While the courts not infrequently say that a contract within the statute of frauds and not complying with its requirements is void,1 this is simply another example of inaccuracy in the use of the word "void," "void" in this instance being confused with "unenforceable." Such contracts are not void in the proper use of the term.2

8 Wright v. McCord, 113 Ga. 881; 39 S. E. 510; Cross v. Commission Co., 153 111. 499; 46 Am. St. Rep. 902; 38 N. E. 1038; Schafer v. Wilson, 113 la. 475; 85 N. W. 789; Springle v. Morrison, 3 Litt. (Ky.) 52; 14 Am. Dec. 41; Redmond v. Loan Association, 194 Pa. St. 643; 75 Am. St. Rep. 714; 45 Atl. 422; Wampol v. Kountz, 14 S. D. 334; 86 Am. St. Rep. 765; 85 N. W. 595; Polk v. Gunther, 107 Tenn. 16; 64 S. W. 25; Murray Mining and Mill Co. v. Havenor, 24 Utah 73; 66 Pac. 762.

9Radant v. Mfg. Co., 106 Wis. 600; 82 N. W. 562.

10 Hauk v. Van Ingen, 196 111. 20; 63 N. E. 705.

11 Brown v. Baruch. 24 Wash. 572; 64 Pac. 789.

12 Conley v. Johnson, 69 Ark.

513; 86 Am. St. Rep. 209; 64 S. W. 277.

13 Mattes v. Frankel, 157 N. Y. 603; 68 Am. St. Rep. 804; 52 N. E. 585; De Herques v. Marti, 85 N. Y. 609.

14 Biggs v. Ditch Co., - Ariz. -; 64 Pac. 494.

15 Mattes v. Frankel, 157 N. Y. 603; 68 Am. St. Rep. 804; 52 N. E. 585; Grace v. Walker, 95 Tex. 39, 43; 65 S. W. 482; affirming on re-hearing, 95 Tex. 39; 64 S. W. 930.

16Hendrix v. Ry., 130 Ala. 205; 89 Am. St. Rep. 27; 30 So. 596; Louisville, etc., Ry. v. Coal Co., Ill Ky. 960; 55 L. R. A. 601; 64 S. W. 969.

1 McKinnon v. Mixon, 128 Ala.

612; 29 So. 690; Bishop v. Martin (Ky.), 65 S. W. 807; McDonald v. Maltz, 78 Mich. 685; 44 N. W.

Accordingly, persons who are not parties to an oral contract and who do not represent such parties cannot attack the contract as invalid by reason of the statute of frauds.3 Thus, in contracts for the sale of some interest in realty,4 third persons, such as adverse claimants of the property,5 gratuitous donees,6 persons having subsequent written contracts with the same vendor for the same realty, where the vendor conveys to the vendee under the prior oral contract,7 creditors of the vendor,8 even if they have obtained judgments which would be liens on the realty contracted for, but for the contract,9 an assignee for the benefit of creditors,10 or an insurer of the interest of the vendee under the oral contract,11 can none of them avail themselves of the fact that the contract did not comply with the requirements of the statute. So one who has made an oral promise to answer for the debt, default, or miscarriage of another and has performed such contract can compel exoneration from the principal debtor.12 This is true even where such debtor has notified such guarantor not to perform.13 So where A has conveyed to B as trustee, A cannot avoid the deed because the trust was an oral one to secure a debt from A to C if B admits the liability to C.14

337; Wardell v. Williams, 62 Mich. 50; 4 Am. St. Rep. 814; 28 N. W. 796; Raub v. Smith, 61 Mich. 543; 1 Am. St. Rep. 619; 28 N. W. 676; Cram v. Thompson, 87 Minn. 172; 91 N. W. 483; Taylor v. Von Schraeder, 107 Mo. 206; 16 S. W. 675; Bloomfield State Bank v. Miller, 55 Neb. 243; 70 Am. St. Rep. 381; 44 L. R. A. 387; 75 N. W. 569.

2 Lowman v. Sheets, 124 Ind. 416; 7 L. R. A. 784; 24 N. E. 351; Cochran v. Ward, 5 Ind. App. 89; 51 Am. St. Rep. 229; 29 N. E. 795; 31 N. E. 581; Weber v. Weber (Ky.), 76 S. W. 507; McCampbell v. McCampbell, 5 Litt. (Ky.) 92; 15 Am. Dec. 48; Stone v. Dennison, 13 Pick. (Mass.) 1; 23 Am. Dec. 654; Gordon v. Collett, 104 N. C. 381; 10 S. E. 564.

3 Bullion, etc., Bank v. Otto, 59 Fed. 256; Chicago Dock Co. v. Kin-zie, 49 111. 289; Wright v. Jones, 105 Ind. 17; 4 1ST. E. 281; Cowan v. Adams, 10 Me. 374; 25 Am. Dec. 242; Wood v. Lowney. 20 Mont. 273; 50 Pac. 794; Rickards v. Cunningham, 10 Neb. 417; 6 N. W. 475; Simmons v. More, 100 N. Y.

140; 2 N. E. 640; Durham, etc., Co. v. Guthrie, 116 N. C. 381; 21 S. E. 952. " No man is bound to set up the staute of frauds as a defense, for the benefit or even at the requirement of another, in a personal action against him upon a claim, the obligation of which he recognizes as found in good faith and right." Bullard v. Smith, 139 Mass. 492, 498; citing, Ames v. Jackson, 115 Mass. 508; Cahill v. Bigelow, 18 Pick. (Mass.) 369.

4 As in a sale of water rights, Daum v. Conley, 27 Colo. 56; 59 Pac. 753. Mining claims, Book v. Mining Co., 58 Fed. 106; Murray Hill, etc., Co. v. Havenor, 24 Utah 73; 66 Pac. 762.

5McManus v. Matthews (Tex. Civ. App.), 55 S. W. 589.

6 Hill v. Groesbeck, 29 Colo. 161; 67 Pac. 167.

7Maguire v. Heraty, 163 Pa. St. 381; 43 Am. St. Rep. 800; 30 Atl. 151.

8 Bell v. Beazley, 18 Tex. Civ. App. 639; 45 S. W. 401. To the same effect see Kemp v. Bank, 109 Fed. 48; 48 C. C. A. 213.

So if C induces B to break a contract between B and A,15 as a contract of employment,16 C cannot avoid liability on the ground that the contract between A and B was an oral contract which was not to be performed within the year.

Further proof that a contract within the statute of frauds and not complying with its terms is not void may be found in the fact that such contract is valid unless the defence of the statute is properly interposed,17 and in the fact that if an action on such a contract is brought in a jurisdiction in which the statute is not in force, such contract can be enforced as well as any other.18

Some statutes provide that such contracts are void and some

9 Minns v. Morse, 15 Ohio 568; Butler v. Thompson, 45 W. Va. 660; 72 Am. St. Rep. 838; 31 S. E. 960. Contra, Gary v. Newton, 201 111. 170; 66 N. E. 267.

10 Walker's Assignee v. Walker (Ky.), 55 S. W. 726.

11Cowell v. Ins. Co., 126 N. C. 684; 36 S. E. 184; German-American, etc., Co. v. Surety Co., 190 Pa. St. 247; 42 Atl. 682.

12 Simpson v. Hall. 47 Conn. 417.

13Beal v. Brown, 13 All. (Mass.) 114.

14Auten v. Ry. Co., 104 Fed. 395; Crawford v. Woods, 6 Bush.

(Ky.) 200; Cahill v. Bigelow, 18 Pick. (Mass.) 369.

15 Sneed v. Bradley, 4 Sneed (Tenn.) 301.

16Duckett v. Pool, 33 S. C. 238; 11 S. E. 689.

17 See Sec. 752.

18 Leroux v. Brown, 12 C. B. 801; 74 E. C. L. 801; Pritchard v. Norton, 106 U. S. 124: Buhl v. Stephens, 84 Fed. 922; Douver v. Chese-brough, 36 Conn. 39; 4 Am. Rep. 29;. Kleeman v. Collins, 9 Bush. (Ky.) 460; Emery v. Burbank, 163 Mass. 326; 47 Am. St. Rep. 456; 28 L. R. A. 57; 39 N. E. 1026; courts construe such provisions literally.19 Whether an oral contract within the statute of frauds is of such validity that its release is a valuable consideration for a new promise, based thereon, which is not itself within the statute is a question on which authorities are in conflict. On the one hand, the release of a voidable contract is a valuable consideration,20 and in analogy a release of rights under an oral contract within the statute of frauds has been held a valuable consideration for a new contract.21 So where an oral contract within the statute has been broken and a note has been given in payment of damages caused by such breach the note has been held to be on valuable consideration.22 On the other hand, if the consideration of the new contract is denied, it can be proved only by oral evidence of the original contract; and thus the original contract would be indirectly enforced though resting in parol. Accordingly some courts hold that such release is not a valuable consideration, as of a contract to answer for the debt of another.23 If such new contract is fully performed and performance is ac cepted, the statute does not apply.24