WATERS v. RITCHIE

WATERS v. RITCHIE. Specific Performance ; Answer in Equity; Contracts; Trustees. 1. Specific performance of a contract to sell real estate, which purports to be executed by one of several owners on behalf of himself and co-owners will not be decreed in the absence of clear proof of previous authority to the one to make such a contract or subsequent ratification of it by the others, and such authority or ratification will not be presumed from a general willingness on the part of the others to sell for the price mentioned in the contract. 2. It is questionable whether an answer in equity can be overcome merely by circumstances alone without the testimony of any witness. 3. Where the title of real estate is in trustees to make sale, equity will hesitate to decree specific performance of a private contract to sell. 4. A bill for the specific performance of a contract to sell certain lots in Georgetown will be dismissed when the contract offered in evidence is under the caption of “ Washington, D. C.,” and spfecifies the lots as in a certain square without stating where the lots and square are. A contract for the sale of lands in order to be specifically performed must have all of the elements of a valid contract under the statute of frauds, and must be complete in itself and sufficient to identify the property with reasonable certainty. No. 253. Submitted March 22, 1894. Decided June 4, 1894. Hearing on appeal from a decree of the Supreme Court of the District of Columbia, holding an equity term, decreeing the specific performance of a contract to sell land. Reversed. The Court in its opinion stated the case as follows: This is a suit for the specific performance of a contract for the conveyance of real estate, in which the court below rendered a decree for specific performance, and the owners of the property have appealed from the decree. It appears from the record that one George Waters was, at the time of his death in 1873, the owner in fee simple of certain lots of ground, designated as lots numbered from 26 to 33, both inclusive, in the city of .Georgetown; and that, by his will duly executed and admitted to probate in the District of Columbia, he devised this property to his two executors, his brother Joseph G. Waters, and his son John M. Waters, as trustees, in trust to sell the same as soon as might be reasonably practicable after the lapse of eighteen months after the date of his death, at public auction, upon such terms of sale, and after such previous notice as to the trustees or trustee acting might seem best; and out of the net proceeds to pay one-fourth to his son, the defendant John M. Waters; one-fourth to-his daughter, the defendant Isabel Weisel; the income of one-fourth to. his daughter, Marion Chew, one of the defendants, during her natural life, and the principal sum at her death to her children or descendants, if any, and if none, to the testator’s right heirs; and similarly the income of the remaining one-fourth to his son Walter G. Waters, and the principal sum at his death to his children or descendants, if any, and if none, to the testator’s right heirs. . John M. Waters, Isabel Weisel and Marion Chew are living, and are all parties to this suit. Marion Chew is alleged in the bill of complaint to have no issue now living, and to be past the age of child-bearing; but of this latter statement there seems to be no proof in the record. William G. Waters died in 1882, leaving as his only issue his son Percy or Percival Lee Waters, who became entitled to the principal sum of the portion of the estate of which the income had been left to his father, and who was made a party to this suit. It seems that soon after the institution of the suit, and apparently in accordance with some understanding or agreement existing at the time of its institution, Percy Lee Waters conveyed his interest in the property mentioned to the complainant in the cause, Louis W. Ritchie, and the latter is now the owner of the one-fourth interest that was devised to William G. Waters and his issue. After the death of William G. Waters and when his interest had become vested in his son Percy Lee Waters, a bill in equity was filed, on November 21, 1883, in the Supreme Court of the District of Columbia, in the names of Joseph G. Waters, John M. Waters, Isabel Weisel and Marion Chew, by Frederick W. Jones as solicitor, against Percy Lee Waters, in which it was set forth that the real estate above mentioned had not been sold on account of an arrangement between the parties in interest that it should not be sold for less that $15,000; that Joseph G. Waters and John M. Waters desired to be relieved of the duties imposed upon them by the will of George Waters with respect to the one-fourth interest belonging to Percy Leé Waters, who was then only about 16 years of age and whose intercourse with his relatives then and afterwards does not seem to have been of the most affectionate character, and that the complainants in that suit desired a sale for the purpose of partition. A decree was rendered in that suit on April 22, 1884, authorizing a sale, prescribing its terms, which were different from those prescribed by the will, and appointing Frederick W. Jones, the solicitor who appeared for the complainants, as trustee to make the sale. By a supplemental decree, made May 14, 1884, Joseph G., Waters was appointed co-trustee with Jones to make the sale. No sale, however, was ever made, or attempted to be made, under the authority so assumed to be conferred; and no further movement seems to have been made for five or six years to dispose of the property. The arrangement between the parties which is referred to in the bill of complaint in that suit was redüced to writing; and the written instrument was filed in that cause, or in some other cause pending in the courts; and it has also been introduced in evidence in this cause by the defendants. As it is in some measure the basis of the decree rendered in this cause by the court below, we reproduce it here. It is as follows: “ Whereas George Waters, late of Georgetown, in the District of Columbia, by his last will and testament duly ad-, mitted to probate and recorded in the office of register of wills of said District, devised his whole estate to Joseph G. Waters and John M. Waters, executors and trustees, with power to sell at public auction and divide between his children the said John M. Waters, Isabella Weisel, wife of David Weisel, Marion Chew, wife of Scott Chew, and Walter G. Walters, as by reference to said will will fully appear; and whereas Mary S. Waters, wife of said Walter, has obtained a decree of divorce and alimony in the Supreme Court of said District, and has by virtue of such decree and process of attachment, secured a lien upon said Waters’ interest in said estate to the supposed full value of his income therefrom: Now, therefore, in order to facilitate the execution of said trusts, and save said estate from as much loss as possible, the above-mentioned parties have agreed and do hereby agree as .follows: that the fire insurance stock and gks company’s stock shall be divided; that said trustees shall offer the warehouse on the canal, and the dwelling house on Market street at public auction as often as they in their discretion may deem proper, with this understanding, however, that if the? warehouse does not bring at. least fifteen thousand dollars, and the dwelling at least five thousand dollars, either or both pieces of property may be withdrawn from sale, in such contingency. “It is further agreed that said trustees may in their discretion dispose of said real property at private if undisposed of at public sale, always consulting the parties in interest. It is further agreed that saidi trustees may sell and dispose of the lands in Texas and the lands in Charles county, Maryland, either at public or private sale at their discretion. “ It is further agreed that said executors may sell and dispose of the remaining stocks belonging , to said estate at either public or private sale, at their discretion. “ Signed, sealed, and delivered this 23d June, 1875. “ Duplicate.” Signed and sealed by J. G. Waters, John M. Waters, Isabel Weisel, David Weisel, Marion Chew, W. Scott Chew, and M. S. Waters, by Jas. G. Payne, attorney.” In the year 1889 some negotiations were initiated by some parties for the purchase of the property in question; and in the early part of the year 1890 a paper purporting to be an agreement of sale was executed which constitutes the basis of the present proceedings and which is in the following terms: “Washington, D. C., 27th February, 1890. “ Received of L. W. Ritchie a deposit of two hundred and fifty dollars, to be applied in part payment of purchase of eight lots, 26, 27, 28, 29, 30, 31, 32 and 33, in square nineteen, with the improvements thereon, brick warehouse and frame sheds thereon. The purchaser is required to make full settlement, in accordance with terms of sale, within thirty days from this date or deposit will be forfeited. “Price of property, $15,000. Terms of sale: One-fourth cash and balance in equal payments, one, two and three years, secured by deed of trust on the above described property, with interest at the rate of 6 per cent, per annum, payable as above stated. Sold free of all incumbrance; title to be a good record title or deposit refunded. “Taxes to be paid by seller to the date of agreement of sale. Insurance also paid to date of sale. “ Abstract and conveyancing at cost of purchaser. (Signed) “ John M. Waters, For Self and for Isabel Weisel, Marion Chew, and Percival Lee Waters, all Heirs of Geo. Waters, Dec’d.” The proposed purchaser, as it appears, was Dr. Louis W. Ritchie, to whom this receipt and contract of sale was delivered by John M. Waters. Joseph G. Waters refused to execute it. At the time of the execution Dr. Ritchie paid to John M. Waters the deposit of $250 mentioned in the paper. Dr. Ritchie proceeded to have the title examined. His attorney, who made' the investigation for him, reported to him that, in view of the provisions of the will of George Waters, it would be necessary to have some sale of the property to get rid of the interest of Mrs. Marion Chew, and some proceedings in court; and suggested that he, the attorney, would prepare a proper paper for the purpose and submit it for the approval of the parties on the other side. The paper proved to be a petition intended to be filed in the equity suit for partition that has already been mentioned; and it was drawn in the name of all the parties to that suit, and was signed, or intended to be signed, also by Dr. Ritchie. In this paper, after recital of the fact that no sale had been made under the decree in that equity suit, the agreement was set forth, as the attorney understood it, which has been mentioned as having been entered into between Dr. Ritchie on the one side and John M. Waters,' assuming to act for himself and the other heirs of his father, on the other side, for the sale and purchase of the property for the sum of $15,000. And then a supplemental arrangement was suggested and recited to the effect that the decrees entered in the suit for partition should be vacated; that Joseph G. Waters and John M. Waters should be reinvested with the power given to them in the will to make sale at public auction; that Ritchie would bid the sum of $15,000 at such sale, and that if the property realized more than $15,000, he (Ritchie) should be entitled co receive the excess of the shares of John M. Waters, Isabel Weisel and Percy Lee Waters. And the paper proceeded to pray for the vacation of such former decrees, and that Joseph G. Waters and John M. Waters be authorized to make sale under the will and report their proceedings to the court. Dr. Ritchie and his attorney submitted this paper to Frederick W. Jones, the solicitor for the complainants in the partition suit, for his approval; and he did indorse his approval upon it; and thereupon it was delivered to John M. Waters for approval by the parties in interest. It was sent by John' M. Waters, or delivered by him, to Mrs. Weisel, and she transmitted it to Mrs. Marion Chew. Both ladies positively declined to sign it, or to give their approval to it in any manner, and rejected and repudiated the whole scheme. The paper so proposed to be executed and.which in fact was never executed and of course never filed or acted upon in any manner, found its way into the hands of Mr. Frederick W. Jones, and was supposed at the time of the commencement of the testimony in this cause'to have been lost. It was subsequently discovered among Mr. Jones’ papers, but not before an attempt was made to prove its contents, with the strange result that the proof differed very remarkably from the paper itself when it was produced. But the discrepancy is not deemed to be material, in the view which we take of the case. The thirty days allowed by the agreement of February 27, 1890, for compliance with its terms having passed, and nothing furthei; having been accomplished on either side, John M. Waters and Frederick W. Jones called together on Dr. Ritchie and returned to him, under protest, however, by him, the deposit of $250 which he had made. Dr. Ritchie insisted that the contract remained in dorce, and that he was ready and willing to comply with it. Soon afterwards Dr. Ritchie instituted the present suit against John M. Waters, Isabel Weisel, Marion Chew, Percy Lee Waters, Joseph G. Waters and Frederick W. Jones, to enforce specific performance of the contract of February 27, 1890, and to compel the conveyance to him by the parties in interest of the property in question. As already stated, the court below decreed specific performance; and the defendants in the suit have appealed to this court. Mr. J. J. Darlington for the appellants: 1. Not only are the denials of either previous authority or subsequent ratification contained in the answers of Mrs. Weisel and Mrs. Chew not disproved by the testimony of one witness and corroborating circumstances, in such manner as to make out the plain, clear and satisfactory proof required in cases of specific performance; but the weight of the testimony is clearly and strongly in support of those answers; and there was, consequently, manifest error in the decree below in so far as it relates to those defendants. 2. There was also error, under the facts and circumstances of this case, to decree specific performance as against the appellants. It is true there are authorities to the effect that one assuming to sell another title to land, who possesses only a partial interest therein, may be compelled to convey such interest as he has, if the purchaser will take it, with corresponding reduction in price. These authorities, however, almost without exception, relate to cases in which the vendor has intentionally or consciously misrepresented his title; and, in addition, with a single exception, it is believed, the expressions upon this subject are mere dicta. For example, Mortlock v. Butter, io Ves. Jr., 292, frequently cited for the proposition in question, is really and strongly an authority the other way in cases like the present. Waters v. Travis, 9 John., 450, relied upon below, is in like manner inapplicable. Irwin v. Myers, 46 Pa. St., 106, and Napier v. Darlington, 70 Pa. St., 67, are still more remote, and are entirely inapplicable. The only case, it is believed, which does fully support the proposition, is Clarke v. Reins, 12 Gratt., no, in which case the decision was by three judges against two, and, though professing not to be so, it would seem to be in direct conflict with the entire court in the case of Bailey v.James, 11 Gratt., 475. In addition, Story's Equity Jurisprudence, cited in Clarke v. Reins, is to the effect that such relief is not enforcing performance of a contract made by a party, but is enforcing upon the defendant a contract which he did not make. The facts and circumstances of this case do not afford equitable grounds for enforcing it against the defendant, John M. Waters. See also Lipscomb v. Watrous {ante, p. 1], decided recently by this court, and to which, in every essential particular, the present case seems entirely analogous. Mr. A. S. Worthington and Mr. H. T. Taggart for the appellee. 1. The defendants’ counsel assumes it to be a rule in equity that where an answer is responsive to the bill, and is under oath, it must be overcome by the testimony of two witnesses, or by the testimony of one witness with corroborating circumstances. This is not, we apprehend, an exact statement of the law, and the difference is material. The true rule is stated by Justice Lamar in Southern Development Co. v. Silva, 125 U. S., 249, where he says the plaintiff will be entitled to a decree “ unless these denials are disproved by evidence of greater weight than the testimony of one witness or by that of one witness with corroborating circumstances.” This means, in brief, that circumstances alone may be sufficient without the direct testimony of any witness. That a sworn answer may be overcome by circumstances alone, see 1 Daniell’s Chancery Practice, Ch. 843, note 7; Clark v. Van Remsdyke, 9 Cr., 153; Clements v. Moore, 6 Wall., 299; Pickering v. Day, 3 Houston, 474 ; fones v. Abraham, 75 Va., 470; Bank v. Peckman, 33 N. J. Eq., 53; Gould v. Williamson, 8 Shepley, 276; Long v. White, 5 J. J. Marsh, 228; 3 Green. Ev., Sec. 289. 2. The following authorities are relied upon to support our contention that we are entitled to relief as against John M. Waters, whether we succeed or fail as to Mrs. Weisel and Mrs. Chew: Mortloc.k v. Boiler, 10 Vezey, Jr., 292-315 ; Harrocks v. Rigby, L. R., 9 Ch. D., 180; Burrow v. Scam- mel, L. R., 19 Ch. D., 175-183; Bogan v. Doughdrill, 51 Ala., 312 ; Waters v. Travers, 9 John., 45 ; Clarkev. Reins, 12 Gratt, 110; Irwin v. Myers, 46 Pa. St., 106; Napier v. DTirling ton, 70 Pa. St., 67. [MAJORITY — Mr. Justice Morris] Mr. Justice Morris delivered the opinion of the Court: It is, of course, perfectly apparent that the contract which forms the basis of the suit is not binding upon Mrs. Isabel Weisel and Mrs. Marion Chew, unless previously to its execution they authorized their brother John M. Waters to enter into it for them, or subsequently thereto ratified and confirmed it' by their course of conduct. The burden of proof is upon the complainant to show clearly and satisfactorily and beyond reasonable doubt either such previous authority or such subsequent ratification; and naturally his testimony is mainly directed to that object. We have examined all the testimony with all the care and earnestness that we could bring to its consideration; and we have failed to find any satisfactory proof either of authority or of ratification. In one of its most recent utterances on the subject of specific performance, the Supreme Court of the United States, by Mr. Justice Harlan, said: “ Specific performance is not of absolute right. It rests entirely in judicial discretion, exercised, it is true, according to the settled principles of equity, and not arbitrarily or capriciously, yet always with reference to the facts of the particular case. Willard v. Tayloe, 8 Wall., 557; Marble Co. v. Ripley, 10 Wall., 339, 357; 1 Story’s Eq. Jur., Sec. 742; Seymour v. Delancey, 6 Johns. Ch., 222, 224. The question in cases of specific performance, Lord Eldon said, is not what the court must do, but what, under the circumstances, it may do, in the exercise of its discretion to grant or Withhold relief of that character. White v. Damon, 7 Ves., 30, 35 ; Radcliffe v. Warrington, 12 Ves., 326, 331. It should never be granted unless the terms of the agreement sought to be enforced are clearly proved, or where it is left in doubt whether the party against whom relief is asked in fact made such an agreement. Colson v. Thompson, 2 Wheat., 336, 341; Carr v. Duvall, 14 Pet., 77, 83; Huddleston v. Briscoe, 11 Ves., 583, 591; Lanz v. McLaughlin, 14 Minn., 72; Waters v. Howard, 1 Md. Ch., 112, 116.” That was a case, Hennessy v. Woolworth, 128 U. S., 438, not very unlike the present in its general features, where the controversy turned upon the question of the authority of an alleged agent which was denied by the supposed principal. Tested by the rule here laid down, which is the logical result of all the previous authorities on the subject, the plaintiff in the present case has utterly failed to sustain his right to have specific performance. Indeed, in our opinion, the preponderance of testimony is decidedly in favor of the defendants. That John M. Waters, when he made the contract of Feb. 27, 1890, believed that he had authority to act for those for whom he undertook to act, and that he gave the complainant so to understand, we may readily assume. But assumption of authority assuredly is no proof of authority; and he himself, both in his answer and in his testimony, denies that he had received any such authority or that he gave the complainant so to understand. And both Mrs. Weisel and Mrs. Chew positively deny that they gave any authority at any time to their brother to make the contract for them which he assumed to make. The explanation of John M. Waters is that he made the contract subject to ratification by the other heirs, of which he says that Dr. Ritchie was fully advised; and this whether true or not, is not wholly inconsistent with his general course of proceeding in the business. But whatever we may think of his action, it should not be permitted to affect the rights of the other defendants, unless it is shown that they sanctioned it. And we are of opinion that there is no sufficient legal evidence to show that they in any manner sanctioned it. To overcome the positive denial of the answers, and the equally positive statements of the several defendants on the witness stand, the complainant has not a single witness, and is compelled to rely upon “ circumstances,” or “ corroborating circumstances.” We find it rather difficult to appreciate the position assumed on behalf of the complainant in this regard, that “ corroborating circumstances ” are sufficient to prove his case without any witnesses. Facts and circumstances, as the basis of private right, do not prove themselves. They are required to be proved by witnesses. It is true that, when proved, they may outweigh the testimony of any number of witnesses. The case of The Southern Development Company v. Silva, 125 U. S., 247, cited on behalf of the appellee, only states the general and ordinary rule in equity that “unless these denials (of the answer) are disproved by evidence of greater weight than the testimony of one witness, or by that of one witness with corroborating circumstances, the complainant will not be entitled to a decree.” It is difficult to see how an answer in equity can be overcome merely by circumstances, without the testimony of any witness. But what are these corroborating circumstances upon which the complainant relies? We have first the statement of Mrs. Weisel that, in September, 1889, she and her sister were willing to sell the property for $15,000, and urged the trustees to sell at that figure. It is scarcely a fair or reasonable inference from this fact, either taken alone or in connection with other circumstances, that they were willing to sell for that figure in February, 1890; or that in February, 1890, they authorized John M. Waters to bind them by contract in writing. Another circumstance relied on is that, in the year 1875, by an instrument of writing executed for a special purpose, which seems long since to have come to an end, they authorized the trustees to sell the property under the will at public sale for $15,000, and at private sale at their discretion after consultation with the parties in interest. And it is argued that, because they were willing to sell at auction for $15,000, they were therefore willing to sell at private sale for the same sum; and it is inferred that, because they were willing that the trustees should carry out the terms of the will in 1875, if they could get $15,000' for the property, they were therefore willing that John M. Waters should bind them in 1890 by written contract to sell to Dr. Louis W. Ritchie. We cannot acquiesce in the logic of this inference. Sixteen letters were introduced in evidence by the complainant, constituting a correspondence between John M. Waters, or the firm of Joseph G. Waters and John M. Waters, and Percy Lee Waters, from January 7, 1890, to April 4, 1890, in which repeated mention was made of the desire of the heirs to sell the property for $15,000; and the statements contained in these letters are regarded as corroborating circumstances. But these letters are wholly'inadmissible as evidence against Isabel Weisel and Marion Chew, who knew nothing of them and are in no way connected with them. And it is difficult to see how statements made by Joseph G. Waters or John M. Waters, not shown to have been authorized by Isabel Weisel and Marion Chew, could be held to bind the latter, or to be any evidence whatever against them. We cannot give to such statements the force and effect of corroborating circumstances. It is undoubtedly quite probable that when John M. Waters signed the contract with Dr. Ritchie he did so in the honest belief that he was justified in executing it, and that' all the heirs, except possibly Percy Lee Waters, were then ready and willing to sell for $15,000, and would ratify his contract; and, indeed, Mrs. Weisel and Mrs. Chew themselves testified that they had been so willing. But it is very plain that the sale which these latter desired was a sale by the two trustees under the will; and that, if they, ever authorized any contract to be made for them, it was to be a contract by the two trustees, and not one by John M. Waters alone. ■ Now, this may be a very immaterial thing. The selection of their agents to accomplish a result may be very unimportant, if the result is accomplished. It might have been the merest whim and caprice on the part of these ladies to prefer the combined action of the two trustees rather than the individual action of one of them; but it was their undoubted right to select their agents for themselves; and no man has a right to assume to bind another by contract, even though the contract should be precisely such as the party desires. Whatever these two defendants may have wished and stated in regard to the sale of the property, it is very clear to us that they never, at any time, so far as the record discloses, authorized John M. Waters to make the contract for them with Dr. Ritchie which he assumed to make; and that, so far from ratifying that contract by any subsequent course of action on their part, they distinctly repudiated it. They may have done so in the hope of a higher price; and they probably did. But that it was their absolute right to do, unless they had legally bound themselves to the contract. Instead of finding corroborating circumstances here to bind these defendants to the contract undertaken to be made for them, we find circumstances that would make it exceedingly improper to decree specific performance, except under compulsion of the clearest proof. We have a legal title outstanding in trustees, with a power of disposal of the property in a specified way; and we have a proceeding in equity for a sale for the purpose of partition. It is for the trustees to sell the property either under the will or under the decree of the court; and an attempt to enforce specific performance under a private contract might well be construed as an attempt to compel them to violate their trust. But-there is another an.d an insuperable objection to the relief prayed for by the complainant in this case. The contract executed by John M. Waters, even if there were ample authority in him to execute it, and the proof of such authority were beyond dispute, is, in consequence of the vagueness and insufficiency of its terms, incapable of forming the basis for a decree of specific performance. It does not describe any property that can be identified without extraneous proof; or, if it does, the property is entirely different from that mentioned in the bill of complaint, and there is a fatal variance between the allegation and the proof. The bill of complaint describes certain property in Georgetown; the contract, if it describes any specific property at all, calls for property in the city of Washington. The bill of complaint seeks to compel the conveyance by the defendants to the complainant of lots 26, 27, 28, 29, 30, 31, 32 and 33, in square 19, in the city of Georgetown; the contract exhibited, which is under the caption of “Washington, D. C., 27th February, 1890,” specifies “lots 26, 27, 28, 29, 30. 31, 32 and 33, in square 19,” without stating where these lots and square are. Without the caption, the description of the property is meaningless; no one can tell from the paper itself where square 19 is to be found. With the caption, and if the caption be imported into the body of the contract, the property contracted for is in the city of Washington, and not in the city of Georgetown. Either the contract is insufficient to describe any certain piece of property, or there is a fatal variance between it and the allegations of the bill of complaint. It is a well settled rule of equity, that a contract for the sale of lands, in order to be specifically enforced, must have all the elements of a valid contract under the Statute of Frauds, and must be complete in itself, certain in its terms, and sufficient to identify the property with reasonable accuracy. Preston v. Preston, 95 U. S., 200; Williams v. Morris, 95 U. S., 444; Purcell v. Miner, 4 Wall., 513. The contract in this case does not comply with the rule. Were it not for this insufficiency of the contract, there might be ground to decree specific performance as against John M. Waters and his interest in the property. But .the insufficiency of the contract renders it improper to enforce it against any one of the defendants. We are of opinion that the appellee, complainant in the court below, is not entitled to specific performance of the alleged contract; and that the decree of the court below is erroneous and should be reversed. And it is hereby accordingly reversed, with costs; and the cause is remanded to that court, with directions to enter a decree dismissing the bill. On June 15, 1894, a motion was made by the appellee for a rehearing as to the defendant John M. Waters, upon the ground that the opinion in his favor rested upon a point not made in the answer of any of the defendants and not suggested either in the brief for the defendants or in the oral argument before the court. In support of this motion it was urged by Mr. Worthington and Mr. Taggart for the appellee, that the contract sufficiently identified the square in which the lots sold were situated, and the following authorities were cited in a brief filed by them: Fry on Specific Performance, Secs. 325 to 329; Reed on Stat. of Frauds, Secs. 409 to 413; Pursell v. Minor, 4 Wall., 513; Preston v. Preston, 95 U. S., 200; Williams v. Morris, 95 U. S., 444; Hurley v. Brown, 98 Mass., 545; Scanlon v. Geddes, 112 Mass., 115 ; Meade v. Parker, 115 Mass.; Colerick v. Hooker, 3 Ind., 316; Waring v. Ayers, 40 N. Y., 361; Bacon v. Leslie, 50 Kan., 494; Preble v. Abrahams, 88 Cal., 245 ; Egleston v. Wagner, 46 Mich., 618; Ryan v. U. S., 136 U. S., 82; Patch v. White, 117 U. S., 210; Gilmer v. Stone, 120 U. S., 586. The motion for a rehearing was, on October 1, 1894, granted, but the reargument had not been heard at the time this volume went to press.