The Statute of Frauds invalidates only agreements executory at least on one side, whether rendering them unenforceable as in most jurisdictions or wholly void as in a few others. It does not render transactions illegal or opposed to public policy,
Smyth 21 Utah, 109, 59 Pac. 756; Jennings v. Auger, 21S Fed. 058 (D. C. Wash.); Tregea v. Mills, 11 Wyo. 438, 72 Pac. 578.
24 Buttermere v. Hayes, 5 M. & W. 456; Eastwood v. Kenyon, 11 A. & E. 438; Dunphy v. Ryan, 116 U. S. 491, 6 S. Ct. 486, 29 L. Ed. 703; McDonald v. YungMuth, 46 Fed. 836; Buhl v. Stevens, 84 Fed. 922; Thompson v. Frakes, 112 Iowa, 585, 84 N. W. 703; Wiawell v. Tefft, 5 Kan. 263; Morgan v. Wickliffe, 22 Ky. L. Rep. 1648, 61 S. W. 13; Hamilton v. Thirston, 93 Md. 213, 48 Atl. 709; Morgart v. Smouse, 103 Md. 463,63 Atl. 1070, 115 Am. St. Rep. 367; Third Nat. Bank v. Steel, 129 Mich. 434, 88 N. W. 1050, 64 L. R. A. 119; Bean v. Lamprey, 82 Minn. 320, 84 N. W. 1016; Neuvirth v. Engler, 83 Mo. App. 420; Leesley v. A. Rebori Fruit Co., 162 Mo. App. 195, 144 S. W. 138; Riiff v. Riibe, 68 Neb. 543, 94 N. W. 517; Jones v. Petti-grew, 25 S. Dak. 432, 127 N. W. 538; Hotchkies v. Ladd, 36 Vt. 593, 86
Am. Dec. 679; McClanahan v. Otto-Marnet etc. Co., 74 W. Va. 543, 82 S. E. 752; Williams-Hayward Co. v. Brooks, 9 Wyo. 424, 64 Pac 342. See also Boone v. Coe, 153 Ky. 233,154 S. W. 900.
25 This view is elaborated in an able article in 9 Am, L. Rev. 434. The article is not signed but was, in fact, written by William C. Loring, late justice of the Supreme Judicial Court of Massachusetts. The theory is substantially stated also by Willes, J., in Gibson v. Holland, L. R. 1. C. P. 1, in language quoted and approved by Peters, J., in Bird v. Monroe, 66 Me. 337, 347, 22 Am. Rep. 571: "The courts have considered the intention of the Legislature to be of a mixed character; to prevent persons from having actions brought against thorn so long as no written evidence was existing when the action was instituted." See also Kerr v. Finch, 25 Ida. 32, 135 Pac. 1165.
and therefore if an agreement within its scope is executed on both Bides, neither party can reclaim what he has given.26 This is true even where the performance on one side consists merely of an agreement to receive the performance of the other party in satisfaction of a preexisting claim.27 Moreover, if a contract within the statute is performed on one side by transferring property, the transfer is for value and cannot be attacked by creditors as a voluntary conveyance.28 Nor can one who has received performance in accordance with an oral agreement within the statute disclaim the terms of the agreement, and recover on a quantum meruit the value of what he has given.29 So an agent authorized to contract who has fully performed an unenforceable contract made on behalf of another may recover from his principal what he has paid,30 and this is true even though the agent after making the oral agreement was forbidden by his principal to carry it out.31 So the title which a grantee has received in performance of an unenforceable executory agreement is indefeasible.32 The ambiguity of the phrase "executed contract" has led to expressions in some cases to the effect that a contract executed on one side only is not within the terms of the statute.32a No such general principle can be admitted. How far it is true depends on the clause of the statute in question, and on the character of the promise, performance of which still remains due. This matter has therefore been considered separately under the various clauses of the statute.
26 Simon v. Motivos, 1 W. Black. 699 ("If a contract is executed, it is never set aside"); Shaw v. Woodcock, 7 B. 4 C. 73, s. c. 9 D. 4 R. 889 (an agent who had voluntarily paid bis principal the debt of another, was held not entitled to recover it); Hansen v. Uniform Seamless Wire Co., 243 Fed. 177, 16S C. C. A. 43 (payment of sums on a ten-year contract of employment as full satisfaction); Bates v. Babcock, 95 Cal. 479, 30 Pac. 605, 16 L. R. A. 745 (after a conveyance of land had been made in pursuance of an oral agreement, though it could not have been compelled, the statute was held not to diminish the grantee's rights); Craig v. Vanpelt, 3 J. J. Marsh. 489 (one who orally promised to pay the debt of another and who has done so, cannot avail himself of the statute); Eaton v. Eaton, 35 N. J. L. 390 (an oral trust having been executed, the trustee cannot recover money paid in execution of it); Newman v. Nellis, 97 N. Y. 285, 291 (one who has dedicated a way in pursuance of an oral contract, cannot recall the dedication); Laraen v. Johnson, 78 Wis. 300, 47 N. W. 015, 23 Am. St. Rep. 404 (after a conveyance of land had been made in pursuance of an oral agreement, though it could not be compelled, the statute was held not to diminish the grantee's rights). See also McCue p. Smith, 9 Minn. 252, 86 Am. Dec 100; Dodge v. Crandall, 30 N. Y. 294,
304; Brown v. Farmers' L. A T. Co., 117 N. Y. 288,273,22 N. E. 952.
27 Kling v. Tunatall, 124 Ala. 268, 27 So. 420. (An oral agreement was made that certain mortgaged property should be bid in and applied in satisfaction of certain claims. When the property was bid in it was held the agreed effect took place.)
In James v. Morey, 44 111. 352, an oral promise was made by the plaintiff to pay the defendant money in consideration of his marriage, and relying on the promise the defendant married. Part of the money was paid, and credit was given to the defendant on the plaintiff's books for the remainder, the defendant being indebted to the [Jain-tiff for rent. It was held that the plaintiff could not recover the sum credited. The court treated the credit on the books as equivalent to actual payment and execution of the agreement. It seems, however, that as to this portion of the money promised there was merely a promise to discharge the defendant from liability to pay the rent in question. As this promise was within the statute which was not satisfied, the court seems to have erred in holding the defendant freed from liability.