Keilly v. Severson, 149 Wis. 251.

of the validity of a sale though made in violation of sec. 3914. The case stands upon an admitted voidable sale, as to any person whom the statute was designed to protect, the voidable character, however, having been cured by the statute of limitations and not, in any event, being available to a person not within the protecting purpose of the violated law. The situation, in practical effect, is the same as the ordinary one of a verbal contract conveying real estate, so far performed on one side as to take it out of the statute requiring interests in realty to be created in writing; sec. 2304, Stats. (1898), and, being so taken out, the contract is enforceable on general principles of equity and under the statute, sec. 2305. It having been impossible to establish respondent's right without disclosing her violation of sec. 3914 and thus showing that her prior wrong was an efficient element in producing the situation of which she complained, it became important to her status in equity to take account of the fact that the sale was voidable only, and not that as to appellant; that the infirmity, in any event, was cured by the statute of limitations; that it did not involve any moral turpitude or dereliction which, under the circumstances, ought to efficiently affect her status in the controversy with appellant who has no right, whatever, which he could well stand on in a court of equity, referable to the original infirmity in the title. Coming down to the ultimate, this was the simple question involved: Was there, in practical effect, a verbal sale, void at its inception under sec. 2304 of the Statutes, but after the lapse of time and under the circumstance of part performance, enforceable under general principles of equity jurisprudence and sec. 2305, Stats. (1898) ? It is the judgment of the court that the trial decision rightly resolved such question in the affirmative.

By the Court.-Judgment affirmed.

TIMLIN, J. (dissenting). In this action of ejectment it appears without dispute that the respondent Emma Severson,

Keilly v. Severson, 149 Wis. 251.

as administratrix, made an oral agreement with appellant's grantor, her brother, that the latter should buy at her administratrix's sale in his name for her a parcel of land belonging to the estate of her decedent. He did so and received a deed of this land from her as administratrix. She remained in possession, but never received any deed of conveyance. This purchaser at her sale conveyed to the appellant, his son-in-law, who brought ejectment against the respondent for the land, but who by reason of her possession was chargeable with notice of respondent's equities, if she had any. These are the controlling and undisputed facts. The court below concluded that judgment should be entered dismissing the plaintiff's complaint with costs, and that the plaintiff be adjudged to convey to the defendant all right, title, and interest which he had or claimed in the land, etc., but rendered judgment merely dismissing the complaint. The appellant showed by this deed from respondent legal title to the land as against respondent and the right to possession, unless the said oral agreement found to have been made with respondent defeated that right. Waiving all inquiry with regard to form, the cause should have been disposed of under the following legal rules:

We have in this state a statute, sec. 3914, Stats. (1898), which provides:

"The executor, administrator or guardian making the sale . shall not, directly or indirectly, purchase or be interested in the purchase of any part of the real estate so sold. All sales made contrary to the provisions of this section shall be void."

Where one purchases land in violation of a statute and has the title conveyed to another to evade that statute, there is no resulting trust in favor of the purchaser. Miller v. Davis, 50 Mo. 572; Ottley v. Browne, 1 Ball & B. 360; 1 Perry, Trusts (6th ed.) § 165 and cases; Godefroi, Law of Trusts (3d ed.) 240 and cases. A case in point is Higgins v. Higgins, 55

p.

Keilly v. Severson, 149 Wis. 251.

Mo. 346. See, also, Leggett v. Dubois, 5 Paige, 114; 2 Story, Eq. Jur. (12th ed.) § 12016.

As was said in Sell v. West, 125 Mo. 621, 28 S. W. 969, a similar case: "Courts of equity have no more right than courts of law to act upon crude notions of what is right in the particular case without reference to established rules and precedents."

2. We have also in this state a statute reading as follows (sec. 2077, Stats. 1898):

"When a grant for a valuable consideration shall be made to one person and the consideration thereof shall be paid by another, no use or trust shall result in favor of the person by whom such payment is made; but the title shall vest in the person named as the alienee in such conveyance, subject only to the provisions of the next section."

The next section provides that such conveyance shall be presumed fraudulent as against creditors of the person paying the consideration, and that a trust shall result in favor of such creditors. See Hamilton v. Wickson, 131 Mich. 71, 90 N. W. 1032; Chantland v. Midland Nat. Bank, 66 Kan. 549, 72 Pac. 230; Garfield v. Hatmaker, 15 N. Y. 475; Baker v. Bliss, 39 N. Y. 70; McPherson v. Featherstone, 37 Wis. 632.

The effect of this last quoted statute in the instant case is to supplement the first rule stated. The bar of the second quoted statute would not be uplifted by a showing on the part of the respondent of her forbidden transaction with the purchaser at the sale.

3. We have also sec. 2304, Stats. (1898), which requires every contract for the sale of any lands or any interest therein to be in writing, expressing the consideration, and subscribed by the party by whom the sale is to be made. The effect of these statutes and precedents is sought to be obviated in the majority opinion by considering the foregoing facts sufficient to support a counterclaim by the respondent for specific performance of the oral contract mentioned. No such relief was

Keilly v. Severson, 149 Wis. 251.

awarded by the judgment appealed from, but waiving that objection we come to the following: Equity cannot disregard the positive mandate of the statute in a specific performance action. Bogan v. Camp, 30 Ala. 276; Kreamer v. Earl, 91 Cal. 112, 27 Pac. 735; Volney v. Nixon, 68 N. J. Eq. 605, 60 Atl. 189.

An executory contract prohibited by statute cannot be enforced. Etna Ins. Co. v. Harvey, 11 Wis. 394, and cases cited; Clarke v. Lincoln L. Co. 59 Wis. 655, 18 N. W. 492; Menominee River B. Co. v. Augustus Spies L. & C. Co. 147 Wis. 559, 132 N. W. 1118. It is apparently thought that notwithstanding the mandatory terms of the statute first quoted, because this court has construed the word "void" there to mean voidable when applied to an executed conveyance, that this makes some difference. I do not think it does. Many contracts void while executory and incapable of enforcement are after execution voidable only at the instance of a person who is aggrieved by the infraction of the statute. Such is the statute of Elizabeth avoiding conveyances in fraud of creditors, and the statute of frauds, and many others. The refusal of courts to enforce executory contracts like that in the instant case does not turn upon that question at all. I think one would have to search far to find a precedent in addition to the instant case where a court held an executory contract prohibited by statute enforceable in specific performance. To do so is to annul the statute and to hold that a court of equity will enforce that which the statute forbids. It seems to me entirely fallacious to employ the distinction between "void" and "voidable," sometimes properly made, for the purpose of upholding and enforcing an executory contract prohibited by statute. If these views are correct the undisputed evidence left the defendant estopped by her own deed to claim title to the land in question. Renfrew v. McDonald, 11 Hun, 254; Phillips v. Wooster, 36 N. Y. 412; Pride v. Andrew, 51 Ohio St. 405; Murphy v. Hubert, 16 Pa. St. 50; Broughton

Huntington v. Burdeau, 149 Wis. 263.

v. Broughton, 4 Rich. Law (S. C.) 491; Fargo v. Ladd, 6 Wis. 106, and cases in Shepard's Annotations; Milwaukee T. Co. v. Lancashire Ins. Co. 95 Wis. 192, 70 N. W. 81.

4. With reference to supporting a defense of this kind against the grantee by the grantor without legal title but in possession, see cases in Wait on Fraudulent Conveyances (3d ed.) § 402, and the whole of ch. XXVI of that book.

HUNTINGTON, Executor, Appellant, vs. BURDEAU, Respondent. March 12-April 23, 1912.

Appeal: Review: Findings of fact: Partnership: Oral contract: Statute of frauds: Executed transactions: Accounting: Receivers.

1. The superior advantages of a referee to judge of the credibility and weight of the evidence entitle his findings to peculiar force in a case where the evidence is vague, uncertain, and susceptible of conflicting constructions or applications.

2. Although an oral agreement to conduct partnership dealings in lands is void under the statute of frauds, yet where such contract has been fully executed by the parties, or fully executed as to certain separable and independent transactions, so that nothing remains to be done but to ascertain the money balance due from one partner to the other, it is, as to such completed transactions, not within the statute, and equity will entertain an action between the partners for an accounting.

3. In such an action the court cannot appoint a receiver in respect to alleged assets of the partnership remaining unconverted, since to do so would be to execute a void contract.

APPEAL from a judgment of the circuit court for Brown county: S. D. HASTINGS, Circuit Judge. Modified and affirmed.

The complaint in substance alleges that on or about the 1st day of October, 1903, the plaintiff and the defendant formed a partnership for the purpose of buying and selling