concurrence">White, J.

(concurring). The purpose of the statute of frauds is to prevent fraud. The question of its applicability is largely dependent upon this purpose. The statute is therefore not permitted to be invoked to perpetrate an equitable fraud. Vreeland v. Vreeland, 8 Dick. Ch. Rep. 387, and cases there cited.

I think that it is because of this well established doctrine that a parol contract for the sale of real estate which has been executed by a conveyance by the vendor and an acceptance by the vendee will support an action by the vendor against the vendee for the agreed purchase price. 20 Oyc. 231, and cases there cited.

1 am aware that in Murray v. Schuldt, 44 Vroom 489, the Supreme Court said that the recovery would be, not upon the express contract, but upon an implied contract to pay for the land so conveyed; but what that case really decided was that it was error for the trial judge to exclude evidence of the price agreed upon in the express parol contract, which seems to me to substantiate my view rather than the one expressed in the opinion filed in that case. I cannot think that a man who has received and accepted a conveyance of real estate in *670pursuance of a parol contract to pay therefor the sum of $10,000 may escápe with a payment of $3,000 by proving that to be the real value of the land; nor that a man who has received a conveyance of real estate in pursuance of a parol contract to pay $3,000 therefor may be required to pay $10,000 upon proof that such was the real value of the property conveyed. Of course, it is true that where the parol contract to sell real estate has not been carried out by the conveyance, money paid for or on account of the purchase price may be recovered back, or services properly measurable in money value may be recovered for on a quantum meruit, both upon an implied contract. Smith v. Smith, 4 Dutch. 208; Cooper v. Colson, 21 Dick. Ch. Rep. 328; Gay v. Mooney, 38 Vroom 28. But the reason for this is that the parol contract to sell the real estate not having been performed, is barred by the' statute, and consequently the payment or the performance of services being without consideration and under circumstances negativing a gratuity, raises an implied contract. Where the parol contract to sell real estate has been performed, however, by the conveyance the payment of the price, as it seems to me, is compelled, not upon the theory of the non-existence of the parol contract, but in pursuance and enforcement of it.

Under this view obviously a tender to the vendee of the conveyance, duly executed by the vendor, is not enough, although that is all the vendor can do, and the contract may, in a sense, be said to be performed so far as he is concerned. But in the absence of acceptance of the conveyance by the vendee, the statute interposes an absolute barrier to the enforcement of the contract. When, however, the vendee has accepted the benefit of performance of the contract by the vendor a new element intervenes. To permit the vendee to then say that the contract could not be enforced against him because of the statute would be to permit him to invoke the statute in order to perpetrate the fraud of procuring a benefit on the faith of the promise to pay for it and then, while retaining the benefit, repudiating that promise. The all. important element therefore is the acceptance by the vendee of the benefit of the performance. Without this acceptance there *671is no fraud, and mere performance by the vendor is without effect upon the harrier interposed by the statute.

I am for this reason unable to agree with that portion of the foregoing opinion which states that a conveyance by the vendor to, and an acceptance of the conveyance by a third party to whom, by the terms of the verbal contract of sale, the conveyance was to be made, without further act on the part of the other party to the verbal contract, the vendee, will suffice to take the case out of the prohibition of the statute, so that the price may be recovered from such vendee. AH that he did was to enter into a verbal contract for the sale of land. The statute made that contract unenforceable against him, unless he by some other act accepted the benefit of performance of that contract, in which case it would he a fraud for him to invoke the statute. He did not accept such benefit. Where is his fraud? What has he done to estop him from claiming a protection (the statute) to-day after the conveyance io the third party, wdiich admittedly he had a perfect right to claim yesterday before such conveyance? He has not accepted anything, nor has he received any benefit. I am unable to see that he is estopped from asking the protection of the statute.

That the situation presents an apt case for the application of the statute goes almost without saying. It is difficult to. imagine a more appropriate subject for such application than one presented by the picture of an anxious seller and an obliging impecunious friendy buyer uniting, for mutual interests, in a conveyance from the former to the latter, and in a story of a verbal contract by the former with a financially responsible third party, whereby the payment of the price is foisted upon such third party. Sureiv a statute to prevent fraud has excellent ground for application here. Its terms seem quite broad enough to cover it. In fact it would seem to have covered it twice — once as to the contract itself in the piohibition against a verbal contract for the sale of real estate, and again as to the theory (viz., acceptance of benefit hv a third party) upon which the exception is proposed to he *672grounded, in its prohibition of a verbal contract to pay the debt of another.

It may be that where the vendee comes in and admits the verbal contract and a request by him to convey to the third party, which was done, he may be estopped from setting up the statute because he has waived its protection by admitting the absence of what it is the purpose of the statute to prevent: but where he admits nothing and simply invokes the statute, I think there is every justification for its intervention.

I concur, however, in a reversal of this judgment, because in this case there was an act of acceptance by the vendees, the defendants, of performance by the vendor of the verbal contract of sale. That acceptance consisted in their joining in a perfectly legal and binding written contract with the third party (the Sims Company), whereby they obligated themselves to procure the conveyance in question to be made, and the subsequent execution and delivery by the verbal vendor of that conveyance to the benefit of such vendees in the discharge of their said legal obligation. The vendees legally bound -themselves to procure the making of this conveyance by the vendor, who then at their request, discharged their obligation b3r making it. Clearly they have accepted performance of the verbal contract of sale, and have received the benefit of such performance. They now propose to retain that benefit, and by invoking the statute, to decline to pay •what they agreed to pay for it. That to permit them to do so would be to sanction a use of a statute for the prevention of fraud to perpetrate a fraud is equally clear.

This view, which appears not to have been presented, or evidently was overlooked when this case was before the Supreme Court on rule to show cause (50 Vroom 10), leads me to concur in the reversal of the judgment; but I dissent from the much wider declaration contained in the majority opinion, not only because I think it is not involved in the decision of this case, but because it leaves wide open one of the doors leading to the perpetration of fraud which, in my judgment, it was the expressed purpose of the statute to close.

*673For affirmance — The Chibe Justice, Minturn, Kaltsoh, JJ. 3.

For reversal — The Chancellor, Swayze, Parker, Bergen, Bogkrt, Yrbdenburgh, Congdon, White, Hebpenheiher, JJ. 9.

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How this case has been treated — in progress