67 Eq. Charlton v. Columbia Real Estate Co. In excluding this offer of proof, we think the learned vicechancellor erred. The writing was admissible in evidence. This offer was not made to prove a lease, but to prove by this writing, taken in connection with the writings of May 7th, 1901, that all the terms or details of the proposed lease had been fully agreed upon by writings signed by the party to be charged therewith. It is clear, as the vice-chancellor held, that the duplicate signed by the defendant's president could not become a lease until it was delivered, but it was none the less a memorandum in writing, signed by the defendant, showing the details of the proposed lease, as they had been agreed upon between the parties pursuant to the memoranda of May 7th, 1901. Our statute reads as follows: * "That no action shall be brought (4) upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized." 2 Gen. Stat. p. 1603 § 5. The signing by the complainant is immaterial; only the party to be charged therewith need sign. Reuss v. Picksley, L. R. 1 Exch. 342 (35 L. J. 218); 1 Benj. Sales p. 279 § 255; Laythoarp v. Bryant, 2 Bing. N. C. 744; Fry Spec. Perf. § 346; Seton v. Slade, 7 Ves. 265; Hatton v. Gray, 2 Ch. Cas. 164; Green v. Richards, 23 N. J. Eq. (8 C. E. Gr.) 32; Reynolds v. O'Neil, 26 N. J. Eq. (11 C. E. Gr.) 223; Hawralty v. Warren, 18 N. J. Eq. (3 C. E. Gr.) 124, 126; Brooks v. Wentz, 61 N. J. Eq. (16 Dick.) 474; Howland v. Bradley, 38 N. J. Eq. (11 Stew.) 288; Stoutenburgh v. Tompkins, 9 N. J. Eq. (1 Stock.) 332, 334. Nor is it necessary that all the terms of the contract be agreed to at one time, nor written down at one time, nor on one piece of paper. If all the papers, taken together, contain the whole bargain, they form such a memorandum as will satisfy the statute. 1 Benj. Sales p. 236 § 220; Johnson v. Buck, 35 N. J. Law (6 Vr.) 338, 343; Peck v. Vandemark, 99 N. Y. 30; Ide v. Leiser, 1 Robbins. Charlton v. Columbia Real Estate Co. 24 Am. St. Rep. 17; Raubitschek v. Blank, 80 N. Y. 478; 29 Am. & Eng. Encycl. L. 852 (note 2 for cases). Nor does it signify to whom the memorandum is addressed; it may be to a third person, and yet be a good writing to satisfy the statute of frauds. Form is not important. Brown St. of Fr. § 354a; Bateman v. Phillips, 15 East 272; Lee v. Cherry, 4 Am. St. Rep. 800; Moss v. Atkinson, 44 Cal. 3; Hollis v. Burgess, 37 Kan. 487; Moore v. Mountcastle, 61 Mo. 424: Barnett v. McCree, 76 Hun 610; Singleton v. Hill, 91 Wis. 51. The reason for this is clear. The memorandum is only necessary to evidence the contract, not to constitute it. As Chief-Justice Tindal says, in Laythoarp v. Bryant, supra, "the contract is made before any signature thereof by the parties." The memorandum or note is only to evidence what the contract was. To prevent perjury as to such contracts, the statute declares that evidence of what the contract was must be contained in some memorandum or note in writing, signed by the party to be charged therewith. When the memorandum exists, and is legally given in testimony, it becomes evidence of the contract claimed to have been made. The memorandum is not the contract, but only evidence of the contract. We think that the complainant had the right to put in evidence the signed duplicate of the detailed proposal for a written lease which she contended had been prepared by the defendant and signed by it. It was evidence of an agreement upon the details mentioned in the writings of May 7th, 1901, and if such writings, when taken together, show a completed agreement for a lease, they satisfy the requirements of the statute of frauds. This is not a question of the admission of a signed deed in evidence to prove an oral agreement to convey, where no previous written memorandum of any part of the oral agreement exists. Nor is it a question whether the delivery of an undelivered deed, duly signed and acknowledged, said to have been drawn to carry out an oral agreement to convey, will be decreed by the court. The question here is simply this: Will the court, in a suit for specific performance of an oral agreement to make a lease, admit in evidence all the paper writings signed by the parties to the negotiation, even though some of the papers be signed 67 Eq Charlton v. Columbia Real Estate Co. but undelivered instruments, in order to see, when all the papers are taken together, whether they contain the completed terms for a lease as agreed, so that a decree may be made? We think this question must be answered in the affirmative. Judge Harlan, speaking for the supreme court of the United States, in a case where a memorandum of the agreement of sale was made in which details were left to be fixed, and a deed was executed and sent for examination, as the duplicate lease was in this case, says: "Whatever may be said as to the effect of this deed in passing title, if it was delivered only for the purpose of examination, or if the previous memorandum of sale had been for any reason defective under the statute of frauds, its recitals, coming as they do from the vendor, are competent for the purpose of showing the precise locality of the property which the memorandum of sale was intended to embrace." Ryan v. United States, 136 U. S. 68, 84. "Whether, where no signed memorandum of the oral agreement has been made, a signed but undelivered instrument, said to have been drawn to carry out the oral agreement, will alone be resorted to to satisfy the statute, it is not necessary to decide in this case. The courts differ upon that proposition. In 29 Am. & Eng. Encycl. L. (2d ed.) 855, tit. “Verbal Agreements," notes 12 and 13, will be found a citation of all the authorities in the several states affirming or denying that an undelivered executed deed will satisfy the statute. They are so variant that I shall not attempt to reconcile them, and, indeed, it is not necessary to do so upon the only question necessary to be decided in this case. If Brown v. Brown, decided by this court, can be taken as an authority for an undelivered executed instrument not being a sufficient memorandum to satisfy the statute, which is not decided, still that case is not in conflict with the view here expressed, as there was not there any written memorandum of the agreement to give the assignment there sought to be specifically enforced, unless it was permissible to gather it from the signed but undelivered assignment in evidence alone. Brown v. Brown, 33 N. J. Eq. (6 Stew.) 650. There was error in the refusal to admit the offer of the signed duplicate of the undelivered lease in evidence, and for this there must be a reversal. Upon all the other questions raised in the case we think the complainant had complied with the terms of the agreement on her part and that for none of these should specific performance of the agreement have been denied her. I shall vote to reverse the decree and to remit the record to the court of chancery for further proceedings in accordance herewith. For affirmance-THE CHIEF-JUSTICE, PITNEY, VREDENBURGH, VROOM, GREEN-5. For reversal-DIXON, GARRISON, FORT, SWAYZE, BOGERT, GRAY-6. MARY E. SCHLICHER, appellant, V. HENRY H. KEELER et ux. et al., respondents. [Argued June 17th, 1904. Decided July 5th, 1905.] A valid delivery of a deed conveying land is not shown when it appears that it was the intention of the grantor that such delivery should relate to the date of his death. On appeal from a decree in chancery advised by Vice-Chancellor Reed, whose opinion is reported in 61 N. J. Eq. (16 Dick.) 394. Mr. George O. Vanderbilt and Mr. Alan H. Strong, for the appellant. Mr. Robert S. Woodruff and Mr. Erwin E. Marshall, for the respondents. Schlicher v. Keeler. 67 Eq. The opinion of the court was delivered by FORT, J. Charles Keeler, in his lifetime, executed a deed on October 18th, 1900, conveying to Henry H. Keeler, one of his sons, a tract of land, constituting what he admits to be a valuable farm in the township of Ewing, in the county of Mercer. The deed was drawn by Richard C. Chamberlain, a lawyer, in Trenton. The description was furnished to Mr. Chamberlain some few months before the deed was executed. On the morning of the day of the execution of the deed, Mr. Chamberlain says, George W. Keeler, son of Charles Keeler, called upon him, at his office, and informed him that his father was greatly exercised over the fact that he had not executed the deed, and wanted to know if Mr. Chamberlain would come up to execute it. The deed was drawn on the 18th, from a description which Chamberlain says had been ready for a long time, except two courses, which had only lately been furnished by the surveyor. It does not appear in the proof, other than by inference, who furnished the description to Chamberlain, or who employed him to draw the deed. After the deed was executed, it was taken by Chamberlain under the circumstances hereinafter stated. On October 21st, 1900, three days after the deed was executed, Charles Keeler died, and on that day Chamberlain recorded the deed, as he says, of his own motion, without the direction of anyone. On October 29th, 1900, for a consideration of $1, Henry H. Keeler conveyed a one-half interest in this farm to George W. Keeler, and this deed was recorded October 30th, 1900. Charles Keeler died intestate. The deceased left seven children, five being the complainants and two the defendants in this suit. The bill was filed November 2d, 1900, and prayed for a decree that the deeds from Charles Keeler to Henry H. Keeler, and from Henry H. Keeler and wife to George W. Keeler, he declared fraudulent and null and void, and that the complainants |