98In Norcross p. James, 140 Mass. 188,191, 2 N. E. 946, Holmes, J., said: "The question remains, whether, even if we make the further assumption that the covenant was valid as a contract between the parties, it is of a kind which the law permits to be attached to land in such a sense as to restrict the use of one parcel in all hands for the benefit of whoever may hold the other, whatever the principle invoked. For equity will no more enforce every restriction that can be devised, than the common law will recognise as creating an easement every grant purporting to limit the use of land in favor of other land. The principle of policy applied to affirmative covenants applies also to negative ones. They must 'touch or concern,' or 'extend to the support of the thing' conveyed. 5 Rep. 16 a, 24 b. They must be 'for the benefit of the estate.' Cookson v. Cock, Cro. Jac. 126. Or, as it is said more broadly, new and unusual incidents cannot be attached to land, by way either of benefit or burden, Keppell v. Bailey, 2 Myl. & K. 517,635; Ackroyd v. Smith, 10 C. B. 164; Hill v. Tupper, 2 H. & C. 121." See also Jones p. Tankerville, [1909] 2 Ch. 440; Beasley p. Texas & Pacific R. Co., 191 U. 8. 492, 496, 24 Sup. Ct. 164, 48 L. Ed. 274.

99Pitman p. Poor, 38 Me. 237; Jackson p. Litch, 62 Pa. 461; Scales p. Wiley, 68 Vt. 39, 33 Atl. 771. See also Brans v. Spalding, 90 Md. 349, 45 Atl. 194.

1 Frear v. Hardonbergh, 5 Johns. 272; Lower p. Winters, 7 Cow. 263; Fedell p. Ormand Mia Co. (N. Car.), 97 S. E. 386. Cf. Falmouth p. Thomas, 1 Cr. & M. 89, 108.

2 Phmkett p. Meredith, 72 Ark. 3, 77 S. W. 600; Croke v. American Nat Bank, 18 Co. App. 3, 70 Pac. 229; Haight v. Conners, 149 Pa. 297, 24 Ad. 302.

3 In Plunkett c. Meredith, 72 Ark. 3, 7, 77 S. W. 600, the court said: "An agreement of appellant with appellee to dig a well on her lot is not a contract for an interest in land, is not within the statute of frauds, and need not be in writing. But a contract to dig a certain well on the dividing line between the lots of appellant and appellee, one half of which is on the lot of appellant and the other half is on the lot of appellee, deeper and until it affords a sufficient supply of water, and to allow appellee to use the same, is a contract for an interest in land, which is an casement, and should be in writing; and it cannot be enforced against the party pleading the statute of frauds in bar of the right to maintain an action thereon, unless it be in writing. Such a contract if enforced, would necessarily give to appellee the right to use the land of appellant for

4 Knox v. Tucker, 48 Me. 373. See also Rudisill v. Cross, 54 Ark. 519, 16 S. W. 575, 26 Am. St. Rep. 57; DeMers v. Rohan, 126 Iowa, 488, 102 N. W. 413. Cf. Nelson v. Wilson, 157 Ia. 80, 137 N. W. 1048.

5 In Hutchinson Co. v. Gould (Calif.), 181 Pac. 651, a contract for improvements was held not within the statute, even though it provided for a lien on land, since such a lien would have been created by law without an agreement

6 Such was the contract in Dodder v. Snyder, 110 Mich. 69, 67 N. W. 1101, and Berry v. Jones, 106 Miss. 115, 63 So. 341. But even such a case was thought within the statute in Tillis v. Treadwell 117 Ala. 445, 22 So. 983, which, however, involved an agreetract involves the same principle as a contract to maintain a fence for a season.7 The case should be the same if the agreement was to maintain a fence on the partition line, or a portion of it, for an indefinite period, and many cases so hold.8 It is sometimes said or assumed that such a contract is necessarily revocable,9 but that must depend upon the terms of the contract. Ex hypothesi the promises are supported by sufficient consideration, and these promises more naturally mean that the arrangement shall continue for a reasonable time or until reasonable notice or even permanently than that it is revocable at will. If indeed the agreement when properly construed means that the arrangement is to be permanent; it may then be fairly argued that the undertaking is not a personal con-tract to maintain a fence but to impose upon one estate a ment concerning a party wall; and in McManus v. Cooke, 35 Ch. Div. 681, 682, Kay, J., held that the following contract was within the statute since the effect of the agreement would be to give to each party an easement of light over the other's land. "The Plaintiff and the Defendant, being desirous of rebuilding their respective premises, had several interviews in order harmoniously to arrange their new buildings so as not to interfere with each other's convenience. At one of such interviews it was verbally agreed between the Plaintiff and the Defendant in the presence of the Plaintiff's foreman, and upon drawings submitted shewing the intended construction of skylights, that the Plaintiff should at their joint expense pull down and rebuild a certain party-wall dividing the said premises, and also that each party should be at liberty to make a lean-to skylight, resting on the said party-wall and running up to the sill of the first-floor window of his own building."

7 This was the form of contract in Page v. Hodgdon, 63 N. H. S3.

8Such contracts were held not within the Statute of Frauds in Guyer v. Stratton, 29 Conn. 421; Baynes v.

Chastian, 68 Tnd. 376; Nelson v. Wilson, 157 Ia. 80, 137 N. W. 1048; McAffe v. Walker, 82 Kans. 182, 107 Pac. 637, 27 L. R. A. {N. S.) 226; Ivins v. Ackerson, 38 N. J. L. 220; Tupper p. Clark, 43 Vt. 200. See also Tuebert v. Sons, 116 Minn. 195, 133 N. W. 467; Meyer v. Perkins, SB Neb. 59, 130 N. W. 986, Ann. Cas. 1912 C. 468. In Ivins v. Ackerson, supra, the court said at page 222: "The second erroneous premise of the argument is, in assuming that if the fence be a part of the land, it follows that oral contracts cannot be made with respect to it. But the scope of the statute is by no means so broad as this. Its office is to interdict the transfer of any interest in the land by a contract not put in writing. This is its purpose, and it goes no further. No one would maintain that an agreement to do repairs to a fence, or to a building, or to work for wages upon land, would be invalidated by the statute. Such matters may be said, taking the words in a wide sense, to be contracts concerning the land, but such is not the sense of the statutory words."

9See, e. g., Nelson v. Wilson, 157 Ia. 80, 137 N. W. 1048; Pitsner v. Shin-nick, 41 Wis. 676.

servitude subjecting its owner, whoever he may be, to the duty of fencing, and conveying to the owner of the other estate, whomsoever he may be, a corresponding easement.10 A parol agreement to this effect would be invalid.11 Oral agreements between adjoining owners that there shall not be a fence between their premises,12 or to locate a mining claim and do necessary assessment work 13 have been sustained; and an agreement extending the time of redemption allowed by statute to an owner of land subject to encumbrances may also be oral;14 and so may a warranty of the quantity of land; 14a or an agreement by the purchaser to pay an additional price if the quantity of land conveyed exceeds a specified amount,15 or to pay an increased or diminished price or rental; 16 or an agreement by a vendor that he would procure an abstract of his title, showing a good record title; 17 or an assignment of a right to damage for an injury to land.18 A contract to pay the price of land actually conveyed is not within the statute. It is a unilateral obligation to pay a sum of money, and is not a contract either to buy or sell land. The sale has been made. Even though the contract originally was bilateral and was confessedly for the purchase and sale of land, it seems that the same consequence follows if the land is actually conveyed. There is then no longer a contract to sell but an actual sale, and the conveyance creates

10 As to easements of fencing, see - Bronson v. Coffin, 108 Mass. 175, 11 Am. Rep. 335; Kellogg ». Robinson, 6 Vt. 278, 27 Am. Deo. 660.

11See supra, 489.

12 Bills v. Belknap, 38 Iowa, 226.

13Clark v. Mitchell, 35 Nev. 447, 130 Pac. 760; Reagan v. McKibben, 11 S. Dak. 270, 76 N. W. 043.

14 Hamilton v. Terry, 11 C. B. 964; Schroeder v. Young, 161 U. S. 334, 344, 40 L. Ed. 721, 16 8. Ct. 612; Byers v. Locke, 93 Cal. 493, 29 Pac. 119; Cox v. Ratcliffe, 106 Ind. 374, 5 N. E. 5; Dow v. Bradley, 110 Me. 249; Gillespie v. Stone, 70 Mo. S05. Cf. Howland v. Blake, 97 U. S. 624, 24 L. Ed. 1027.

14a Haviland v. Sammis, 62 Conn. 44, 26 Atl. 394; Currie v. Hawkins, 118 N. C. 593, 24 S. E. 476; Schriver v.

Eckenrode, 94 Pa. 466; Garret v. Ma-lone, 8 Rich. (S. Car.), 335; Davis v. Tisdale, 4 Yerg. 173; Cabot v. Christie, 42 Vt. 121, 1 Am. Rep. 313. But if such a warranty is an indivisible part of a contract which is within the statute, the warranty is unenforceable. Dyer v. Graves, 37 Vt. 369.

15 Seward v. Mitchell, 1 Coldw. 87.

16Allen v. Rees, 136 Ia. 423, 110 N. W. 683; Nonamaker v. Amos, 73 Ohio St. 163, 76 N. E. 949, 4 L. R. A. (N. S.) 980, 112 Am. St. Rep. 708.

17 Owsley p. Jackson, 163 Mo. App. 11, 144 8. W. 154; McConnell p. Brsy-ner, 63 Mo. 461; Seward v. Mitchell, 1 Coldw. 87. See also Nutting v. Dickinson, 8 Allen, 640.

18 Estes v. Chicago, etc., R. Co., 159 Ia. 666, 141 N. W. 49.

a debt for the price; so that whenever the land has been conveyed the obligation to pay the price may be enforced.19 This argument would probably not be wholly accepted in England. Though recovery would apparently be allowed if the transaction was originally unilateral,20 if it were originally bilateral no recovery could be had on that contract though the Belter performed his agreement.21 An agreement that the purchaser of land will share in some way the proceeds received from a resale of the premises, is not within the statute.22