It is often said by the courts that there can be no part performance of an oral contract for the sale of realty which will prevent the statute of frauds from applying unless possession if the realty sold is taken under the contract.1 While this is undoubtedly true in these cases, since no other acts were shown

Gilchrist v. McGee, 9 Yerg. (Tenn.) 455; Leconte v. Toudouze, 82 Tex. 208; 27 Am. St. Rep. 870; 17 S. W. 1047; Harris v. Crenshaw, 3 Rand. (Va.) 14.

2 Anderson v. Canter, 10 Kan. App. 167; 63 Pac. 285; Archer v. Helm, 69 Miss. 730; 11 So. 3.

3 Strickley v.. Hill, 22 Utah 257; 83 Am. St. Rep. 786; 62 Pac. 893. (But in this case the evidence left it in doubt whether any contract had in fact been made. If it had, it was by one co-owner who could not bind the others.)

4Dupont v. Starring, 42 Mich. 492; 4 N. W. 190; Joyce v. Williams. 26 Mich. 332; Smith v. Hamilton, 20 Mich. 433; 4 Am. Rep. 398.

5 Schoonmaker v. Doolittle, 118 111. 605; 8 N. E. 839; Bobo v. Richmond, 25 O. S. 115; Davis v. Russell, 142 Pa. St. 426; 21 Atl. 870; Larson v. Onesite, 21 Utah 38; 59 Pac. 234: McMaster v. Morse, 18 Utah 21; 55 Pac. 70.

6 Nathan v. Dierssen, 134 Cal. 282; 66 Pac. 485; Smith v. Dudley, 1 Litt. (Ky.) 66; 13 Am. Dec. 222; Vosburgh v. Teator, 32 N. Y. 561; Mynatt v. Smart (Tenn. Ch. App.) , 48 S. W. 270; Northern Pine Land Co. v. Bigelow. 84 Wis. 157; 21 L. R. A. 776; 54 N. W. 496.

1Geer v. Goudy, 174 111. 514; 51 N. E. 623; Dickens v. McKinley, 163 111. 318; 54 Am. St. Rep. 471; 45 N. E. 134; Grant v. Ramsey. 7 O. S. 157; Moore v. Beasley, 3 Ohio 294; Waggoner v. Speck, 3 Ohio 292 : Derr v. Ackerman, 182 Pa. St. 591 : 38 Atl. 475.

■which could amount to part performance, and while in the greater number of cases, change of possession is the only act of part performance shown, it is not safe to lay down so sweeping a proposition as law. On the one hand, acts which are collateral to the contract for the sale of realty,2 such as obtaining tenants,3 or paying taxes on the realty and listing it for sale with real-estate agents,4 do not constitute part performance.

On the other hand there are many cases in which the doctrine of part performance has been applied though possession of realty was not taken under the contract. In some jurisdictions, at least, if the act done by one party to the contract as part performance thereof is of such a kind that he cannot be restored to his original position even by compensation in money, such act is treated as part performance, taking the case out of the statute, and the other party may be compelled in equity to perform the oral contract on his part specifically, even although the act which he has undertaken to do is within the statute.5 Thus, where in consideration of A's promise to convey realty, B agrees to and does withdraw exceptions to the account of an administratrix and allow the account to be confirmed,6 or dismisses a divorce suit and resumes marital relations with promisor,7 A's promise is held not to be within the statute. Thus, where A, the vendor of certain realty, agreed with B, the purchaser thereof, to release his lien in two-thirds of the realty on consideration of B's reconveying the other third of the realty and paying a certain sum of money, and in reliance on this contract C lends B such amount of money, B being insolvent and unable to repay it, such part performance was held to take the case out of the statute as far as C's rights were affected.8

2 Colgrove v. Solomon, 34 Mich. 494; Nibert v. Baghurst, 47 N. J. Eq. 201; 20 Atl. 252.

3 Russell v. Briggs, 165 N. Y. 500; 53 L. R. A. 556; 59 N. E. 303 (and even collecting rents).

4 Harney v. Burhans, 91 Wis. 348; 64 N. W. 1031.

5 Spencer v. Spencer, 25 R. I. 230; 55 Atl. 637; In re Field's Estate, 33 Wash. 63; 73 Pac. 768.

6 Hancock v. Melloy, 187 Pa. St. 371; 41 Atl. 313.

7 Barbour v. Barbour, 49 N. J. Eq. 429; 24 Atl. 227.

8 Johnson v. Portwood. 89 Tex. 235; 34 S. W. 596, 787 (citing on this point Malins v. Brown, 4 N. Y. 403).

An extreme example of this rule is found in a case in which A had conveyed realty to his wife in reliance on her promise to reconvey to him, and it was held by a divided court that performance on the part of the husband took the case out of the statute.9 An illustration of the general rule that change of possession of realty is a necessary element of part performance, and of the qualification thereto already discussed is found in contracts to devise realty. If the consideration for the promise to devise is the surrender of the custody of a child to the promisor and its adoption by him, the weight of authority is that full performance by the surrender of the custody of the child and its adoption, whether formal or informal does not prevent the statute from operating.10 So a contract between two sisters to make mutual wills is not withdrawn from the operation of the statute by making such wills, where one of the wills is revoked by the subsequent marriage of the testatrix.11 So performance of personal services as consideration for a promise to devise realty does not withdraw the contract from the operation of the statute.12

On the other hand in jurisdictions which recognize the qualification that if the party performing cannot be restored to his former condition even by money damages, he may have specific performance in equity even of an oral contract, a contract to devise realty has been held to be taken out of the statute by the performance by the adversary party of his agreement to live with and care for testator, and render personal services to him,13 or by his performance of his promise to surrender the custody of a child,14 or by allowing the adversary party to name a child.15 On the same principle a contract between several brothers and sisters to whom land descended as tenants in common that they would hold it as joint tenants, that on the death of each it should vest in the survivors and that on the death of the last survivor it should descend to the child of the only one of them who was married, was held to be withdrawn from the operation of the statute by the performance of the contract until invested in the last survivor.16 Many of the cases here given are cases of full performance on one side, leaving an act to be done on the other side, which is one of those named in this section of the statute. While in one sense they should be discussed under another heading17 they are discussed here partly because the general principles that control them are in cases like this the same in full performance on one side and in part performance; and partly because the courts often refer to them as cases of part performance.

9 Haussman v. Burnham, 59 Conn. 117; 21 Am. St. Rep. 74; 22 Atl. 1065. Such contract was said to be "fully performed by the other contracting party to it and therefore taken out of its operation." This case is clearly contrary to the weight of authority; see Sec. 731. It cannot rest on any doctrine of fraud as the wife had made a conveyance at her husband's request, which was defective because he did not join with her in the deed, and accordingly the sole reason for non performance on her part was his ignorance of the law of conveyancing.

10 Grant v. Grant, 63 Conn. 530; 38 Am. St. Rep. 379; 29 Atl. 15;

Dicken v. McKinley, 163 111. 318; 54 Am. St. Rep. 471; 45 N. E. 134; Pond v. Sheehan. 132 111. 312; 8 L. R. A. 414; 23 N. E. 1018; Austin v. Davis, 128 Ind. 472; 25 Am. St. Rep. 456; 12 L. R. A. 120; 26 N. E. 890; Shahan v. Swan, 48 O. S. 25; 29 Am. St. Rep. 517; 26 N. E. 222.

11 Hale v. Hale, 90 Va, 728; 19 S. E. 739.

12Sturges v. Taylor (N. J. Eq.), 20 Atl. 369; Richardson v. Orth, 40 Or. 252; 66 Pac. 925; 69 Pac. 455; Kling v. Bordner, 65 O. S. 86; 61 N. E. 148; Ellis v. Cary, 74 Wis. 176; 17 Am. St. Rep. 125; 4 L. R. A. 55; 42 N. W. 252.

13 Owens v. McNally, 113 Cal. 444; 33 L. R. A. 369; 45 Pac. 710; Svanburg v. Fosseen, 75 Minn. 350; 74 Am. St. Rep. 490; 43 L. R. A. 427; 78 N. W. 4; Hiatt v. Williams, 72 Mo. 214; 37 Am. Rep. 438; Teske v. Dittberner, - Neb. -; 98 N. W. 57; modifying, 65 Neb. 167; 91 N. W. 181; which reversed, 63 Neb. 607; 88 N. W. 658; Brinton v. Van Cott, 8 Utah 480; 33 Pac. 218.

14 Jones v. Comer (Ky.), 77 S. W. 184; denying rehearing (Ky.). 76 S. W. 392; Nowack v. Berger, 133 Mo. 84; 54 Am. St. Rep. 663;

31 L. R. A. 810; 34 S. W. 489; Wright v. Wright, 99 Mich. 170; 23 L. R. A. 196; 58 N. W. 54; Kofka v. Rosicky, 41 Neb. 328; 43 Am. St. Rep. 685; 25 L. R. A. 207;

59 N. W. 788.

15 Daily v. Minnick, 117 la. 563;

60 L. R. A. 840; 91 N. W. 913. Under a statute making payment of consideration part performance.

16 Murphy v. Whitney, 140 N. Y. 541; 24 L. R. A. 123; 35 N. E. 930. Hence the child to whom the property is to descend can enforce the contract against the last survivor.

17 See Sec. 714.