2 Compare Pierce v. Colcord, 113 Mass. 372; Glass v. Hulbert, 102 Mass. 35.

3 See Taylor v. Sayles, 57 N. H. 465; Howland v. Blake, 97 U. S. 624.

4 Glass v. Hulbert, 102 Mass. 29; compare Beardsley v. Duntley, 69 N. Y. 577; Hitchins v. Pettingill, 58 N. H. 386; Macomber v. Peckham, 16 R. I. 485; Noel's Ex'r v. Gill, 84 Ky. 241. See further consideration of Glass v. Hulbert, post, § 444 a.

§ 441 d. Does the power of a court of equity to correct a deed so as to make it conform to the actual contract between the parties, extend to verbal contracts included within the Statute of Frauds? According to Glass v. Hulbert, it does not. In that case, the court say: "When the proposed reformation of an instrument involves the specific enforcement of an oral agreement within the Statute of Frauds; or when the term sought to be added would so modify the instrument as to make it operate to convey an instrument or secure a right which can only be conveyed or secured through an instrument in writing, and for which no writing has ever existed; the Statute of Frauds is a sufficient answer to such a proceeding; unless the plea of the statute can be met by some ground of estoppel to deprive the party of the right to set up that defence. The fact that the omission or defect in the writing, by reason of which it failed to convey the land or express the obligation which it is sought to make it convey or express, was occasioned by mistake, or by deceit and fraud, will not alone constitute such an estoppel. There must concur, also, some change in the condition or position of the party seeking relief, by reason of being induced to enter upon the execution of the agreement, or to do acts upon the faith of it, as if it were executed, with the knowledge and acquiescence of the other party either express or implied, for which he would be left without redress if the agreement were to be defeated." These views are enforced in an opinion of extraordinary ability and learning; but they have not commanded the assent of the courts. The preponderance of authority remains on the side of maintaining the jurisdiction to reform contracts or conveyances in cases of mistake or fraud proved by oral testimony only, nowithstand-ing the Statute of Frauds.1

1 Post, §§ 448 el seq.

§ 442. In an earlier chapter, where the subject of trusts arising by implication of law was considered, we saw that in cases where an executor or devisee prevented a testator from making express provision for a third party, by assurances that his intentions should be carried out, equity would enforce such promise against them, as a trust in favor of a third party, arising out of the fraud so practised.2 The same doctrine seems to apply in cases of contracts made directly between the parties. Where one who had agreed to give the plaintiff a lease of certain lands, upon which, in consequence of the agreement, the plaintiff had entered and made valuable improvements, was desirous and anxious, when near his death, to fulfil his promise, but was prevented by the fraudulent contrivance of his relatives from seeing the plaintiff for that purpose, and died without executing the lease, the relatives who succeeded to the estate were afterward compelled in equity to execute it themselves.1

1 A very full correction of the authorities is to he found in the opinion of Sage. J., in McDonald v. Yonngblutter, 46 Fed. Rep. 836. And see post, 444 a, and cases cited; also Murray v. Parker. 19 Beavan 308.

2 Ante, § 94. Compare Thomson v. White, 1 Dall. (Pa.) 424.

§ 443. Thus, in Cookes v. Mascall, a marriage was about to be celebrated between the plaintiff and the defendant's daughter, and the solicitor on behalf of the plaintiff was in the course of preparing articles of settlement; and in the meanwhile a disagreement arose as to the articles, but the plaintiff was still allowed to come to the defendant's house, and afterward married his daughter, the defendant being privy to it, helping to set them forward in the morning, and entertaining them, and seeming well pleased with the marriage upon their return to his house at night; he was decreed to execute the agreement according to what had been drawn up by the solicitor, though it had not received his signature.2 This case has been considered hard to be reconciled with another decided by the same judges at the same term, where an uncle, by letter, promised his niece a certain portion, but in the same letter dissuaded her from marrying the plaintiff; and they refused to decree the execution, but left the plaintiff to his action at law.3 But there seems to be no suggestion, in the latter case, of fraud or artifice on the part of the uncle; whereas in Cookes v. Mascall the presence of such fraud and artifice was manifestly the ground upon which the court proceeded.

1 Lester v. Foxcroft, Colles, P. C 108; cited 2 Vern. 456; Gilb. 4, 11; Prec. Ch. 519, 526; Story, Eq. Jur. § 768. See also Chamberlaine v. Chamberlaine. Freem. Ch. 34; Chamberlain v. Agar, 2 Ves. & B. 259; Mestaer v. Gillespie, 11 Ves. 621; Stickland v. Aldridge, 9 Ves. 516; Dixon v. Olmius, 1 Cox, 414; Reech v. Kennegal, 1 Ves. Sr. 123; Sellack v. Harris. 5 Vin. Ab. 521.

2 Cookes v. Mascall, 2 Vern. 200. And see Bawdes v. Amhurst, Finch, Prec. Ch.402.

3 Douglas v. Vincent, 2 Vern. 202.

§ 444. Again, in Montacute v. Maxwell, as appears from one of the reports of that case,1 the defendant, having given instructions to have a marriage settlement drawn, privately revoked those instructions, and persuaded the plaintiff to marry him; and he was decreed to execute the settlement, the Lord Chancellor, as stated in still another report of the case,2 asserting the rule to be, that if the parties rely wholly upon the parol agreement, neither party can compel the other to the specific performance, for the Statute of Frauds is directly in their way; but that if there is any agreement for reducing the same to writing, and that is prevented by the fraud and practice of the other party, the court would in such case give relief; as where instructions are given and preparations made for the drawing of a marriage settlement, and before the completion thereof the woman is drawn in, by the assurances and promises of the man to perform it, to marry without a settlement.