his answer to an amended bill or complaint filed by the plaintiff, withdraw such admission and set up the statute as a defense.(1) On the other hand, the rule is equally well established, both in England and in this country, that the defendant, although admitting in his answer the parol agreement charged in the bill or complaint, may at the same time insist upon its want of conformity with the requirements of the statute of frauds, and such defense will constitute a complete bar to a decree in favor of the plaintiff, unless he can show a part performance in conformity with the principles hereinbefore stated.(2)

SEC. 142. Where a compliance with the statute has been prevented by actual fraud.—It was stated in section 140 that, in addition to part performance, there are two other causes which furnish a ground for the enforcement in equity of a verbal contract notwithstanding the statute of frauds. One of these has just been considered, and I now proceed to treat of the other. It is the case of actual, positive fraud. It is a familiar and thoroughly established doctrine of equity, that the statute which was enacted for the purpose of preventing fraud, shall not be made the instrument of shielding, protecting, or aiding the party who relies upon it, in the perpetration of a fraud, or in the consummation of a fraudulent scheme.(3) The principle was clearly stated by Lord ELDON, as follows: "Upon the statute of frauds, though declaring that interests shall not be bound except by writing, cases in this court are perfectly familiar, deciding that a fraudulent use shall not be made of that statute; where this court has interfered against a party meaning to make it an instrument of fraud, and said that he should not take advantage of his own fraud, even though the statute has declared that, in case those circumstances do not exist, the instrument shall be absolutely void. One instance, in the case of instructions upon a treaty of marriage-the conveyance being absolute, but subject to an agreement for a defeasance-which, though not

(1) Spurrier v. Fitzgerald, 6 Ves. 548. This doctrine has been extended to the case when defendant in his answer confessed a contract, and the plaintiff, with leave of the court, amended his bill so as to allege the agreement thus admitted; defendant was not permitted to retract his admission and interpose the statute as a defense. Patterson v. Ware, 10 Ala. 444.

(2) Moore v. Edwards, 4 Ves. 23; Cooth v. Jackson, 6 Ves. 12; Rowe v. Teed, 15 Ves. 375; Blagden v. Bradbear, 12 Ves. 471; Stearns v. Hubbard, 8 Greenl. 320; Harris v. Knickerbacker, 5 Wend. 638; Barnes v. Teague, 1 Jones Eq. 277; Van Duyne v. Vreeland, 1 Beasley, 142, 150; Ash v. Daggy, 6 Ind. 259; Sneed v. Bradley, 4 Sneed, 301.

(3) See cases cited ante, under §§ 71, 103; Willink v. Vanderveer, 1 Barb. 599; Miller v. Cotten, 5 Geo. 346; Shields v. Trammell, 19 Ark. 51; Trapnall v. Brown, 19 Ark. 39.

appearing by the contents of the conveyance, can be proved aliunde; and there are many other instances."(1) It is important, however, to obtain a correct notion of this doctrine, and to ascertain exactly the kind of fraud against which equity will thus relieve. The moral wrong in refusing to be bound by a verbal agreement, because it does not comply with the statute, is not the fraud intended by this equitable principle; if it were, the statute would be rendered entirely nugatory. There must be some positive act of contrivance, deceit, false representation, or concealment on the part of the defendant, by which the plaintiff is prevented from insisting upon or obtaining a written contract, or is induced to accept or rely upon a parol agreement in place of that required by the statute. In other words, the failure to comply with the statute must be the result of the defendant's fraudulent procurement, independent of the mere fact that the statute is not complied with. This distinction and the true theory were well stated in an early case by Lord MACCLESFIELD; the defendant being about to marry, having verbally promised to his intended wife that she should enjoy all her own estate to her own separate use after the marriage, which promise being made in consideration of marriage, was directly within the statute. In a suit to enforce the agreement, the lord chancellor said: "In cases of fraud, equity should relieve, even against the words of the statute, as if an agreement in writing should be proposed and drawn, and another should be fraudulently and secretly brought in and executed in lieu of the former; in this, and such like cases of fraud, equity would relieve; but where there was no fraud, only a relying upon the honor, word, or promise of the defendant, the statute making those promises void, equity will not interfere."(2)

(1) Mestaer v. Gillespie, 11 Ves. 627, 628, per Ld. ELDON. The doctrine is well illustrated by the recent case of Haigh v. Kaye, L. R. 7 Ch. 469, which was a suit to compel a conveyance of certain land. Plaintiff had conveyed his land to the defendant without any actual consideration, by a deed absolute on its face, but with a verbal agreement that defendant should reconvey on demand. Defendant, in his answer, admitted all these facts, but alleged that the conveyance was made to him to get the land out of the way of an anticipated decision against the plaintiff in a pending suit, and set up the statute of frauds as a bar. The court overruled this defense, and decreed a reconveyance. The opinion, which proceeded upon the principle stated in the text, is an admirable and refreshing assertion of the equitable doctrine, and characterizes the conduct of the defendant and his attempt to shield his fraud under a plea of the statute in strong but well deserved terms.

(2) Montacute v. Maxwell. 1 P. Wms. 618; S. C., sub nom. Montacue v. Maxwell, 1 Stra. 263; 1 Eq. Cas. Abr. 19; S. C., sub nom. Maxwell v. Montacute,

SEC. 143. The general principle being thus formulated, it remains to ascertain the classes and kinds of cases to which it has been and will be applied. In the first place, where the requirements of the statute have not been complied with by reason of the actual fraud of the defendant, the contract is not within the statute, and will be specifically enforced against the fraudulent party, although it is merely verbal. The plaintiff must be induced, through the deceit, false statements, or concealments of the other party, to waive a written contract, and to rely upon a parol undertaking. The same is true when the execution of a written contract, otherwise fully agreed upon, is prevented by an inevitable accident-as, for example, by the death of one of the contracting parties.(1) The rule has been often applied in cases of agreements made in anticipation of marriage, where one

Prec. Ch. 526; see, also, Whitridge v. Parkhurst, 20 Md. 62; Schmidt v. Gatewood, 2 Rich. Eq. (S. C.) 162; Kinard v. Hiers, 3 Rich. Eq. 423; Jenkins v. Eldridge, 3 Story, 181.

(1) Montacute v. Maxwell, 1 P. Wms. 618; 1 Stra. 236; 1 Eq. Cas. Abr. 19; Prec. Ch. 526; Walker v. Walker, 2 Atk. 98; Joynes v. Statham, 3 Atk. 89; Whitchurch v. Bevis, 2 Bro. C. C. 565; Lincoln v. Wright, 4 DeG. & Jo. 16, 22; 5 Vin. Abr. 523, 524; S. C., 1 Eq. Cas. Abr. 20, pl. 5; Crocker v. Higgins, 7 Conn. 342; McBurney v. Wellman, 42 Barb. 390; Arnold v. Cord, 16 Ind. 177; Finucane v. Kearney, 1 Freeman, 65, C9; Bernard v. Flinn, 8 Ind. 204; Glass v. Hulbert, 102 Mass. 24, 39. In the case reported in 5 Viner, Abr. 523; 1 Eq. Cas. Abr. 20, pl. 5, decided by Lord NOTTINGHAM, and said to have been the first after the statute in which the doctrine was applied, there was a loan of money on a mortgage to be executed in the form of an absolute conveyance by the mortgator, and a defeasance by the mortgagee, the latter verbally agreeing to give back the defeasance. Having obtained the absolute conveyance, the creditor refused to execute and deliver the defeasance as he had promised, and relied upon the statute. He was, however, decreed to execute according to his agreement, which was taken out of the statute by reason of his fraud. His fraud did not consist simply in refusing to carry out his verbal promise, but in the whole contrivance by which the plaintiff was cheated out of his property. In Pember v. Mathers, 1 Bro. C. C. 52, Lord THURLOW said, "that where objection is taken before the party executes an agreement, and the other side promises to rectify it, it is to be considered fraud on the party if such promise is not kept." And see Clarke v. Grant, 14 Ves. 525, per Sir WILLIAM GRANT; Colyer v. Clay, 7 Bev. 188. In Finucane v. Kearney, 1 Freeman, 65, 69, it was said: "An acknowledged exception to the statute is where the agreement is intended to be reduced to writing, according to the statute, but is prevented by the fraud of one of the parties. And so I apprehend the rule would be where, as in this case, the contract was written out and one of the parties promised to sign it, but was prevented by inevitable accident. It is the peculiar province of courts of equity to relieve against accident as well as fraud." S. P., in Bernard v. Flinn, 8 Ind. 204. See, also, Childers v. Childers, 1 DeG. & J. 482; Davies v. Otty, 35 Bev. 208; Murphy v. Hubert, 4 Harris, 50; 7 Barr. 420; Wolford v. Herrington, 24 P. F. Smith, 311; Collins v. Tillou, 26 Conn. 368; Brown v. Lynch, 1 Paige, 147; Sweet

of the parties has been, through the other's fraud, induced to forego a written contract, or a formal ante-nuptial settlement.(1)

SEC. 144. The principle is also applied, under certain circumstances, to the case of wills, which the English statute of frauds requires to be

v. Jacocks, 6 Paige, 355; Kennedy v. Kennedy, 2 Ala. 571; Trapnall v. Brown, 19 Ark. 39, 49; Shields v. Trammell, 19 Ark. 51; Martin v. Martin, 6 B. Mon. 8; and compare Blodgett v. Hildreth, 103 Mass. 484; Walker v. Locke, 5 Cush. 90. In Taylor v. Luther, 2 Sumn. 228, Mr. Justice STORY laid down the general doctrine in a very broad manner, which perhaps requires some limitation.

(1) Dundas v. Dutens, 1 Ves. 196; Cookes v. Mascall, 2 Vern. 200; Montacute v. Maxwell, 1 Eq. Cas. Abr. 19; Prec. Ch. 528; Ballet v. Halfpenny, 2 Vern. 373; 1 Eq. Cas. Abr. 20, pl. 6; Bawdes v. Amhurst, Prec. Ch. 404. In Dundass v. Dutens, supra, Lord THURLOW went to the extent of expressing an opinion that whenever the husband makes a parol agreement to settle, and then the marriage takes place in reliance upon it, he should be compelled to perform. This case certainly carries the doctrine to an extreme length, and its correctness has been doubted. See Warden v. Jones, 23 Beav. 487. In Cookes v. Mascall, a marriage had been arranged between plaintiff and defendant's daughter, and a certain settlement had been agreed upon; a solicitor on behalf of plaintiff was drawing up a settlement in accordance with this agreement; some disagreement arose respecting the draft of the settlement; plaintiff was, however, allowed to continue his visits as before, and the marriage took place with defendant's knowledge and approval, he seeing the couple off in the morning, and receiving and entertaining them on their return home. On his refusal to execute the settlement, the suit was brought, which resulted in a decree ordering him to execute the contract as it had been drawn up by the solicitor. The whole proceedings of the defendant were manifestly a fraudulent contrivance to consummate the marriage, without the settlement which he had agreed to make in consideration thereof, and the decision was based upon such fraud. In Montacute v. Maxwill, as reported in 1 Eq. Cas. Abr. and Prec. Ch., the defendant had promised the plaintiff to settle his property upon her for her separate use, and gave instructions to have a settlement drawn up for that purpose. He then privately countermanded the instructions; and on the wedding day, the papers not being ready, defendant begged that the marriage should go on, since his friends were all present, and it would shame him if the wedding was put off; and he promised that she should have the same advantage of the agreement as if it had been in writing and properly executed. Relying on these representations, she consented to the marriage, but after it was consummated, he refused to carry out his agreement. On these facts, he was decreed to execute the settlement, the lord chancellor stating the rule to be, that if parties rely wholly upon the parol agremeent, neither can compel the other to a specific performance, for the statute is directly in the way; but that if there is an 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 a case, give relief—as where instructions were given for the drawing up of a settlement, and before it was completed, the woman was drawn in, by the assurances and promises of the man to perform it to marry without a settlement. In this case, the secret countermanding of the instructions publicly given to the solicitor, clearly showed a fraudulent scheme on the husband's part, from the beginning of the negotiations, to entrap his wife into a marriage, without securing to her the separate use of her own property. In Mallet v. Halfpenny, supra, defendant, in a negotiation for the marriage of his

in writing. It is a settled rule, that if a party prevents a testator from making an intended devise in favor of a third person, and procures a devise directly to himself, by representations and assurances that he will carry out the original purpose of the testator, and apply the gift for the benefit of the person who would otherwise have been the recipient of the bounty, equity will inforce such promise, by holding that a trust arises out of the fraud of the actual devisee, and by compelling him to execute the trust in favor of the third person. (1) This doctrine, it would seem, should also be applied to contracts where the intention of one party towards the other has been frustrated, or prevented from being carried into effect, by the fraudulent interference, representations, or concealments of third persons.(2) It is, at all events, a well-settled doctrine of equity, notwithstanding the statute of frauds, or the American statutes relating to wills and

daughter with the plaintiff, signed a written agreement containing a settlement upon the intended husband and wife. Afterwards, and before the wedding, and for the purpose of escaping from his contract, he directed his daughter to put on a good humor and get the plaintiff to deliver up the writing to her, and then to marry him. By this means, the defendant got possession of the agreement, and the marriage took place; but the court decreed an execution of it.

(1) Podmore v. Gunning, 7 Sim, 644, and cases cited; Chester v. Urwick, 23 Beav. 407; Harris v. Horwell, Gilb. Eq. 11; Devenish v. Baines, Prec. Ch. 3; Oldham v. Litchfield, 2 Vern. 506; Thynn v. Thynn, 1 Vern. 296; Chamberlaine v. Chamberlaine, 2 Freem. 34; 2 Eq. Cas. Abr. 43; Prec. Ch. 4. In Podmore v. Gunning, the testator bequeathed his estate to his wife absolutely. After her death, two natural daughters proved a parol promise by the wife made to the testator, that after her decease the residuary estate should go to them. The court, upon the proof of this promise, granted them the relief, and enforced the promise. The will, however, contained the following clause, which seemed to refer to some such arrangement: "Having a perfect confidence that she (the wife) would act up to those views which he had communicated to her, in the ultimate disposal of his property after her decease."

(2) In Lester v. Foxcraft, Colles P. C. 108; 2 Vern. 456; Prec. Ch. 519, 526, a person had agreed to give plaintiff a lease of certain lands, who, relying thereon, had taken possession and made valuable improvements; the owner was anxious, when near his death, to execute the lease according to his agreement, but was prevented by the fraudulent practices of his relatives from seeing the plaintiff, and actually died without performing. These relatives who succeeded to the estate were compelled, by a decree in equity, to specifically perform the contract. It is true that the decision was mainly rested upon the fact of a part performance by the plaintiff, and the case is generally regarded as the leading one in support of that doctrine. But if there had been no part performance, the fraudulent contrivances and practices of the defendants would have furnished a sufficient ground for granting the relief. See, also, Story Eq. Jur. § 768; Chamberlain v. Agar, 2 V. & B. 262; Mestaer v. Gillespie, 11 Ves. 638; Stickland v. Albridge, 9 Ves. 519; Dixon v. Olmius, 1 Cox, 414; Reech v. Kennegal, 1 Ves. Sen. 123; Sellack v. Harris, 5 Vin. Abr. 521.