The fourth section of the statute of frauds applies to certain types of "special promise," "agreement" and "contract or sale." The courts have in some cases considered to what classes of contract this language can apply. It is held not to apply to a contract of record.1 Thus, a recognizance to answer for the default of another is enforceable though unsigned.2 The statute of frauds clearly applies to express simple contracts. It does not apply to quasi-contract.3 The statute by its terms applies to a "special promise." Accordingly a liability independent of a special promise is not within the statute, such as an implied trust in realty,4 or the liability of a party, receiving a benefit under an oral contract which by its terms cannot be performed within the year, to recompense the adversary party therefore.5 Thus, even in oral contracts within the statute, the party who has performed in whole or in part may often recover on a quantum meruit.6

On the same principle the statute of frauds has no application to estoppel in pais.7 So interests in realty may be affected by estoppel in pais resting purely in oral evidence. The owner ton, 6 Dak. 306, 320; 43 N. W. 717.

3Hutton v. Doxsee, 116 la. 13; 89 N. W. 79.

1"No case can be found where a contract of record has been held to be within the statute of frauds." Huston v. Ry., 21 0. S. 235. Contra, Robinson v. Driver, 132 Ala. 169; 31 So. 495.

2 See Sec. 552.

3 Goodwin v. Gilbert, 9 Mass.

510; Doolittle v. Dininny, 31 X. Y. 350.

4Rayl v. Rayl, 58 Kan. 585; 50 Pac. 501.

5 City of Greenville v. Waterworks Co., 125 Ala. 625; 27 So. 764.

See Sec. 749-751.

6 See Sec. 749-751.

7 Foster v. Irrigation Co., 65 Fed. 836.

may be estopped to deny that the title 'to realty is in another where such other has been misled by the conduct of the true owner.8 So the true owner may be estopped to allege title as to third persons who have been misled by appearances; as where the holder of a mechanic's lien,9 or the creditors of the owner's husband,10 seek to enforce their claims on the theory that the realty in question belongs to such other. So the owner of realty may be estopped to deny the existence of a lease,11 or to allege the forfeiture of a lease.12 So he may be estopped to deny the existence of an easement in his realty for the benefit of another,13 as a right to make use of a ditch,14 or a right of way,15 as a right of way belonging to a railway.16 All these subjects are outside of the operation of the statute of frauds.