This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
3 See opinion of Lowell, J., reported in 10 Chicago Legal News, 395, in. re Farmer, ex parte Griffin, cited § 259, supra. And see Rowland v. Boozer, 10 Ala. 694; Case v. Seger, 4 Wash. 492.
4 Linscott v. Mclntire, 15 Me. 201; Hess v. Fox, 10 Wend. (N. Y.) 436; Gwaltney v. Wheeler, 26 Ind. 415; Bruce v. Hastings, 41 Vt. 380; Trowbridge v. Wetherbee, 11 Allen (Mass.) 361; Wetherbee v. Potter, 99 Mass. 354; Henderson v. Hudson, 1 Munf. (Va.) 510; Walker v. Herring, 21 Gratt. (Va.) 678; McCormick's Appeal, 57 Pa. St. 54; Dunphy v. Ryan, 116 U. S. 491; Young v. Wheeler, 34 Fed. Rep. 98; Slevin v. Wallace, 64 Hun (N. Y.) 288. And see Hirbour v. Reeding, 3 Montana 15.
§ 263. Coming now to the second division of this general subject of contracts for interests in land (which has been already nearly anticipated), we are to inquire what is the nature of the transaction which the statute requires to be in writing. Contract or sale, the expression used in the clause under consideration, clearly means contracts for sale.3 But it is not only contracts for the sale of land which are intended to be embraced; for all the cases show that a purchase of land is as much within the statute as a sale of it, the policy of the law being not only to protect owners of land from being deprived of it without written evidence, but also to prevent a purchase of land from being forced by perjury and fraud upon one who never contracted for it. An agreement to devise an interest in land, though founded on a precedent valuable consideration, is also within this section of the statute; l and, as we shall see in the course of this chapter, the effect of the provision, as expounded and applied by the courts, is to render unavailing to the parties, as the ground of a claim, any contract, in whatever shape it may be put, by which either of them is to part with any interest in real estate.
1 See the cases last cited, and ante, § 261 b; Howell v. Kelly, 149 Pa. St. 473. But see Raub v. Smith, 61 Mich. 543; Brosnan v. McKee, 63 Mich. 454.
2 Chester v. Dickerson, 54 N. Y. 1; Traphagen v. Burt, 67 N. Y. 30; Gibbons v. Bell, 45 Tex. 417; Holmes v. McCray, 51 Ind. 358. See Bunnell v. Taintor, 4 Conn. 568; Murley v. Ennis, 2 Col. 300; Coffin v. McTntosh, 0 Utah 315; Fountain v. Menard, 53 Minn. 443; Speyer v. Desjardins, 144 11l. 641; Richards v. Grinnell, 63 Iowa 44; Pennybacker v. Leary, 65 Iowa, 220; Newell v. Cochran, 41 Minn. 374; McElroy v. Swope, 47 Fed. Rep. 380; Flower v. Barnekoff, 20 Oregon 132; Bates v. Babcock, 95 Cal. 479. See Gorham v. Heiman, 90 Cal. 346. But where the partnership exists, and holds land, an agreement by one of the partners to retire and assign his share in the assets is within the statute. Gray v. Smith, L. R. 43 Ch. D. 208.
3 In Boyd v. Stone, 11 Mass. 346, Parker, C. J., remarked upon the singular circumstance that this error of phraseology was adopted both in the Provincial Act of 1692, and the Statute of the Commonwealth, 1783. It is corrected in the Revised Statutes. But the same thing occurs in many of the American Statutes of Frauds.
§ 263 a. It would seem to be the more reasonable construction of the statute, as it regards contracts for land, that it embraces only contracts by which one of the parties parts with land to the other.2 When, for instance, the defendant promises the plaintiff to buy land for himself, - the plaintiff, whatever his advantage from having the defendant make the purchase, acquiring no interest in land, - the contract does not appear to be within the policy of the statute.3 But it has been held in the Common Pleas (Keating, J., doubting) that an agreement by the defendant to procure a third party to make a lease of real estate to the plaintiff was within the statute.4 It is not clear from the report whether or not the purchase-money was to be advanced by the defendant. This may make a difference; for if it was, the defendant may be regarded as buying the lease himself, the deed to be made to his nominee, the plaintiff.5 In cases of a promise to the plaintiff by the defendant to buy land for himself from a third party, if the third party be the nominee of the plaintiff,1 or a relative for whom he wishes to provide,2 the indirect interest of the plaintiff in the purchase itself may draw the contract under the operation of the statute.
1 Harder v. Harder, 2 Sandf. (N. Y.) Ch. 17; Mundorff v. Kilbourn, 4 Md. 459; Campbell v. Taul, 3 Yerg. (Tenn.) 548; Qnackenbush v. Ehle, 5 Barb. (N. Y.) 469; Johnson v. Hubbell, 2 Stock. (N. J.) Ch. 322; Gould v. Mansfield, 103 Mass. 408; In re Kessler's Estate, 59 N. W. Rep. (Wisc.) 129; Manning v. Pippen, 86 Ala. 357; Wellington v. Apthorp, 145 Mass. 69; Manning v. Pippen, 95 Ala. 537; Hale v. Hale, 19 S. E. Rep. (Va.) 739. See Crutcher v. Muir, 90 Ky. 142.
2 Murley v. Ennis, 2 Col. 300.
3 Little v. McCarter, 89 N. C. 233.
4 Horsey v. Graham, L. R. 5 C. P. 9; Bannon v. Bean, 9 Iowa, 395.
5 In Mather v. Scoles, 35 Ind. 2, the defendant's promise was to procure "at his own cost" the conveyance from the third party to the plaintiff of land worth a certain amount, or to pay the plaintiff enough to enable him to procure the conveyance directly to himself; he did neither, and the plaintiff sued for breach of the agreement; and it was held that the statute applied.
§ 264. It was formerly supposed that auction sales of land were not embraced by the statute, but it is now clearly settled otherwise. Sir William Grant says: "From the public nature of a sale by auction, it does not follow that what passes there must be matter of certainty; so far from it that I never saw more contradictory swearing than in those cases where attempts were made to introduce evidence of what was said or done during the course of the sale."3 As to sheriff's sales on execution, and sales by town officers, or trustees or administrators, there are differences of opinion and decision, turning upon the fact of their being regarded, or not, as quasi judicial sales. When so regarded, they are held not to be affected by the statute, but if otherwise, no exception is made in their favor.4