VERBAL CONTRACTS RESPECTING LAND.-As to leases not to be performed within a year, or for a period exceeding one year, see § 797, post. A trust in real estate can not be created by parol: Cooper v. Thomason, 30 Or. 170, 45 Pac. 296; Barger v. Barger, 30 Or. 275, 47 Pac. 702; Dodson v. Dodson, 26 Or. 359, 37 Pac. 542; Parrish v. Parrish, 33 Or. 490, 54 Pac. 352; Richmond v. Bloch, 36 Or. 595, 60 Pac. 385. If, however, a grantee sells land under a parol agreement to convert it into money and pay the grantor's debts, his subsequent acknowledgment of the trust will bind him, as an express trust in personal property may be enforced without evidence in writing: Cooper v. Thomason, 30 Or. 170, 45 Pac. 296. In a suit to enforce such a trust in personal property, the original agreement under which the premises were held may be proven by parol evidence to show the consideration for the subsequent declaration of the trust by the trustee: Cooper v. Thomason, 30 Or. 162, 45 Pac. 296. A deed deposited in escrow is insufficient to take an oral contract for the sale of land out of the statute of frauds, unless such deed contains a memorandum of the agreement; nor is payment of the purchase price such a part performance as to overcome the plea of the statute; but taking possession in pursuance of the terms of the contract, and making improvements is sufficient for that purpose: Cooper v. Thomason, 30 Or. 174, 45 Pac. 296. When money is once impressed with the trust, it may be traced in equity into whatever form it may assume, whenever and wherever it is capable of being identified and distinguished; and this right ceases only when the means of ascertainment fail: Barger v. Barger, 30 Or. 275, 47 Pac. 702. Where the plaintiff erected on his ward's premises fish wheels and operated them for his own benefit, and upon the majority of the ward it was agreed by parol to operate the wheels in partnership, plaintiff to have half interest in the wheels and premises, but nothing was paid by plaintiff or the partnership for such property, it was held that the fish wheels were realty and the property of the son, and that, there being no written instrument conveying such interest, the fish wheels were not partnership property: Dodson v. Dodson, 26 Or. 358, 37 Pac. 542. Where a person obtains the legal title to property by representing that it will be managed and held in trust for the grantor, with the intent to eventually appropriate such property to his own use, a trust ex maleficio arises, and a memorandum in writing is not required to establish it; but where the grantee, at the time he received the title, honestly intended to carry out the trust, but afterwards forms the design of defrauding the grantor, the trust is within the statute, and must be in writing: Parrish v. Parrish, 33 Or. 490, 54 Pac. 352. Where a husband conveyed land by absolute deed to his wife, on a parol trust that she should hold it in trust for their children, her conveyance of the land to the children will be upheld as against her creditors, though executed after their claims accrued. While the wife held the property. if she sold it or disposed of it, she could have passed a valid title, as no memorandum of the trust was in writing, but, having executed the parol trust, the creditors have no right to have the property of such other subjected to the payment of the debts of the trustee: Richmond v. Bloch, 36 Or. 590, 60 Pac. 385. A parol license to divert a certain quantity of water for irrigating purposes is not revocable by the licensor after the licensee has expended his money and labor in digging a ditch and preparing his land for the use of the water upon the faith of such parol license: McBroom v. Thompson, 25 Or. 565, 58 Pac. 524, 42 Am. St. Rep. 806. See. to same effect, Bowman v. Bowman, 35 Or. 279, 57 Pac. 546; but see Lavery v. Arnold, 36 Or. 84. 57 Pac. 906; and Ewing * v. Rhea, 37 Or. 583, 62 Pac. 790, 82 Am. St. Rep. 783. An agreement to pay the debts of another in consideration of the conveyance of land does not come within the statute of frauds, where the contract as to the property is completely executed: Feldman v. McGuire, 34 Or. 314, 55 Pac. 872. A valid contract of partnership for the purpose of speculating in real estate may be made by parol; the real estate or title to property is not the basis of such contract: Flower v. Barnekoff, 20 Or. 136, 25 Pac. 370, 11 L. R. A. 149. A subsequent written recognition of a parol agreement is sufficient to establish it under this section as an agreement in writing: Fisk v. Henarie, 13 Or. 156, 9 Pac. 322. A verbal sale of an equitable interest in land is void: Chenoweth v. Lewis, 9 Or. 150. $794. Last Section not to Affect Certain Cases. The last section shall not be construed to affect the power of a testator in the disposition of his real property by a last will and testament, nor to prevent a trust from arising or being extinguished by implication or operation of law, nor to affect the power of a court to compel specific performance of an agreement in relation to such property. [L. 1862; D. Cd. § 772; H. C. § 782.] SPECIFIC PERFORMANCE. A party who claims a right to a conveyance of land upon a parol agreement on the ground of part performance must make out by clear and unsatisfactory proof the existence of the contract as alleged by him; and it is not enough that the acts of part performance proved are evidence of some agreement. but they must be unequivocal and satisfactory evidence of the particular agreement charged in the complaint or answer. Besides, the agreement must appear to be certain in its terms. and just and fair in all its parts: Plymale v. Comstock, 9 Or. 321. A perfect contract in everything except that it is not written must be proved: Wagonblast v. Whitney, 12 Or. 83, 6 Pac. 399, 53 Am. Rep. 323. note; Richardson v. Orth, 40 Or. Ladd, 40 Or. 66 Pac. 926; Stone v. 67 Pac. 413; and the acts of part performance must be clearly proved: Kelly v. Ruble, 11 Or. 93. 4 Pac. 593. It must be certain and definite: Odell v. Morin, 5 Or. 96. The boundaries of the land sold must be clearly defined, and if possession is relied on as part performance, such possession must be clear, visible, open, notorious, and exclusive: Brown v. Lord, 7 Or. 302. Where one Covenants against incumbrances, specific performance will not be decreed at his instance until he removes all incumbrances: Sanford v. Wheelan, 12 Or. 301, 7 Pac. 324. The amount of performance necessary to justify the enforcement of an oral contract to convey land must depend upon the condition and ability of the party claiming specific performance: Barrett v. Schleich, 37 Or. 613, 62 Pac. 792. Where the complaint in a suit for specific performance alleged that complainant, in consideration of defendant's agreement to convey, agreed to reside on the land, to build a house and fences, and to cultivate the land, and no motion was made in the trial court to require the complainant to specify more definitely as to the term of residence, and the character and extent of the improvements required by the agreement, failure to require such specific allegations authorized the court to construe the character of the improvements and the length of time as qualified by the word "reasonable," and, the evidence showing reasonable compliance, a decree for complainant will not be disturbed: Barrett v. Schleich, 37 Or. 613, 62 Pac. 792. Payment of the purchase price is not such part performance as to overcome the plea of the statute; but taking possession in pursuance of the terms of the contract and making improvements is sufficient for that purpose, and such contract may be specifically enforced: Cooper v. Thomason, 30 Or. 175, 45 Pac. 296; Wallace v. Scoggins, 18 Or. 502, 21 Pac. 558, 17 Am. St. Rep. 749, note; same case, 17 Or. 480, 21 Pac. 558. A trust arising from the operation of law is not within the purview of the preceding section, and requires no memorandum in writing to be enforceable: Parrish v. Parrish, 33 Or. 490, 54 Pac. 352. The marriage alone of parties to an agreement will not be a part performance sufficient to take out of the statute of frauds an agreement for the transfer of property; and a court of equity will not decree specific performance of an oral agreement to make a marriage settlement, unless the party to be charged has given countenance to the doing of acts by the adverse party upon the faith of the agreement, of such nature that the latter will be materially injured if the agreement were not carried out. In such a case the court, in order to avoid a fraudulent use being made of the statute, will enforce specific performance of the agreement: Adams v. Adams, 17 Or. 247, 20 Pac. 638. A parol agreement to convey to one's stepdaughter an estate, in consideration that the latter would live with decedent and her husband and care for the husband during his illness, was not supported by sufficient consideration to warrant specific performance, where it appeared that the daughter actually cared for her father only a month when she was relieved from her duty by his removal to other quarters, and where she continued her regular occupation during the entire period: Richardson v. Orth, 40 Or. 66 Pac. 926. " $795. Evidence of Sale or Transfer of Vessel. A sale or transfer of a vessel is not valid unless it be in writing and signed by the party making the transfer. [L. 1862; D. Cd. § 773; H. C. § 783.] An incomplete portion of a boat, as the hull or other part, requiring the construction of an additional part before it can be used for the purpose intended, is not a "vessel" within the meaning of this section: Yarnberg v. Watson, 13 Or. 11, 4 Pac. 296. $ 796. Authority to Execute Sealed Instrument. The authority to execute a sealed instrument for another shall be under seal, if the sealing of the instrument be essential to its validity. [L. 1862; D. Cd. § 774; H. C. § 784.] A mortgage executed on behalf of a corporation by a duly authorized agent, purporting to be under its seal, is not invalid because the seal attached is only a scroll and not the regularly adopted corporate seal, since it is now settled that a corporate contract does not require a seal, unless a similar contract, if made by an individual, would have to be sealed, and in such case any convenient seal will accomplish the purpose: Thayer v. Nehalem Mill Co. 31 Or. 444, 51 Pac 202. § 797. Agreement not in Writing, When Void. In the following cases the agreement is void, unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence therefore of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law: 1. An agreement that, by its terms, is not to be performed within a year from the making thereof; 2. An agreement to answer for the debt, default, or miscarriage of another; 3. An agreement by an executor or administrator to pay the debts of his testator or intestate out of his own estate; 4. An agreement made upon consideration of marriage, other than a mutual promise to marry; 5. An agreement for the sale of personal property at a price not less than fifty dollars, unless the buyer accept and receive some part of such personal property, or pay at the time some part of the purchase money; but when the 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 the sale, the price, and the names of the purchaser and person on whose account the sale is made, is a sufficient memorandum; 6. An agreement for the leasing, for a longer period than one year, or for the sale of real property, or of any interest therein; 7. An agreement concerning real property, made by an agent of the party sought to be charged, unless the authority of the agent be in writing. [L. 1862 ; D. Cd. § 75; H. C. § 785.] STATUTE OF FRAUDS, GENERALLY. -The consideration must be expressed in the writing in order to make the agreement valid: Corbett v. Salem Gas Co. 6 Or. 408, 25 Am. Rep. 541, note. Defendant signed memorandum of agreement as to the sale of land: "Price $6,000. C. pays note for $200. Deed to be special warranty, and C. pays for cablegrams. Money to be paid on or before forty days. Possession when money paid and deed given to W.; farm 297 acres more or less as shown by deed. Abstract furnished." This memorandum was held insufficient for indefiniteness: Catterlin v. Bush, 39 Or. 496, 65 Pac. 1064. A contract between cosureties, fixing the proportion and extent of their several or correlative liability as between themselves, is not within the statute of frauds: Rose v. Wollenberg, 31 Or. 274, 44 Pac. 382, 65 Am. St. Rep. 826, 39 L. R. A. 378. The affixing of a seal to an instrument implies a consideration, which is a sufficient expression thereof to satisfy the statute of frauds: Johnston v. Wadsworth, 24 Or. 502, 34 Pac. 13. AGREEMENT NOT то BE PERFORMED WITHIN A YEAR.-A promise to pay a sum of money "inside of a year from now," is not within this subdivision: Denn v. Peters, 36 Or. 491, 59 Pac. 1109. Where the parties must have expected that a contract would not be performed within a year, yet by its terms it might have been so performed, it is not within the statute: Southwell v. Beezley, 5 Or. 458. It must appear that the contract is incapable of performance within a year: Hedges v. Strong, 3 Or. 18. A lease to commence in futuro is an agreement not to be performed within a year within this section, and must be in writing: White v. Holland, 17 Or. 4, 3 Pac. 573. While a verbal lease of land for a term longer than one year is void so that neither party can enforce its terms against the other, yet if the lessee go into possession under the lease and pay rent to the lessor, who accepts it, obligations may thereby be created in reference to the occupation of the property that would be legally binding upon the parties. The acts of the parties under such a lease may create in the lessee an estate from year to year: Rosenblat v. Perkins, 18 Or. 156, 22 Pac. 598. In an action where a written contract has been modified by verbal agreement, which verbal agreement was not to be performed within one year, oral evidence was admissible in an action thereon in order to give an understanding of the surrounding circumstances: Keller v. Bley, 15 Or. 433, 15 Pac. 705. DEBT, DEFAULT, OR MISCARRIAGE OF ANOTHER.-The verbal promise to pay the debt of another if the creditor will forbear to sue, or discontinue a suit already begun, or release a lien on personal property held in pledge, unless the promissor derives a benefit therefrom peculiar to himself, are all collaterial undertakings, and within the statute unless in writing: Gump V. Halberstadt, 15 Or. 358, 15 Pac. 467; Miller v. Lynch, 17 Or. 61, .19 Pac. 845. Where plaintiffs perform work for one who contracted with defendants to do it, and after the work was completed derendants orally promise to pay therefor, plaintiff can not recover, though such promise was unconditional: Bixby v. Church, 28 Or. 243, 42 Pac. 613. Where L. wrote to A. "I will accept C.'s order for $20 on December 12, 1892." and C. wrote his name on the back of such paper, he is not liable to A. thereon, because, if the promise is to pay C.'s debt, it does not express the consideration, and if it is only a promise to accept an order, the order was never drawn: Allen V. Leavens, 26 Or. 167, 37 Pac. 488, 46 Am. St. Rep. 613, 26 L. R. A. 620. If a defendant agreed with the plaintiff to pay him a certain sum which another, S., owed him, and that in consideration of such agreement the plaintiff discharged S. from all liability upon said S.'s debt, and released property which had been held for such debt, the defendant's agreement to pay this certain sum to the plaintiff is a new and original agreement, and is not within the statute of frauds: Miller v. Lynch, 17 Or. 61, 19 Pac. 845. But where one has a received a fund in consideration of which he promises to pay the debt of another, this promise is not within the statute of frauds, and may be recovered by the creditor of the person whose debt is to be paid, and may be proven by parol: Feldman v. McGuire, 34 Or. 312, 55 Pac. 872. Where the credit is given entirely to one party and the sale of goods is in fact to that party, though they are delivered to and used by another party, the statute of frauds does not apply, and the promise of such party is an original promise, which may be proven without a writing: Mackey v. Smith, 21 Or. 604, 28 Pac. 974. An agreement between cosureties on a bond as to their proportion of liability thereon is not an agreement to answer for the debt, default, or miscarriage of another, and not within the statute: Rose v. Wollenberg, 31 Or. 274, 44 Pac. 382, 65 Am. St. Rep. 826, 39 L. R. A. 378. Where a bond is given for release from arrest in an action for debt, conditioned that the sureties shall pay any judgment that may be recovered against their principal, while such bond is not required by statute, it is not against public policy and valid and binding, and when entered into may be enforced: Paddock v. Hume, 6 Or. 86; Taylor v. Fleckenstein, 30 Fed. 103. The objection that a contract is an agreement to answer for the debt, default, or miscarriage of another, must be taken in the lower court, and can not be urged for the first time on appeal: Hawley v. Dawson, 16 Or. 347, 18 Pac. 592. AGREEMENT IN CONSIDERATION OF MARRIAGE.-The marriage alone of parties is not such a partial performance of an agreement made between them regarding pecuniary rights as will be sufficient to take it out of the operation of this statute: Adams v. Adams, 17 Or. 254, 20 Pac. 638. AGREEMENT FOR SALE OF PERSONAL PROPERTY.-An agreement for the sale of property exceeding $50 in value need not be in writing, where the purchaser takes possession of it: Duzan v. Meserve, 24 Or. 523, 34 Pac. 548; Meyer v. Thompson, 16 Or. 194, 18 Pac. 16. To constitute an acceptance there must be delivery of the goods by the vendor with the intention of investing the right of possession in the vendee, and there must be a receipt and acceptance by the latter with intention to take possession as owner: Galvin v. MacKenzie, 21 Or. 185, 27 Pac. 1039. Where an agreement was had that defendant's debts should be liquidated by the transfer of certain property, including a fish net of the value of over $50, and subsequently the plaintiff gave a receipt reciting the transfer of certain property, not, however, including the fish net, and providing that the transfer was in full payment of all claims, it was held that the giving of the receipt was not a payment so as to take the parol agreement for the sale of the fish net out of the statute of frauds: Milos v. Covacevich, 40 Or. 66 Pac. 914. The delivery of a bill of lading of a car of wheat by indorsement in blank to the purchaser is a sufficient delivery to take the transaction out of the statute of frauds: Wadhams v. Balfour, 32 Or. 332, 51 Pac. 642. An oral contract to manufacture iron work for a certain building, according to special designs and measurements, suitable for use only in that particular building, and not used in the ordinary course of business or made for the general trade, is not "an agreement for the sale of personal property" within this section. This section refers to property which exists in specie at the time the contract is entered into: Heintz v. Burkhard, 29 Or. 59, 43 Pac. 866, 54 Am. St. Rep. 777, 31 L. R. A. 608. LEASING, AND OTHER CONTRACTS IN REGARD TO REAL PROPERTY: note to § 793, ante. See An agreement for the leasing of land for a period longer than one year is within the statute, but obligations may be created by a part performance which the courts will enforce, and the lease be considered as one from year to year: Wallace v. Scoggins, 17 Or. 478, 21 Pac. 558, 18 Or. 502, 21 Pac. 558, 17 Am. St. Rep. 749, note; Rosenblat v. Perkins, 18 Or. 159, 22 Pac. 598. A contract to grant or convey an easement must be evidenced by writing: Foss v. Newbury, 20 Or. 260, 25 Pac. 669. Agreements in respect to boundary lines are based upon the fact that the true line of separation is not only fairly and truly in dispute, but that it is also, to some extent, undefined and unknown, and where the transactions have not been such as to amount to an honest attempt to determine a doubtful line, the courts have not permitted an agreement to stand which would operate as a violation of the statute of frauds: Lennox v. Hendricks, 11 Or. 33, 4 Pac. 515. A memorandum signed by two parties, reciting an agreement by the party of the first part to deliver certain pasture lands to the party of the second part, and an agreement by the latter that the party of the first part can have the use of the specified pasture, is not invalid on the ground that it is merely an unaccepted offer by the first party. By signing it both parties became bound by its terms to give and take as therein provided: Stubblefield v. Imbler, 33 Or. 447, 54 Pac. 198. A contract to purchase a tract of land, provided the title proves satisfactory, should be in writing in order to be binding: Watson v. Brooks, 13 Fed. 541. AGENCY.-The right of preserving and enforcing a mechanics' lien is not an interest in land, and the agent's authority to act with reference to it need not be in writing: Hughes v. Lansing, 34 Or. 124, 55 Pac. 95, 75 Am. St. Rep. 574. § 798. Evidence of Representations as to Third Persons. No evidence is admissible to charge a person upon a representation as. to the credit, skill, or character of a third person, unless such representation, or some memorandum thereof, be in writing, and either subscribed by or in the handwriting of the party to be charged. [L. 1862; D. Cd. § 776; H. C. § 786.] The signature of a bank cashier with his official title, appended to a letter bearing the bank's name at its head, is a signature of the bank within the meaning of this statute: Nevada Bank v. Portland Nat. Bank, 59 Fed. 339. TITLE X. OF THE PRODUCTION AND EFFECT OF EVIDENCE, AND THE RIGHTS AND DUTIES OF WITNESSES. § 799. Evidence to be Produced by Party Having the Affirmative Issue. The party having the affirmative of the issue shall produce the evidence to prove it. Therefore, the burden of proof lies on the party who would be defeated if no evidence were given on either side. [L. 1862; D. Cd. § 777; H. C. § 787.] See § 717. BURDEN OF PROOF.-A party affirming a cause of action or defense always has the burden of proof in relation thereto. and an instruction to that effect when requested should be given: Schumann v. Wager, 36 Or. 65, 58 Pac. 770. The person alleging fraud to vitiate an agreement has the burden of proof thereof, and such burden is on one who seeks to surcharge and falsify a settled account: Fisk v. Basche, 31 Or. 181, 49 Pac. 981; Schoellhamer v. Rometsch, 26 Or. 405, 38 Pac. 344; Wimer v. Smith, 22 Or. 475, 30 Where an agreement, which is the consideration of the contract sued upon. is set out in the answer, with averment of nonperformance of plaintiff's engagements under it. and the replication admits the agreement but puts in issue the allegation of nonperformance, the burden of proof to show performance is on the plaintiff: Briscoe v. Jones, 10 Or. 63; to the same effect, see Ladd v. Mason, 10 Or. 315. $ 800. Alteration in Writing, Who to Explain Made. What Explanations May be The party producing a writing as genuine which has been altered, or |