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.
§ 75. Where the proprietors of adjoining lands have agreed by parol upon a line for the settlement of a disputed boundary between their estates, and taken possession accordingly, such agreement and occupation is evidence that the line agreed upon is the true boundary,1 and, in the absence of higher evidence of title, may be decisive.2 Occupation in accordance with the agreement, if continued and acquiesced in by the parties during the length of time required to bar entry, will give an indefeasible title;3 but occupying and improving the land up to the line will not, in the absence of actual fraud, bar an action by the other party to recover possession, brought before the statutory period has elapsed.4 The oral agreement as to the boundary will be a license to either party to enter and occupy up to the line so fixed, and a justification of any trespass committed by so doing, until notice of revocation is given.6 It seems to have been held in Tennessee, that if money be paid by either party upon the parol settlement of the boundary line, even where it had been previously in dispute, the settlement will be invalid.1
1 Whitney v. Holmes, 15 Mass. 152; Byam v. Robbins, 6 Allen (Mass.) 63; Prop'rs Liverpool Wharf v. Prescott, 4 Allen (Mass.) 22; Davis v. Townsend, 10 Barb. (N. Y.) 333; Raynor v. Timerson, 51 Barb. (N. Y.) 517; Meyers v. Johnson, 15 Ind. 261. See Carleton v. Redington, 21 N. H. 291; Evars v. Kamphaus, 59 Pa. St. 379.
2 Vosburgh v. Teator, 32 N. Y. 561; Goodridge v. Dustin, 5 Met. (Mass.) 363; Dudley v. Elkins, 39 N. H. 78; Lindsay v. Springer, 4 Harr. (Del.) 547; Russell v. Maloney, 39 Vt. 583; Shelton v. Alcox, 11 Conn. 240. See Kincaid v. Dormey, 47 Mo. 337; Smith v. Hamilton, 20 Mich. 433; Ferguson v. Crick, 23 S. W. Rep. (Ky.) 668; Grigsby v. Combs, 21 S. W. Rep. (Ky.) 37.
3 Boyd v. Graves, 4 Wheat. (U. S ) 513; Jones v. Smith, 64 N. Y. 180; Davis v. Judge, 46 Vt. 655. See § 269, post; John v. Sabattis, 69 Me. 473; White v. Spreckels, 75 Cal. 610.
4 Prop'rs Liverpool Wharf v. Prescott, 4 Allen (Mass.) 22; Brewer v. Boston & Worcester R. R., 5 Met. (Mass.) 478; Tolman v. Sparhawk, 5 Met. (Mass.) 469; Raynor v. Timerson, 51 Barb. (N. Y.) 517; Warner v. Fountain, 28 Wise. 405. See Story Eq. Jur. § 1543; Reed v. Farr, 35 N. Y. 113. Contra, Jones v. Pashby, 67 Mich. 459; Coleman v. Smith, 55 Texas 254; Cavanaugh v. Jackson, 91 Cal. 580; Turner v. Baker, 64 Mo. 218; Krider v. Milner, 99 Mo. 145; Jacobs v. Mosely, 91 Mo. 457; Bobo v. Richmond, 25 Ohio St. 115.
5 Dewey v. Bordwell, 9 Wend. (N. Y.) 65; Sellick v. Addams, 15 Johns. (N. Y.) 197; Palmer v. Anderson, 63 N. C. 365. See Whitney r. Holmes, 15 Mass. 152; Davis v. Townsend, 10 Barb. (X. Y.) 333.
§ 76. By the common law a parol exchange of lands situate in the same county was good, provided each party went into possession of the lands acquired by such exchange. This was one of the ancient common-law methods of transferring real estate, adopted at a time when writing was practised or understood but by few individuals, and it is embraced in the general reform effected by the Statute of Frauds. It is undoubtedly the settled law of this country, as of England, that a conveyance of lands by verbal exchange or barter merely is invalid by reason of that statute.2 But in regard to this method of transfer, as in regard to verbal partitions, it must be remembered that after the agreement of the parties is executed by possession and occupation accordingly, courts of equity will generally hold it binding upon conscientious grounds, and to prevent fraud.
§ 77. The force of the exception in the third section of the statute in favor of assignments and surrenders which result by operation of law, has been considered heretofore. A few matters belonging to the general head of transfers by operation of law remain to be examined before we close this chapter. In Simonds v. Catlin, Kent, J., said that the words, "act and operation of law," were strictly technical, and referred to certain definite estates, such as those by the curtesy and dower, or those created by remitter; and to these may be added, by way of illustration, transfers by bankruptcy or succession.1 Where a statute provided that the public might acquire an easement in land by the consent of the owner without writing, it was said by the Supreme Court of New York that this was a case of a transfer by act and operation of law.2 But it would seem that it is more properly a legislative dispensation with the formalities by which the grantor's consent should be made evident. His consent, his individual act, still remains necessary, and is the operative means of making the transfer. The transfers which are excepted are those which take place by act and operation of law merely. Thus, an assignment of a widow's dower is good without deed or writing, for it is not a conveyance to the widow. She holds her estate by appointment of law, and only wants to have that part which she is to enjoy set out and distinguished from the rest, and this may be done by setting it out by metes and bounds, as well as by deed.3
1 Carroway v. Anderson, 1 Humph. 61.
2 Roberts on Frauds, 285; Pembroke v. Thorpe, 3 Swanst. 441, note; Lindsley v. Coates, 1 Ohio, 243; Newell v. Newell, 13 Vt. 24; Clark v. Graham, 6 Wheat. (U. S.) 577; Lane v. Shackford, 5 N. H. 130; Mayd-well v. Carroll, 3 Harr. & J. (Md.) 361. See, however, in Pennsylvania, Reynolds v. Hewett, 27 Pa. St. 176; Moss v. Culver, 64 Pa. St. 414; Brown v. Bailey, 159 Pa. St. 121; McLure v. Tennille, 89 Ala. 572; Savage v. Lee, 101 Ind. 514.
§ 78. In the case of Boring v. Lemmon, the Maryland Court of Appeals decided that a deed from a sheriff to a vendee at a sale under a fi. fa. was not necessary to pass the legal estate, but that the land became vested in the vendee by operation of law.4 This doctrine is opposed by the great weight of opinion in this country. Mr. Justice Kent, after referring to and criticising a remark of Lord Hardwicke, that a judicial sale of an estate took it entirely out of the statute, says, in the case of Simonds v. Catlin, "I cannot consider that observation in chancery as a sufficient authority to set aside the plain letter of the statute. I apprehend the general practice has been different; and that upon sales under the direction of a master in chancery, as well as sales by sheriffs at law, the sale has uniformly been consummated by a conveyance." 1 But it is not clear that the Maryland doctrine has any countenance, even in Lord Hardwicke's remark. That was made in a suit for specific execution of a contract for sale, between the master in chancery and the defendants, and seems to have no bearing on the point that the final transfer of the estate may be without a regular conveyance. This distinction is recognized in North Carolina, where the opinion of Lord Hardwicke is followed, as far as regards executory contracts to sell land.2 Upon what principles that opinion is to be sustained, as confined to the executory contract, will be seen hereafter; but beyond doubt, the prevailing, if not universal doctrine in this country is, that sales of land by sheriffs or other public officers are not to be considered as conveyances by act and operation of law, but require to be consummated regularly by deed.3 It need hardly be said that the act of arbitrators in disposing of land under a submission by the parties, is not the act of the law, and that such act is void if the submission be not in writing.4
1 Simonds v. Catlin, 2 Caines (N. Y.) 61; Briles v. Pace, 13 Ired. (N. C.) 279. See also Davis v. Tingle, 8 B. Mon. (Ky.) 539.
2 Noyes v. Chapin, 6 Wend. 461.
3 Conant v. Little, 1 Pick. (Mass.) 189; Jones v. Brewer, 1 Pick. (Mass.) 314; Baker v. Baker, 4 Greenl. (Me.) 67; Pinkham v. Gear, 3 N. H. 163; Shattuck v. Gragg, 23 Pick. (Mass.) 88; Johnson v. Neil, 4 Ala. 166; Shotwell v. Sedam, 3 Ohio, 5.
4 Boring v. Lemmon, 5 Harr. & J. 223. See, in further explanation of the law of Maryland on this point, Barney v. Patterson, 6 Harr. & J. 182; Fenwick v. Floyd, 1 Harr. & G. 172; Remington v. Linthicum, 14 Pet. (U. S.) 84.
1 Simonds v. Catlin, 2 Caines (N. Y.) 61; Attorney-General v;. Day, 1 Ves. Sr. 218; Hughes v. Jones, 9 Mees. & W. 372.
2 Tate v. Greenlee, 4 Dev. 149.
3 Simonds v. Catlin, and Tate v. Greenlee, supra; Catlin v. Jackson, 8 Johns. (N. Y.) 520; Jackson v. Bull, 2 Caines (N. Y.) Cas. 301; Robinson v. Garth, 6 Ala. 204; Ennis v. Waller, 3 Black. (Ind.) 472; Evans v. Ashley, 8 Mo. 177; Alexander v. Merry, 9 Mo. 510. Contra, Watson v. Violett, 2 Duv. (Ky.) 332.
4 Gratz v. Gratz, 4 Rawle (Pa.) 411; Stark v. Cannady, 3 Litt. (Ky.) 399.