dissenting:
It is with sincere regret that I find myself compelled to dissent from the opinion of the majority of the court in this case, but I do not feel at liberty to adopt a different course. The criticisms upon the complaint, which appear in the opinion, in my judgment require no answer. The sufficiency of that pleading is virtually conceded throughout the arguments upon which the opinion is based. It is the insufficiency of the facts, and not any mere deficiency in the *93mode of their allegation that is adjudged. The facts upon which Kelly relies are fully stated. If they entitle him to no relief, the fault is not'-in his pleading, but in his case itself. Nor will it be necessary to pay any portion of the evidence more than a passing attention, since the opinion proceeds wholly upon the assumption that the facts alleged by Kelly are established by the proofs so far as they are capable of being established by the kind of proofs introduced for the purpose.
The facts are that Kelly, holding an undivided one-half interest in certain placer mining ground and ditches and water rights connected therewith, known as the “Kelly & Jacobs claim,” situated on Coyote creek, Jackson county, Oregon, and being in possession with full power to sell and dispose of the entire property on his own account, about the month of April, 1878, entered into agreements with Davis & Rathburn, John W. Robertson, Daniel F. Mathews, P. H. O’Shea, and Ash & McWilliams respectively, for the purchase of their several placer mining claims, ditches and water rights, on the same creek, and adjacent to the “Kelly & Jacobs claim.” A definite price was fixed upon in each instance, and a time within which payment was to be made. All the agreements were in writing except 'the one with Ash & McWilliams. Kelly’s plan was to consolidate all the mining ground, ditches and water rights on the creek, under one ownership and management, and dispose of the whole in a body, with the expectation of deriving substantial benefits from the transaction. Accordingly, on July 1, 1878, he gave I. N. Muncy his written obligation under seal to convey the entire property, together with some other property on the creek known as the “Marshall claim ”—for which he then had no agreement with the owner, but anticipated procuring one—to Muncy or his assigns for the *94consideration of $30,000, payable in three equal installments, three weeks, two months, and four months, respectively, from date. Afterwards he found that he could not get the “Marshall claim,” and by verbal agreement of all parties interested, the “Marshall claim” was excluded, and the price for the remainder' settled at the sum of $27,000.
Upon the basis of his rights under this agreement, Muncy proceeded at once to solicit the co-operation of others in making the stipulated payments and securing the property. His plan was to form a company to take the property; and raise the money to pay for it on subscriptions for its capital stock. A paper, known in this case as the “Muncy Subscrip-, tion” was drawn up for the purpose. Two hundred thousand shares of capital stock were to be issued. Muncy was to receive fifty cents upon each share subscribed—twenty-five cents down, and twenty-five cents more when taken out of the mine, above expenses. For this consideration Muncy was to secure the property for the subscribers, and place certain improvements and appliances upon it. The subscribers upon the full payment of the fifty per centum, in the manner prescribed, were to receive paid up stock, to the number of shares subscribed by them respectively. It is very plain from the terms of this paper, in connection with the subsequent conduct of the subscribers thereto, that while no company was named therein, subscriptions upon it were understood and intended by the subscribers as subscriptions to the capital stock of a company proposed to be formed at some future time. The form of the proposed association does not seem to have been very definitely settled at first; but that all looked forward to an organization of some,, kind, conforming to the wishes of the subscribers thereafter to be ascertained, appears to admit of no doubt whatever. Ruble became interested with Muncy in this project about the *95middle of August, 1878. That he fully understood Muncy’s arrangement with Kelly, and his plans in relation thereto is unquestionable. In promoting the success of this scheme, he was more active and effective, and more interested than any other participant, unless it was Muncy himself. On the 22d or 23d of August, 1878, according to his own testimony, he made an arrangement with Muncy to take a one-fourth interest. He was to pay Muncy $5,000 down, $2,000 more as soon as he could dispose of his wheat crop for that year, and $3,000 more when taken out of the mine to his share. This arrangement was verbal. On the very next day, he went to see David H. Stump and John L. Murphy, and agreed with them to incorporate a company to take the property on the terms of Kelly’s obligation to Muncy. He also notified Muncy of their determination. Pursuant to such agreement and notice, Ruble, Stump, Murphy and Muncy met together in the Commercial Hotel at Salem, on August 27,1878, and subscribed and acknowledged the articles of incorporation of the Coyote Gold and Silver Mining Company. At this meeting, Stump subscribed the “Muncy Subscription” paper for 5,000 shares of stock; Murphy subscribed it for 7,500 shares; and either at this time or on the morning of August 30, 1878, Ruble subscribed it for 50,000 shares, annexing the words “as per arrangement,” to connect such subscription with the previous parol arrangement between himself and Muncy of the 22d or 23d of the same month, already alluded to. At this meeting, on August 27, 1878, it was agreed among the four incorporators, Ritble, Stump, Murphy and Muncy, that Ruble should take all the money that might be advanced on the subscriptions, out to Canyonville, and pay it to Kelly there on the purchase of the property from him, and take title to such portion of it as Kelly might cause to be *96conveyed, either in the name of the Coyote company, or in his own name as trustee for the company. In the latter case, he was to hold the title thus conveyed to him until the company should be better organized, and then convey to it. Murphy had already executed a deed of his farm valued at $1,500 under an arrangement with Kelly that it should be accepted as a payment of that amount on the purchase; Stump gave Nuble $500; and Nuble took about $5,000 of his own money, and started from Salem on August 30,1878, for Canyonville, where he arrived on the following day. The next day—September 1st—he met Kelly, who had come in from the mines, some 30 miles further south, pursuant to a telegram from Muncy, notifying him of Nuble’s visit. Nuble then informed Kelly of the incorporation of the Coyote company, of what had been done, and the arrangement in regard to making payments and taking title.
A letter from Muncy received at the same time fully confirmed Nuble’s statements, and Kelly, acting under the belief induced by such representations, took Nuble out to the mines and caused all the owners of the adjacent property with whom he had agreements, except Mathews, to make conveyances directly to Nuble, as trustee for the Coyote company. Mathews had previously conveyed his property in compliance with his agreement; and on the 6th day of the following December, Kelly conveyed this property, together with the “Kelly & Jacobs claim,” directly to the company in fulfillment of his contract. The conveyances to Nuble were made by the respective owners at Kelly’s request, and as a performance of their previous agreements with Kelly to convey to him. Kelly made out the deeds and defrayed all the expenses attending their execution, including the expense of taking Nuble out to the mines from Canyonville. "With the exception of $500, Nuble did not *97pay the money directly into Kelly’s hands, but paid to each owner respectively when he executed his deed the amount due him under his previous agreement with Kelly. Kelly was present in each instance, counted the money, and saw that each one got just what he had agreed to pay him for his property. The money was, however, paid for Kelly, as part of the price due him for the entire property, upon the terms of his obligation to Muncy, and as money advanced for the Coyote company by the subscribers for its stock as already described. And such was the understanding and intention of all the parties to the transaction at the time. These payments were in legal effect part payments by the Coyote company to Kelly on the price he was to get for the entire property, and full payments by Kelly to the owners of the property of the prices he was to pay them respectively under his previous agreements with them. These deeds were executed on the 2d and 4th days of September, 1878, and while upon their faces they purport to be absolute conveyances to Nuble, for considerations moving from him only, they were in fact made to him as trustee for the Coyote company, and the consideration was in effect paid by Kelly, it having been paid for him in the manner before described. One incident alone need be referred to to show that such was the character of this transaction. Murphy, as has already been stated, had made a deed of his farm at the agreed value of $1,500, under an agreement with Kelly, to accept it as a payment of that amount on the price he was to get for the entire property. This deed was delivered by Murphy as an advance of so much upon his subscription for stock. Under the terms of his arrangement with Kelly the deed was made to Kelly and O’Shea jointly—Kelly accepting it as a payment of $1,500 on the amount due him from the company, and O’Shea accepting it as a payment of $750 *98on the amount due him from Kelly for his mining property. By Kelly’s agreement with O’Shea for the purchase of his property, he was to pay $3,300 for it. Ruble only paid O’Shea at the time he executed his deed $2,550, remarking that he had already been paid $750 on the price, which O’Shea assented to without objection. Ruble had authority from Murphy to take the benefit of this deed as a payment to Kelly by the Coyote company, but he neither had nor pretends to have had any authority to appropriate it, in payment or settlement of any debt or liability of his own.
The Coyote company was finally organized by the election and qualification of its officers, at a meeting of its stockholders held at Monmouth, September 14, 1878. Ruble was secretary of the meeting and kept the journal of its proceedings. This journal thus kept by Ruble himself as secretary of the stockholders meeting, shows that he “claimed the right to cast 50,000 votes on his own subscription; 40 proxy votes for'Gr. W. Sloper; 1,000 proxy votes for John Yernon; and for R. Doty two thousand (2000); making 53,040 votes.” The same record also shows that it was afterwards agreed among the stockholders present at the meeting, “to dispense with the counting of the vote upon the amount of stock represented, and that each subscriber present be allowed one vote.” Under this agreement “among the stockholders” Ruble cast one vote as did each of the other subscribers present. Ruble was chosen one of the directors of the company, at this meeting and duly qualified as such. He was chosen secretary, and entered upon the discharge of his duties as such. He continued to fill both of these positions in the company until as late as J anuary 16, 1879, although the company had instituted a suit against him to compel a conveyance of the property deeded to him on the 2d and 4th days of September previous, to the com*99pany in execution of tlie trust assumed by him when he obtained such deeds, and Nelly had completed the performance of his obligation to the company by a conveyance of the remainder of the property to it on the 6th day of the preceding December, with full knowledge necessarily on Ruble’s part of all the facts. As secretary of the company, he transferred every subscription, except his own, on the “Muncy subscription” paper to another paper containing a regular and formal subscription contract for stock of the Coyote company without any further authority from the subscribers for that purpose. At the same ineeting of the stockholders, he signed a written document known as the “Monmouth paper,” which purported to be an agreement between subscribers for stock of the Coyote company as a subscriber for “50,000 shares.” This agreement also contains a stipulation for the sale of stock of the company “to the amount of 200,000 shares—including any shares already subscribed”—on the same terms precisely as those contained in the previous “Muncy subscription” paper. The evident meaning of this stipulation is, not to sell the “shares already subscribed,” but to sell enough to make, with the shares already taken, the aggregate number of 200,000; which was the total amount of stock designed from the first.
Upon these facts, I cannot see how Ruble can escape liability on his subscription for 50,000 shares of the capital stock of the Coyote company. Yet it is said in the opinion of the majority of the court that “it is in evidence that Ruble is not a subscriber to the capital stock of the Coyote Cold and Silver Mining company. He does not owe a dollar to the corporation.” But in view of the conceded facts in the case, which clearly prove the understanding and intention of Ruble and the other subscribers to the “Muncy Subscription” paper, to be bound by their subscriptions, *100upon that paper, for so many shares of the capital stock of the Coyote company, as they had there subscribed for, I am led to suppose that this assertion is based upon a certain legal proposition advanced in the opinion, which seems to declare the doctrine that contracts made in advance of the legal organization of a company or corporation, although in contemplation thereof, and upon sufficient consideration on its behalf or for its benefit, are invalid and incapable of enforcement by such company or corporation after its regular organization and acceptance of such contract. There is no other ground upon which it can be placed with even the semblance of a reason to sustain it. The company was organized by the election and qualification of its officers when there was no other subscription for capital stock than that appearing upon the “Muncy Subscription” paper. Those who participated in the stockholders’ meeting on September 14, 1878, and voted for officers of the company, at the election then held, had 'no other claim to be deemed stockholders than that they were subscribers on that paper. If their subscriptions upon that paper were not subscriptions for the capital stock of the company, then none of its stock had been subscribed for, and the entire proceeding to organize the company was a farce. The number of shares of stock specified in the articles of incorporation, as well as in the “Muncy Subscription” paper, was 200,000. Excluding Ruble’s subscription for 50,000 shares would leave less than one-half of the capital stock subscribed for, and render any organization of the company impossible, under the statute. Yet Ruble was one of the most active and efficient promoters of and participants in the organization, and accepted and exercised the functions of two of the most important offices of the company under the organization so effected. If he was not a subscriber for the capital stock *101of the company, his conduct in the premises is wholly indefensible. And it may not be amiss as illustrating the understanding which all the other subscribers to the “Muncy Subscription” paper had of the character of that document, and the effect of their subscriptions thereto, and almost necessarily Ruble’s understanding also of his own relation to the same transaction, to remark, that almost every one of the nineteen other subscribers upon that paper for shares ranging from one to seven thousand five hundred respectively, advanced the amount, or at least a portion of it, upon his subscription, which by the terms thereof he was to pay down to enable the company to complete the payment to Kelly for the property, according to the. terms of the written obligation to Muncy of July 1, 1878. The amounts so paid, together with the $8,750 advanced by Ruble in the same manner, reduced Kelly’s claim of $27,000 to the sum of $11,664 75, to recover which and enforce its payment under his vendor’s lien against the entire property, whether standing in the company’s name, or in the names of Ruble, or his grantees with notice and without consideration, as the trustees of the company, this suit was instituted. None of the other subscribers ever claimed, so far as anything in the record before us gives, any indication that the amount thus advanced by him was not intended to be, or in fact, money paid for the company on account of his subscription to its capital stock, to be applied on the purchase of the entire property from Kelly; and yet many of them advanced more in proportion to the number of shares subscribed for, than Ruble did.
As to the legal question involved in the proposition referred to as the probable foundation of the assertion in the opinion that “it is in evidence that Ruble is not a subscriber to the capital stock,” &c., and “does not owe a dollar to the *102corporation,” I think but little need be said. "While the articles of incorporation were duly subscribed and acknowledged at Salem, on the 27th day of August, 1878, and were duly filed in the office of the secretary of state on the 80th day of that month, no copy was filed in the office of the county clerk of Jackson county, where the business of the company was proposed to be conducted, as the statute requires, until the 6th day of September, 1878. The copy designed for this purpose was given to Ruble when he left Salem for Canyonville on August 80, 1878, to take out there to show to Kelly, and then forward to the county clerk of Jackson county for filing. He met Kelly in Canyonville as already stated, on September 1, 1878, and no doubt exhibited the copy to him at that time; but he did not forward it as he should have done immediately, but waited until he had returned from the mines and all the deeds made to him had been executed, before attempting the fulfillment of this duty. The deeds were executed on the 2d and 4th days of September, as already shown, while the copy of the articles of incorporation was not mailed at Canyonville until the 5th day of the same month. It was received and filed by the county clerk of Jackson county on the day following. And this is the way the Coyote company happened to have no legal existence when the deeds to Ruble were executed. I do not question the correctness of the position that the Coyote company was not legally and completely incorporated until this copy was filed in the office of the county clerk of Jackson county. Such seems to me to be the true construction of the various provisions of the statute relating to the formation of private corporations. But I do deny most emphatically that the non-existence of the corporation, under all the circumstances I have related, can rightfully be held to absolve Ruble from either his lia*103bility as a stockholder, or his duty as a trustee. Here all parties acted either in view of the future organization of a company, or under the belief that it ah’eady existed. There is no principle of law which precludes a company, after its organization, from asserting rights secured to it by contracts upon sufficient consideration, made on its behalf or for its benefit previous to its incorporation, but in contemplation of that event. The most familiar illustrations of the law upon the subject are to be found in the decisions upon the validity and binding force of subscription contracts made before, but in view of the incorporation of the company whose stock is thus subscribed for in advance; yet the principle itself is, as it must necessarily be, universal; and cases are not wanting where it has been applied to other contracts by high judicial authority. (Anderson v. The Newcastle &c., Railroad Co., 12 Ind., 376; Johnson v. The Wabash &c., Plank Road Co., 16 Id., 389; Buffalo and N. Y. City R. R. Co. v. Dudley, 14 N. Y., 336; Lake Ontario, &c., R. R. Co. v. Mason, 16 Id., 451; The Reformed Protestant Dutch Church v. Brown, 29 Barb., 335; Penobscot Railroad Company v. Dummer, 40 Me., 172; The Danbury and Norwalk Railroad Co. v. Wilson, 22 Conn., 434; Cross v. Pinckneyville Mill Co., 17 Ill., 58; Griswold v. Trustees of Peoria University, 26 Ill., 41; Johnson v. Ewing Female University, 35 Ill., 518.)
These and numerous other authorities, which might be cited to the same effect, fully establish the doctrine that subscriptions for stock in a proposed corporation not yet formed, become binding upon the supscribers as soon as the incorporation takes place, and that it is no defense to an action by the company to recover the amount of such a subscription, to plead the non-existence of the company at the time its stock was subscribed for. It seems obvious that *104if this doctrine is sound in principle, it cannot be restricted in its operation to contracts of subscription only. There is nothing so peculiar about contracts of this class as to justify any such restriction. And accordingly it has been held that an independent promise on sufficient consideration to pay money to designated trustees for the purpose of building a plank road, with authority to such trustees to transfer the obligation to “a company hereafter to be formed for the purpose of building said road,” was valid in the hands of the proposed company after its formation, and the transfer of the obligation to it by the trustees, pursuant to the authority given therein. (Eastern Plank Road Co. v. Vaughn, 14 N. Y., 546.) Selden, J., in concluding the opinion in the case says: “The defendant is therefore liable, not as a subscriber to the capital stock of the company, but upon his independent promise made upon a sufficient consideration. There can be no doubt of the corporate power of the company to receive and enforce such a promise, it being made for the express purpose of enabling the company to accomplish the object of its incorporation.” And substantially the same doctrine was held by this court in the case of the Coyote G. & S. Mining Co. v. Ruble, 8 Or., 284, with reference to the identical transaction now under examination. In effect it is there declared that Ruble obtained the title to the portion of the property deeded to him on the 2d and 4th days of September, 1878, under such circumstances as would entitle the company in equity to compel a conveyance to itself, on repaying him the amount of money advanced by him upon the purchase thereof (p. 299.) How could this be unless the agreements among the promoters of the company previous to its incorporation were accorded some validity and binding effect which the company could enforce? It is true the majority of the court held in that case that *105the proofs failed to show that Nuble was a subscriber for the capital stock of the company. This decision is not however conclusive on the point here. Some of the facts found by the majority of the court, in that case, as appears from the opinion, cannot be deduced legitimately from the proofs before us. The parties are not the same, nor can Ave determine whether tire proofs are the same or different. The decision of this court in The Grangers Market Co. v. Vinson, 6 Or., 172, cited in that case as supporting the opinion on this point, certainly has no particular application to the facts established here. But at any rate the opinion in the case of the Coyote G. & S. Mining Co. v. Ruble recognizes the legal principle for Avhich I contend, and for that purpose alone have I referred to it. And it does seem to me, that the proposition that a party can accept a conveyance of real property in trust for a corporation not yet formed but in contemplation of the promoters of the same causing such conveyance to be made, and afterwards successfully resist the execution of his trust in a suit brought by the company after its incorporation for that purpose, on the ground that at the time the property was conveyed the company was not in existence, is so completely at variance with sound reason and fundamental legal principles, that the citation of authority to refute it can hardly be required. But if the law were otherwise than I have supposed it to be, there are Nuble’s representations to Kelly as to the incorporation of the company; his own subscription and that of others to the capital stock of the company; the advance of the money paid by the subscribers on such subscriptions for the company; his own authority to act as agent and trustee of the company in making payments to Kelly and taking titles in his own name in trust for the company, and Kelly’s action thereon under a reasonable belief in their truth,, to *106estop liim from denying tlieir truth. If he is so estopped in this litigation, it is wholly immaterial to the result, whether any of the facts so represented existed or not; they must be taken and considered as the real facts in the case and for every purpose’ connected with the suit. If this is not what the estoppel in the particular case signifies, I must confess I have never understood the general nature of the doctrine. An estoppel must be mutual. But that means in this case mutuality between Nuble and Kelly. It is not essential to Kelly’s right to claim the benefit of it in this suit between himself and Nuble, that it should appear to be also available in any litigation between Nuble and the company involving the same transaction. The argument in the opinion upon this point is that as Nuhle would not be estopped to deny the truth of his representations to Kelly, in any suit by the company to compel him to execute the trust which he represented to Kelly he was assuming on behalf of the company in taking the deeds in his own name, therefore he has the same privilege in this suit brought by Kelly against' him and based upon the same trust. Yet while I am fully satisfied that Nuble, on the proofs in the case, is clearly shown to be the trustee of the company, as was virtually held by this court in the previous suit of the company against him already mentioned, and also a subscriber for 50,000 shares of its capital stock, which the court in that case on the evidence before it held not to have been proven, I think it may safely he conceded for the sake of the argument that he was not such trustee in fact, and still being estopped to deny his representations to that effect, the final determination must be the same. Kelly’s rights under such circumstances cannot be measured by those of the company, as is insisted in this argument. Take for instance the case which the majority of the court in the former suit *107of the Coyote company against Ruble found to be made out by the proofs before them, that Ruble held the property in trust, but as he was not a subscriber for capital stock of the company, he therefore owed it nothing, and the money furnished by him towards the purchase was his own individual property. Upon this state of facts, they rightly concluded that equity would not compel Ruble to convey the pz-operty to the company unless the company would repay him the amount of znoney he had expended towaz-ds its purchase. But as betweezz Kelly and Ruble no szzcli equity exists irz favor of the latter. If Kelly had full knowledge even that Ruble was advancizzg his owiz zzzoney for the company ozi the purchase—assunzing such to have beezz the fact—he would still have the right in equity to treat the znoney so advanced for the company, as its znoney, azzd as being simply a paz’t payment by it on the puz-chase price of the entire pz’opez’ty. For this would be in pez’fect accoz’dazice with the evident zmdez'standing and intezztion of the parties, as well as with the plain legal effect of the trazzsaction. And the case is only made stronger by the consideration that Rzzble represented to Kelly that the money he paid was due the company on subscriptions for its capital stock, and Kelly was induced by such z’epresezztation to accept it as such. But I deem it needless to proceed further with the discussion of the question whether Kelly can take the benefit of an estoppel against Ruble zzzzder the circumstazzces, wizen the company cannot. I thizzk it plain that he can.
The next pz-oposition of .law maizztained in the opizzion of the majority of the court is, that the cozzveyazzces to Ruble, being executed at diffez-ezit dates, severed the ezztiz-ety of Kelly’s contract with the company to convey it the whole property for a single price, if, in fact, such contract ever existed. It is claizned that this was ozze of the effects of *108the statute of frauds upon the transaction. Kelly’s agreement with Ash & McWilliams for the purchase of their mining property was by parol, and consequently within the statute of fraxxds. Their deed was not execxxted to Ruble xxntil the 4th day of Septembei-, 1878, while all the other deeds to Ruble had been execxxted two days before, on the 2d day of the month. It is also assumed that Kelly’s contract to convey the entire property to the company for the single price of $27,000 mxxst be considered as having only the foi’ce of a pai’ol contract. The objection to considering Kelly’s contract to sell to the company as an entire contract in both cases, is vei-y sixnilar in nature and precisely identical in effect. In the first case, it is asserted that Kelly could not have sold the Ash & McWilliams property under the same contract with the other pi’operty conveyed to Rxxble on September 2,1878, because at that time he had no title, or claim, to it enforcible either at law or in equity. In the secoixd case, it is claimed that each separate conveyance was in legal effect a performance of a distinct contract to sell the portion covered by it. And the conclusion in this instance is reached upon the principle that a parol contract to sell real property is invalid under the statute of fx’auds uxxtil it has been executed by conveyance.
The first objection amounts substantially to a denial that a party can sell real property he does not own, or have a valid claixn on, at the time. But that he can do it, is a proposition which the authorities fully sustain. (Trask v. Vinson, 20 Pick, 105; Stearns v. Foote, Id., 432.) It can make no difference to the purchaser whether the seller has any title or right to the property either at the time of sale, or ever, if he receives a conveyance of the title through the seller’s instrumentality according to the terms of his engagement. If a party can sell one tract of real property he has *109no interest in, or claim on, at the time of making the contract to sell, no possible reason can be assigned why he cannot as well contract to convey two or more separate tracts in the same situation for a single price. If he causes conveyances of all the tracts to be made to the purchaser in the manner and within the time agreed upon, will he not have performed his agreement and entitled himself to the stipulated single price for all the tracts conveyed? In such a case the objection would lie as well where the contract to convey is in writing, as where it is by parol. If performance of a parol agreement to convey real property, takes it out of the operation of the statute of frauds, which is conceded to be the law, it must be the parol agreement actually made between the parties that is thus rendered valid. There is no other; and certainly it will not be contended that any promise to pay a price for real property will be implied in law from the mere fact of conveyance. Where, then, as in the present instance, a party makes a parol agreement to convey, or cause to be conveyed, the title to several distinct tracts of real property for one price for the whole, the conveyance of one, or any number of such tracts, less than the -whole, is no performance of such parol agreement, or any agreement between the parties. It is a part of such performance, but the agreement itself is not executed until all have been conveyed. The error in the position taken in the opinion upon this point, I conceive to be in assuming that the conveyance of a portion of the property by itself, at a different date from the conveyances of the other portions, executed the contract under which the conveyances took place. This would have been true if the contract had been to convey such portion by itself for a separate price. But there was no such agreement, and such conveyance plainly was no performance of Kelly’s contract to convey *110the whole property for a single price. That contract was not performed until he conveyed the remainder of the property directly to the company on the 6th day of December, 1878. The state of Kelly’s title prior to performance of his agreement to convey, can have no possible bearing on the question as to the entirety of his contract of sale. The entirety of his contract consisted in his agreement to convey the whole for a single price, and the mode of performance had nothing whatever to do with it. If he performed within the time, and it was accepted by the company, what possible difference can it make that such performance took place partly on one day and partly on another day? It was all one act, no matter how many different days it occupied in its execution, and when completed amounted to but a single performance. In answering the first, I have also answered the second objection. The conveyances to Ruble of September 2, 1878, were no performance of any contract, parol or otherwise, on Kelly’s part, to convey to the company ; and as upon • the theory presented in the opinion itself, there was no contract of sale until performance, there could have been no such contract until the conveyance of December 6, 1878, was executed, as there was no performance until then. There is no difficulty in conceiving of the several conveyances either made or caused to be made by Kelly as embraced in, and constituting but a single act of performance of his entire contract. And such seems to me to have been the plain, legal effect of these several conveyances, although made by different parties and at different dates. The promise of the company to pay the price never was within the statute of frauds. It lacked sufficient consideration, while Kelly’s parol promise to convey the title remained executory.. When that was executed by conveyance, to the acceptation of the company, *111its promise to pay the stipulated price became valid and binding. The conveyances and their acceptance by the company, whether made to Nuble as its trustee, or directly to itself, were a sufficient consideration for its promise to pay the purchase money. In the next place, it is asserted in the opinion, that Kelly is precluded by the statute of frauds from offering parol evidence to establish such performance on his part of his entire contract to convey to the Coyote company. The proposition made with particular reference to the Ash & McWilliams deed—but equally applicable to each deed that was made to Nuble—is thus stated in the opinion: “It appears on its face to have been a sale made by Ash & McWilliams to Nuble, and when Nuble swears that such was the transaction and it is shown that he paid the consideration to them, no amount of parol testimony can overcome these facts.” I cannot understand why Nuble’s testimony should be accorded such conclusive effect in regard to the matter. Nut it is evident that his testimony may be taken out of the proposition entirely, and the remainder of the facts assumed, if correct, would justify the conclusion announced. If Nuble were shown to have “paid the consideration” for the Ash & McWilliams property, or any other portion of the property, on which Kelly claims a vendor’s lien, he could have no relief with respect to it. Nut Nuble-did not pay any of the consideration, as I feel assured, has been made apparent. The money he paid was only furnished in part by him, and that was advanced for the company, upon his subscription, and he so represented the fact to Kelly at the time. To say that Nuble “paid the consideration” for the property, or any portion of it, in view of such facts, is clearly unjustifiable. Nesides, it was paid for Kelly and was, therefore, in legal effect paid by him..
*112Kelly had a perfect right to show by parol testimony who paid the consideration for the deeds that were executed to Ruble, notwithstanding they recited the receipt thereof from Ruble, and notwithstanding Ruble’s testimony that “such was the transaction.” And when he had thus shown that the consideration was paid by himself and not by Ruble, a case of resulting trust was made out, which was not within the operation of the statute of frauds. (Boyd v. McLean, 1 Johns. Ch., 582; Getman v. Getman, 1 Barb Ch., 499; Sweet v. Jacocks, 6 Paige, 355.) The first of these cases is so similar in its material facts, as well as the principles involved, to the case here, that I cannot forbear a somewhat extended reference to it. It was decided by Chancellor Kent in 1815, and its authority has never since been questioned, that I am aware of, until now. It was a case of resulting trust, like the present. The defendant, McLean, who, by his agent Ross, handed the amount, the plaintiffs, J. & H. Boyd, were to pay Colden, the grantor of the land, for it, out of the defendant’s funds, but on account of the plaintiffs and as a loan to them, under a parol agreement, and took an absolute deed for the property in his own name, reciting the payment of the consideration by him, but under a parol agreement with the plaintiffs to hold the same in trust for them, and upon receiving payment of the amount so loaned to convey the legal title to them, in his answer to the bill filed to compel him to execute the trust, denied the loan and the alleged parol agreements altogether, and set up, just as Ruble has done here, that he bought the property on his own account and with his own money, and claimed the benefit of the statute of frauds upon the same grounds Ruble does; and to complete the resemblance, his counsel argued that he “having absolutely denied any loan or trust, the parol evidence was inadmissible,” and cited *113Sugden on Yendors, the same authority cited in the opinion in the present case, in support of the same proposition.
The distinguished chancellor, however, denied the applicability of the statute of frauds in such a case, after reviewing the authorities on the subject with his usual ability and research, and not only admitted the parol testimony, but upon proof of the above facts by such testimony alone, decreed a conveyance of the property to the plaintiffs.
It is also assumed in the opinion that the equity doctrine as to the character of proof requisite in cases of specific performance is applicable here, and numerous decisions illustrative of that doctrine are cited. But this was needless. This is not a case for specific performance, and no reason can possibly be given why the same rule as to proof should apply. Kelly has performed his promise, which was the only one within the statute of frauds. There is no such thing in the case as a part performance of an agreement within the statute, and an attempt on the ground of such part performance to enforce the balance of such agreement. The only agreements in the case within the statute have been fully executed, and all that is sought by the suit is to establish the fact that such performance was the consideration of a parol agreement to pay a certain amount in money, and to enforce payment thereof, if necessary, through the equitable security afforded by a vendor’s lien. The fact of conveyance must no doubt be shown from the deeds themselves; but that such conveyance was made under a parol agreement as to price can only be shown by parol evidence; and such proof is not prohibited by the statute of frauds. The rule in equity, therefore, in relation to the kind of proof required where a conveyance is sought to be compelled, founded on the policy of the statute, cannot rightfully be invoked by force of analogy in a case where the *114vendor of real property having fully performed his contract •to make title, only seeks to recover from the purchaser the price verbally agreed to be paid therefor, and as incident thereto, to enforce his vendor’s lien. The statute of frauds has no application to such a case. It has been held repeatedly that the assignment of a parol contract for the purchase of real property upon a promise to pay for such assignment, where the parol contract to convey is subsequently executed by a conveyance to the assignee, is a sufficient consideration for the promise to pay for such assignment, and that such promise may be enforced by action—the statute of frauds not applying to such a case. (Kratz v. Stokes, 42 Mo., 351; McCarthy v. Pope, 52 Cal., 561.) In the last case, all the agreements were by parol.
It has also been held that a prpmise of the vendor of real property at the time of the acceptance of the deed by his vendee, to pay an assessment on the premises conveyed, in consideration of such acceptance, and payment of the purchase price agreed upon, by the vendee, is valid, and not within the statute of frauds. (Remington, et al. v. Palmer, 62 N. Y., 31.) If the statute has no application to cases like these, and parol evidence is admissible to prove the consideration for the parol promise to pay, what reasonable objection, based upon the statute, can there be, to proving by parol evidence that a conveyance of real property itself, was the consideration for the parol promise to pay the stipulated v price? In the case of Russell and wife v. Watt, adm., et al., 41 Miss., 602, the same state of facts was presented, and the same relief sought as in the case here. Mrs. Russell contracted with Moore to sell and make him title to. a certain piece of real property, the title to which was not in her, but in one Booth. There was no writing between either Mrs. Russell and Moore, or between her and Booth, but *115Booth made a deed conveying the title to Moore, at her instance. She afterwards brought the suit to enforce a vendor’s lien against the land in the hands of Moore’s representatives and vendee, with notice of the nonpayment of the purchase money, for the amount Moore had verbally agreed to pay her for the property. The principal defense was the statute of frauds. The question was thus presented by counsel for the defendants: “This suit is brought to enforce a right which cannot exist by virtue of there being a legal and valid sale of land made hy Mrs. N. to Moore. The sale as between them was not in writing. The sale is deuied by Moore, who alleges he purchased from Booth. How can the suit be maintained except by showing hy parol that such a sale was made, and that Mrs. N. and not Booth was the vendor? To state the question is to answer it.” Nevertheless, the court held she could show by parol testimony that she was the vendor, although not the grantor in the deed of conveyance, and that upon the given state of facts was entitled to the relief sought. (Citing Holloway v. Ellis, 25 Miss., 103.) Rutland v. Brister, 53 Miss., 683, is a similar case in all respects. The same objection on the ground of the statute was interposed, but seems to have been entirely ignored in the opinion of the court. The relief sought was granted. (See also Perkins v. Gibson, 51 Miss., 699; and Anderson v. Spencer, Id., 869.) Precedents more directly in point could hardly be expected.
But if the assumption that the rule as to the character of pi’oof is the same here, as in cases for specific performance, could be admitted to be correct, which it clearly cannot, it could not have the effect ascribed to it in the opinion. The mere execution of the deeds, on their faces absolute, to Nuble by the holders of the legal title to the property conveyed by them, by itself, would not afford any evidence of *116an agreement by Kelly to convey to tbe Coyote company, it’is true. But this was not all of Kelly’s act of performance. He paid for the property, and procured the execution of the deeds to Nuble, in trust for the company. And it certainly cannot be contended with any appearance of plausibility, even that such acts of performance afford no evidence of the agreement between himself and the company, under which he claims a vendor’s lien for unpaid purchase, money. But as the rule in cases of specific performance is plainly inapplicable to a case like the present, I deem it needless to pursue the subject farther.
That Kelly was the vendor of the whole property, although not the grantor of a portion of it, and entitled to a vendor’s lien upon the whole for the balance of the purchase money remaining unpaid at the commencement of this suit, upon the conceded facts, under the authorities I have cited, I am perfectly satisfied; and I do not believe a parallel case on the facts can1 be found in the books, where such relief has been denied.
In concluding their opinion, the majority of the court have seen fit to express a doubt as to the existence of the vendor’s lien, in any form, in this state. In my own mind, there is no such doubt. The decision of this court, in Pease v. Kelly, 3 Or., 417, it seems to me is conclusive of the question. It is stated in the opinion that' “the existence of sueh lien was not intended to be decided” in that case. The question was properly before the court in that case. It was in the argument, and many of the same authorities cited upon it which Buble’s counsel have cited here, as the published report of the case shows. A mortgage had been given for the purchase money, and the only two questions considered were whether the lien existed generally, and if so whether it. had been waived, in the particular case by *117taking the mortgage as security for the purchase money. The court say: “The lien exists, if there is no higher security, but we think that the taking of a mortgage, which is an open and public lien, is a waiver of the vendor’s lien, and we think that both liens cannot exist at the same time, and such seems to be the well established doctrine of the cases.” And it was held accordingly that the lien did not' exist in that case. The court might have waived any decision of the point, but it had the undoubted jurisdiction to decide it, and the language of the opinion seems to me clearly to denote an intention to determine it. If such was the intention, what the court said upon the subject was not ¿Uctmn, merely, because it might have been avoided. And such seems to be the opinion generally entertained as to the effect of this decision. (Coos Bay Wagon Road Co. v. Crocker, 6 Sawyer, 580.) But, putting this decision entirely aside, I do not see how the existence of the vendor’s lien here as a doctrine of the common law can be reasonably controverted. It is not contrary to any provision or policy of our state legislation. On the contrary, section 410 of the civil code adopted in 1862, seems to sanction the existence of such liens. It provides for the foi’eclosure by suit of all liens on real and personal property “other than that of a judgment or decree, whether created by mortgage or otherwise.” It is plain this section contemplates the existence of liens not of record; and why should it not be construed to include the vendor’s lien? (2 Story’s Eq. Jur., sec. 1218; Sugden on Vendors, p. 376, note “d”; Macreath v. Symmons, 1 Lead. Cas. Eq., W. & T., 481; 1 Perry on Trusts, [2d Ed.,] sec. 232 and note “5.”)
Of the two cases cited in the opinion as justifying the doubt expressed—Ahren v. Odiorne, 118 Mass., 261, and Kauffelt v. Bower, 7 S. & R., 64—(also published in 10 *118Am. Decis., 428,) it may be said with propriety, that while they vigorously and ably attack the very foundation of the doctrine of the vendor’s lien as an original question, they can only be regarded as authorities to the extent of holding, that under the peculiar and exceptional conditions of ¿things existing in the states of Massachusetts and Pennsylvania, where they were announced respectively, it was competent to presume the lien had never been adopted as a doctrine of the common law. But in this state, no such conditions existing, these decisions cannot be considered as authorities against the existence of the lien; and the general presumption that the common law prevails ought, in my judgment, to be decisive of the question in the affirmative, even if it. were an original one, now for the first time before this court, which I cannot admit.
I think, therefore, the decree of the circuit court ought to be affirmed.