when there is no positive unfairness. Accordingly, slight inadequacy of consideration, or ignorance of the subject-matter, or mental imbecility not amounting to idiocy or insanity, will not of themselves avoid a contract. So in regard to the quality and value of articles contracted for, the rule is, that if a defect be open and obvious to common inspection, there can be no ground to complain of fraud. But when the defect is latent and not readily perceived, the party knowing it is bound to make disclosure. When a contract has been absolutely concluded, neither party can alter it, without the consent of the other, in any essential part, without avoiding it altogether. As a general rule, if any part of one entire contract is fraudulent, it is void throughout. Courts of law will not undertake to apportion fraud. This can only be done by courts of equity, whose jurisdiction of fraud will be considered hereafter. The Statute of Frauds. (a) Fraud with respect to third persons,

(a) Browne on the Statute of Frauds. First Section. By a statute of 1846, provision is made for depositing a mortgage of chattels, or a copy, with the township clerk or recorder, and renewing the same thirty days before the end of each year. And unless this be done, the retaining of possession by the mortgagor is declared to render the mortgage absolutely void, as against creditors and subsequent purchasers in good faith. Prior to this act the rule was, that the retaining of possession, after bill of sale or mortgage, was prima facie fraudulent, but might be explained. Hombeck v. Vanmetre, 9 Ohio, 153; Collins v. Myers, 16 id. 547; Stanley v. Brannon, 6 Blackf. 196; Read v. Wilson, 22 Ill. 377; Constant v. Matteson, 22 id. 546. See Gay v. Bidwell, 7 Mich. 519.

Second Section. The expression "utterly void" applies only to creditors and purchasers, not to the parties. Burgett v. Burgett, 1 Ohio, 469; Douglas v. Dunlap, 10 id. 162; Barton v. Morris, 15 id. 408; Brown v. Webb, 20 id. 389; 3 Ohio State, 246; Crumbaugh v. Kugler, 2 Ohio State, 373; 3 id. 544; Webb v. Roff, 9 id. 430; Scott v. Purcell, 7 Blackf. 66; Randall v. Phillips, 3 Mason, 378. There must be a fraudulent intent in both parties in order to render the conveyance or sale void. Ewing v. Runkle, 20 Ill. 448; Brown v. Riley, 22 id. 45. And the retaining of possession by the mortgagor does not necessarily make it fraudulent. Id.; Oliver v. Eaton, 7 Mich. 108; Gay v. Bidwell, 7 id. 519. See Hudgins v. Kemp, 20 How. 45. Where a debtor, while a suit is pending, conveys his whole estate, with a stipulation for repurchase, and retains possession under an agreement to pay rent, this is primâ facie fraudulent, but may be explained. Barr v. Hatch, 3 Ohio, 527; Hood v. Brown, 2 id. 267; Starr v. Starr, 1 id. 321; Minns v. Morse, 15 id. 568. Where a father who is embarrassed conveys property to his wife or children, the question of fact is, whether his circumstances were such that a prudent man should have apprehended insolvency. If so, the honesty of his intention will not support the conveyance. Brice v. Myers, 5 Ohio, 121; Miller v. Wilson, 15 id. 108; Reade v. Livingston, 3 Johns. Ch. 481; Robinson v. Bates, 3 Met. 40; Crumbaugh v. Kugler, 2 Ohio State, 373. A conveyance made without consideration by one indebted at the time, cannot be avoided by subsequent creditors without showing actual fraud, or a secret trust for the benefit of the grantor. Webb v. Roff, 9 Ohio State, 430. Before our statute abolishing preferences, made by assignments in contemplation of insolvency, such preferences were not of themselves held to be fraudulent. Atkinson r. Jordan, 5 Ohio, 293; Hull v. Jeffrey, 8 id. 390; Harshman v. Lowe, 9 id. 92; Mitchell v. Gazzam, 12 id. 315; Hatch v. Smith, 5 Mass. 42; Bradshaw v. West, 7 Peters, 615; Cumber v. Wayne, 1 Smith, L. C. 258, note; Bancroft v. Blizzard, 13 Ohio, 30; Doremus v. O'Harra, 21 id. 45; Arnold v. Maynard, 2 Story, 349; Freeman v. Deming, 2 Sandf. Ch. R. 332. As to the consideration of a purchase being an antecedent debt, see Lupin v. Marie, 2 Paige, 215; Riley v. Johnson, 8 Ohio, 526; Swift v. Tyson, 16 Peters, 1; Bank of Sandusky v. Scoville, 24 Wendell, 115; Riley v. Johnson, 8 Ohio, 526, holding that the payment of an antecedent debt was not a consideration, was overruled by Carlisle v. Wisheart, 11 Ohio, 172, holding that it was, and following Swift v. Tyson. In Roxborough v. Messick, 6 Ohio State, 448, the doctrine was established to be, that taking the note merely as collateral for an antecedent debt, without any change in the relation of the parties, was not a valuable consideration; but if there were

is chiefly provided against by the "act for the prevention of frauds and perjuries," commonly called the statute of frauds. Our pres

such change, or if at the time of the creation of the debt there were an agreement for further security, it would be valid.

Third Section. This has been proved to be of no practical importance.

Fourth Section. Prior to our first statute of frauds, which was passed in 1810, though a legal title could not be conveyed by parol, yet an express trust might be both created and proved by parol. Fleming v. Donahoe, 5 Ohio, 255. When a parol contract for the sale of lands is admitted by the defendant in his answer without relying upon the statute of frauds, the contract will be enforced. Woods v. Dille, 11 Ohio, 455; 2 Story, Eq. Jur. § 755. Where a purchaser by parol is put in possession, the vendor cannot set up the statute, nor even a parol agreement to rescind. Kelly v. Stanberry, 13 Ohio, 408. A parol contract for a new lease, when the tenant is in possession under a former lease, is within the statute of frauds. Armstrong v. Kattenhorn, 11 Ohio, 265; Crawford v. Wick, 18 Ohio State, 190. But where possession is given under it, it is withdrawn from the operation of the statute. Grant v. Ramsey, 7 Ohio State, 157. The owner gave a parol license to erect abutments of a mill-dam, and afterwards entered and destroyed them; held, that the license, being executed, was not within the statute, and the owner was a trespasser. Wilson v. Chalfant, 15 Ohio, 248. A parol contract for the purchase of a land-office certificate, with part performance, will take the case out of the statute. Kay v. Watson, 17 Ohio, 27. A parol contract to clear and fence, and raise a crop of corn as a compensation, if part performed by clearing and fencing, entitles the party to the crop of corn. Wilber v. Paine, 1 Ohio, 251. Mere payment of the purchasemoney, under a parol contract, without possession, does not take the case out of the statute. Sites v. Keller, 6 Ohio, 483; Pollard v. Kinner, 6 id. 528; Sanborn v. Sanborn, 7 Gray, 142; Campbell v. Campbell, 3 Stockton, 268. But in Indiana, it is held that it may do so. Single v. Clemens, 17 Ind. 124. But it is otherwise where possession is delivered. Waggoner v. Speck, 3 Ohio, 292; Moore v. Beaseley, 3 id. 294; Randall v. Turner, 17 Ohio State, 262. For other constructions of this section, see Town v. Needham, 3 Paige, 546; Woods v. Farmare, 10 Watts, 195; Sage v. M'Guire, 4 Watts & Serg. 228; Wood v. Leadbetter, 13 Mees. & W. 840; Stevens v. Stevens, 11 Met. 251; Mumford v. Whitney, 15 Wendell, 381; Wible v. Wible, 1 Grant's Cases, 406; Chadwick v. Felt, 35 Penn. State, 305; McGregor v. Brown, 10 N. Y. 114; Harrell v. Miller, 35 Miss. 700. An agreement relating to land entered of record in a proceeding to appropriate land by a railroad company is a contract of record, and binding under the statute. Huston v. Cincinnati, &c. R. R. Co., 21 Ohio State, 236. The memorandum need not be made at the time of the contract. It is sufficient if it be made any time before trial. Webster v. Zully, 52 Barb. 482. None but the parties can take advantage of the statute. Creditors cannot insist upon their debtors setting it up. Lefferson v. Dallas, 20 Ohio State, 68; Crawford v. Woods, Bush (Ky.), 200; Chicago Dock Co. v. Kinzie, 49 Ill. 287; Patterson v. Underwood, 22 Ind. 607. The memorandum must contain a sufficient description of the property sold to enable it to be located. White v. Herman, 51 Ill. 243; Whelan v. Sullivan, 102 Mass. 204. A contract to make a will of all the testator's property real and personal, in favor of a third person, in consideration of that person's making a similar will in favor of him, is a contract for the sale of lands. Gould v. Mansfield, 103 Mass. 408. A contract for standing timber to be taken off at the vendee's discretion is for an interest in land. Pattison's Appeal, 61 Penn. State, 294. But a contract by the contractor to cut wood on his own land and deliver it at so much a cord, is not. Kilmore v. Howlett, 48 N. Y. 569.

Fifth Section. This is the fourth section in the English statute, 29 Charles II. Upon the general subject of this section, see Chitty on Cont. 211; Story on Cont. § 561, 500; 2 Parsons on Cont. 284-341; Wain v. Walters, 5 East, 10; Saunders v. Wakefield, 4 Barn. & Ald. 595; Violet v. Patten, 5 Cranch, 142; Packard v. Richardson, 17 Mass. 122; Gage v. Wilcox, 6 Conn. 81; Hoover v. Morris, 3 Ohio, 56; Anderson v. Harold, 10 id. 399; Sears v. Brink, 3 Johns. 210; Griffith v. Young, 12 East, 513; Philbrook v. Belknap, 6 Vermont, 383. The statute may be complied with by letters passing between the parties where the terms of the contract can be collected with certainty from them. Jackson v. Lowe, 1 Bing. 9; Macrory v. Scott, 5 Wels. Hurls. & Gordon, 907; Archer v. Baynes, id. 625; Dobell v. Hutchinson, 3 Ad. & El. 355. The contract may be on different pieces of paper. Esmay. Groton, 18 Ill. 483; Lee v. Mahoney, 9 Iowa, 344. But if some only of the pieces of paper are signed, reference must be specifically made in those which are signed to those which are not. If all are signed, then such reference

ent act was passed in 1810, prior to which we had no provision on the subject. It is copied with some variations from the English

is not necessary, if by inspection and comparison, it appear that they severally relate to, or form part of, the same transaction. Thayer v. Luce, 22 Ohio St. 61. An entire contract must comply with the statute throughout or it will be entirely void, but a severable contract may be sustained so far as it complies with the statute. Thayer v. Rock, 13 Wendell, 53; Loomis v. Newhall, 15 Pick. 159; Irvine v. Stone, 6 Cush. 508; Rand v. Marther, 11 id. 1; Paige v. Monks, 5 Gray, 492; McMullen v. Riley, 6 id. 500; Noyes v. Humphreys, 11 Grattan, 636; Collins v. Merrill, 2 Met. (Ky.) 163; Mayfield . Wadsley, 3 B. & Cr. 356; Wood r. Benson, 2 Cr. & Jerv. 94. As to the words, "debt, default, or miscarriage," see Birkmyr v. Darnell, 1 Smith, L. C. 134; Green v. Creswell, 1 Perry & Dav. 430; Doyle v. White, 26 Maine, 341; Benman v. Russell, 20 Vt. 205; Wilson v. Coupland, 5 B. & Áld. 228; Johnson v. Gilbert, 4 Hill, 178; Murphy v. Merry, 8 Blackf. 295; Barker v. Bucklin, 2 Denio, 45; Sanford . Howard, 29 Ala. 684. A promise to answer for another's tort is within the statute. Kirkham v. Marter, 2 B. & Ald. 613. Although the effect of the promise is to pay the debt of another, yet if the leading object of the undertaker is to subserve some interest of his own, it is not within the statute. Nelson v. Boynton, 3 Met. 396; Allen v. Thompson, 10 N. H. 32; Fish v. Thomas, 5 Gray, 45; Emerson v. Slater, 22 How. 43; Cross v. Richardson, 30 Vt. 641; Kutzmeyer v. Ennis, 3 Dutcher, 371; Mason v. Hall, 50 Ala. 599. A verbal promise by A. to B. to indemnify him against loss and damage, in becoming surety for C., is within this section. Easter v. White, 12 Ohio State, 219; Kelsey v. Hibbs, 13 Ohio State, 340; contra, Mills v. Brown, 11 Iowa, 314. The guaranty of a del credere factor is not within the statute. Swan v. Nesmith, 7 Pick. 220; Wolff v. Koppell, 5 Hill, 458; s. c. 2 Denio, 368; Bradley v. Richardson, 23 Vt. 731, 782; Couturier v. Hastie, 16 Eng. Law & Eq. 562; s. c. 8 Exch. 40; Sherwood v. Stone, 14 N. Y. 267. So the promise of a party, which has the effect of discharging the original debtor, as where he is accepted by the creditor in place of the original debtor, is not within the statute. Bird . Gammon, 3 Bing. N. C. 883; Curtis v. Brown, 5 Cush. 488; Stanly v. Hendricks, 13 Iredell, 86; Watson v. Jacobs, 3 Wms. (29 Vt.) 169; Woods v. Corcoran, 1 Allen, 405; Warren v. Smith, 24 Texas, 484; Andre v. Bodman, 13 Md. 231; Meriden Brit. Co. v. Zingsen, 48 N. Y. 247; Yale v. Egerton, 14 Minn. 194. The promise must be made to the party to whom the party undertaken for is under a liability. Thus where A. is indebted to B., and C. promises A. to pay his debt to B., this last promise of C. is not within the statute. Eastwood v. Kenyon, 11 Ad. & El. 538; Hargreaves v. Parsons, 13 M. & W. 561; Barker ». Bucklin, 2 Denio, 45; Westfall v. Parsons, 16 Barb. 645; Pratt v. Humphrey, 22 Conn. 317; Preble v. Baldwin, 8 Cush. 549; Tibbetts v. Flanders, 18 N. H. 284; Day v. Cloe, 4 Bush, 563. If there is no consideration whatever moving between the creditor and the new promisor, the only one being a conveyance of property to the new promisor by the original debtor, it is within the statute. Furbish v. Goodenow, 98 Mass. 296. As to the words, "in consideration of marriage," they do not refer to the marriage contract itself, which is seldom in writing. Smith on Cont. by Rawle, 58; 1 Parsons on Con- * tracts, 546. But it has been held that a promise to marry after a period longer than a year is within the statute. Derby v. Phelps, 2 N. H. 515. A verbal antenuptial contract is an agreement made in consideration of marriage, and unless there has been a part performance, is within the statute. Finch v. Finch, 10 Ohio State, 501. As to the words, "contract or sale of lands," see 1 Greenl. Ev. § 271; Sug. Vend. 99; Reed v. M'Grew, 5 Ohio, 375; M'Clintock v. Inskip, 13 id. 21; Wisely v. Barclew, 4 West, L. I. 281; Bridgman v. Wells, 13 Ohio, 43; Vaughan v. Hancock, 3 Man. Gr. & Scott, 766; Green v. Armstrong, 1 Denio, 550; Warren v. Leland, 2 Barb. 613; Whitmarsh v. Walker, 1 Met. 313; Nettleton v. Sikes, 8 id. 34. It will be seen, by reference to the latter decisions, that the sale of growing trees or crops is not within this clause, where no interest in the realty is contemplated. As to the words, year from the making," they do not mean contracts which may or may not, but which must, outrun the year. Peter v. Compton, 1 Smith's L. C. 143; Lanch v. Strawbridge, 2 Man. Gr. & Scott, 814; Morse v. Fox, 10 Johns. 244; Kent v. Kent, 18 Pick. 569; Roberts v. Rockbottom, 7 Met. 47; Lyon v. King, 11 id. 411; Hill v. Hooper, 1 Gray, 131. Randall v. Turner, 17 Ohio State, 269; Hutchinson v. Hutchinson, 46 Maine, 154; Dresser v. Dresser, 35 Barb. 573; Houghton v. Houghton, 14 Ind. 505; Rogers v. Brightman, 10 Wis. 55; Blanchard v. Weeks, 34 Vt. 589; Sherman v. Champlain Trans. Co. 31 Vt. 162; Jilson v. Gilbert, 26 Wis. 637. If the contract is not wholly to be performed within a year, it is void. Broadwell v. Getman, 2 Denio, 87; Herrin v. Butters, 20 Maine, 119. If the understanding of the parties is that the contract is not to

one

statutes of the 13th and 27th of Elizabeth, and the 29th of Charles the Second. It consists of five sections, and in this connection I shall remark upon them all, though the last three might be reserved until I come to speak of written contracts.

An

be performed within a year, it is void. Peters v. Westborough, 19 Pick. 364. agreement to renew a fire policy from year to year, terminable at the will of either party, is not within the statute. Trustees First Baptist Church v. Brooklyn Fire Ins. Co. 19 N. Y. 305; Sheehy v. Adarene, 41 Vt. 541 ; Updike v. Ten Broeck, 3 Vroom, 105: McClellan v. Sanford, 26 Wis. 595. If the contract has been entirely executed on one side, and nothing remains to be done but the payment of the consideration, it may be recovered. Donellan v. Read, 3 B. & Ad. 899; Cherry r. Heming, 4 Wels. Hurls. & Gordon, 631; Brackett v. Evans, 1 Cush. 79; Thomas v. Dickinson, 14 Barb. 90. Where all the plaintiff's part of the contract should be completed within a year, and it was not intended by the parties that any part of his portion should not be completed within that time, the contract is not within the statute, although the performance on the part of the defendant may be extended beyond that period. Smith v. Neale, 2 C. B. (N. s.) 67. An agreement within the clause to work for a specified time, cannot be set up in defence to an action on a quantum meruit for services performed under it. King v. Welcome, 5 Gray 41. But see Swanzey v. Moore, 22 Ill. 63. As to the consideration being expressed, see Wain v. Walters, 5 East, 10; Sears v. Brink, 3 Johns. 210; Packard v. Richardson, 17 Mass. 122; Reed v. Evans, 17 Ohio, 128; 1 Greenleaf, Ev. § 268; Boydell v. Drummond, 11 East, 142; Sivewright v. Archibald, 6 Eng. L. & Eq. Rep. 286; ante " Consideration," note d. As to the words, "signed by the party to be charged," they mean that the name, initials or mark must appear somewhere on the paper, written with pen or pencil, for the purpose of authentication. Penniman v. Hartshorn, 13 Mass. 87; Clason v. Bailey, 14 Johns. 484; Anderson v. Harold, 10 Ohio, 482; 2 Kent, Com. 511; Phillimore v. Barry, 1 Comp. Cases, 513; Lobb v. Stanley, 5 Ad. & Ellis (N. s.), 574; Sweet v. Lee, 3 Man. & Gr. 452. But both names are not required. Smith v. Smith, 8 Blackford 208; Lathrop v. Bryant, 2 Bing. N. C. 735. The party signing the instrument will be bound, although the other party has not signed it, provided he has manifested his assent in some other way. Old Colony R. R. Co. v. Evans, 6 Gray, 25. Smith v. Neale, 2 C. B. (N. s.) 67; Justice v. Lang, 42 N. Y. 493; Thayer v. Luce, 22 Ohio St. 61. It is immaterial in what part of the instrument the name is put, provided it appears to have been written there to give effect to the instrument and complete the contract. Messitt v. Clason, 12 Johns. 102; Clason v. Bailey, 14 id. 484; Jolinson v. Dodgson, 2 M. & W. 653; Profert v. Parker, 1 Rus. & My. 625; Stokes v. Moore, 1 Cox, 219; M'Crea v. Purmort, 16 Wendell, 469; Fenly v. Stewart, 5 Sandf. 101; Penniman v. Hartshorn, 13 Mass. 87; Barstow v. Gray, 3 Greenl. 409; Shirley v. Shirley, 7 Blackf. 452. The contract may be signed by an agent so as to satisfy the statute. Hawkins v. Chace, 19 Pick. 502. Where the written authority of an agent fully sets out the contract he is authorized to make with a third person, and he delivers this as the proposition of his principal, this is a sufficient memorandum. Himrod Furnace Co. v. Cleveland & M. R. R. Co. 22 Ohio St. 451. And his authority may be proved by parol evidence. Truman v. Loder, 11 Ad. & El. 589. An auctioneer may sign for both parties. Cleaves v. Foss, 4 Greenl. 1; Morton v. Deane, 13 Met. 385; M'Comb v. Wright, 4 Johns. Ch. 659. And a broker may sign for both parties, if he acts as agent for both. Hinckley v. Arey, 27 Maine, 362; Shaw v. Phinney, 13 Met. 453. In Massachusetts a full entry by a broker on his books in the regular course of business, containing the names of the parties, though not subscribed, is held sufficient. Coddington v. Goddard, 82 Mass. 436. The manipulations of a telegraph operator in sending the name of the party amount to a signature within the statute. Dunning v. Roberts, 35 Barb. 463; Trevor v. Wood, 36 N. Y. 307. As to a parol discharge of a contract required to be in writing, the better opinion is in favor of its val idity. Greenleaf Ev. § 302; Goss v. Nugent, 5 Barn. & Ad. 58; Stead v. Dawber, 2 Perry & Dav. 457; Kelley v. Stanberry, 13 Ohio, 409. A verbal agreement, to be effectual and binding as an alteration of the express terms of a prior written contract between the parties, must be supported by a new and valid consideration, and a mere executory contract of the kind to constitute an exception to this rule, must have been so far acted upon, that a refusal to carry it out would work a fraud on one of the parties. Thurston v. Ludwig, 6 Ohio State, 1; Willey v. Hall, 8 Clarke (Iowa), 62; Emerson v. Slater, 22 How. 41. See Low v. Forbes, 18 III. 568; McGrann v. North Lebanon R. R. Co. 29 Penn. State, 83. McDonald v. Mountain Lake Water Co. 4 Cal. 335; Cox v. Carroll, 6 Clarke, 350; Jones v. Alley, 4 Greene, 181.

First Section. "That all deeds of gifts, and conveyances of goods and chattels, made in trust, for the use of the person making the same, shall be void and of no effect." This section it will be observed is confined to personal property only. As a general rule, the possession of personal property is regarded as evidence of ownership. Among business men, credit is ordinarily given upon the mere fact of such possession, without further inquiry; and hence this provision of the statute. It prohibits persons from putting such property out of their hands, while they still retain the beneficial interest, by having it held for their own use. It is obvious that there can seldom be any other motive than fraud upon third persons, for such a nominal transfer. Why should I suffer you to hold my property for my use, if it be not either to defraud my creditors, or to enable you to defraud yours? But as this section is probably included in the next, I will not make further comment upon it.

Second Section. "That every gift, grant, or conveyance of lands, tenements, hereditaments, rents, goods, or chattels, and every bond, judgment, or execution made or obtained with intent to defraud creditors of their just and lawful debts or damages, or to defraud or deceive the person, or persons who shall purchase such lands, tenements, hereditaments, rents, goods, or chattels, shall be deemed utterly void, and of no effect." The substance of this provision is, that every conveyance or incumbrance of real or personal property made with intent to defraud creditors or purchasers is void. Its design is twofold: first, to give legal efficacy to the grand principle, that all the property which a debtor has shall be responsible for his debts; and, secondly, to promote honesty and fair dealing between vendors and purchasers. I shall make some general remarks upon both of these heads.

As to Creditors. (a) The words are, "with intent to defraud." It is seldom possible to prove such intent by positive testimony, because no man can look into the heart of another; and hence the law resorts to presumption. If, for example, a fraud has been actually committed, the intent will always be presumed. And in relation to creditors, one of the strongest grounds for presuming fraud, is the want of consideration. It is fair to conclude that when a man who is in debt disposes of his property for much less than it is worth, there is a secret understanding between him and the purchaser, by which creditors are to be defrauded. Indeed, this collusion may take place when the full value is paid; for if the object be to convert property into money for the purpose of secreting it, and this be known to the purchaser, he becomes a party to the fraud, and must suffer the consequences. But in the absence of collusion, if a debtor receives the fair value of his prop

(a) The act of April 6, 1859, regulates the mode of administering assignments in trust for the benefit of creditors. See also act of March 16, 1860, and March 26, 1860. See Burrill on Assignments; Meeker v. Sanders, 6 Clarke (Iowa), 61; Hoffman v. Mackall, 5 Ohio State, 124; Conklin v. Coonrod, 6 id. 611.