I was absent from the court when this appeal was reheard, and had not the instruction of the very able argument which, U learn from my brethren, was then made hy the learned counsel for-the respondent. I can judge somewhat of it, however, hy the brief submitted on the motion for rehearing, which is indeed an excellent argument in itself.
There is no doubt that\several of the authorities cited in the brief, and others, sustain\the position of counsel. There are eases in the boohs upholding contracts resting largely in parol, against the letter and spirif of the statute; and going far to make its wholesome provisions mere dead letters. But I, for one, am indisposed to sanction such evasions of the statute; especially when I am supported by previous decisions of this court. My opinion might not be of weight enough successfully to resist the current of judicial heresy on this subject. But I ought at least to have judgment enough to adhere to right décisions here, against the strong influence of wrong decisions elsewhere.
When this appeal was decided on the first hearing, I concurred in some criticisms then made on the brief opinion of the late chief justice in Thomas v. Sowards, 25 Wis., 631, following upon what he had previously said in Brandeis v. Neustadtl, 13 Wis., 142. I am not prepared to concur still in those criticisms. A reexamination of the subject inclines *452me to assent to wbat was there said on the subject by that able and discriminating judge.
I see no use, and I have no leisure, for elaborate examination of the question in this case, beyond what is said in the opinion of Mr. Justice LyoN oil the first hearing. But I will add some words, to explain a little my own reasons for adhering strictly to the statute, in all such cases as this.
I have no doubt that an escrow may be proved by parol. The difficulty here is not in the proof of the alleged escrow, but in the proof of the contract of sale and purchase itself. When there is a valid contract under the statute, the papers constituting it, or executed in compliance with it, may be delivered in escrow, and the escrow may be proved by parol. But the validity of the escrow rests on the validity of the contract; and the validity of the contract rests on the statute.
I am informed that it was argued, on the rehearing, that the contract sought to be enforced for the respondent did not or might not so bind him that the appellant could have enforced it. A contract, even by deed poll, essentially implies two parties; and the remedies upon it must be mutual. And to concede that the appellant could not have enforced this contract, is to concede1 that the respondent cannot; is to concede that there is no contract. If there be a valid contract for the respondent, it is equally so for the appellant. If the respondent can have specific performance of it, so could the appellant have had. Let us see how that would appear under the statute.
An avowed vendor assumes to deliver in escrow to a stranger, a conveyance of land, reciting a consideration. He accompanies it with a statement that the assumed vendee has bargained for the purchase, and is to pay so much money, or to execute such a mortgage, or to convey such another estate, to satisfy the consideration, at such a time, when the conveyance is to be delivered. The stranger receives the deposit in good faith, crediting the statement made with it. And by *453and by, when the alleged vendee repudiates the whole thing and denies it upon oath, the depositary not unnaturally takes him for a knave, trying to evade his contract by perjury. And yet all the while the assumed vendee may know nothing of the matter, until he is sued for specific performance of a contract which he may never have made. In such a case the parties may contradict each other ; one or the other necessarily attempting just such fraud and committing just such perjury as the statute was passed to prevent. It is easy to assume that in such a case the truth would appear. The statute assumes that it may not appear; and my observation inclines me to share the doubt of the statute. The object of the statute is to avoid occasion for such perjury, lest it prevail; “for prevention of many fraudulent practices, which are commonly endeavored to be upheld by perjury and subornation of perjury.” I hope that, while I have the honor to remain in this court, no subtleties in the books will ever induce me to shut my eyes upon the statute, and so to concur in any judgment upholding such a contract; thus making-
A scare-crow of the law,
Setting it up to fear the birds of prey,
And let it keep one shape, till custom make it
Their perch, and not their terror.
Eor if this judgment were to be upheld, the respondent could have had judgment compelling the appellant to pay money and to execute note and mortgage, and might as well have had judgment to convey another estate; for nothing of which was there any contract or note or memorandum thereof in writing, signed by either party.
Eor, notwithstanding some things said the other way, I hold the mortgage to be as much within the statute as the conveyance. If the consideration in this case had been the sum expressed in the deed, payable, according to the terms of the deed, in money on delivery, of course the case would have raised a somewhat. different question. It might then be *454claimed that tbe whole contract, with all its terms, is in writing, signed by the vendor. Even in that case, however, the vendor’s conveyance could not.have been made to appear a contract between the parties, without resorting to parol to prove the grantee’s privity to it. Of such a case, I do not now express any opinión. Put the radical defect of this case, as it stands, is, that the appellant’s conveyance is, at best, but the fragment of a contract; several particulars, essential to both parties, resting wholly in parol. There is no writing to «express the whole contract. In other words, under the statute, there is no contract.
By the Gowrt. — The judgment of the circuit court is reversed, and the cause remanded with direction to dismiss the complaint.