#### Starin vs. Newcomb and another, impleaded with Graham and others.

A parol agreement between a mortgagor and mortgagee, by which the former agrees to convey to the latter, by quit-claim deed, a part of the mortgaged property, and to give him a lease of a right to maintain a hydraulic ram at a certain spring upon another tract, and also to make certain payments in money and to deliver a quantity of wood — all of which was to be received in payment of the mortgage — is within the statute of frauds, and void.

The payment by a vendor in a parol agreement for the sale of lands, of certain judgments and a mortgage upon tbe land, which he was liable to pay, and which by such parol agreement he was to pay, so as to clear the land of those incumbrances, is not such a part performance as taires the agreement out of the statute of frauds, and entitles him to a specific performance in equity.

*520APPEAL from the Circuit Court fox *Jefferson*County.

The case is stated in the opinion of the court.

*N. 8 Murphy,*for appellant:

1. The alleged contract set up in defense is void for want of a consideration, since the plaintiff was to recover nothing thereby that was not already secured by the notes and mortgage. *Bean vs. Burbank,*16 Me., 259; *Tucker vs. Woods,*12 Johns., 190: *Cooke vs. Oxley,*8 Term. B., 65S ; 1 Caines, 594; ChittyonCon.,25-6. 2. The contract was void because not in writing. E. S., 613, sec. 6; *Bice vs. Peet,*15 Johns., 503; *King vs. Brown,*2 Hill, 485; *Yales vs. Martin,*1 Chand., 118; *Withy vs. Cottle,*1 Eng. Ch. R, 86; *Adderly vs. Dixon,*id., 311; 2 Story’s Eq. Jur., § 723. 3. It is doubtful whether an accord with tender of satisfaction is sufficient without acceptance. 2 Greenl. Ev., § 81. “It is perfectly clear that a mere agreement to accept a less sum in composition of a debt, is not binding and cannot be set up in bar of an action upon the original contract.” ibid.; *Cumber vs. Wane,*1 Strange, 426; 1 Smith’s L. C, 146; 43 Law Lib., 249-263; *Heathcote vs. Crookshanks,*2 Term R, 24; *Tassall vs. Shane,*Cro. EL, 193; *Balston vs. Baxter,*id., 304; *Clark vs. Dinsmore,*5 N. U, 136; *Lynn vs. Bruce,*2 H. Bl., 317. An accord executory is no bar; a readiness to perform is not sufficient. *Bussell vs. Lytle,*6 Wend., 390; Com. Dig., Title, “Accord,” B, and authorities there cited; 2 H. BL, 317; 1 Roll’s Abr., Title “Accord, PL,” 14; 2 Ld. Raymond, 122; *Waikinson vs. Lnglesby,*5 Johns., 386. An agreement to receive part of a debt in money and part in specific articles, while executory, is void. 2 Greenl. Ev., § 31; *Bayne vs. Orton,*Cro. El., 305; *James vs. David,*5 Term. R, 141.

*JEdson Kellogg,*for respondent:

1. The contract was not void because not in writing. It was not for the sale or transfer of land, but for the payment of a debt, the transfer of land being merely incidental to that object. 2. An accord, with mutual promises to perform, is good though the thing be not performed at the commencement of the action; for the party has a remedy to compel the performance. 2 Parsons on Con., 194-5.

*521April 10.

*By the*Court,

Pauste, J.

This was an action to foreclose a mortgage given to secure tbe payment of $5,000 to tbe conditions of certain promissory notes. Tbe answer admits tbe making and delivery of tbe notes and mortgage as alleged, but sets up, as a defense, an agreement by wbicb tbe mortgagor was to convey to tbe mortgagee a part of tbe mortgaged premises by a quit-claim deed, having first satisfied certain judgments against bimself wbicb were a lien tbereon, and paid another mortgage wbicb was an incum-brance ; give him a lease of tbe right to maintain a hydraulic ram at a certain spring; pay him $200 ; give him bis note for $300; and deliver one hundred cords of wood; all of wbicb was to be received in fall payment and satisfaction of tbe mortgage, wbicb was to be discharged by tbe mortgagee. It further alleges that tbe defendant paid off tbe subsequent liens and incumbrances on tbe land, tendered tbe $200, tbe note, quit-claim deed, lease and wood, according to tbe agreement, but that tbe plaintiff refused to receive tbe same, or to comply with the agreement on bis part. It also avers that be is still ready, &c.

It appears from tbe evidence that this agreement, thus relied on in tbe answer, was merely verbal, and never reduced to writing; and we think it was clearly within tbe statute of frauds. It was an agreement to give a quit-claim deed of a certain tract, and to give tbe lease of tbe right to maintain a hydraulic ram upon another tract, both of wbicb require a written agreement, to avoid tbe statute. Indeed, counsel could not pretend that these would not ordinarily be within tbe statute, and tbe only reason suggested why they are not so here, was, that in this case tbe primary object of tbe agreement was not a sale of lands, but tbe payment of a prior debt. But we think that makes no difference. Tbe statute makes no exception of such cases, and neither reason nor policy suggests any. A verbal agreement to sell ■ lands in payment of a prior debt, is as fully within tbe mischief intended to be prevented by tbe statute, as it is plainly within its letter.

Tbe evidence fails to show that tbe defendant bad paid all tbe subsequent liens and incumbrances on tbe land before *522^e deed i but even if be bad, tbat not be sucb a part performance as would entitle him ^o a specific performance of a parol agreement for tbe sale of lands. Even tbe payment of tbe agreed purchase money itself, would not alone justify tbe enforcement of a specific performance. Much less would tbe payment of tbe vendor’s own debt to other parties, which might be a lien upon tbe land, justify it. Those debts be was legally bound to pay. And if be paid them sooner than be otherwise might, with a view to clear tbe land of incumbrance, so as to comply with a parol agreement to sell it, sucb payment could not possibly be considered as placing him in sucb a condition as to entitle him to a specific performance of sucb parol contract.

We think, therefore, tbe court below erred in giving any effect to this agreement, and tbat tbe plaintiff was entitled to judgment of foreclosure and sale for tbe amount due. Tbe judgment is reversed, with costs, and tbe cause remanded for further proceedings in accordance with this opinion.