It has been held in England that a contract for the sale of a debt secured by mortgage, even though the debt is represented by a negotiable bond or debenture, is a contract for the sale of an interest in land.81 Such decisions, however, fail to observe the distinction, which is believed to be vital, of a transaction on the one hand, not itself a sale of an interest in land but which by operation of law gives rise to such an interest and, on the other hand, a direct agreement for the transfer of an interest in land. Thus in a jurisdiction which allows to the vendor of real estate a lien for the price, a contract for the sale of land the memorandum of which did not specify that the vendor should have a lien would be valid and create a right to the lien; but if the agreement of the parties provided for a mortgage back of the property by the purchaser, this agreement would have to be in writing. It is probable that nowhere in the United States would a contract for the sale of a debt secured by mortgage be held within this section of the statute.82 So an oral agreement to assign a judgment which is a lien on the debtor's land is valid.83 The distinction between a transfer of land by operation of law and by act of the parties is important also in relation to contracts to discharge encumbrances. A contract to pay a debt or to accept payment by way of accord and satisfaction, or otherwise, is not within the statute, though the effect of such payment may be to discharge a mortgage, and thereby retransfer an interest in land to the mortgagor.84 On the other hand, an express promise by a mortgagee to surrender or discharge his mortgage, in so far as this involves anything more than accepting payment of the debt, is within the statute.85 Whether an agreement by a mortgagee to discharge a mortgage means anything more in a particular case than a contract to accept satisfaction of his debt is a question of construction. In most States a mortgage is regarded as not only equitably an incident to the mortgage debt, but so completely an incident that an assignment of the debt makes the assignee the holder of the mortgage.86 In such jurisdictions it would seem that a contract by the mortgagee in terms to discharge or assign a mortgage, involved nothing more necessarily than an agreement to accept payment of the debt or to assign the debt.87 But where it is held that the legal right of the mortgagee cannot be discharged or assigned without the execution of a transfer of the mortgagee's right in the land, a contrary result would be reached.88 An oral contract by a mortgagor and mortgagee that the latter should be allowed to foreclose the mortgage and should pay a certain part of the proceeds to the mortgagor is not within the statute;89 but an oral agreement by the mortgagee to hold the premises after foreclosure still subject to redemption by the mortgagor is unenforceable.90

80 See supra, Sec. 449.

81 In Toppin v. Lomas, 16 C. B. 145, the court said, at page 160: "The obligee under such a bond stands in the position of a mortgagee, either directly or through the trustee; and in either case he has an interest in the land. When he agrees to sell hie bond, he agrees to sell all his rights and remedies upon and incident thereto: the seller intends to sell, and the buyer to buy, the whole benefit, of that bond.

A part of that benefit is, the security of the land upon which it is charged. I cannot entertain the smallest doubt that this is a contract for the sale of an interest in land." This decision was followed by the Court of Appeals in Driver v. Broad, [1893] 1 Q. B. 744, where a contract to sell debentures which were a floating charge on the assets of a company, was held within the statute because the company held some leasehold property.

82Rigney p. Lovejoy, 13 N. H. 247; Matins v. Brown, 4 N. Y. 403, 410. But where choses in action are regarded as goods., wares and merchandise, or expressly included under the section of the statute relating to the sale of goods, such a contract concerning a debt, if the debt exceeded the statutory amount must be in writing. Bee infra, Sec. 521.

83 Winberry p. Koonce, 83 N. C. 351.

84 Post v. Gilbert, 44 Conn. 9; Ludd v. Holman, 109 Me. 46, 82 Atl. 437; pike p. Brown, 7 Cuah. 133; Carr v. Dooley, 119 Mass. 294; Fiske v. Mo-Gregory, 34 N. H. 414; Matins p.

Brown, 4 N. Y. 403; Green v. Randall, 51 Vt. 67. So an agreement to pay taxes or assessments is not within the statute, though the payment will discharge an encumbrance on the land. Preble v. Baldwin, 6 Cush. 549; Remington p. Palmer, 62 N. Y. 31.

85Leavitt v. Pratt, 53 Me. 147; Phillips v. Leavitt, 54 Me. 405; Hunt p. Maynard, 6 Pick. *489; Parker v. Barker, 2 Mete. 324. So an agreement by the owner of a tax title to release his hen on payment of a certain sum is within the statute. Osborne p. Waddell, 176 Ala. 232, 57 So. 698.

86See 20 Cyc. 224.