The line which the decisions have drawn between goods, wares, and merchandise on the one side, and interests in land on the other side, is considered in connection with a later section of the statute.52 Any interest, however, which the law regards as real estate is within the statute, therefore an oral contract to mortgage or give security on real estate is unenforceable.53 The common law regarded rent as "issuing from the land" and though the conception is artificial it is probably still law, and an agreement to transfer the right to rent must be in writing;54 though a promise by an assignee of a lease to assume payment of the rent need not be.55 A promise to give or take a lease,56 a promise to assign a leasehold interest 57 or a statutory right of preemption,58 a promise of an easement or profit in real estate, such as the promise of a right to flood land,59 to erect a dam,60 to allow a roof to drip on adjoining land,61 to maintain a ditch,62 water pipe, or sewer,63 a right

52See infra, Sec.Sec. 516-620.

53 Stringfellow v. Ivie, 73 Ala. 209; Marshall v. Livennore Water Co. (Cal.), 5 Pac. 101; Clabaugh v. Byerly, 7 Gill, 354, 48 Am. Deo. 575; Hackett v. Watte, 138 Mo. 602, 40 S. W. 113; Bemheimer v. Verdon, 63 N. J. Eq. 312, 49 Atl. 732.

54 In Brown v. Brown, 33 N. J. Eq. 650, an agreement to transfer rente which had been devised to the promisor was held within the statute. An oral agreement to make a charge upon rente was held invalid in Ex parts Hall, 10 Ch. D. 615. But an agreement by a tenant to pay an additional sum besides the rent is not within the statute unless charged upon the land. Donellan v. Read, 3 B. A Ad. 899.

55Knight v. Blumenburg, 111 Me. 190, 88 Atl. 474.

56Mechelen v. Wallace, 7 A. A E. 49; Vaughan v. Hancock, 3 C. B. 766; Thuraby v. Eccles, 70 L. J. Q. B. (N. 8.) 91; Larkm p. Avery, 23 Conn. 304; Donovan v. Maloney, 26 Del. 453, 84 Atl. 1032; Matthes v. Wier (Del. Ch.), 84 Atl. 878; Strehl v. D'Evers, 66

111. 77; Bacon v. Parker, 137 Mass. 309; Smith v. Phillips, 69 N. H. 470, 43 Atl. 183; Dunckel v. DunckeL 56 Hun, 26, 8 N. Y. S. 888; Jordan v. Greensboro Furnace Co., 126 N. C. 143, 35 S. E. 247, 78 Am. St. Rep. 644.

57 Buttemere v. Hayes, 5 M. & W. 456; Kingsley v. Siebreoht, 92 Me. 23, 42 Atl. 249, 69 Am. St. Rep. 486; Johnson v. Reading, 36 Mo. App. 306; Ware v. Chew, 43 N. J. Eq. 493, 11 Atl. 746; Tynan v. Warren, 53 N. J. Eq. 313, 31 Atl. 596; Potter v. Arnold, 15 R. I. 350, 5 Atl. 379.

58Lester v. White, 44 111. 464.

59 Foote p. New Haven, etc., Co., 23 Conn. 214; Clute v. Carr, 20 Wis. 531, 91 Am. Dec. 442.

60Moulton v. Faught, 41 Me. 298; Mumford v. Whitney, 51 Wend. 380, 30 Am. Dec. 60.

61 Tanner p. Volentine, 75 111. 624.

62McReynolds p. Harrigfeld, 26 Idaho, 26, 140 Pac 1096; Hitchens v. Shaller, 32 Mich. 496.

63 Berwyn v. Berghind, 255 111. 498, 99 N. E. 70S; Morse P. Lorens, 262 III. 115, 104 N. E. 237.

to convey water over another's land,64 to draw water from a stream or reservoir65 to control the flow of a water course,66 to mine and carry away ore,67 or gravel,68 to shoot and carry away game,69 to construct and maintain a railroad track and appurtenances for receiving shipments at certain points; 70and, indeed, the promise of any right in land which amounts to more than a license, is within the statute.71 It is well settled that a promise to sell an equitable interest in real estate is also within the statute.72 Any apparent difference of decision in regard to the question is due to a difference in what is held to give rise to an equitable interest in land. Thus in Massachusetts a contract in writing for the purchase of land may be orally assigned;73 but generally such a written contract is held to create an equitable ownership in the purchaser which makes necessary a writing if he wishes to assign, or contract to assign his rights.74 The right of redemption from a mortgage is an

64Geiger v. MoMahon, 31 S. Dak. 95,139 N. W. 958.

65Profile Cotton Mills v. Calhoun Water Co., 189 Ala. 181, 66 So. SO; Churchill v Russell, 148 Cal. 1, 82 Pac. 440. But see American, etc., Irrigation Co. v. Mercedes Plantation Co. (Tex. Civ. App.), 166 8. W. 286.

66Wears v. Chase, 93 Me. 264, 44 Atl. 900.

67 Riddle v. Brown, 20 Ala. 412, 66 Am. Dec 202; Hammond v. Winchester, 82 Ala. 470, 2 So. 892; Lear p. Chouteau, 23 111. 39; Entwhistle p. Henke, 211 111. 273, 71 N. E. 990, 103 Am. St. Rep. 196. Of. Clark v. Mitchell, 35 Nev. 447, 130 Pac. 760; Reagan p. McKibben, 11 S. D. 270, 76 N. W. 943.

68American Sand &. Gravel Co. v. Chicago Gravel Co., 184 111. App. 509.

69Webber v. Lee, 9 Q. B. D. 316.

70Day p. New York Central R. Co., 31 Barb. 548.

71 See cases in the preceding notes; also McManus v. Cooke, 35 Ch. D. 681; Tillis v. Treadwell, 117 Ala. 446, 22 So. 983; Taylor v. Millard, 118 N. Y. 244, 23 N. E. 376, 6 L. R, A. 667;

Bowington v. Williams (Tex. Civ. App.), 166 S. W. 719. As to the line dividing an agreement which creates an easement and one which creates merely a contract right, not specifically enforceable, see infra, Sec. 493.

72 Smith p. Burnham, 3 Sumn. 436; Pierce v. Parriah, 111 Ga. 725, 37 S. E. 79; Dougherty v. Catlett, 129 HI. 431, 21 N. E. 932; Ellis 0. Hill, 162 111. 667, 44 N. E. 868; Richards v. Richards, 9 Gray, 313; Sprague v. Kimball, 213 Mass. 380, 100 N. . 622, 45 L. R. A. (N. S.) 962; Tynan p. Warren, 53 N. J. Eq, 313, 31 Atl. 696; Holmes v. Holmes, 86 N. C. 206; Chenoweth v. Lewis, 9 Oreg. 160; Dial v. Crain, 10 Tex. 444. See also supra, Sec. 430.

73 Currier v. Howard, 14 Gray, 511; Naaro v. Long, 179 Mass. 451, 456, 61 N.E.43. And so in Texas - Bullion v. Campbell, 27 Tex. 663. See also Harm p. Brettler, 50 N. Y. Misc. 647, 98 N. Y. S. 607.

74 Kelly p. Webster, 12 C. B. 2S3; Dougherty 0. Catlett, 129 111. 431, 21 N. E. 932; Grunow v. Salter, 118 Mich. 148, 76 N. W. 326; Connor v. Tippett, 57 Miss. 594; Hackett p. Watts, 138 interest in land within the statute and a parol agreement by the mortgagor to sell it to a third person,75 or to surrender it to the mortgagee,76 is unenforceable. If an equitable interest in land has been created by a written contract, an oral rescission of the contract thereby restoring the equitable right to him who created it, seems as fully within the statute as if the equitable right had been conveyed, or contracted to be conveyed, to a third person, and so it has been held;77 but there are also numerous decisions allowing the validity of an oral rescission,78 many of which fail to recognize the point at issue, supposing apparently that all that is involved is the possibility of rescinding orally a contract which by statute must be in writing. Such oral rescission is unquestionably ordinarily possible.79 The difficulty here is not merely that the original con-

Mo. 502, 40 S. W. 113; Flinner v. Mo-Vay, 37 Mont. 309, 99 Pac. 340; Simms v. Killlian, 12 Ired. 252; Society of Doukhobon v. Hacker, 83 Oreg. 65, 192 Pac. 851; Murphy v. Hubert, 7 Pa. 420; Meason v. Kaine, 93 Pa. 33S. See infra, Sec.Sec. 927 et seq., for some discussion of the nature of the buyer's interest.

75 Maseey v. Johnson, 1 Exch. 241, 265; Hook Lumber Co. v. Crothers, 146 Mich. 675, 109 N. W. 1069; Odell v. Montross, 98 N, Y. 499; Vaughn v. Vaughn, 100 Tenn. 282, 46 S. W. 677.

76 Borcherdt v. Favor, 16 Col. App. 406, 413, 66 Pac. 251; Montpeher Savings Bank v. Follett, 98 Neb. 416, 94 N. W. 635; Marble v. Marble, 6 N. H. 374; Clitus v. Langford (Tex. Civ. App.), 24 S. W. 325. But see Baxter v. Pritchard, 122 Iowa, 590, 98 N. W. 372, 101 Am. St. Rep. 282, where the grantor in an absolute deed which was in fact executed as security, was held able to surrender by parol to the grantee the right of redemption; Kaler v. Grady, 18 Ky. L. Rep. 978, 37 S. W. 955, where a parol agreement not to redeem from an administrator's sale was upheld. Cf. Boyd v. Stone, 11 Mass. 342.

77 Barrett v. Durbin, 106 Ark. 332, 153 S. W. 295; Catlett v. Dougherty, 21 111. App. 116, 119; Dial v. Crain, 10 Tex. 444; Sanborn v. Murphy, 89 Tex. 437, 25 S. W. 910. See also Mallow v. Eaatm, 179 Ind. 267, 100 N. E. 839; Gerard-Fuho Co. v. McNair, 68 Wash. 321, 123 Pac. 462, 465.

78Goes v. Nugent, 5 B. ft Ad. 58, 66 (see, however, Harvey v. Grabham, 5 A. ft E. 61, 73); Ely v. Jones, 101 Kans. 572,168 Pac. 1102; Warden v. Bennett, 146 Ky. 326, 140 S. W. 538; Bud v. Miller, 4 N. H. 199; Miller v. Pierce, 104 N. C. 389, 10 S. E. 554 (when accompanied by overt acts plainly showing an intention to abandon the con-tract); Mahon v. Leech, 11 N. Dak. 181, 90 N. W. 807; Wadge v. Kittleson, 12 N. Dak. 452, 97 N. W. 856; Wisner v. Field, 15 N. Dak. 43, 106 N. W. 38; Boyce v. McCulloch, 3 W. ft S. 429, 39 Am. Deo. 35; Brownneld's Ex. v. Brownfield, 161 Pa. St. 565, 25 Atl. 92. See also Baxter v. Pritchard, 122 Iowa, 590, 98 N. W. 372, 101 Am. St. Rep. 282, stated supra n. 76; Matthews v. Thompson, 186 Mass. 14, 71 N. E. 93, 66 L. R. A. 421; Gorrell v. Alspaugh, 120 N. C. 362, 27 S. E. 85.

79See infra, Sec.Sec. 592, 1828.

tract was in writing and required to be, but that an equitable estate in the land has been thereby created. It may indeed be argued that one who agrees to give up the equitable right of a contracting buyer does not by so doing transfer or convey anything to the contracting seller, but merely discharges the latter from an obligation which created an incumbrance on his land. Even under this argument it seems difficult to support an oral rescission in any jurisdiction having a section in its Statute of Frauds similar to section 3 of the English Statute which provides, among other things, that no interest in land shall be surrendered without writing.80 But on analysis the situation seems to be more accurately expressed by saying that if ownership of land be regarded as the aggregate of certain rights and powers with reference to it, the owner who contracted to sell thereby parted with enough of these rights and powers to be called in themselves an interest in land, and that by the contract of rescission it was agreed that they should be restored to him.