In general it may be stated that any surrender or release of a vested interest in real estate whether it is by land contract or deed must be in writing, otherwise under the statute of frauds the same will be void. The statute using the language "Subscribed by the party creating, granting, assigning, sur-

rendering, or declaring the same," hence where a grantor in a deed has in writing reserved the right to repurchase within five years, this right cannot be surrendered verbally,18 this rule has been applied to the interests of a vendee under a land contract even though the contract was wholly executory and nothing has been done under it.

Agreements Pertaining to Real Estate Held Not Within Statute of Frauds.

15. "An oral agreement to divide the profits on the purchase and resale of real property, where the interest claimed by defendant was by way of compensation for services rendered in removing houses and relocating them, and not for any interest in lands, is not within the statute of frauds." Thompson v. Hurson, 201 Mich. 685.

16. "The statute of frauds in requiring contracts for the sale of lands or landed interests to be in writing, contemplates transactions between principals; it does not cover a bargain between a principal and his agent, whereby the latter is to be paid for his services in obtaining lands, a certain proportion of the profits on their subsequent sale." Carr v. Leavitt, 54 Mich. 540.

17. "An oral agreement between four persons who were interested in an estate of a decedent, and who entered into a written contract to buy the dower and homestead rights of the widow, that one of the four should pay $500 and one-fourth of the amount to be given the widow, was not void under the statute of frauds." Stevens v. Jackson, 180 Mich. 131.

In such an instrument the interest of the vendee thereunder cannot be surrendered or transferred except in writing,19 as against the foregoing decision it has been held that where the vendee with the consent of the vendor pursues a course of conduct inconsistent with the retention of any interest in the premises and the rights of third parties have intervened,20 a surrender or release of the property will be held to have been

18. Grover v. Buck, 34 Mich. 519.

19. It is not competent in defense to a promissory note given for a part of the price named in a written contract for the purchase of lands, to show that the parties to the land contract had an oral arrangement at the time the note and contract were made, that the purchaser was to have the option of retaining the contract and paying the note, or surrendering the contract and thereby discharging his liability on the note; this would be to import into a written contract a verbal stipulation quite inconsistent with its terms. Such a stipulation as was here sought to be shown would be void under the statute of frauds unless in writing, so that the offer was not merely to show by parole a change in the terms of a written contract, but to show such an agreement as could not under any circumstances have been made by parol. John Mc-Ewan v. Charles L. Ortman, 34 Mich. 324.

An attempt to surrender a land contract by delivering it to one of the vendors upon his suggestion that he will be satisfied to accept the contract and "let the interest go" but will have to consult the other vendor, is uneffectual without the vendor's consent. The interest of contract purchasers in land cannot be surrendered by parol. Gru-now v. Salter, 118 Mich. 148.

20. In this state the doctrine of estoppel cannot, however, be applied for the purpose of conveying title. Hoyes v. Livingston, 34 Mich. 388. It is true, as held in Sullivan v. Dunham, supra, that the statute of frauds in providing that a surrender of any interest in lands must be in writing, does not prevent one who has given back a land contract held by him in order that the land may be conveyed to another, from recovering the consideration for which he gave it up, as by bringing suit he ratifies the conveyance, and precludes himself from claiming any interest in the lands. In the present case the land was not received back by the grantor; nor did he or his grantee make anv sale of it to a third party, made by operation of the law.21 Thus where a vendee agreed with his vendor orally that he would surrender his interest in the premises and rent them of the vendor followed by the actual payment of rent as a tenant, was held to be a sufficient or attempt to do so. There was, therefore, no surrender by operation of law.

Instances of Surrender by Operation of Law

21. A lessee, in violation of his covenant not to assign the lease or sublet the leased premises without the written consent of the lessor, assigned the lease. The assignee made a second assignment, and, at the request of the lessee, the lessor consented to the occupancy of the premises by the second assignee, coupled with the statement that she should look to the lessee for the rent. The second assignee arranged to sell his interest in the lease, and the proposed purchaser and the lessee, the latter representing the second assignee, called upon the lessor, who, as she testified in an action brought by her against said proposed purchaser to recover rent subsequently accruing, made an oral lease of the premises to him, while he testified that she consented to his occupancy, but told the lessee that she should look to him for the rent. The lessee testified that the lessor said she was satisfied to let the proposed purchaser take the place of the second assignee so long as he paid the rent, and, if not paid by him, she should look to the lessee for It. The second assignee thereupon surrendered the premises to the proposed purchaser. And it is held that these negotiations and circumstances may have amounted to a surrender of the term, and a leasing to the proposed purchaser, which questions were properly submitted to the jury. Youell v. Krid-ler, 105 Mich. 344.

A by deed leased premises to B, who afterwards assigned the lease to C. A assented to the assignment, and agreed by parol to accept C as his tenant, and to look to him for the rent. Held, that there had been a sufficient surrender of the lease by operation of law, under the statute of frauds, and that A could not afterwards maintain covenant against B for the rent. Logan v. Anderson, No. 2 Douglas 100.

Plaintiff leased lands to W for mining purposes; W executed a sublease to defendant and then assigned his interest thereunder to plaintiff. Soon thereafter a corporation was formed to operate the mine, to which the sublease was assigned by defendant. A number of written agreements changing the terms of the sublease were made between plaintiff and the corporation, of which defendant had knowledge, he being an officer of the corporation, but to which his assent was not requested, and no demand was made on him for any payments under the lease for eleven years, when this action was brought to recover the same. Held, that the lease was surrendered by operation of law, as to defendant, plaintiff having accepted the corsurrender of the contract by operation of the law.22 It has also been held that where a party had entered into a contract to purchase a tract of real estate for $20,000, paying $1,000 down, the deeds having been deposited in escrow in a bank to be delivered upon the payment of the remainder of the purchase price, that the statute of frauds would require a release of the interest of the vendee in such contract to be in writing before the same could be released or surrendered.23 Where, however, a husband holding a piece of real estate with his wife as vendees under a land contract directed upon the final payment of said contract that the deed to such property should be made to his wife individually instead of to him and thereafter he acquiesced in such transaction for a period of seven years or more, he will be estopped from claiming any interest in such property by reason of having formerly held the same with his wife by entireties.24