The plaintiff is the administrator of the estate of Sallie E. Broughton, deceased. She was the widow of William C. Broughton. The defendants are the children and heirs of the latter. The trial court sustained a demurrer to plaintiff’s petition and he appeals.
It is defendants’ contention that the contract is one for the conveyance of land by defendants to Sallie E. Broughton; that though signed by her, it is not signed by defendants, the parties “to be charged therewith,” and that therefore no action (by reason of the statute of frauds) can be maintained thereon. And that if this action be not regarded, in effect, as an action for specific performance of a contract to convey lands, but rather as an action for damages for failing to comply with the contract, it still can not be maintained, since, if by reason of the statute of frauds specific performance could not be enforced, damages for failure to perform can not be recovered. Lydick v. Holland, 83 Mo. 703; Culligan v. Wingerter, 57 Mo. 241.
Contracts: alternative provision: statute of frauds: action. We have concluded that the statute of frauds defeats the ease and that the demurrer was properly sustained. We have not adopted the view urged by plaintiff against the action of the court. The authorities cited relate to contracts not involving the statute of frauds. That view, in short, is that Mrs. Broughton sold her dower „ _ „„ f0r $2,000, and that $1,200 of that sum was to be paid in real estate, and that since the defendants refuse to convey the real estate, it becomes a money demand not covered by the statute. The necessary effect of *188this would be to hold defendants’ contract to be one in the alternative, i. e., to convey the house and lot, or pay the money. But a contract in the alternative, one part being within and the other being without the statute of frauds, can not be enforced as to either. For, if it could be enforced for that part without the statute, such as payment of the money, it would be based upon the noncompliance with an invalid contract, viz., to convey the land. That could not be done, since the refusal to comply with an invalid contract ought not to render one liable to an action for such refusal. Brown on Stat. Frauds, sec. 152. In Howard v. Brower, 37 Ohio St. 402, the verbal contract was to pay “ten thousand dollars either in real estate or money,” it was held that though if the contract to pay the money had stood alone it could have been enforced, yet being coupled in the alternative with that for the real estate, an action could not be maintained thereon. A son verbally agreed with the father to convey certain real estate to his sister “or pay her $300 in money.” It was held that neither undertaking could be enforced. Patterson v. Cunningham, 12 Me. 506. In Fuller v. Reed, 38 Cal. 99, the verbal contract was to pay a sum of money and convey a tract of land in consideration of services in selling other lands, and the whole contract was held to be within the statute, though the promise to pay the money alone would not have been included in the statute.
-: severable: action. We have not overlooked the rule of law as to severable contracts, contracts embracing several matters, some valid and others invalid, that one may enforce those which are valid. It is said in Rand v. Mather, 11 Cush. 1:
“On principle and according to numerous modern adjudications, the true doctrine is this: If any part of an agreement is valid it will avail pro tanto, though another part of it may be prohibited by statute; provided the statute does noi, either expressly or by necessary implication, render the whole void; and provided, furthermore, that the sound part *189can be separated from the unsound, and be enforced without injustice to the defendant.”
But as is stated by Brown on Statute of Frauds, section 140: “It is clear that if the several parts or items of an engagement are so interdependent that the parties can not reasonably be considered to have contracted but with a view to the performance of the whole, or that a distinct engagement as to any one part or item can not be fairly and reasonably extracted from the transaction, no recovery can be had upon such part or item, however clear of the statute of frauds it may be, or whatever be the form of action employed. The engagement in such case is said to be entire.” The rule just quoted has been applied to a variety of cases: Becker v. Mason, 30 Kansas, 697; Dyer v. Graves, 37 Vt. 369; Irvine v. Stone, 6 Cush. 508; Dowling v. McKenny, 124 Mass. 478; Thayer v. Rock, 13 Wend. 53; Clark v. Davidson, 53 Wis. 317; Rainbolt v. East, 56 Ind. 538. So, therefore, a contract in the alternative, such as to do a thing which is within the statute or a thing which is without the statute, is not a severable contract. It is true that it provides to do one thing or another thing and that these two things, of themselves, may be severable; but they are one contractual thing after all. They depend one upon the other. If they did not there would be no alternative. They are based on the same consideration. They are merely two branches of one trunk. If the action is maintained on the one which is without the statute, it is based, where, as is usual, the option is with the promisor, on a refusal to perform the one within the statute. So that the real foundation of such action is based on an unenforeible undertaking. In other words if the obligor refuses to perform the illegal contract, as he may rightfully do, he must pay a penalty by being compelled to perform the other, for the reason that he refused to perform the illegal one.
Again when one makes a contract in the alternative it is clear that he would not have made it but for the alterna*190tive, tbe contract therefore, instead of being severable is entire, in that the parts can not be separated, one held valid and the other invalid, without destroying the thing contracted for, viz.: an alternative to do either of two things.
In our opinion plaintiff has a remedy by suing for the consideration rendered by Mrs. Broughton. An action of that nature would be governed by some plain principles of justice and law (applied, we concede, to a rather unusual or odd state of facts) disembarrassed by the statute of frauds.
The petition charges that Mrs. Broughton sold her dower right in the personal estate of her deceased husband, which was hers absolutely, and her life dower in the real estate for the sum of $2,000. That this sum was to be paid by $800 in money to be collected from sums due the estate and a house and lot in the town of Odessa, Missouri, to be deeded to her by defendants, as heirs of her deceased husband. And when that sum was paid and a sufficient deed made to the real estate she would make formal conveyance of her personal and real estate dower. That she was paid $100 of the money payment. That she allowed her dower interest in the personalty to lapse into the estate and refrained from claiming dower in the real estate and always stood ready and frequently offered to formally release her dower. That defendants delayed to pay her the balance of money agreed upon and delayed making her the deed to the real estate up to the time of her death when they repudiated the contract altogther.
—: statute of frauds: recovery of consideration. Now notwithstading that by reason of the statute of frauds, plaintiff can not maintain an action compelling defendants to perform a contract for the conveyance of the house and lot, or, for damages for not having conveyed it, yet she must certainly have the right to recover of defendants the consideration she parted with by making the contract and carrying it out on her part. In other words, if A. pays to B. $1,000 for real estate which the latter refuses to convey, setting up that he had not agreed in writing under the statute of fraud; *191A. may maintain an action against him for the money paid, for he has it without any consideration whatever, since he has repudiated the contract under which he received it. Devore v. Devore, 138 Mo. 181; Rice v. Peet, 15 Johns. 503; Brown Stat. Erauds, sec. 463. And if it be property exchanged or paid, its value may be recovered. Williams v. Bemis, 108 Mass. 91; Dix v. Marcy, 116 Mass. 416; Bowling v. McKenny, 124 Mass. 478; Thayer v. Rock, 13 Wend. 53; Clark v. Davidson, 53 Wis. 317. It seems to us that this plain proposition can be applied here. Mrs. Broughton allowed her dower in the personalty to remain with and become a part of the estate which belonged to these defendants as heirs. They have it now and the statute of frauds ought not to be a protection to their keeping it without price. As to the dower in the real estate, it is true she did not release it to these defendants, but she was ready to and repeatedly offered to do so. It was held by them with the estate they inherited until it became extinct by her death. It was a life estate and she might have sold it at any time if she had not turned it over to defendants. But she did not. She refrained from having it set apart and allowed it to remain as a part of defendant’s estate in the inheritance, as heirs of her husband. In other words, they absorbed it as fully as if it had been formally released to them. All there was of such estate defendants have had. As heirs of the estate (Mrs. Broughton, in fact, renouncing dower) they had such dower estate in use and in possession and her offer to formally release it placed her in the same position as if she had released it to them. If she had so released it and they had then repudiated the contract whereby they were to convey the house and lot, undoubtedly, under the authorities, supra, she could have recovered back the consideration which they received from her.
But defendants say that the dower interest ceased at Mrs. Broughton’s death and therefore there is nothing they *192can receive as a consideration for the money now demanded by plaintiff. The answer to this is that they have already received the consideration. They have had and have absorbed her dower in the personalty, for the petition alleges that she left it with the estate and did not claim it. It amounted to $100 allowed her absolutely by the statute, as well as her share in the personalty and a year’s support. So the petition alleges that she did not have her life dower in the real estate set apart, but allowed it to remain a part of the estate inherited by these heirs. The dower in both the personal and real estate was valued at $2,000. Though the dower in the real estate became extinct by her death, yet it was a life estate and a matter of value when received by defendants. That value was estimated and can not now, of course, be wholly repudiated because of the unexpected death of the dowress.
So, though no action can be maintained on the contract, plaintiff has an action in'the nature of quantum meruit for the value of her personal and real estate dower, not exceeding, however, the contract price. Clark v. Davidson, 53 Wis. 317; Thayer v. Rock, 13 Wend. 53; Smith v. Smith, 28 N. J. L. 208.
The judgment on the demurrer however, will be affirmed.
All concur.