(dissenting). — Two propositions of law are announced in the majority opinion to which I cannot give assent, to wit: First, that a contract to convey land Can be modified by subsequent parol agreement so as to apply to land not covered by or contemplated in the original contract, there being no payment of purchase price or taking of possession which has reference to such subsequent agreement; second, that an oral agreement to convey land on a past consideration is not within the statute of frauds.
*574' It is elementary that a contract so indefinite as to snbject-matter that it is impossible to determine to what the agreement of the contracting parties relates, or to know that as to the matter under consideration there was a meeting of the minds of such parties, is void for uncertainty and of no effect. Church v. Noble, 24 Ill. 291; Atkins v. School Tp., 77 Ind. 447; Thompson v. Gortner, 73 Md. 474 (21 Atl. Rep. 371); Wainwright v. Straw, 15 Vt. 215 (40 Am. Dec. 675); Erwin v. Erwin, 25 Ala. 236; Cole v. Clark, 3 Pin. (Wis.) 303; Guthing v. Lynn, 2 Barn. & Adol. 232. Pertinent quotations might be made from many of 'these cases, but it is sufficient here to cite them. That the expression “40 acres of land,” -without other designation, described nothing to which the alleged agreement in connection with the naming of plaintiff could be considered as having relation, is clear. Porty-acre tracts of land — even agricultural land — cannot be regarded as interchangeable. Would it have been competent for plaintiff’s father to have selected and demanded under the agreement any one of the various tracts containing 40 acres which he might select out of the land owned by Oochrane when his promise was made, — for instance, the 40 on which his farm buildings were situated? On the other hand, could Oochrane have properly tendered the poorest 40-acre tract he owned? It is plain that, until the parties attempted to agree further as to the specific land which was to pass, there was no agreement for conveyance which could have been enforced in behalf of plaintiff. The majority say, “Id certum est quod certum reddi potest',” but I had supposed that this maxim related solely to the establishment of a preexisting valid contract, and not to the creation of a new contract; that is, that it applied only when the parties had indicated and agreed upon some means by which the Uncertainty might be removed, or the evidence tended to show the understanding of the parties when the contract was made. It is true that sub*575sequent acts of the parties to a contract may be shown for the purpose of construction in the case of a latent ambiguity, and that is the rule supported by the cases which the majority cite. Such evidence is not received for the purpose of showing a new agreement. If any of the cases cited go beyond this, they clearly, as it seems to me, go beyond reason and the weight of authority. Undoubtedly the parties to a valid contract may by mutual agreement change it, and become bound by a subsequent agreement based upon the consideration of mutual relinquishment of rights under the previous agreement, but how can there be any such relinquishment in consideration of the new agreement if the first agreement was so indefinite as to confer no rights? Undoubtedly, also, if one party to the contract which is void for uncertainty has parted with a consideration, he may recover back its value; and I should not object to an allowance to plaintiff, as against Cochrane’s estate, in a proper proceeding, of -the money value of any detriment he suffered or any advantage Cochrane gained by the affixing to plaintiff of Cochrane’s name as a Christian name. Until there was a new agreement, this was the measure of plaintiff’s right. I might further admit, for the sake of argument, that the parties could subsequently agree upon the conveyance of this particular 40-acre tract in extinguishment of the indefinite claim arising to plaintiff from the transaction, provided the agreement ivas reduced to writing or possession was given as contemplated by the statute of frauds. In other words, if, in view of plaintiff’s having been named for Cochrane with the understanding that he was to have some pecuniary benefit, Cochrane should subsequently have agreed to give plaintiff $10,000. I will admit for present purposes that such subsequent agreement was based on a valid consideration but the fact that the intention to make a pecuniary return for the name was indicated by the expression of an intention to give him 40 acres of land would not, *576make the case any stronger. The fundamental difficulty is that the statute of frauds requires that an agreement to convey lands .shall be in writing, even though there is a valid consideration and the question here is whether or not in this case the ■ subsequent agreement to convey specific land was taken out of the statute of frauds, for it seems to me perfectly clear that whether the contract itself is void because not made in contemplation of any specific land, or whether it refers to specific land, and the attempt is subsequently made to substitute other land than that originally intended, any substitution or new agreement must be in writing, or taken out of the statute by some exception. See Land Co. v. Jackson, 121 Ala. 172 (25 South. Rep. 709, 77 Am. St. Rep. 46). Will it do to say 'that, under a valid contract to convey particular land, the parties may by subsequent oral agreement, without any new payment of purchase price and without any changing ■of possession, substitute wholly different land from that intended when the first contract was made?
We reach, then, the second proposition of the majority opinion, — that a past and wholly executed consideration, having at the time of its execution no relation to the agreement subsequently sought to be supported by it, is a ■sufficient “payment of the purchase price” to take the contract out of our statute of frauds as to contracts for the conveyance of lands. If this proposition is sound, then there can hardly be any imaginable contract to convey, which has a sufficient consideration to support it, that will not be within the statutory exception. Any relinquishment of a claim or advantage, no matter how vague'or indefinite, and established by parol evidence alone, will justify the introduction of parol evidence of an agreement to convey. And why stop here? Is not an oral and binding agreement to pay in the future just as much the payment of the purchase price, by way of furnishing a consideration, as an oral agreement to release a claim? It may *577be the legislature ought to repeal the statute of frauds as to contracts to convey land, and allow such agreements, based on considerations, executed without reference to the contract, to be established by parol evidence, but I am not yet willing to do this by judicial legislation. The construction of the words “payment of the purchase price” for which I contend is payment of the price or execution of the consideration, whatever it may be, with direct reference to and in reliance on the very parol argeement to convey which is sought to be enforced. As the majority aptly say, there are very few authorities on the precise question, because the exception found in our statute is not in the statute of frauds as enacted in England, or in most of the states of this Union, and goes further than that of part performance recognized by courts of equity. But for this very reason I think it should not be extended beyond the meaning plainly indicated by the language used. It is said that it is not the policy of courts of equity to enlarge the exceptions to the statute of frauds ( Webster v. Gray, 37 Mich. 37), and I think it is equally impolitic for courts of law to extend them by unreasonable interpretation. The construction for which I contend, which would limit “payment of the purchase price” to something done in reliance upon the specific agreement to convey which is sought to be brought within the exception, is supported by the reasoning in the following cases: Ellis v. Carey, 74 Wis. 176 (42 N. W. Rep. 252, 4 L. R. A. 55, 17 Am. St. Rep. 125); Atlee v. Bartholomew, 69 Wis. 43 (38 N. W. Rep. 110, 5 Am. St. Rep. 103); Maddison v. Alderson, 8 App. Cas. 467. The majority cite many cases in regard to the sufficiency of a past consideration to support a contract, but none of them relate to past consideration as constituting “payment of the purchase price,” or similar expressions used with reference to the provisions of the statute; of frauds in relation to the conveyance of land.
*578If the affirmance were based solely on the ground that the evidence shows the taking of possession arid making of improvements by James 0. Daily, I should not dissent, though I am satisfied that such evidence does not clearly and satisfactorily establish (as it should do in order to bring the case within the exception of taking and holding possession with the actual or implied consent of the vendor, as recognized by Code, section 4626) that possession was eVer taken by James 0. Daily or improvements made by him under the alleged contract. Lich v. Lich, 81 Iowa, 84; Benedict v. Bird, 103 Iowa, 612; Mahana v. Blunt, 20 Iowa, 142; Lake Erie & W. R. Co. v. Michigan Cent. R. Co., (C. C.) 86 Fed. Rep. 840.