Former opinion sustained April 18, 1910.
On Rehearing.
(156 Pac. 791.)
All this complaint is denied by the answer. Mr. John C. Shillock, for the motion. Mr. Milton Reed Klepper and Mr. J. L. Conley, contra. Mb. Justice Bubnettdelivered the opinion of the court.
3. The general issue tendered requires of the plaintiff that she prove her complaint. There are two sections of the Code conclusive upon this matter:
Section 804 reads thus:
“No estate or interest in real property, other than a lease for a term not exceeding one year, nor any trust or power concerning such property, can be created, transferred, or declared otherwise than by operation of law, or by a conveyance or other instrument in writing, subscribed by the party creating, transferring, or declaring the same, or by his lawful agent, under written authority, and executed with such formalities as are required by law.” .
Section 808 has this language:
“In the following cases the agreement is void unless the same or some note or memorandum thereof, expressing the consideration, be in writing and subscribed by the party to be charged, or by his lawfully authorized agent; evidence, therefore, of the agreement shall not be received other than the writing, or secondary evidence of its contents, in the cases prescribed by law. * * 6. An agreement for the leasing, for a longer period than one year, or for the sale of real property, or of any interest therein. * * ”
*168According to the statement of the plaintiff’s complaint she intrusted this real property to the defendant for the sale thereof. She plainly pleads an agreement for the sale of it. Called upon to prove that allegation as against the traverse, she is met by the requirement of the Code that “evidence, therefore, of the agreement shall not be received other than the writing.” It is not by the mark to argue that the trust relates to the money to be derived from the sale of the land, and not to the realty itself, and hence may be proven by parol because it refers to personalty. The controlling principle is that it becomes necessary to prove certain things within the statute of frauds as an essential part of the plaintiff’s case. To do this she must present the kind of evidence which the law declares to be indispensable in such cases. Harsh as it may appear, we cannot repeal the statute nor evade it. It is the legislative mandate obligatory upon courts and parties. They are presumed to know the law, and their lack of such knowledge furnishes no basis to relieve them from the situation in which they have placed themselves. No fraud or false representation inducing the plaintiff to make the deed she mentions is pleaded or proven. Hence there are no grounds for establishing a trust by operation of law ex maleficio. We adhere to the former opinion.
Former Opinion Approved.
Mr. Chief Justice Moore and Mr. Justice Eakin were absent and did not participate in the rehearing of this cause.