I expressed my views very fully upon the statute of frauds, and the right of parties in cases within it to recover back moneys paid, in Brandeis v. Neustadtl, 13 Wis. 142. I am of the same opinion still, and my brethren are inclined to agree with me. We must accordingly hold, that, upon demand made, the plaintiff was entitled to sue for and recover back the money paid by him, unless the execution and delivery of the deed in escrow is to be regarded as taking the case out of the statute; and we think it cannot be so regarded. And especially must we hold that the plaintiff was so entitled, since it has been fairly submitted to the jury to say, upon testimony sufficient for that purpose, whether the defendant was in any default in not performing the supposed contract with reference to the sale of the land, and the jury have found that he was in such default. This rendérs the consideration of most of the exceptions noted, and points argued, unnecessary.
The point that the making and deposit of the deed in escrow took the case out of the statute, is not much pressed. It is obvious that the deed was no evidence of the supposed contract between the parties, as the flood of parol testimony taken on the trial abundantly shows. The deed was not intended to operate as such, but merely to pass title to the land upon delivery, after the performance of such contract. And besides, the deed was not in the possession, or subject to the control of the alleged purchaser. He could not avail himself of it in any *636respect, except by means of, and through., the verbal contract which the statute declares to be void. The controversy in this case demonstrates the wisdom of the statute, and the necessity of adhering to its provisions. Upon the testimony, it can never be certainly known what the agreement of the parties really - was; and the time of courts can be much more profitably spent in restoring them to their original condition, than in endeavoring to ferret out and ascertain, from the loose and contradictory statements of witnesses, the terms of an agreement which, when ascertained, the statute declares to have been void.
By the Court. —Judgment affirmed.