Until performance and acceptance by the purchaser, he is at liberty to abandon the contract." ( Cagger v. Lansing, 43 N.Y. 550, p. 553.) There was no contract, no meeting of the minds upon the agreement as set forth in the instrument signed by McTiernan. Farago was apparently satisfied with it, but he was not sure, he wanted to inquire further.

The actual contract of sale on the one side, and of purchase on the other, is as essential to constitute the instrument an escrow as that it be executed by the grantor; and until both parties have definitely assented to the contract, the instrument executed by the proposed grantor, though in form a deed, is neither a deed nor an escrow; and it makes no difference whether the instrument remains in the possession of the nominal grantor or is placed in the hands of a third person, pending the proposals for sale or purchase." A similar question arose in Cagger v. Lansing, 43 N.Y. 550. Speaking of the effect of a deed on deposit as a memorandum satisfying the statute of frauds, the court said: "No one will contend that a contract for the sale of land, executed by the vendor, is binding upon the purchaser unless the contract is delivered to and accepted by the purchaser as a valid subsisting contract. A delivery in escrow cannot bind the purchaser although he verbally promises to perform the condition. Until performance and acceptance by the purchaser, he is at liberty to abandon the contract.

In Davis v. Clark ( 58 Kan. 100) the court said: "Contrary to the view of the plaintiffs in error, the depositary of an escrow is regarded as an agent of both obligor and obligee; and he can neither return the deed or other instrument to the former without the latter's consent, nor save upon fulfillment of the agreed conditions, deliver it to the latter without the former's consent. * * * According to these decisions, the depositary of an escrow is not the agent of the depositor, merely, and the agreement of deposit cannot be rescinded by him alone and the escrow withdrawn at his will." The case of Cagger v. Lansing ( 43 N.Y. 550) is not an authority in support of the contention of the appellant. In that case the plaintiff sought to enforce a parol contract for the sale of land, which was unenforcible.

The deed executed by Renfrow to Halsell cannot be considered as a memorandum under the statute of frauds for the reason that it was never delivered and was not executed in accordance with the contract appellants are attempting to enforce. Day v. Lacasse, 27 A. 124; Steel v. Fife, 48 Iowa 99; Parker v. Parker, 67 Mass. 409; Comer v. Baldwin, 16 Minn. 172; Johnson v. Brooks, 31 Miss. 17; Weir v. Batdorf, 24 Neb. 83; Cagger v. Lansing, 43 N.Y. 550, reversing judgment, 57 Barb. 421; Allebach v. Godshalk, 116 Pa. 329; Morrow v. Moore, 57 A. 81. The obligation, if any, created by the writings was not binding upon the appellants and, therefore, the contract was invalid for want of mutuality.

It was subject to attachment for his debts, and a creditor levying upon it would hold it in preference to the grantees named in the deed. Warv.Vend. 515; Washb. Real Estate, 302; Prutsman v. Baker, 30 Wis. 644 [11 Am.Rep. 592]; Smith v. [South Royalton] Bank, 32 Vt. 341 [76 Am.Dec. 179]; Jackson v. Rowland, 6 Wend. [N.Y.] [666] 667 [22 Am.Dec. 557]; Teneick v. Flagg, 29 N.J.L. [25] 26; Cagger v. Lansing, 43 N.Y. 550; Jackson v. Catlin, 2 Johns. [N.Y.] 248 [3 Am.Dec. 415]. By the depositing of the papers with Butler, Wolcott and Henderson acquired no interest, legal or equitable, in the property; and Johns, no right in the notes. Not until Butler was authorized by the conditions of escrow to deliver the deed to Wolcott and Henderson, and the notes to Johns, could any right be vested in any of the parties.

"There is no contract from the violation of which damages, in the legal sense, can arise, where the agreement proved is within the statute. ( Cagger v. Lansing, 43 N.Y. 550; Levy v. Brush, 45 N.Y. 589). "There may be moral wrong in refusing to perform such a contract; but the policy of the statute was protection against false claims, supported by perjury; and the hardship of a particular case should not lead to a decision which would disturb the principle upon which the statute is founded."

There is no contract from the violation of which damages, in a legal sense, can arise, where the agreement proved is within the statute. (Cagger v. Lansing, 43 N.Y. 550; Levy v. Brush, 45 id., 589.) There may be moral wrong in refusing to perform such a contract; but the policy of the statute was protection against false claims, supported by perjury; and the hardship of a particular case should not lead to a decision which would disturb the principle upon which the statute is founded.

The dicta of these cases must yield to the decisions which hold squarely that the statute must be literally followed. ( Coles v. Bowne, 10 Paige, 526; Champlin v. Parish, 11 id. 405; Reynolds v. Dunkirk State Line R.R. Co., 17 Barb. 613; Cagger v. Lansing, 43 N.Y. 550; Laughran v. Smith, 75 id. 205, 208; Westwitt Realty Corp. v. Burger, 212 App. Div. 622, 624.) In Champlin v. Parish (11 Paige, 405, 410), an action by the vendors to compel specific performance by the purchaser, Chancellor WALWORTH said: "* * * a contract for the sale of lands is not binding upon either party, unless the agreement is in writing, and is subscribed by the party by whom such sale is to be made * * * it is not sufficient to charge the vendee, upon such a contract, that the agreement is duly subscribed by him."

" The following authorities will be found in point in the consideration of this question: Simpson v. Green, 212 S.W. 263; Campbell v. Thomas, 42 Wis. 437, 24 Am.Rep. 427; Miller v. Sears, 91 Cal. 282, 27 P. 589, 25 Am.St.Rep. 176; Clark v. Campbell, 23 Utah, 569, 65 P. 497, 54 L.R.A. 508, 90 Am.St.Rep. 716; Cagger v. Lansing, 43 N.Y. 550; Main v. Pratt, 276 Ill. 218, 114 N.E. 576; McLain v. Healy, 98 Wn. 489, 168 P. 1, L.R.A. 1918A, 1161; Seifert v. Lanz, 29 N.D. 139, 150 N.W. 570; Thomas v. Birch, 178 Cal. 483, 173 P. 1104; Holland v. McCarthy, 173 Cal. 597, 160 P. 1071; Moore v. Ward, 71 W. Va. 393, 76 S.E. 807, 43 L.R.A. (N. S.) 390, and notes, Ann.Cas. 1914C, 263; 10 R.C.L. 622, 16 Cyc. 562; Devlin on Deeds, 313. The Court of Civil Appeals for the Second District, in the case of Simpson v. Green, supra, intimated that a deed so deposited could not be held of itself to be such a memorandum of the contract to sell and purchase as would satisfy the statute, though the decision was not placed wholly on such holding, since it was decided that the deed did not set out the contract fully, in that the consideration recited in the deed was the sum of $4,500 cash, which would indicate an unconditional agreement on the part of the vendor to pay said sum in cash, while the real agreement was that the sale was subject to the c

The parol contract of sale, and no other, was the one sought to be enforced, and we are of the opinion that the deed did not constitute such memorandum thereof as to make it enforceable under the statute of frauds, above referred to. 10 Ruling Case Law, § 3, p. 622; 20 Cyc. 257; Lowther v. Potter (D. C,) 197 F. 197; Id., 221 F. 881, 137 C.C.A. 451; Campbell v. Thomas, 42 Wis. 437, 24 Am.Rep. 427; Kopp v. Ritter, 146 Ill. 437, 34 N.E. 942, 22 L.R.A. 273, 37 Am.St.Rep. 156; Cagger v. Lansing, 43 N.Y. 550; Swain v. Burnette, 89 Cal. 564, 26 P. 1093; King v. Upper, 57 Wn. 130, 106 P. 612, 1135, 31 L.R.A. (N.S.) 606; Barr v. Johnson, 102 Ark. 377, 144 S.W. 527; Cooper v. Thomason, 30 Or. 161, 45 P. 296; Popp v. Swanke, 68 Wis. 364, 31 N.W. 916; Freeland v. Charnley, 80 Ind. 132; Wilson v. Winters, 108 Tenn. 398, 67 S.W. 800; Flowe v. Hartwick, 167 N.C. 448, 83 S.E. 841; Main v. Pratt, 276 Ill. 218, 114 N.E. 576; Sursa v. Cash, 111 Mo. App. 396, 156 S.W. 779. In Morrison v. Dailey, 6 S.W. 426, our Supreme Court held that a receipt given, reciting that it was in part payment for a tract of land which the one who signed the receipt had sold to the person to whom it was given for the sum of $4,500, part cash, and the balance to bear interest at the rate of 10 per cent.