The defendant insists that the court erred in refusing to allow him to prove the contract set up in his answer. The statute law of Montana applicable to the question in hand is as follows: Chapter 13, art. 1, of the Revised Statutes of Montana of 1879 provides as follows: 'Sec. 160. No estate or interest in land, other than for leases for a term not exceeding one year, or any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the party creating, granting, assigning, surrendering, or declaring the same, or by his lawful agent thereunto authorized by writing.' 'Sec. 162. Every contract for the leasing for a longer time than one year, or for the sale of any lands or interest in lands, shall be void, unless the contract, or some note or memorandum thereof expressing the consideration be in writing, and be subscribed by the party by whom the lease or sale is to be made.'
The denial in the replication of the plaintiff of the making of the contract on which the defendant based his cross-action is as effective for letting in the defense of the statute of frauds as if the statute had been specifically pleaded. May v. Sloan, 101 U.S. 231; Buttemere v. Hayes, 5 Mees. & W. 456; Kay v. Curd, 6 B. Mon. 100. The question is therefore fairly presented, whether the contract alleged in the answer of the defendant, not being in writing, is valid and binding under the statutes of Montana. We cannot doubt that the contract which the defendant seeks to enforce is a contract for the sale of lands. According to the averments of the answer, it was this: The plaintiff, being in treaty for the purchase of the lands, agreed with the defendant to acquire title to the undivided two-thirds thereof in his own name, upon the best terms possible, and, when he had acquired the title, to convey to the plaintiff, by a good and sufficient deed, an undivided third of the premises, for which the plaintiff promised to pay the defendant one-third of the purchase money, and one-half the expenses incurred in obtaining the title. This is simply an agreement of the defendant to convey to the plaintiff a tract of land for a certain consideration. It therefore falls precisely within the terms of section 162, above quoted. It is a contract for the sale of lands, and, not being in writing, signed by the vendor, is void. The circumstance that the defendant, not owning the land which he agreed to convey, undertook to acquire the title, instead of taking the case out of the statute, brings it more clearly and unequivocally within its terms. A contract void by the statute cannot be enforced directly or collaterally. It confers no right and creates no obligation as between the parties to it. Carrington v. Roots, 2 Mees. & W. 248; Dung v. Parker, 52 N. Y. 494. The defendant must therefore fail in his cross-action, unless he can take his case out of the operation of the statute of frauds.
The defendant seeks to evade the effect of the statute by the argument that in the transaction set out in his answer he was acting as the agent of the plaintiff as well as for himself, and that, having as such agent paid for the share of the land which he had agreed to convey to the plaintiff, he is entitled to recover back the price as for money paid out and expended for the plaintiff at his request.
It is well settled that when one person pays money or performs services for another upon a contract void under the statute of frauds, he may recover the money upon a count for money paid to the use of defendant at his request, or recover for the services upon the quantum meruit count. Wetherbee v. Potter, 99 Mass. 354; Gray v. Hill, Ryan & M. 420; Shute v. Dorr, 5 Wend. 204; Ray v. Young, 13 Tex. 550. But in such cases the suit should be brought upon the implied promise. Buttemere v. Hayes, 5 Mees. & W. 456; Griffith v. Young, 12 East, 513; Kidder v. Hunt, 1 Pick. 328. Clearly, the present case does not belong to that class. Here the suit is based upon, and its purpose is to enforce, the void contract.