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29 CAR. 2, CAP. 3, STATUTE OF FRAUDS. 709 some memorandum of it in writing is required;28 but it may be proved by a deed from the sheriff, or his return, or other memorandum in writing, or from the whole judicial proceedings collectively, Estep v. Weems, 6 G. & J. 303; Hanson v. Barnes' lessee, 3 G. & J. 359; Duvall v. Waters, 1 Bl. 569; Alexander v. Walter, 8 Gill, 259; Fenwick v. Floyd's lessee, 1 H. & G. 172; Barney v. Patterson, 6 H. & J. 182; Thomas v. Turvey, 1 H. & G. 435; Wright v. Orrell, 19 Md. 151. But it has been doubted whether sales by trustees under a decree of a court of equity are within the Statute, Ham- son v. Harrison, 1 Md. Ch. Dec. 381; Frieze v. Glenn, 2 Md. Ch. Dee. 361." * IV. This section, though there are opinions to the contrary, see 523 Reade v. Lamb, 6 Exch. 130, does not make the agreements therein men- tioned void, but only prevents them from being enforced by action if its requirements are not complied with. Crane v. Gough, 4 Md. 316; White v. Coombs, 27 Md. 489.3t) It has been held, therefore, that an action could not be maintained in England on a parol agreement not to be performed within a year, made in France, though valid and enforceable there, Leroux v. Brown, 12 C. B. 801: see the remarks of Willes J. on this case in Gibson v. Holland, 1 L. R. C. P. 1. Contracts executed on both fides—On one side.—Where the contract is executed on both sides it is just as valid as if it had been in writing, Crane v. Gough supra,31 and a party may always defend under such a contract when sued for any act done under it. That was a case of a parol ante- nuptial agreement. And in a like case, part-execution was, as to personal property at least, held a good defence to an action at law for the chattels actually delivered under it, Bowie's Ex'r v. Bowie, 1 Md. 87. But the gen- eral rule is that, at law, the execution of his part of a contract within the Statute by one of the parties will not enable such party to sue the other party upon the contract for non-performance on his part, though there be nothing to be done but to pay the consideration, Cocking v. Ward, 1 C. B. 858; Smart v. Harding, 15 C. B. 652, and see Kelly v. Webster supra.12 However, where a contract for the sale of lands is executed on the part of the vendor by conveyance of the land and delivery of possession, a duty is raised on the part of the vendee to pay the consideration, and indebitatus 28 Sentman v. Gamble, 69 Md. 304; Warfield v. Dorsey, 39 Md. 299. 29 They are not within the Statute; nor are sales made under a power contained in a mortgage; nor are public sales by executors under powers in wiils. Warfield v. Dorsey, 39 Md. 299; Warehime v. Graf, 83 Md. 101. 30 Equitable Gas Light Co. v. Baltimore Co., 63 Md. 285; Britain v. Ros- siter, 11 Q. B. D. 126. The Statute does not deal with the validity of the agreement but only with the evidence to prove it. In re Holland, (1902) 2 Ch. 375; Maddison v. Alderson, 8 App. Cas. 467. 31 Nicholson v. Schmucker, 81 Md. 549; Bruns v. Spalding, 90 Md. 361; Huntley v. Huntley, 114 U. S. 394. 82 A contract invalid under the Statute cannot be enforced either directly, or indirectly, by action or defense; though it may operate as a license for the doing of an act. in performance of the contract. Baker v. Lauterbaeh, 68 Md. 64; Hamilton v. Thirston, 93 Md. 218. |
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Alexander's British statutes in force in Maryland. 2d ed., 1912
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