18. Sharp v. Cheatham, 88 Mo. 498, 57 Am. Rep. 433; Burr v. Lamaster, 30 Neb. 688, 9 L. R. A. 637, 27 Am. St. Rep. 428, 46 N. W. 1015. See ante, Sec. 393, notes 82-85.

19. Post, Sec. 661.

20. See article by Charles I. Giddings, Esq., In 5 Harv. Law Rev. at p. 279; editorial note in 18 Harv. Law Rev. at p. 214; 3 Pomeroy, Eq. Jur. Sec. 1295.

- Statute of Frauds. The right thus to enforce an agreement in equity against a subsequent purchaser is, at least in some jurisdictions, independent of the mode or incidents of its execution. It need not be a covenant, that is, an agreement under seal, and it has usually been regarded as sufficient although oral merely, or merely inferred from the acceptance of a conveyance containing such a stipulation, or from representations made upon the sale of land.24 It is to be regretted that the judicial expressions to this effect have not been accompanied by any explanation of why the agreement is not within the operation of the Statute of Frauds, a question as to which there ap-pears to be considerable room for discussion.

21. Taylor v. Owen, 2 Blackf. (Ind.) 301 (sevible); Norcross v. James, 140 Mass. 188, 2 N. E. 946; Brewer v. Marshall, 18 N. J. Eq. 337, 19 N. J. Eq. 557; Kettle River R. Co. v. Eastern Ry. Co. of Minnesota; 41 Minn. 461, 6 L. R. A. 1ll, 43 N. W. 469; Tardy v. Creasy, 81 Va. 553 (two judges dissenting); West Virginia Rwy. v. Ohio River Pipe Line Co., 22 W. Va. 600. See Burdell v. Gran-di, 152 Cal. 376, 14 L. R. A. (N. S.) 909, 125 Am. St. Rep. 61, 92 Pac. 1022.

22. Catt v. Tourle, 4 Ch. App. 654; Holloway v. Hill (1902), 2 Ch. 612; Robinson v. Webb, 68 Ala. 397, 77 Ala. 176; Mcmahon v. Williams, 79 Ala. 288; Frye v. Partridge, 82 111. 267; Watrous v. Allen, 57 Mich. 362, 58 Am. Rep. 363, 24 N. W. 104; Hodge v. Sloan, 107 N. Y. 244, 1 Am. St. Rep. 816, 17 N. E. 335 (two judges dissenting) ; Stines v. Dorman, 25 Ohio St. 580; Middletown, Town of, v. Newport Hospital, 16 R. I. 319, 333, 1 L. R. A. 191, 15 Atl. 800 (semble). See Sutton v. Head, 86 Ky. 156, 9 Am. St. Rep. 274, 5 S. W. 410.

23. See 17 Harv. Law Rev. at p 183. article by Prof J. B. Ames.

24. Spicer v. Martin, 14 App. Cas. 12; Renals v. Colishaw, 9 Ch. Div. 125, 11 Ch. Div. 866; Mackenzie v. Childers, 43 Ch. Div. 265; Nottingham Patent Brick & Tile Co. v. Butler, 15 Q. B. Div.

In two or three states the view has been asserted that an agreement such as we are now considering involves the creation of an interest in land, within the local equivalent of the first section of the English statute.2"' But in view of the fact that that statute contains a separate provision in reference to proof of the creation of an express trust, it might perhaps be questioned whether the first section was intended to apply to the creation of any equitable interest, and a like view might perhaps be taken of similar language occurring in a state statute. There is one explicit decision that an agreement restrictive of the use of land is not an agreement for the sale of an interest in land within the fourth section of the statute,26 and this seems a rational view, but a contrary view is asserted in another state.27 There are two decisions denying that an agreement that land shall not be utilized in a particular way is one not to be performed within one year from the making thereof within the statute, one decision being based on the theory that it may be performed within a year,28 and the other upon the theory that the provision does not apply to a negative contract.29 It is, however, difficult to see how such a contract not limited in time, is capable of performance in a year, nor is it clearly apparent that a negative contract does not call for performance to the same extent as a positive contract, for the purpose of this provision. In those jurisdictions, however, in which this provision as to agreements not to be performed within a year has been held not to apply to a contract based on an executed consideration, or to one which is to be entirely performed by one party within the year, an agreement incidental to the sale or conveyance of land would ordinarily not fall within its operation.30

261, 16 Q. B. Div. 778; Whitney v. Union Railway Co., 11 Gra.\ (Mass.) 359, 71 Am. Dec. 715; Whittenton Mfg. Co. v. Staples. 164 Mass. 319; Allen v. City of Detroit, 167 Mich. 464, 36 L. R. A. (N. S.) 890, 133 N. W. 317; Tallmadge v. East River Bank, 26 N. Y. 105; Lewis v. Gollner, 129 N. Y. 227, 26 Am. St. Rep. 516, 29 N. E. 81; Equitable Life Ass'n Soc. of United States v. Brennan, 148 N. Y. 661, 43 N. 5. 173; Lennig v. Ocean City Ass'n, 41 N. J. Eq. 606, 56 Am. Rep. 16, 7 Atl. 491.

25. Wolfe v. Frost, 4 Sandf. Ch. (N. Y.) 72; Bice v. Roberts, 24 Wis. 461; Mccusker v. Goode, 185 Mass. 607, 71 N. E. 76; Sprague v. Kimball, 213 Mass. 380, 100 N. E. 622. And see Tib-betts v. Tibbetts, 66 N. H. 360, 20 Atl. 979.

26. Hall v. Solomon, 61 Conn. 476, 29 Am. St. Rep. 218, 23 Atl. 876.

27. Sprague v. Kimball, 213 Mass. 380, 4 L. R. A. 962, 100 X. E. 622; Clanton v. Scruggs, 95 Ala. 279, 10 So. 757.

Conceding that otherwise the agreement in reference to the land would be within the Statute of Frauds, it has been suggested that a restrictive agreement, although oral, might on occasion be enforced on the theory of part performance,31 on that of fraud32 or on that of estoppel.33 It would seem, however, somewhat difficult to bring every case of an oral restrictive agreement within the operation of either one of these doctrines. In case, for instance, one conveying land to another orally agrees, at the time of executing the conveyance, not to make a particular use of land retained by him, there would appear to be no room for the application of the doctrine of part performance, nor any sufficient basis for a finding of either estoppel

28. Hall v. Solomon, 61 Conn. 476, 29 Am. St. Rep. 218, 23 Atl. 876.

29. Leinau v. Smart, 11 Humph. (Tenn.) 308.

30. That a verbal agreement not to use land for a certain purpose is within this provision, see Long v. Cramer Meat & Packing Co., 155 Cal. 402, 101 Pac. 297.

31. Williams, Vendor & Purchaser (2nd Ed.) 494.

32. Hubbell v. Warren, 8 Alien (Mass.) 173.

33. Lennig v. Ocean City Assn. 41 N. J. Eq. 606, 56 Am. Rep. 16, 7 Atl. 491; Woods v. Lowrance, or fraud.34 The fact that one purchasing land mistakenly supposes that an incidental stipulation entered into by the vendor is legally enforcible, should hardly operate to estop the vendor from asserting the contrary, even though it appears that the former would not have made the purchase had he been correctly informed.35