The opinion
Hr. Justice Dickey: While I coneurin the affirmance of the judgment of the court below, I prefer to rest my conclusion on other grounds. I am not satisfied, by the proofs, that appellant had anything to do with the drawing of the deed by Callan, or with the signing of it by Cowhide; nor do I think the signing of the note by appellant is sufficiently proven. She swears positively she did not sign it, and Cowhick swears he saw her sign it. By his testimony, Callan seems to have been present when she signed the note, if at all, and appellee did not call him nor account for his absence. In the view I take of the law, however, this question is not material.
The statute in force at the time of the sale was as follows: “Ho action shall be brought- to charge any person upon any contract for the sale of lands, * * * unless the said contract or some memorandum or note thereof shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized in writing.” (Gross’ Statutes 1871, chap. 44, sec. 2, p. 302.)
After the making of this oral contract, and before the commencement of this action, a substitute for the above section was enacted and came into force July 1, 1874, which is identical in substance with the old statute in every respect, except that there is an addition in the following words: “ This sec-
tion shall not apply to sales on execution or by any officer or person pursuant to a decree or order of any court of record in this State.”
It is plain that this sale comes within the class of sales thus excepted from the operation of that law. This was a sale made by a person' pursuant to an order of a court of record in this State.
It must be observed that neither the old statute nor the new declares void oral contracts for the sale of lands, nor does either of the statutes forbid such oral contracts. Other sections of these statutes do declare certain other contracts void. “ This distinction is sometimes important.” (Parsons on Contracts, 56.) A parol contract for the sale of land is not, by the terms of the statute, declared either void or voidable. At common law, such contracts were good and valid. They remain good and valid in every respect, as at common law, except in so far as their goodness and validity was impaired by the statute. They were, for the time being, rendered unavailable in this State, by the provision that “no action shall be brought to charge any person ” upon such a contract. The statute at the time of the contract was leveled against the remedy, not against the validity of the contract.
The statute of 1874, in effect repealed the statute in force in 1872, in so far as it prohibited the bringing of an action upon this contract. The contract was valid all the while. It was the duty of appellant to make compensation for the loss of appellee which had resulted from the breach of a valid contract, but appellee was forbidden by the statute from resorting to the courts of this State by action for the recovery of these damages. On the 1st of July, 1874, that prohibition was removed and now the action can be maintained.
A contract valid and enforcible at law in the State where it is made, can not he enforced in any other State having a statute saying “no action shall be brought” upon such contract, (Leroux v. Brown, 14 Eng. Law and Equity Reports, 247), and this because the statute applies to the mode of enforcement and not to the validity of the contract itself. For the same reason, it follows that a contract made in a State where the statute provides that no action shall be brought upon such contract (if no other objection to its validity appears) may be enforced by action in another State where no such statute exists.
If this statute, when properly considered, applies only to the remedy upon such contract, it may at any time be repealed or modified by the legislature, and, the prohibition being removed, an action will lie for a breach of the contract.
The majority of the court, however, are not prepared, without further consideration, to adopt this view of the law.