that it be the signature of the party to be "charged."

"Other than leases for a term not exceeding one year". -An oral lease of land for a longer term than one year is void. If the term does not appear, it will not be presumed to be for more than one year. A parol lease for one year to begin at once is valid. An oral lease for two years is void,

but where the tenant enters under the lease and pays rent for one and one-half years, he becomes a tenant from year to year under the terms of the agreement.

R. S. 2304. 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, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is to be made or by his lawfully authorized agent.

"Contract or some note or memorandum thereof".--It is not necessary that the memorandum should be formal, or in one writing or paper or made directly between the parties to the contract. Letters are sufficient if there is an offer and acceptance and a definite description and consideration. Our Supreme Court says: "The memorandum must be definite in respect to the intention of the parties, disclose who they are, their relation one to the other, the property, the price and terms of payment." For instance, the statute was not satisfied by a writing signed by the owner of the land in the following indefinite form: "Received of John Brennan $300 paid some days ago, and $1000 this 27th day of June 1890, on lots 481, 483, 485, 487, on 5th St., Ely Add. to Superior. Deed made to be delivered and grantee named. A mort. for $3,800 1 & 2 at 8 pro cent."

"Expressing the consideration".--A consideration need not be expressed if the contract is under seal. The seal itself imports a consideration. The writing may have the consideration recited in it, or it may refer to some extrinsic fact, obligation or instrument constituting the consideration. Such a reference is a sufficient expression of consideration.

"Agent".-A contract for the sale of land may be signed by a lawfully authorized agent, whose authority need not be in writing, but a conveyance can only be executed by the vendor or his agent authorized in writing. In sales at auction, the auctioneer is the agent of both parties and where a memorandum containing all the essentials for the sale of land is made and signed by him at the time of the sale, this takes the case out of the statute of frauds. The memorandum cannot be made afterwards.

Nothing contained in the above two sections abridges the power of courts to compel the specific performance in case of part performance of oral agreements for the sale of land. What then constitutes such a part performance that a court

will interfere and compel a specific performance of the contract? This matter rests in the sound discretion of the courts in view of all the circumstances; it is not a matter of right. There is such a part performance of a verbal contract as will justify a decree of specific performance when there has been 1) a payment of any considerable part of the purchase money, 2) an entry into the possession of the purchased premises by the buyer, 3) and improvements have been made thereon by him. But the oral contract must have been clear, definite and unambiguous in its terms. Where there has been such a part performance that it would operate as a fraud upon either party to allow the other to repudiate it, the contract will be enforced in equity. Money paid on void agreements for the sale of land may be recovered.

AS TO PERSONALTY:

R. S. 2307. In the following case every agreement shall be void unless such agreement or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party charged therewith.

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

2. Every special promise to answer for the debt, default or miscarriage of another person.

3. Every agreement, promise or undertaking made upon consideration of marriage, except mutual promises to marry.

"NOTE OR MEMORANDUM".-See page 129.

"EXPRESSING THE CONSIDERATION".-See page 126.

"Not to be performed within one year".--If an oral contract is such that by its terms it MIGHT be performed within one year, it is valid. In order to be void under the statute it must show by its terms that it cannot be performed within a year. It is not enough that by mere possibility it might not be performed within that time. Thus, an oral agreement to support another during his life is valid, because it MAY be performed within a year, as the person to be supported may die within that time. The contingency of death is sufficient to take the case out of the statute. If a person verbally hires himself out for longer than a year, the contract is void, but the person rendering the services can recover what the services were reasonably worth. The contract to be void under the statute must be such that it cannot be performed within a year. If the consideration for the promise be exe

cuted or the contract is to be executed on one side within a year, the statute does not apply. An oral contract to work for one year commencing at a future time is void.

"For the debt, default, or miscarriage of another".-To come within the statute the contract must be actually one to answer for the debt, default or miscarriage of another. If the promise is merely to pay for goods delivered to another, it is an original promise, the same as to pay for one's own goods, and does not have to be in writing, but if the promise is to pay the debt of him to whom the goods are delivered, then it must be in writing. Courts will look to the actual character of the transaction and the intention of the parties. The manner in which the seller has the goods charged on his books, will aid in ascertaining the facts. Where the promise is merely to answer for the debt of another, there must be a new consideration to support it, and the agreement must be in writing and express it. An undertaking by which a third person, without expressing any consideration, agrees to become surety for prompt payment of rent by a lessee, is void. The words FOR VALUE RECEIVED are sufficient. (See in this connection the chapter on Guaranty and Suretyship.) "Made upon consideration of marriage".-This refers chiefly to marriage settlements. These are agreements made by the parent, guardian or relative of a prospective bride by which he or they settle a certain amount of property upon her, to hold in her own right, or the property rights of bride and groom are otherwise regulated. Such contracts were formerly quite common in England. The section, however, refers to any contract wherein marriage is the consideration. Marriage is a sufficient consideration for a contract. The statute requires such contracts to be in writing. Agreements to marry are not within the statute but are expressly excluded. An oral promise to marry, but not until after one year, is void as not to be performed within one year.

R. S. 2308. Every contract for the sale of any goods, chattels or things in action, for the price of fifty dollars or more, shall be void, unless:

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

2. Unless the buyer shall accept and receive part of such goods or the evidences or some of them of such things in action, or 3. Unless the buyer shall, at the time, pay some part of the purchase money.

"Goods, chattels or things in action". - Where the contract is to furnish materials and manufacture the article according to specifications furnished, or a model selected, and when, without the contract, the thing would not have been manufactured in the special manner, then the contract is one for labor and materials and is not within the statute. An oral sale of logs or other property, worth over $50, without partial delivery or part payment of the purchase price at the time of making the contract, is void. A contract for the publication of an advertisement in a newspaper is not one for the sale of goods or chattels.

"A note or memorandum".-It is not necessary that the memorandum should be signed by both vendor and vendee, as the statute requires the memorandum to be signed by the party to be charged. The form of the memorandum is immaterial, but it must contain the agreement with sufficient certainty so as to require no parol proof and must show who are the contracting parties and who is the seller. An entry by a vendor in his memorandum book, with his signature, of the facts and terms of a sale of goods, does not operate to bind him in the absence of the signature of the vendee. If signed by an agent of the latter, though in his own name, it is sufficient. If a broker, by whom a sale of goods is negotiated, being the agent of both parties, makes an entry of the terms of sale in his book, this will satisfy the statute. When the property is in the vendee's possession at the time of sale, no memorandum is necessary.

"Shall accept and receive part of such goods”.—Acceptance is the receipt of the thing with an intention to retain it, indicated by some act or words sufficient for that purpose. The title to the goods must have passed to the vendee. Whether a buyer has accepted the goods, is a question for the jury. Delivery to a third person for the vendee is not sufficient, unless the third person is an agent for the vendee. If delivery is to be made subject to the right of inspection and rejection by the buyer, a sale by him to another is a waiver and the sale is complete. If the vendee makes the vendor his bailee of the property sold and the latter holds it as such, the delivery is complete and the sale valid as between the parties. A sale which as an executory contract would be void under the statute of frauds, is valid, if the goods or a part thereof are actually accepted and received under it at the time of sale or afterwards.