The doctrine of part performance clearly applies to contracts for the sale of realty or some interest therein.1 Thus if the parties to an oral contract of partition have taken possession in severalty of their respective allotments, such contract is not within the statute.2 An oral assignment of dower if following by possession is not within the statute.3 Such a contract does not create an interest in realty. It "only admeasured and established the limits of the estate the law conferred upon" the widow.4 Taking possession of realty exchanged,5 or taking-possession and making valuable improvements thereon6 takes an oral contract of exchange out of the statute. So an oral rescission of a contract of exchange which has been itself partly performed by exchange of possession though deeds for the realty have not been delivered, is not within the statute where such oral rescission is partly performed by a restitution of original possession to one party.7 So if an oral release is accompanied by acts which are inconsistent with the continuance of the estate released and which are acted on by the adversary party, the release is binding though oral.8 Thus if A agrees in writing to sell realty to B, and B surrenders such option orally and induces A to make a new written contract with X for the sale of such realty, A's surrender is enforceable.9 On the other hand, an oral surrender of a written contract of sale and a re-delivery of the original contract is within the statute.10 The validity of such oral releases is due to principles of estoppel, to which the statute of frauds does not apply.

1 Riggles v. Erney, 154 U. S. 244; St. Louis, etc., Ry. v. Graham, 55 Ark. 294; 18 S. W. 56; Bogle v. Jarvis, 58 Kan. 76; 48 Pac. 558; Delavan v. Wright, 110 Mich. 143; 67 N. W. 1110; Butler v. Thompson, 45 W. Va. 660; 72 Am. St. Rep. 838; 31 S. E. 960; McWhinne v. Martin, 77 Wis. 182; 46 N. W. 118.

2Tuffree v. Polhemus, 108 Cal. 670; 41 Pac. 806; Long v. Dollar-hide, 24 Cal. 218; Higginson v. Schaneback (Ky.), 66 S. W. 1040; Natchez v. Vandervede, 31 Miss. 706; 66 Am. Dec. 581; Wildey v. Bonney, 31 Miss. 644; Borden v. Curtis, 48 N. J. Eq. 120; 21 Atl. 472; 46 N. J. Eq. 468; 19 Atl. 127; Piatt v. Hubbell, 5 Ohio 243; Mc-Knight v. Bell, 135 Pa. St. 358; 19 Atl. 1036; Mellon v. Reed. 114 Pa. St. 647; 8 Atl. 227; Rider v. Maul.

46 Pa. St. 376; same case, 70 Pa. St. 15; Mass v. Bromberg, 28 Tex. Civ. App. 145; 66 S. W. 468; Whit-temore v. Cope, 11 Utah 344; 40 Pac. 256.

3 Pearce v. Pearce, 184 111. 289; 56 N. E. 311; affirming 83 111. App. 77; Lenfers v. Henke, 73 111. 405; 24 Am. Rep. 263; Shattuck v. Gregg, 23 Pick. (Mass.) 88.

4 Pearce v. Pearce, 184 111. 289, 293; 56 N. E. 311; affirming 83 I11. App. 77.

5 Kimbrough v. Nelms, 104 Ala. 554; 16 So. 619; Webb v. Ballard. 97 Ala. 584; 12 So. 106; Bennett v. Knowles. Ill Mich. 226; 69 X. \V. 491; Brown v. Bailey. 159 Pa. St. 121; 28 Atl. 245.

6 Hunkins v. Hunkins, 65 N. H. 95; 18 Atl. 655.