28 Andrews v. Jones, 10 Ala. 400; Gordon v. Tweedy, 71 Ala. 202; Crane v. Gough, 4 Md. 316. In regard to an exceptional doctrine concerning antenuptial agreements see, however, supra, Sec. 486.

Another view of doubtful correctness has been adopted by some courts. The transfer of the possession and enjoyment of real estate is treated as if it were performance of an agreement to transfer title, so that thereby the contract becomes executed.33

29Stone v. Dennison, 13 Pick. 1, 23 Am. Dec. 654. Of. the decisions infra, Sec. 534, where a plaintiff who had not actually received performance was held entitled to refuse tender thereof though made in accordance with the terms of a contract within the statute, and sue for the fair value of what he had himself, given.

30Pawle v. Gunn, 4 Bing. (N. G.) 445, 448; Bibb v. Allen, 149 U. S. 481, 37 L. Ed. 819, 13 B. Ct. 950.

31 Beal v. Brown, 13 Allen, 114.

32 Musbat v. Brevard, 4 Dev. 73, 77.

32a Bee, e. g., Castlen v. Marshburn, 8 Ga. App. 400, 69 S. E. 317.

33Thus in Pearce v. Pearce, 184 111. 289,56 N. E. 311, an oral agreement was made as to a widow's dower rights. The widow took possession of the dower land assigned to her during her life and her son agreed to pay rent for it to her. He was held liable for this; the agreement in regard to the dower right being regarded as validated by her possession. In Anderson School Township v. Lodge, 130 Ind. 108, 29 N. E. 411, 30 Am. St. Rep. 206, a building was put up by tenants in common under an agreement that one should own the land and ground floor while the other should own the second storey. The court held a partition suit could not be maintained, saying "the agreement was fully performed and possession taken."

In Pireaux v. Simon, 79 Wis. 392, 48 N. W. 674, after a party wall had been built and used by the defendant, it was held that he must pay half the cost as he had orally agreed. See also cases of agreements for partition and some time after the oral bargain, either by a memorandum,40 or otherwise,41 the transaction dates, as between the parties from the oral contract. That an unenforceable contract is not void is also shown by the fact that where money is paid by a debtor to his creditor without direction as to its application, it may be applied by the creditor to the earliest item of indebtedness though that is unenforceable because of the statute.42

Sec. 629. Illustrations of the effect of unenforceable contracts as against the original parties, or their successors. The validity of an unenforceable contract, or sale, may be important in several kinds of cases. As between the parties themselves the effect of a transaction sufficient at common law to pass the title to goods but where the statute has not been satisfied, was thus expressed in a recent English case.34 "The contract being good, all the legal consequences of a contract follow; so that, if the contract is for sale of specified goods, the property in the goods passes to the buyer. It may be asked, What happens if the buyer, after making the purchase, refuses to fulfill any of the statutory conditions which alone will make the contract enforceable against him? The property in the goods has passed to him, and it may be that he has received the goods themselves, yet he cannot be sued for the price. My answer is that the seller may call on the buyer to pay for the goods, and, if he fails to comply, the seller may treat the contract as rescinded. The effect of such rescission would be to revest the property in the seller and to entitle him to resume the possession." It is clear, however, that the seller must not only have this right but must also have a right to repudiate the sale if it is not enforceaable against him; and if he can do this, he must also be able to resell the goods and give the second purchaser a good title.35 Similarly if the buyer resells, the statute for the settlement of boundaries, supra, Sec. 490, and of partly performed contracts for the sale of land, supra, Sec. 494.

34 Taylor v. Great Eastern Ry. Co., [1901] 1 K. B. 774,779.

35 Shelton v. Thompson, 96 Mo. App. 327, 70 S. W. 266; Fifth Nat. Bank v. Blair State Bank, 80 Neb. 400, 114 N. W. 409, 127 Am. St. Rep. 762. In the case first cited, the court said: "If the acta of the parties constituted a sale at taw, the transaction was not void but only voidable at the ejection of the party to be charged. Ault-man v. Booth, 9G Mo. 383, 8 S. W. 742; Maybee v. Moore, 90 Mo. 340, 2 8. W. 471. And it may also be said that as the Statute of Frauds affects only the remedy of the party sought to be charged, its benefits cannot be claimed by one who is not a party to the contract and is not sought to be charged thereby. St. Louis Railway v. Clark, 121 Mo. 169, 25 S. W. 192, 906. But we hold that the defendants are not within the above rule, for the reason that their vendor. Bain, avoided the contract in the first instance by refusing to let plaintiffs have the hogs in dispute. It would be illogical to hold that after a vendor had repudiated an oral contract like the one in question, he could not thereafter sell the goods and give good title. That is to say, that thereafter he must keep the goods because a purchaser not having been satisfied, the subpurchaser cannot enforce his title against the original seller.36 So where two oral contracts for the sale of real estate are made between different persons, the purchaser under the second agreement, if he actually receives a conveyance though with notice of the previous oral contract, can retain his title.37 The seller had the legal right to repudiate his first oral contract and regain his title. This right he could transfer under the second contract; nor would a subsequently executed memorandum validating the first contract, give the purchaser under that contract a right against the grantee though it would give a right of action for damages against the seller. Indeed even though the original owner should execute a deed of conveyance to the purchaser who had the prior oral contract, the right of the latter will be inferior to that of one who has an earlier conveyance, though it was taken with notice of the prior oral contract.38 But if the first oral agreement is validated by a memorandum made prior to the conveyance of the land to another purchaser, though after a written contract to convey has been made with him, the oral contract is validated from the time when it was first made and takes precedence over the second contract though that was in writing; and if the purchaser under the later contract thereafter takes a deed with notice of the prior contract, equity will compel him to convey to the first purchaser.39 And, generally where the statute is satisfied at could not be found, for the reason that they could be taken from him by the original vendee, which would destroy their character as articles of merchandise. But it is plain, that when the vendor voids a sale under said statute and retains the goods, his title is as if no such sale had ever been made, and he can resell and give as good a title as his own to the purchaser, who can, at a suit by the first vendee for the same goods, plead the action of the vendor, as a bar to such suit."

36 But if the Statute is satisfied even though after the subpurchsse, the subpurchaser's title becomes enforceable. Norton v.Sunonds, 124 Mass. 19.

37 Van Cloostore v. Logan, 149 ID. 588, 36 N. E. 946; Asher v. Brock, 95 Ky.270,248. W. 1070.

38 Piokerell a. Mores, 97 111. 220.

39 Dawson v. Ellis, 1 Jac. & W. 524; Chicago Dock Co. v. Kinzie, 49 111. 289; Lucas v. Mitchell, 3 A. E. Marsh. 244; Gsllaher v. Hunter, 6 Mo. 507; Magee v. Blankenship, 95 N. C. 563; Patterson v. Marti, 8 Watts, 374; Maguire v. Heraty, 163 Pa. 381, 30 Atl. 151. See also Mitchell v. King, 77 111. 462; Peck v. Williams, 113 Ind. 258, 15 N. E. 270; Leffereon v. Dallas, 20 Ohio St. 68; Main v. Boaworth, 77 Wis. 660, 46 N. W.1043.