It is only contracts for the sale of any interest in land which are affected by the statute. Accordingly contracts which relate to land but do not involve agreement for its sale are not within the statute. A contract, though oral, that land shall be used or shall not be used in a particular way is enforceable91 unless the contract if enforced would give rise to a legal or equitable easement.92
87In Malins V, Brown, 4 N, Y. 403, 409, Taylor, J., said: "It may well be doubted whether a parol agreement to discharge or release land from the imperfect lien of a mortgage, before forfeiture or foreclosure, affects such an 'estate or interest in, or trust or power over or concerning lands, or relating thereto,' as is required by the statute to be in writing; for it has often been decided in this state, and such seems to be the established law, that 'a mortgage is not a conveyance of land within the statute of frauds, bo as to require the assignment thereof to be in writing."
88In Leavitt v. Pratt, 53 Me. 147, 148, the court said: - "In Massachusetts and in this State, the interest of tie mortgagee is held to be within the statute of frauds, and not to pass by delivery of the mortgage nor by parol assignment. Vose v. Handy, 2 Greenl, 322, 11 Am. Dec. 101; Mitchell v. Burnham, 44 Me. 286, 302; Warden v. Adams, 15 Mass. 233, 236. So, too, an oral promise, on sufficient consideration, made by a mortgagee to relinquish his claim to the land mortgaged, is void by the Statute of Frauds. Parker v. Barker, 2 Met. 423; Maynard v. Hunt, 5 Pick. 240; Hunt v, Maynard, 6 Pick. 489.
The law, however, on both of these points, has been held differently in some of the States. As, in New Hampshire, where it was decided that the interest of the mortgagee, being a mere incident to the debt, was not within the Statute of Frauds. Southerin v, Mendum, 5 N. H. 420. So, in many of the States, it has been decided that a mortgagee may release his mortgage by a sufficient parol agreement, though the mortgage be under seal and unpaid. Wallis v. Lung, 16 Ala. 738; Howard v. Gresham, 27 Geo. 347; Ackla v. Ackla, 6 Ban, 228. But, as has been seen, the decisions have invariably been otherwise in this State and in Massachusetts."
89Lane v. Flint, 217 Mass. 96, 104 N. E. 570.
90Downing v. Brennan (Mass.), 122 N. E. 729.
A contract for a license to use real estate which does not amount to an easement may be oral. Licenses are usually thought of as given without consideration and revocable, but it is possible to have a license promised for consideration, and if then revocable at all, it will not be revocable without subjecting the licensor to liability in damages. Also a contract to give board and lodging is not within the statute;93 nor is a contract for the use of a hall on certain afternoons.94 A contract giving a right of admission to a theatre is a contract for a license, and not for an easement,95 as is a contract for a temporary and personal right to make bricks on the promisor's land with his clay and wood,96 or to allow advertisements to be pasted on a wall.97 Whether an agreement amounts to a contract for an easement or merely for a license is a difficult question, the answer to which cannot be attempted here, further than to say that it is important to determine whether the use contemplated is permanent and continuous on the one hand, or temporary and occasional on the other hand, whether a covenant in terms of the promise would run with the land, and therefore impose a burden on one piece of land in favor of another, or would impose merely a personal duty on the promisor in favor of the promisee; and, also in the latter event, whether the duty would be enforceable in equity, not only against the promisor but also against one taking the land from him with notice of the agreement. In the last analysis, assuming that at least a contract, and not a mere permission without consideration, existed, the question becomes one of how far the policy of the law shall permit incidents of ownership of land to be divested from the title and held either as a legal easement or by means of specific performance as an equitable one.98
91 Smith-Powers Logging Co. v. Bet-nitt, 237 Fed. 570; Halbut v. Forrest City, 34 Ark. 248; Hall v. Solomon, 61 Conn. 476, 23 Atl. 876, 29 Am. St. Rep. 218; Pierce v. Woodward, 6 Pick. 206; Storms v. Snyder, 10 Johns. 109; Brown v. Morris, 83 N. Car. 251; Hamilton, etc., Co. v. Cincinnati Rail' road, 29 Ohio St. 341; Leinau v. Smart, 11 Humph. 308. But see Duncan v. LaBouisse, 9 La. Ann. 49. So a promise by a landlord or tenant as to repairs or use of the demised premises may be oral. Morgan v. Griffith, L. R. 6 Ex. 70; Angell v. Duke, L. R. 10 Q. B. 174.
92 The following decisions held agreements in question within the statute. Rice v. Roberts, 24 Wis. 461 (contract between adjoining landowners that one of them would not build flush with the street); Sprague v. Kimball, 213 Mass. 380, 100 N. E. 622 (contract by grantor to subject other lota to the same restriction as were in promisee's conveyance); and see cases of contracts for easements, supra, £ 489.
93 Wright v. Stavert, 2 El. & El. 721; White v. Maynard, 111 Mass. 250, 15 Am. Rep. 28; Wilson v. Martin, 1 Denio, 602. Though an oral contract to lease a room or part of a building would be unenforceable. Edge v. Strafford, 1 C. ft J. 391.
94Johnson v. Wilkinson, 139 Mass. 3,29 N. E. 62,52 Am. Rep. 698.
95Taylor p. Waters, 7 Taunt, 374.
96 Brown v. Morris, 83 N. C. 251.
97 King v. Allen,  A. C. 54.
Agreements to erect buildings or other structures upon land are not within the statute although the structures when completed will be real estate.99 So an agreement between a landowner and another by which the former is to pay the latter for planting trees or making other improvements,1 as digging a well or ditch,1 is valid though oral. Whether the case is different if the structure is to be erected on the boundary separating the estates of the contracting parties has given rise to some difference of opinion. It is argued that such an agreement necessarily involves the right to the use by each party of so much of the adjoining land as is necessary for the structure in question, and, therefore, involves the transfer of an interest in land. This has been so held in regard to a well on the line dividing the premises of the parties to the agreement.3 The same has been held in regard to an agreement to erect and maintain a portion of a partition fence without any stated limit of time.4 This argument, however, fails to take account of the distinction between a transfer effected by operation at law without any expression of the parties of such an intent, and a transfer directly created by act of the parties.5 The building of a fence does not transfer the boundary land to the use of several parties. The law generally requires this dedication. The fact that the erection of a boundary fence may result in the fence becoming real estate and may give each of the parties an interest in the fence and in the land under it, is accidental. It seems hard to suppose that a contract by a landowner to build a particular partition fence would be within the statute.6 Yet such a con--