Bekins Moving Storage Co. v. Maryland Gas Co., 72 Idaho 493, 244 P.2d 1100 and many cases therein cited; Eastern Idaho Loan Trust Co. v. Blomberg, 62 Idaho 497, 113 P.2d 406; Bicandi v. Boise Payette Lumber Co., 55 Idaho 543, 44 P.2d 1103. Where an agreement is fully performed on the part of the promisee the Statute of Frauds, Sec. 9-505 Idaho Code, does not apply. Willis v. Willis, 33 Idaho 353, 194 P. 470; King v. Seebeck, 20 Idaho 223, 118 P. 292; Stowell v. Tucker, 7 Idaho 312, 62 P. 1033; Havlick v. Davidson, 15 Idaho 787, 100 P. 91; Wood v. Hill, 70 Idaho 93, 212 P.2d 391; West v. Stainbeck, 108 Cal.App.2d 806, 240 P.2d 366. Forbearance to contest a will is sufficient consideration without determining the chance of success and even without the promisee's having looked into the facts or law to see whether he has a chance.
In the case of Van Winkle v. Van Winkle, 56 Idaho 588, 57 P.2d 692, it is said: "If there has been sufficient part performance of this agreement to bring the case within the exception to the statute of frauds (section 16-504, I.C.A.; Havlick v. Davidson, 15 Idaho 787, 791, 100 P. 91; King v. Seebeck, 20 Idaho 223, 118 P. 292; Wolf v. Eagleson, 29 Idaho 177, 157 P. 1122), the consummation of the agreement might be eventually enforced by action for specific performance in which eventuality this transfer could not be adjudged fraudulent. The validity of the transfer cannot be determined solely upon what occurred at the time of the execution, either of the deed in 1931 or the correction thereof made in 1933.
No right of forfeiture therefore exists. ( King v. Seebeck, 20 Idaho 223, 118 P. 292; Harris v. Reed, 21 Idaho 364, 121 P. 780; Lott v. Anderson, 35 Idaho 87, 204 Pac. 673; Brixen v. Jorgensen, 28 Utah, 290, 107 Am. St. 720, 78 P. 674; Kessler v. Pruitt, 14 Idaho 175, 93 P. 965.) John W. Graham, for Respondents.
In both instances, however, the resigned officer had, in fact, been replaced. On the contrary, however, as noted in Seebeck v. King (1901), 34 Misc. 483 ( 70 N.Y.S 322), a director who attempted to resign but did not accomplish that purpose and who was not, in fact, replaced, was held liable under the statute. "The Michigan statute makes any officer of a corporation in default, who has himself neglected or refused to join in the making of a report, liable for all debts of the corporation `contracted during the period of such neglect or refusal.' It may be contended that the `period of such neglect or refusal' ended when the corporate office ended, and that thereafter having resigned, the officer had no duty to assist in or join in the making of such a report.
He ought to be held to this waiver.'" King v. Seebeck, 20 Idaho at 233-234, 118 P. at 295, quoting from Cue v. Johnson, 73 Kan. 558, 85 P. 598 (1906). (Emphasis added.)
Laurence E. Huff for respondents and cross-appellants. Party to the contract claiming benefit of forfeiture must declare forfeiture in the manner provided in the contract. ( King v. Seebeck, 20 Idaho 223, 118 P. 292; Hoebel v. Raymond, 46 Idaho 55, 266 P. 433; Growers' Assn. v. Stroschein, 42 Idaho 12, 242 P. 444, 47 A.L.R. 916.) The vendor, by his acts and conduct, may waive default.
It is undisputed that appellant had some kind of negotiation with his father about December, 1927, looking to his taking possession of the land, as purchaser or otherwise, and paying taxes, assessments and the two Federal Land Bank mortgages; and that at the same time and as a part of the same transaction he released and canceled his father's indebtedness to him in the sum of $430. From that time on until the trial of this case appellant exercised exclusive control and performed all the visible acts of ownership of the land while the father exercised none of those acts and asserted no claim to the land. The execution of the deed followed in 1931. If there has been sufficient part performance of this agreement to bring the case within the exception to the statute of frauds (sec. 16-504, I. C. A.; Havlick v. Davidson, 15 Idaho 787, 791, 100 P. 91; King v. Seebeck, 20 Idaho 223, 118 Pac. 292; Wolf v. Eagleson, 29 Idaho 177, 157 P. 1122), the consummation of the agreement might be eventually enforced by action for specific performance in which eventuality this transfer could not be adjudged fraudulent. The validity of the transfer cannot be determined solely upon what occurred at the time of the execution, either of the deed in 1931 or the correction thereof made in 1933.
The affidavit of attachment, undertaking on attachment, the writ of attachment and the return to the writ of attachment, and the notice of levy on real estate under the attachment are no part of the judgment-roll. ( King v. Seebeck, 20 Idaho 223, 118 P. 292.) Where real estate is sold in parcels at an execution sale after sufficient property has been sold to satisfy the execution, no more can be sold, and any attempted sale thereafter is void. (C. S., sec. 6924; Richards v. Edwardy, 138 Ga. 690, 76 S.E. 64; Patterson v. Corneal, 3 A. K. Marsh. (Ky.) 618, 13 Am. Dec. 208; Plummer v. Whitney, 33 Minn. 427, 23 N.W. 841; Carpenter v. Stilwell, 11 N.Y. 61; McClure v. Logan, 59 Mo. 234, and cases cited.)
The sections of the statutes upon the subject of appeal specify the papers or documents which the transcript on appeal must contain; and only those should be put in. ( Taylor v. McCormick, 7 Idaho 524, 64 P. 239; Williams v. Boise Basin M. Co., 11 Idaho 233, 81 P. 646.) When papers are not contained in a bill of exceptions or reporter's transcript and are no part of the judgment-roll, they are not properly a part of the transcript on appeal, and should be stricken out. ( King v. Seebeck, 20 Idaho 223, 118 P. 292.)
"An oral contract for the conveyance of real property or under which the title thereto is acquired may be enforced, and is binding upon the parties thereto, and is not within the statute of frauds, where there is partial or complete performance of the same. ( Stowell v. Tucker, 7 Idaho 312, 62 Pac. 1033; Feeney v. Chester, 7 Idaho 324, 63 P. 192; Male v. Leflang, 7 Idaho 348, 63 P. 108; King v. Seebeck, 20 Idaho 223, 118 P. 292.) T. BAILEY LEE, J.