Any contract the purpose of which is to transfer to one of the parties an interest in land for a price paid or to be paid to the other party is within the statute. The price need not be payable in money; 20 an agreement to exchange lands is as completely within the statute as a contract to sell them for a pecuniary consideration;21 and so is an agreement by which an interest in land then conveyed is to be reserved to the grantor. 22 Nor is it material that the conveyance is not to be made directly from one party to the contract to the other. A contract to convey to a third person is within the statute,23 and though a contract in which one party promised to procure a conveyance to the other by a third person, would not be if the price for the land was to be paid by the grantee to the grantor, since such a contract would be merely a contract of agency, in which the agent guaranteed that he would successfully accomplish the business intrusted to him,24 yet if the party promising to procure the conveyance is himself to pay whatever price is necessary to the grantor, and is to receive from his own co-contractor a price not for his services, but for the land, the conveyance of which he agrees to procure, the agreement is within the statute.25 A contract in which one party agrees to buy land from a third person, taking the conveyance to himself, is within the statute if the land so bought is to be held for the benefit of the other party to the contract, 26 since the perfonn-
20 Barter v. Kitch, 37 Ind. 554; Dowling v. McKenney, 124 Mass. 478; Cole v. Cede, 99 Miss. 335, 54 So. 953, 34 L. R. A. (N. S.) 147, Ann. Gas. 1913 E. 332; Slocum v. Wooley, 43 N. J. Eq. 451, 11 Atl. 264; Burlingame v. Burlingame, 7 Cow. 92; Jack v. Mc-Kee, 9 Pa. St. 235; Seifert v. Mueller, 166 Wis. 629, 146 N. W. 787. Cf. Gilfillan v. Sohaller, 33 S. D. 172, 144 N. W. 133.
21 Purcell v. Miner, 4 Wall. 513, 18 L. Ed. 435; Welch v. Bigger, 24 Idaho, 169, 133 Pac. 381; Gordon v. Simmons, 136 Ky. 273,124 S. W. 273, Ann. Cos. 1912 A. 305; Beckmann v. Mepham, 97 Mo. App. 161, 70 S. W. 1094; Sursa v.
Cash, 171 Mo. App. 396, 156 S. W. 779; Moss v. Culver, 64 Pa. 414, 3 Am. Rep. 601; Clegg v. Brannan (Tex. Civ. App.), 190 S. W. 812.
22 Lewis d. Brown, 22 Cal. App. 38, 133 Pac 331.
23 Wright v. Green (Ind.), 119 N. E. 379.
24 Banuon v. Bean, 9 Iowa, 395. See also supra, Sec.Sec. 274, 276, infra, Sec. 489.
25Horsey v. Graham, L. R. 5 C. P. 9, 13; Martin v. Wharton, 38 Ala. 637; Rawdon v. Dodge, 40 Mich. 697. The case of Cooley v. Osborne, 50 Ia. 526, to the contrary cannot be sup-
26 Howland v. Blake, 97 U. S. 624, ance of such a contract involves the acquisition of an equitable interest in the land by one party and the transfer of such an interest to him by the other; but if the party agreeing to buy the land is to hold it when purchased for his own benefit, an oral agreement is valid.27 Contracts to devise real estate by will, since they contemplate a transfer of real estate for a consideration, are also within the statute.28 So an oral agreement by a widow to allow her community interest in real estate to pass under her husband's will, is unenforceable.29 A defunct written agreement for the sale of an interest in land ordinarily cannot be orally revived,30 so that an agreement that a mortgage formerly given to secure a debt which has been paid, shall stand as security for a new advance, must be in writing; 31 but if the old writing accurately expresses every term of the new
24 L. Ed. 1027; Stephenson v. Thompson, 13 111. 186; Heaton v. Gaines, 198 111. 479, 487, 64 N. E. 1081; Hocker v. Gentry, 3 Mete. (Ky.) 463. In McLennan v. Boutell, 117 Mich. 644, 76 N. W. 76, an agreement by which one party was to convey land to a corporation in which the other parties to the contract were interested, was held within the statute.
27 Ambrose v. Ambrose, 94 Ga. 655, 19 S. E. 980; little v. McCarter, 89 N. C. 233.
28 Maddison v. Alderson, 8 A. G. 467; Horton v. Stegmyer, 175 Fed. 756, 99 C. C. A. 332; Quirk v. Bank of Commerce, 244 Fed. 682, 1S7 C. C. A. 130; Manning v. Pippen, 95 Ala. 537, 11 So. 56; Wallace v. Rappleye, 103 111. 229, 252; Wallace v. Long, 105 Ind. 522, 5 N. E. 666, 65 Am. Rep. 222; Wright v. Green (Ind.), 119 N. E. 379; Hamilton v. Thirston, 93 Md. 213, 48 Atl. 709; Gould v. Mansfield, 103 Mas. 408, 4 Am. Rep. 573; Ludwig v. Bungart, 48 N. Y. App. Div. 813, 63 N. Y. S. 91; Kling v. Bordner, 65 Ohio St. 86, 61 N. E. 148; Brown p. Golightly, 106 8. Car. 519, 91 S. E. 869, Ann. Cas. 1918 A. 1185; Goodloe v. Goodloe, 116 Term. 262, 92 S. W. 767, 6 L. R. A.
(N. 8.) 703; Newcomb v. Cox, 27 Tex. Civ. App. 583, 66 S. W. 338; Henderson v. Davis (Tex. Civ. App.), 191 S. W. 358; Plunkett v. Bryant, 101 Va. 814, 45 8. E. 742; Swash v. Sharp-stein, 14 Wash. 426, 44 Pac. 862, 32 L. R. A. 796; In re Edwall'a Est., 75 Wash. 391, 134 Pac. 1041; In re Sheldon's Est., 120 Wis. 26, 97 N. W. 524, Cf. Homer v. Maxwell, 171 Ia. 660, 163 N. W. 331; Woods v. Dunn, 81 Oreg. 457, 159 Pac. 1158; Quinn v. Quinn, 5 8. Dak. 328, 68 N. W. 808, 49 Am. St. 875. In Gordon v. Spell-man, 145 Ga. 682, 89 S. E. 749, Ann. Cas. 1918 A. 862, performance of services during the promisor's life as consideration for the promise was held such part performance as to make the contract enforceable.
29Herrick p. Miller, 69 Wash. 456.
30Smith v. Taylor, 82 Cal 533, 23 Pac 217; Davis v. Parish, Litt. Cas. (Ky.) 153; McConathy v. Lanham, 116 Ky. 735, 76 S. W. 535; Maxfield v. West, 6 Utah, 327, 23 Pac. 754; Williamson v. Paxton, 18 Grat. 475; Thompson v. Robinson, 65 W. Va. 506, 64 S. E. 718.
31 Ross v. Hodges, 108 Ark. 270, 167 S. W. 391.
agreement, and contains no additional terms or conditions, there seems no reason why the parties should not adopt their former writing as a present memorandum. A contract to reconvey is, of course, as fully within the statute as a contract to make an original conveyance.32 But where a conveyance is obtained by means of a fraudulent oral promise to reconvey which the promisor never intended to keep, a constructive trust arises and the grantor can regain his land.33 The statute is applicable to the obligation of the buyer as well as to that of the seller,34 unless a conveyance has actually been made.35