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.
1 Ledford v. Ferrell, 12 Tred. (N. C.) 285; Trammel] v. Trammell, 11 Rich. (S. C.) Law, 471; Yates v. Martin, 1 Chand. (Wisc.) 118; Lawrence v. Chase, 54 Me. 196; Sands v. Thompson, 43 Tnd. 18. So with the sale of a bond entitling the holder to the benefit of a mortgage of land. Toppin v. Lomas, 16 C. B. 145; Curtis v. Abbe, 39 Mich. 441; Brackett v. Brewer, 71 Me. 478.
2 Gould v. Mansfield, 103 Mass. 408; Roehl v. Haumesser, 114Ind. 311; Chase v. Fitz, 132 Mass. 359; Wellington v. Apthorp, 145 Mass. 73.
3 White v. Coombs, 27 Md. 489.
4 Irwin v. Hubbard, 49 Ind. 350; and see McEwan v. Ortman, 34 Mich. 325. And see Sullivan v. Dunham, 42 Mich. 518.
5 Clabaugh v. Byerly, 7 Gill (Md.) 354. And see Stringfellow v. Ivie, 73 Ala. 215; Patton v. Beecher, 62 Ala. 579.
6 Boyd v. Stone, 11 Mass. 342.
7 Woods v. Wallace, 22 Pa. St. 171.
8 Cox v. Peele, 2 Bro. C. C. 334.
9 A different doctrine, however, might be inferred from the New York cases of Truscott v. King, 6 N. Y. 147, and Mead v. York, 6 N. Y. 449.
10 Davis v. Parish, Litt. (Ky.) Sel. Cas. 153.
11 Catlett v. Dougherty, 21 111. App. 116.
An arrangement to extend the effect of a mortgage so as to cover other and farther liabilities is not good without writing.1 But a verbal extension of the time for redeeming mortgaged land is, it seems, to be regarded as conferring no interest in the land.2 Whether a mortgage can be verbally released or discharged, seems to depend upon the question (on which, as we have seen, there is great contrariety of opinion in the courts of different States) whether it is to be regarded strictly as a conveyance of the land or as a mere incident to the debt.3
§ 268. An agreement to establish the title to land in any party is, of course, equivalent to an agreement to sell him the land; and it has accordingly been held that an engagement to break down a certain alleged title under which a third party claimed adversely, or in any way to perfect the title in the promisee, is within the statute.4 Also, as appears to have been the opinion of the Supreme Court of Massachusetts, a verbal agreement to release a covenant of warranty would be invalid.6 On the other hand, a mere verbal guaris binding between the parties, as no title of either is affected thereby; neither could be said to own the disputed tract, as neither had any evidence whatever of title in it.1 And the same is true of an agreement which merely restricts the purchaser of land as to the manner in which or the purposes for which he shall use the land, while at the same time his title to it is not impaired, as, for instance, stipulations that he shall not carry on a certain trade or use certain buildings upon the premises, or the like.2 Nor is there any reason why the statute should be held to cover mere arrangements as to the payment of taxes.3
1 Williams v. Hill, 19 How. (U. S.) 246; Stoddard p. Hart, 23 N. Y. 556; Curie v. Eddy, 24 Mo. 117. Nor is an agreement to substitute certain other land for that which is described in a mortgage. Castro v. lilies, 18 Tex. 229.
2 Hamilton v. Terry, 11 C. B 954; Griffin v. Coffey, 9 B. Mon. (Ky.) 452; Butt v. Butt, 91 Ind. 305; Scheffermeyer v. Schaper, 97 Ind. 70; McMakin v. Schenck, 98 Ind. 264; Vliet v. Young, 34 N. J. Eq. 15; Hicks v. Aylsworth, 13 R. I. 562. See Martin v. Martin, 16 B. Mon. (Ky.) 8; Moorman v. Wood, 117 Ind. 144; McNeil v. Gates, 41 Ark. 264; Worrlen v. Crist, 106 111. 326. In Littell v. Jones, 56 Ark. 139, it was held that where the time to redeem had expired an oral contract by the purchaser at the execution sale to relinquish his claim to the land is within the statute.
3 Hunt v. Maynard, 6 Pick. (Mass ) 489; Parker v. Barker. 2 Met. (Mass.) 423; Malins v. Brown, 4 N. Y. 403; Phillips v. Leavitt, 51 Me. 405; Leavitt v. Pratt, 53 Me. 147; ante, § 65. As to a parol waiver of a devise of land, see Doe v. Smyth, 6 Barn. & C. 112. As to a parol discharge of a contract for land, see post, §§ 429 et seq.
4 Duvall v. Peach, 1 Gill (Md.) 172; Bryan v. Jamison, 7 Mo. 106. See Bishop v. Little, 5 Greenl (Me.) 362.
5 Bliss v. Thompson, 4 Mass. 488. And it seems to have been considanty of title, or quantity, of course, gives merely a remedy in damages, and does not go to pass any interest in the land between the parties, nor does the statute affect an agreement to pay the expense of investigating the title to land in case it prove unsatisfactory.1 It is obvious that these are rather contracts concerning, than contracts for the sale of an interest concerning, land.2 Still less can the statute be considered applicable to mere agreements to pay or account for the proceeds of sales of land, or to pay an agent's commission for services in buying or selling land.3
§ 269. It is undoubtedly the meaning of this branch of the statute that only those agreements which bind the parties to a change in some respect in the title to the land are required to be in writing. Thus, as we had occasion to see in a former part of this book under the head of conveyances, a verbal agreement for the settlement of an uncertain boundary ered by the Supreme Court of New York doubtful whether an agreement to pay off incumbrances was not also within the statute. Duncan v. Blair, 5 Denio, 196.
1 Jeakes v. White, 6 Exch. 873; Huntington v. Wellington, 12 Mich. 10; Lamm v. Port Deposit Association, 49 Md. 233. So a parol guaranty by a seller that the tract sold contained a certain number of acres is not within the statute. Schriver v. Eckemode, 94 Pa. St. 456. A parol stipulation by a building contractor that no material men's liens should be filed held good in McElroy v. Bradden, 152 Pa. St. 81.
2 See also Doggatt v. Patterson, 18 Texas 158; Evans v. Hardeman, 15 Texas 480; Natchez v. Vandervelde, 31 Miss. 706; Miller v. Roberts, 18 Texas 16.
3 Graves v. Graves, 45 N. H. 323; Ford v. Finney, 35 Ga. 258; Gwalt-ney v. Wheeler, 26 Ind. 415; Jones National Bank v. Price, 37 Neb. 291; Miller v. Kendig, 55 Iowa 174; Carr v. Leavitt, 54 Mich. 540; Monroe v. Snow, 131 111. 126; Snyder v. Wolford, 33 Minn. 175; Benjamin v. Zell, 100 Pa. St. 33; Mahagan v. Mead, 63 N. H. 130; Green v. Randal, 51 Vt. 67; Sayre v. Wilson, 86 Ala. 151; Von Trotha v. Bamberger, 15.Col. 1; Michael v. Foil, 1C0 N. C. 178; Sprague v. Bond. 108 N. C. 382; Strong v. Kamm, 13 Oregon 172; Gorham v. Herman, 90 Ala. 346; Watters v. McGuigan, 72 Wisc. 155; Byers v. Locke, 93 Cal. 493. See Patterson v. Hawley, 33 Neb. 440. A verbal contract to pay a commission to an agent for his services in buying or selling land is valid. Waterman Exchange v. Stephens, 71 Mich. 104; unless the commission is to be paid in land. McDonald v. Maltz, 78 Mich. 685.