1. An agreement that, by its terms, is not to be performed within a year from the making thereof. 2. A special promise to answer for the debt, default or miscarriage of another, except in the cases provided for under the statute relating to guarantees, found in the note below.24 3. An agreement made upon consideration of marriage, other than a mutual promise to marry. 4. An agreement for the sale of goods, chattels or things in action, at a price not less than fifty dollars, unless the buyer accept or receive part of such goods and chattels, or the evidences of some of them, of such things in action, or pay at the same time some part of the purchase money; but when a sale is made by auction, an entry by the auctioneer in his sale book, at the time of the sale, of the kind of property sold, the terms of sale, the price and the names of the purchaser and person on whose account the sale was made, is a sufficient memorandum. 5. An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; and such agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority 24 A promise to answer for the obligation of another in any of the following cases, is deemed an original obligation of the promisor, and need not be in writing: (1) Where the promise is made by one who has received property of another upon an undertaking to apply it pursuant to such promise, or by one who has received a discharge from an obligation, in whole or in part, in consideration of such promise. (2) Where the creditor parts with value, or enters into an obligation in consideration of the obligation in respect to which the promise is made, in terms or under circumstances, such as to render the party making the promise the principal debtor, and the person in whose behalf it is made his surety. (3) Where the promise, being for an antecedent obligation of another, is made upon the consideration that the party receiving it cancels the antecedent obligation, accepting the new promise as a substitute therefor; or upon the consideration that the party receiving it releases the property of another from a levy, or his person from imprisonment under an execution on a judgment obtained upon the antecedent obligation; or upon a consideration beneficial to the promisor, whether moving from either party to the of the agent be in writing, subscribed by the party sought to be charged.25 The fact that the parties to a written agreement had made a prior verbal agreement for the purchase and sale of real estate, will not invalidate the written agreement.20 Sec. 448. The statute of frauds-The writing excludes all other negotiations. The execution of a contract in writing, whether the law requires it to be written or not, supersedes all oral negotiations or stipulations concerning its matter, which preceded or accompanied the execution of the instrument.27 Sec. 449. Statute of frauds-Contracts made by agent of owner of real estate. The employment, by the owner of real estate, of an agent to find a purchaser for it, need not be in writing.28 But the mere employment of an agent to sell real estate, or the mere listing of the real estate that may be made for the sale of it, will not give the agent authority to enter into a contract for the sale thereof to the purchaser.29 The owner, by executing a deed and accepting the benefits of such contract so made by an agent, may estop himself from denying any liability under the contract so made by the agent.30 The antecedent obligation, or from an- 25 Snyder, 1,089; Wilson, 780; North Dakota, 5,332 (1905); South Dakota, 1,230 (1903), identical. 26 Larison v. Wilbur, 47 N. W. (North Dakota), 38. 27 Snyder, 1,090; Wilson, 781; North Dakota, 5,333 (1905); South Dakota, 1,239 (1903), identical. 28 McLaughlin V. Wheeler, 47 N. W. (South Dakota), 816. 29 Ballon v. Bergvendson, 83 N. W. (North Dakota), 10. 30 Townsend V. Kennedy, 160 N. W. (South Dakota), 164. agent's authority to execute a binding contract for the sale of land of his principal may be established by letters and telegrams.31 Sec. 450. Statute of frauds-Part performance satisfies the statute-Possession. Taking possession of real estate under a parol agreement for the purchase thereof, and making valuable and lasting improvements thereon, takes the case out of the statute of frauds.32 A parol agreement to convey land in full payment of the purchase price, will not alone operate to pass the title thereto, where no possession of the land is taken under the agreement, and no memoranda is in writing.33 The possession 31 Farrel v. Edwards, 66 N. W. (South Dakota), 812. 32 Sutherland v. Taintor, 17 Okla. 427, 87 Pac. 900; Newkirk v. Mar. shall, 35 Kan. 77, 10 Pac. 571; Abrams v. Abrams, 74 Kan. 888, 88 Pac. 70; Gilmore v. Asbury, 64 Kan. 383, 67 Pac. 864; Hohndon v. Janes, 42 Kan. 758, 21 Pac. 591. The provisions of a parol contract respecting an interest in real estate is taken out of the operation of the statute of frauds by full performance, and in such case injunction is an appropriate remedy to prevent the destruction of the easement so created. Moore v. Chicago, 7 Kan. App. 242, 53 Pac. 775. In an action to recover the possession of land, where the defendant's answer is a general denial, it is not error to prove by parol evidence that prior to the beginning of the suit, to settle the controversy between them respecting the land, they agreed upon a division thereof; that they made conveyances to each other by which they intended to convey the respective tracts according to the settlement; that they moved the division fence accordingly, and each went into possession of the tract intended to be conveyed, notwithstanding the deeds do not convey the land by reason of an insufficient description. Anderson v. Cantor, 10 Kan. App. 167, 63 Pac. 285. 33 Godard v. Donaha, 42 Kan. 754, 22 Pac. 708. Where a contract for the purchase and sale of real estate is made, and the vendor executes a title bond for the conveyance of the property to the vendee, and the vendee, with the consent of the vendor, accepts the title bond, takes possession of the real estate, exercises acts of ownership over the real estate, and pays a portion of the purchase money, the vendor may afterwards, when the remainder of the purchase money becomes due, maintain an action therefor against the vendee, notwithstanding the statute of frauds. The acts of the vendor, in connection with those of the vendee, are sufficient in such a must also be actual, notorious and exclusive.34 Again, a part payment and possession which will take the case out of the statute of frauds, must be a possession authorized by the owners of the property, and must have been taken in good faith.35 The mere payment of part of the purchase price will not be sufficient to take the case out of the regulations of the statute.36 Sec. 451. Statute of frauds-Verbal contract partly performed may be specifically enforced. The theory upon which the courts will enforce a verbal contract for the purchase and sale of real estate is that it would be an act of fraud for the owner to place the other in possession, and accept money on the contract, and then refuse to abide by the agreement.37 case, to take the contract out of the statute of frauds, and to make it binding on both parties. Greenless v. Roche, 48 Kan. 503, 29 Pac. 590; Wharton v. Stoutenburg, 25 N. J. Eq. 266; Waken v. Owen, 79 Mo. 563; Sleniger v. Williams, 63 Ga. 478; Laurence v. Railroad, 25 Hun, 467; Steenrod v. Railroad, 27 W. Va. 1; Brown's Stat. of Frauds, Sec. 471. The taking possession of and cutting growing grass under a verbal contract at a stated expense, will not satisfy the statute for the purchase of real estate. Ross v. Cook, 80 Pac. 38. The possession which will take the contract out of the statute of frauds must be connected with the contract. It must not refer to any other cause. Hartshorn v. Smart, 67 Kan. 543, 73 Pac. 73. 34 O'Brien v. Foulke, 79 Kan. 479, 77 Pac. 103; Baldwin v. Squier, 31 Kan. 284, 1 Pac. 591. 35 Gault v. Pyles, 19 Okla. 445, 92 Pac. 1,761; Eberville v. Lead ville, 28 Colo. 24, 64 Pac. 200; McKinnon v. Nixon, 128 Ala. 612, 29 So. 690; Cockerell v. McIntyre, 161 Mo. 59, 51 S. W. 648. 36 Leese v. Potter, 68 Kan. 117, 74 Pac. 622; Guthrie v. Anderson, 41 Kan. 383, 28 Pac. 164; Schultz v. Pearson, 63 Kan. 38, 64 Pac. 963. 37 Halsell v. Renfrow, 14 Okla. 674, 78 Pac. 123; Pomeroy's Eq. Jur., 1,410. "The general principle to be extracted from the authorities is that if the plaintiff, with the knowledge and consent of the promisor, does acts pursuant to and in obvious reliance upon a verbal agreement, which so change the relations of the parties as to render a restoration of their former condition impracticable, it is a virtual fraud upon the part of the promisor to set up the statute in defense, and thus to receive to himself the benefit of the acts done by the plaintiff, while the latter is left to the chance of a suit at law for the Sec. 452. Statute of frauds-Description defective—Undisclosed principal. The signing of a contract to convey real estate by a party to be charged in a suit for specific performance satisfies the statute of frauds; but want of mutuality in the contract because the party suing did not sign, is not a defense to the action.38 Sec. 453. Statute of frauds-The parties to a written contract Within the statute contract may not modify its terms orally. Where a contract is within the provisions of the statute of frauds, and is reduced to writing, they will not be permitted to engraft to its terms, by subsequent oral agreement, new stipulations. By so doing, there would be a new contract resting partly in parol and partly in writing. Where the parties do make such a contract, and suit arises thereon, such subsequent agreement is not admissible in evidence. The theory of this rule is, that, if a contract can be altered by parol, it would practically render the statute useless.39 reimbursement of his outlays, or to an action upon a quantum meruit for the value of his services. In discussing what are and what are not acts done in part performance which will entitle the plaintiff to a decree in his favor, the entry into possession of the land and the making of valuable improvements thereon is treated by all the cases as one of the most satisfactory evidences of part performance, and entitling the plaintiff to a decree in his favor." Mr. Justice Brown in Townsend v. Vanderwerker, 160 U. S. 171; Union v. McAlpine, 129 U. S. 305, 9 Sup. Ct. 286, 32 L. Ed. 673; Ryan v. Dox, 34 N. Y. 307, 90 Am. Dec. 696; Lowry v. Tew, 3 Barb. Ch. 407; Overstreet v. Rice, 96 Am. Dec. 279; Burrill v. Brad bury, 67 Kan. 762, 74 Pac. 279; Galbreath v. Galbreath, 5 Kan. 403; Edwards v. Fry, 9 Kan. 417; Newkirk v. Marshall, 35 Kan. 77, 10 Pac. 571; Greenless v. Roche, 48 Kan. 503, 29 Pac. 590; Holcomb v. Dowell, 15 Kan. 378; Bogle v. Jarvis, 58 Kan. 76, 48 Pac. 538; Schwindt v. Schwindt, 61 Kan. 377, 59 Pac. 674; Gilmore v. Asbury, 64 Kan. 388, 67 Pac. 864. 38 Wiley V. Helen, 112 Pac. (Kan.) 158; Becker v. Mason, 30 Kan. 697, 2 Pac. 850; Guthrie v. Anderson, 47 Kan. 383, 28 Pac. 164; Schneider V. Anderson, 75 Kan. 11, 88 Pac. 525, 8 L. R. A. N.S., 1,043. 39 Bonicamp v. Starbuck, 25 Okla. 483, 106 Pac. 839; Dana v. Hancock, 30 Ver. 616; Reugie v. Holtz |