The defendant relies upon that clause of the statute of frauds which provides that no action shall be brought “ upon any agreement that is not to be performed within one year from the making thereof,” unless the agreement or some memorandum or note thereof is in writing. Gen. Sts. c. 105, § 1, cl. 5. It is true that the statute does not cover an agreement which may be fully performed within the year, although in some contingencies it may extend beyond that period. Roberts v. Rockbottom Co. 7 Met. 46. Doyle v. Dixon, 97 Mass. 209. But an agreement which cannot be performed according to its terms within a year is within the statute, even if the act or promise which is the consideration for it may be performed within the year, or has been actually performed. Lapham v Whipple, 8 Met. 59. Marcy v. Marcy, 9 Allen, 8.
*463The agreement which the plaintiff offered to prove by oral evidence was. that the defendant, at the time when the plaintiff gave him possession for the purpose of foreclosure of the land which she had mortgaged to him, promised that, if be should sell “ the place,” he would pay her whatever he should receive for it beyond the amount due on his mortgage, principal and interest. This agreement looked to a sale of the land, and not merely of his mortgage title therein, as is apparent equally from the use of the words “the place,” and from the consideration that, if the mortgagee should sell only his own title before foreclosure, it could not be expected to sell for more than the amount due on the mortgage. It was not contended that the plaintiff by the agreement gave the defendant any direction or authority to sell her equity of redemption, and the foreclosure would not be complete, so that he could sell the whole estate without her consent, until the expiration of three years. Gen. Sts. c. 140, § 1. His agreement therefore could not, according to the only reasonable construction of its terms, be performed within one year, and the case is within the statute of frauds.
Exceptions sustained.