This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
The "contract or sale" referred to in this clause is one which creates or transfers an estate or interest. The first test to apply, therefore, in determining the effect of this clause of the statute upon a contract is whether or not the contract creates, modifies or destroys interests of the parties in realty. If the interests in realty which belong to the parties to the contract are the same under the contract as without it, the contract is not within the statute.1 Thus where A grants an easement to a railroad in writing, and orally reserves the right to use a spring on the tract included in such grant, such oral reservation is not within the statute, as A had a pre-existing legal right to such spring.2 Another illustration of this principle is a contract providing for the right of redemption of property conveyed by an instrument which is in form a deed, but in reality a mortgage. Such a contract is not within the statute.3
So the statute of frauds does not apply to adverse possession during the statutory period, even if oral evidence is necessary to connect the different adverse possessions and to show that they have been continuous.4
5Godeffroy v. Caldwell, 2 Cal. 489; 56 Am. Dec. 360; Clark v. Shultz, 4 Mo. 235; Frear v. Harden-bergli, 5 Johns. (N. Y.) 272; 4 Am. Dee. 356; Thouvenin v. Lea, 26 Tex. 612.
6 Ziekafoss v. Hulick, 1 Morris (la.) 175; 39 Am. Dec. 458.
7 Welever v. Detwiler Co., 16 Ohio C. C. 680; 8 Ohio C. D. 668.
1 Smith v. Holloway, 124 Ind. 329; 24 N. E. 886; Swift v. Calnan, 102 la. 206; 63 Am. St. Rep. 443; 37 L. R. A. 462; 71 N. W. 233; Mussey v. Bates, 65 Vt. 449; sub nomine, Mussey v. Yates, 21 L. R. A. 516; 27 Atl. 167.
2 Smith v. Holloway, 124 Ind. 329; 24 N. E. 886.
3 See Sec. 644.