case of instruction upon a treaty of marriage; the conveyance being absolute, but subject to an agreement for a defeasance, which, though not appearing by the contents of the conveyance, can be proved aliunde-and there are many other instances." (v) § 545. Thus, if it can be shown that the written contract which is sought to be enforced was only signed in consequence of some collateral contract having been come to, the plaintiff must either submit to the collateral contract or have his action for specific performance dismissed; and this, although the collateral contract is not evidenced in writing. Thus, in Clarke v. Grant, (w) where trustees of a charity sought specific performance of a written contract to take a lease, and the main defense was a parol contract of the same date as the written one and affecting the parcels, Grant, M. R., held that evidence to prove the parol contract was admissible, and that, if it were proved, it would be against equity and a fraud on the defendant to insist upon his performance of a contract, which he had only signed on the faith of an alteration being made in one of its terms. $546. In the last-mentioned case the defendant set up the collateral contract; but the cases go much further, and show that the plaintiff may, on the ground of fraud, obtain the benefit of a collateral parol promise which the person who claims under the written contract fraudulently refuses to recognize. In one case Lord Thurlow allowed the plaintiff to give parol evidence that, at the time the contract (v) Mestaer v. Gillespie, 11 Ves., 627. all the fruits? Surely not. (w) 14 Ves., 519, 525. Courts of justice would be blind, indeed, it they could permit such a state of things." Fraud must be at the time of the sale.] In Wheeler v. Reynolds, 66 N. Y., 227, it was held that where fraud was relied upon in a purchaser at a sheriff's sale, to make such purchaser a trustee ex maleficio, that it must be found at the time of the sale. Mortgage property fraudulently purchased.] 'But even in this class of cases, so important it is to maintain the utmost confidence in the efficiency of judicial sales, the purchaser should be protected against all pretenses of a trust by parol, unless his mala fides be proved by the clearest and most complete evidence. But where such demonstrative proof exists, and where the contract between the defendant in execution, and the purchaser, is not of such a character as to affect injuriously the rights of creditors, a court of equity will frustrate the contemplatable fraud by enforcing the contract specifically between the parties. Beasley, C. J., in Merritt v. Brown, 21 N. J. Eq., 401; see, also, Green v. Ball, 4 Bush, 586; Combs v. Little, 3 Green's Ch., 310; Marlatt v. Warwick, 18 N. J. Eq., 108; S. C., 19 id., 439; Rose v. Bates, 12 Mo., 30. (which was subsequently reduced to writing) was entered into, an undertaking had been given by the assignee of the lease to the assignor for indemnity against the rents and covenants; his lordship laying down that, "where the objection is taken before the party execute the agreement, and the other side promise to ratify it, it is to be considered a fraud on the party if such promise is not kept.(x) § 547. So, in the case of transactions which are really for mortgages or charges, if the written instrument be in terms absolute and have been obtained on a promise to execute a defeasance, or if the clause for redemption have been fraudulently omitted, the mortgagor or chargor has been allowed to come to the court and to reduce the absolute conveyance to a mortgage or charge. (y) § 548. So, again, in Jervis v. Berridge, (2) where the plaintiffs assigned the benefit of a contract to the defendant upon certain terms, some only of which were reduced into writing, it was held that, under the circumstances of the case, the memorandum was only ancillary to the verbal contract, and any use of it by the defendant for a purpose inconsistent with the verbal contract was fraudulent. Lord Selborne, in the course of his judgment, (a) stated the principle now in discussion in words which have already been quoted. (b) § 549. So, again, if A. have in his hands money of B., and at B.'s request lay it out in the purchase of an estate, A. cannot, on the ground that the land is conveyed to him, claim the estate as his own, and exclude parol evidence that he was a trustee for B. (c)1 (x) Pember v. Mathers, 1 Bro. C. C., 52. Cf Snelling v. Thomas, L. R. 17 Eq, 303, where the plaintiff failed to establish the col. lateral contract alleged by him (y) 1 Eq. Ca. Abr., 20, pl. 5; Walker v. Walker, 2 Atk., 98, England v. Codrington, 1 Eden, 169; Williams v. Owen, 5 My. & Cr., 303, 306; Lincoln v. Wright, 4 De G. & J., 16; Douglas v. Culverwell, 3 Giff., 251; S. C., 4 De G. F. & J., 20. (2) L. R. 8 Ch., 351. (a) L. R. 8 Ch., 360. In his speech in the House of Lords, in Hussey v. Horne-Payne, 4 App C, 323, Lord Selborne expressly reaffirmed the doctrine laid down in the quotation referred to in the text. (b) Supra, § 502. (c) Per Kindersley, V. C., in Lincoln v. Wright, 28 L. J. Ch., 707 n.; S. C., on appeal, 4 De G. & J., 16 See Ryall v. Ryall, 1 Atk, 59; Willis v. Willis, 2 id, 71; per Grant, M. R., in Lench v. Lench, 10 Ves., 517. 1 Implied trusts are not those to which the Statute of Frauds refers.] Bigelow, J., in Stone v. Hackett (12 Gray, 227), says: "It is certainly true that a court of equity will lend no assistance toward perfecting a voluntary contract or agreement for the creation of a trust, nor regard it as binding, so long as it remains executory. But it is equally true that if such an agreement or contract be executed by a conveyance of property in trust, so that nothing remains to be done by the grantor or donor to complete the transfer of title, the relations of trustee and cestui que trust is deemed to be established, and the equitable rights and interests arising out of the conveyance, though made without consideration, § 550. In all these cases, to exclude parol evidence and to adjudge specific performance of the contract as evidenced by the writing alone, would be to work the very mischief which the statute was intended to prevent, viz., to fix the party sought to be charged with a contract which he never, in fact, entered into.' § 551. So, again, the want of writing could not be set up successfully by a man who had fraudulently prevented the writing from coming into existence. (c) Thus, where the defendant, on a treaty for the marriage of his daughter with the plaintiff, signed a paper comprising the terms of the agreement arrived at, but afterwards, and with a view to rid himself of the obligation imposed by it, induced his daughter to wheedle the plaintiff to give up the writing and then to marry her-the plaintiff was held entitled to relief and obtained a decree on the ground of fraud. (d) § 552. But this want of writing must be due to fraud, and not to mere non-performance of a contract to sign a writing. No doubt the opposite view was formerly taken, and it was thought that an allegation that it was part of the parol contract between the contracting parties that the contract should be reduced into writing, would take the case out of the statute, on the ground of fraud. Accordingly, where a bill containing such an allegation was met by a plea of the statute, Lord North, after argument, ordered (c) Maxwell v. Lady Montacute, Prec. Ch., 526; 1 Eq. Ca. Ab, 19; Whitchurch v. Bevis, 2 Bro. C. C., 565; cf. Wood v. Midgley, 2 Sm. & G., 115; reversed 5 De G. M. & G., 41; and will be enforced in chancery." See, also, Kekewich v. Manning, 1 De G. M. & G., 176; Jones v. Lock, L. R. 1 Ch., 25; Wason v. Colburn, 99 Mass., 342; Traphagen v. Best, 67 N. Y., 30; Chesler v. Dickerson, 54 id., 1. Parol evidence.] Where a trust has resulted by implication of law, parol evidence may be relied upon to establish the collateral fact from which a trust may legally result. Church v. Sterling, 16 Conn., 388. Equity enforces a parol trust where a fraud has been perpetrated, in order that it may be relieved, by raising an implied trust. It treats the party perpetrating the fraud as a trustee because he is ex maleficio because of the fraud. Wheeler v. Reynolds, 66 N. Y., 227; see, also, Hodges v. Howard, 5 R I., 149; Cannon v. Ward, 8 Ga., 245; Jones v. McDougall, 32 Miss., 179; Hidden v. Jordan, 21 Cal., 92; Cole v. Cole, 41 Md., 301; Wilton v Harwood, 23 Me., 131; McBurney v Wellman, 42 Barb., 390; Martin v. Martin, 16 B. Mon., 8; Blodgett v. Hildreth, 103 Mass., 484. 1 An agreement need only be signed by the party to be charged. Hatton v. Gray, 2 Ch. Cas., 164; Seton v. Slade, 7 Ves., 265; Fowler v. Freeman, 9 id., 351; Martin v. Mitchell, 2 Sac. & M., 426; Schneider v. Norris, 2 M. & S., 286; Shirley v. Shirley, 7 Blackf., 452: Rogers v. Saunders, 16 Me., 92; Ives v. Hazard, 4 R. I., 14; Anderson v. Harold, 10 Ohio, 399; Wright v. King, Harring. Ch., 12. the defendant to answer so much of the bill only as charged that the contract was to be put into writing. (e) It seems obvious, however, that such a procedure affords a most easy means of evading the intention of the statute, and introducing the mischief it was designed to remedy: and accordingly, the law is clearly established, that such an allegation does not withdraw the case from the operation of the statute, and that, after a parol contract, a refusal to sign a written one is no fraud of which the court can take cognizance. (ƒ) § 553. The same principle as regards fraud was once considered to apply to marriage contracts, which also are within the fourth section of the statute. In Dundas v. Dutens, (g) Lord Thurlow decided that a post-nuptial settlement recited to be made in pursuance of an ante-nuptial parol control was not a voluntary settlement, and that because a refusal to perform the previous contract would have been a fraud; but this decision is in effect overruled by the case of Warden v. Jones, (h) where Lord Cranworth remarked that, were the decision in Dundas v. Dutens correct, the whole policy of the statute would be defeated. (¿)1 (e) Leake v. Morris, 1 Dick., 14; S. C.. s. n., Leake v. Morrice, 2 Cas. in Ch., 135; Hollis v. Whiteing, 1 Vern., 151; Deane v. Izard, 1 id., 159. (f) Whitchurch v. Bevis, 2 Bro. C. C., 565; Wood v. Midgley, 5 De G. M. & G., 41; reversing S. C, 2 Sm. & Gif., 115. 1 The case of Montacute v. Maxwell (1 P. Wms., 618), is an important case on this subject. The plaintiff brought a bill against the defendant, her husband, setting forth that the defendant, before her intermarriage with him, promised that she could enjoy all her own estate to her separate use; that he had agreed to execute writings to that effect, and had instructed counsel to draw such writings, and that when they were to be married, the writings not being perfected, the defendant desired that this might not delay the match, because, his friends being there, it might shame him; but engaged that, upon his honor, she should have the same advantage of an agreement as if it were in writing, drawn in form, by counsel, and executed whereupon the marriage took place. To this bill the defendant pleaded the Statute of Frauds. And the Lord Chancellor said: "In cases of fraud, equity should relieve, even against the words of the statute, as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly brought in and executed in lieu of the former, in this or such like cases of fraud, equity would relieve; but where there is no fraud, only relying upon the honor, word or promise of the defendant, the statute making these promises void, equity will not interfere; nor were the instructions given to counsel, for the preparing of writings, material, since after they were drawn and engrossed, the parties might refuse to execute them." But an entirely different view of a very similar case, and more in conformity with Dundas v. Dutens, was expressed, in this country, by Mr. Justice Story, in Jenkins v. Eldridge, 3 Story, 291. There, it was said that, where instructions are given and preparations made for marriage settlements, and the woman is persuaded by the man to marry, trusting to his verbal promise to complete them, equity ought to relieve and compel performance. § 554. In cases of wills obtained by a promise to dispose of the property in a particular way, the court will, notwithstanding the language of the Statute of Frauds that every will must be in writing, and the language of the wills act to the same effect, give effect to the verbal arrangement by raising a trust on the property devised or bequeathed by the will. (j) $555. (4) The part performance of a contract by one of the parties to it may, in the contemplation of equity, preclude the other party from setting up the Statute of Frauds, and thus render it, although merely resting in parol, capable of being enforced by way of specific performance.' (j) Podmore v. Gunning,7 Sim., 644; Chester v. Urwick (No. 3), 23 Beav., 407; McGormick v. Grogan, L. R. 4 H. L., 82. That a part performance will take a case out of the Statute of Frauds, is a position supported by authorities too numerous and too overpowering to admit of its being treated as an open question. Annan v. Merritt, 13 Conn., 478. But in Tennessee, it is expressly decided that part performance will not take a parol contract, for the sale of lands, out of the statute. Patton v. McClure, 1 Mart. & Yerg., 333. As to the good policy of admitting exceptions, such as part performance, to the provisions of the Statute of Frauds, see Story's Eq. Jur., § 765, and note 1. Part performance.] "Nothing in this title contained shall be construed to abridge the powers of courts of equity to compel the specific performance of agreements in cases of part performance of such agreements." This is the language of the statute in Michigan, Com. Laws of Mich., 1871. vol. 2, p. 1455, ch. 166, §8; Minnesota, Stat. of Minn., 1873, vol. 1, p. 692, § 13; Nebraska, Stat. of Neb., 1873, ch. 25, § 6; New York, Rev. Stat. of N. Y. (6th ed.), vol. 3, p. 341, § 10; and Wisconsin, Stat. of Wis., 1871, vol. 2, ch. 106, § 10. This has long been the settled rule in England. Lister v. Foxcraft, Gibb. Eq. Rep., 4; O'Herliky v. Hedges, 1 Sch. & Lef., 123; Bond v. Hopkins, id., 433; Warden v. Jones, 23 Beav., 487; Kelley v. Webster, 10 Eng. L. & Eq., 517. No verbal contract for the sale of lands, or any interest in the same, except leases for one year or less, can be sustained in Alabama, "unless the purchase money, or a portion thereof, is paid, and the purchaser be put in possession of the land of the seller." Code, 1867, p. 411, § 1862. Any parol agreement to be valid in California for the sale, or any interest in land, except leases for one year, must have been in part performed by the party seeking to enforce it, and such part performance must have been accepted by the other. Code, § 1741. The statute does not apply in Iowa, "where the purchase money, or any part thereof, has been received by the vendor, or where the vendee, with the actual or implied consent of the vendor, has taken and held possession under and by virtue of the contract." Code, 1873, § 3663. An instructive case on the question of part performance of contracts in relation to real property, as well as a summary of the cases, will be found in Wright v. Pucket. 2 Graft., 370. The English and New York rule has been adopted in several of the States. Downey v. Hotchkiss, 2 Day, 225; Wilde v. Fox, 1 Rand., 165; Johnson v. Johnson, 6 id., 370; Ash v. Doggy, 6 Ind., 259; Hoen v. Simmons, 1 Cal., 119; Arguello v. Edinger, 10 id., 150; Kidder v. Barr, 35 N. H., 235; Hawkins v. Hunt, 14 Ill., 42; Gilmore v. Johnson, 14 Ga., 683; Johnson v. Hubbell, 10 N. J Eq., 332; Eyre v. Eyre, 19 id., 102 In Pennsylvania, the agreement is not avoided by the statute, its effects are merely restrained. Tripp v. Bishop, 56 Pa. St., 424. Part performance no defense in the following States.] Maine, "it appears to have been the intention not to authorize, under any circumstances, a decree for the specific performance of a contract not made in writing." Shepley, J., in |