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Effect of Fail Ure to Satisfy the Statute

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EFFECT OF FAIL URE TO SATISFY THE STATUTE. A contract of the kind mentioned in this section which is not put in writing and signed is not void but cannot be proved. (Leroux v. Brown, 12 C. B. 801; Pritchard v. Norton, io6 U. S. 134.) But in those States which expressly provide that certain contracts "shall be void" unless put in writing, the failure to observe the statute would seem to go to the existence of the contract. The statute does not prevent the making of contracts without the written memorandum, but introduces a new rule of evidence and creates a new defense by requiring that the agreement shall be proved by a writing. (Crane v. Powell, 139 N. Y. 379.) As a general rule, part performance will take a con tract out of this section of the statute. This was the equitable rule to prevent a fraud being perpetrated under cover of the statute by the purchaser of land on a parol consideration, who sets up the statute to avoid paying for the land. (Brown on Stat. of Frauds, Sec. Randall v. Turner, 17 0. St. 262.) The rule is subject to qualifications, and Anson states that it only applies where the contract is for an interest in land, and that even in this case the acts relied on to take it out of the statute must be more than service rendered in consideration of a promise to convey lands, or the payment of the price wholly or in part; the acts relied on as part performance must be unequivocally and in their own nature referable to some such agreement as is sought to be proved. (Anson on Contr. 63-4; Madi son v. Alderson, 8 App. Ca. 479; Crabill v. Marsh, 38 Ohio St. 331; Kinyon v. Young, 44 Mich. 339.)

rule and proved