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 Smith v. Burnham, 3 Sumn. 435; Hughes v. Moore, 7 Cranch (U. S.) 176; Simms v. Killian, 12 Ired. (N. C.) 252; Toppin v. Lomas, and title.1 It has been held, however, that an equity of redemption may be surrendered without writing.2
16 C. B. 145; Richards v. Richards, 9 Gray (Mass.) 313; Whiting v. Butler, 29 Mich. 122, where the interest of an execution purchaser was held within the statute. See Grover v. Buck, 34 Mich. 519; Daniels v. Bailey, 43 Wisc. 566; Anderson v. Powers, 59 Texas 213. But see Sprague v. Haines, 68 Texas 215; Chenoweth v. Lewis, 11 Rep. 380. It was said, however, in Hosford v. Carter, 10 Abb. (N. Y.) Pr. 452, that an agreement by one having the refusal of a piece of land to procure a purchaser for it need not be in writing. Dougherty v. Cat-lett, 129 111. 431; Darling v. Butler, 45 Fed. Rep. 332; Carr v. Williams,
17 Kansas 575; Telford v. Frost, 76 Wisc. 172; Rosenberger v. Jones, 116 Mo. 559.
2 Scott v. McFarland, 13 Mass. 309; Marble v. Marble, 5 N. H. 374; Hughes v. Moore, 7 Cranch (U. S.) 176; Kelley v. Stanbery, 13 Ohio 408; Agate v. Gignoux, 1 Rob. (N. Y.) 278; Massey v. Johnson, 1 Exch. 255; Toppin v. Lomas, 16 C. B. 145; Williams v. Williams, 7 Reporter 656; Odell v. Montross, 68 N. Y. 499; Clark v. Condit, 18 N. J. Eq. 358; Van Keuren v. McLaughlin, 19 N. J. Eq. 187. See In re Betts, 7 Reporter 522: Cowles v. Marble, 37 Mich. 158. But see Pomeroy v. Winship, 12 Mass. 513; Hogg v. Wilkins, 1 Grant (Pa.) 67; Shaw p. Walbridge, 33 Ohio St. 1; Rawdon v. Dodge, 40 Mich. 697; Wendover v. Baker, 25 S. W. Rep. (Mo.) 918.
• Griffin v. Coffey, 9 B. Mon. 452.
§ 230. A widow's right of dower also is clearly an interest in land, which cannot be released, waived, or discharged without writing.3 So also the right of the husband in his wife's land, under an anticipated marriage, cannot be surrendered by his oral ante-nuptial agreement.4 Of course the statute extends to rents, commons, and all incorporeal hereditaments.5 It also embraces agreements for the assignment of a lease,6 and executory agreements for the creation of such leases as would be, after they were created, valid by reason of the exception contained in the second section of the statute.7 An agreement for board and lodging, as not involving an interest in land, is held not to require a written memorandum.1
1 See § 73,supra.
2 Falis v. Conway Ins. Co., 7 Allen (Mass.) 46; Shaw v. Walbridge, 33 Ohio St. 1.
3 Finney v. Finney, 1 Wils. 34; White v. White, 1 Harr. (N. J.) 202; Keeler v. Tatnell, 3 Zab. (N. J.) 62; Hall v. Hall, 2 McCord (S. C.) Ch. 269; Shot well v. Sedatn, 3 Ohio 5; Gordon v. Gordon, 56 N. H. 170. See Madigan v. Walsh, 22 Wisc. 501. An agreement by a widow, who was also administratrix, to release her dower if the price of the lands of her deceased husband, when sold, should reach a certain sum, is within statute. Wright v. De Groff, 14 Mich. 164. An agreement by the vendor of land to procure a relinquishment of his wife's right of dower, is within the statute. Martin v. Wharton, 38 Ala. 637. The mere assignment of dower, however, may be by parol, as the estate is conferred upon the widow by the act of the law. Lenfers v. Henke, 73 111. 405; Dunlap v. Thomas, 69 Iowa 358. Ante, § 77.
4 De Bardelaben v. Stoudenmire, 82 Ala. 574.
5 Roberts on Frauds, 127; Brown v. Brown, 33 N. J. Eq. 650; Barnes v. Boston & Maine R. R., 130 Mass. 388. It seems now to be settled in California that an interest in a mining claim is not an interest in land under the statute. See Copper Hill Mining Co. v. Spencer, 25 Cal. 18; Garthe v. Hart, 73 Cal. 541; Moritz v. Lavalle, 77 Cal. 10. But the contrary doctrine has been approved by the U. S. Supreme Court in Mining Co. v. Taylor, 100 U. S. 42. And it may be doubted if the California act of 1860, cited by the court in Garthe v. Hart, in reality affects the question. See opinion of Sawyer, J., in Goller v. Fett, 30 Cal. 482.
6 Anonymous, 1 Vent. 361; Poultney v. Holmes, 1 Stra. 405; Potter v. Arnold, 15 R. I. 350; Nally v. Reading, 107 Mo. 350.
7 Edge v. Strafford, 1 Cromp. & J. 391; s. c. 1 Tyrw. 93; Delano v.
§ 230 a. Where it was provided by will that the testator's lands should be converted into money and this money divided among the heirs, it was held that before such division one of the heirs might sell his interest to another without writing.2
§ 231. Mere possession of land seems to be properly regarded as such an interest in or concerning the land itself as cannot be contracted for, or disposed of, without writing. Mr. Baron Parke, it is true, in a case where the contract in question was really for an assignment of a lease, and, of course, not binding by parol, said that if it had been to relinquish the possession merely, it might not have amounted to a contract for an interest in land.3 But upon such a casual suggestion as this, it would be unreasonable to base an exception which goes more to the letter than to the spirit of the statute. As was said in the Supreme Court of New York, "Possession is prima facie evidence of title, and no title is complete without it," and accordingly they held that it " must be considered an interest in land, within the meaning of the Statute of Frauds."4 In Maine, where by statute a mortcourt of equity; but for these cases reference must be had to a subsequent chapter, in which the whole subject of the peculiar equitable doctrine as to contracts within the Statute of Frauds is examined.1
Montague, 4 Cush. (Mass.) 42; Stackberger v. Mostaller, 4 Ind. 461. But since the revision of the New York Statutes (2 R. S. 134, §§ 6, 8) see Young v. Dake, 5 N. Y. 463, and ante, § 34; Wallace v. Rappleye, 103 111. 229.
1 Wright v. Stavert, 2 El. & E. 721; and ante, § 20. Where pews are treated as real estate, agreements for their transfer must, of course, be in writing. Vielie v. Osgood, 8 Barb. (N. Y.) 130. See Barnard v. Whipple, 29 Vt. 401.