the building, and next to the Howes & King | building, instead of on the east side, as originally planned. No written agreement of any kind was entered into, and after the building was completed the stairway was used by the Barmons and their tenants, and also by Howes & King and their tenants. On the other hand, the Barmons, by means of posts, erected a porch 5 feet wide and 50 feet long (the full length of their building) to the second story of the building, and used that, in connection with their residence in the second story of that building, until a few days prior to the commencement of this action. Matters ran along in this manner until about the 14th day of June, 1902, when the Barmons tore away the porch, and ceased to use the same, and notified Howes & King that it was their intention to revoke the license previously granted to them to use the stairway; and they thereupon proceeded to lock up the front entrance and close up the entrance from the top of the stairway into the Howes & King building. The respondents thereupon commenced this action, and secured a temporary injunction against the appellants, restraining them from closing up the stair way or interfering with their free use thereof. The Barmon property was purchased in the name of Fannie Barmon, the wife of the defendant Abraham Barmon, and at all times has stood upon the records in her name, and is claimed by her as her separate property. A great portion of the briefs of counsel has been devoted to the discussion of the evidence on that question, and the law applicable thereto. The court found, however, that the property was the community property of the defendants, and we are in clined to think there is sufficient evidence in the record to justify that finding. It is Rot necessary for us, however, to discuss the sufficiency of the evidence to sustain the findings, for the reason that, in the view we take of this case, the findings of fact do not support the legal conclusions that the court has drawn from them.

The appellants claim that the privileges exercised by each over the realty of the other were merely mutual licenses, revocable by either at will. On the other hand, the respondents claim that these transactions amounted to mutual contracts for conveyances by good and sufficient deeds.-a title from Howes & King to the Barmons to the 5-foot strip of ground immediately south of the Barmon building, and a conveyance from the Barmons to Howes & King of a perpetual easement in the stairway ascend ing from the street to the second story of their building.

It is difficult to ascertain from the great mass of conflicting decisions just when a li

cense to use or impose a servitude upon the real property of another ceases to be a mere license revocable at will, and ripens into the certainty and dignity of an easement. Still there are some primary and fundamental principles, well established, which underlie this class of cases, a reference to which should afford a reasonably safe guide.

It is settled law that a license creates no estate in lands, and may therefore rest in parol. Johnson v. Skillman, 29 Minn. 95, 43 Am. Rep. 192, 12 N. W. 149; Mumford v. Whitney, 15 Wend. 380, 30 Am. Dec. 60; Great Falls Waterworks Co. v. Great Northern R. Co. 21 Mont. 487, 54 Pac. 963; Cook v. Stearns, 11 Mass. 533; Clark v. Glidden, 60 Vt. 702, 15 Atl. 358; Wood v. Leadbitter, 13 Mees. & W. 838, 16 English Ruling Cases, 54; Jones, Easements, §§ 63, 68. On the other hand, an easement is an interest or estate in real property, and is subject to the operation of the statute of frauds. Rev. Stat. 1887, § 6007; 14 Cyc. Law & Proc. p. 1144; Pifer v. Brown, 43 W. Va. 412, 49 L. R. A. 497, and note, 27 S. E. 399; Clark v. Glidden, 60 Vt. 702, 15 Atl. 358; Jones, Easements, § 65. Where the contract or agreement, whether it be called a license or an easement, looks to the acquirement of a right of passage, as in this case, over a stairway, and rests entirely in parol, it is clear, under all the authorities, that the licensee or grantee must have entered into possession, expended money, and made improvements in such manner and to such an extent that a refusal to enforce the agreement in specific terms would work a fraud upon the licensee or grantee. 10 Am. & Eng. Enc. Law, 2d ed. p. 412; 18 Am. & Eng. Enc. Law, 2d ed. p. 1146; Baltimore & H. R. Co. v. Algire, 65 Md. 337, 4 Atl. 293. See note to Pifer v. Brown, 49 L. R. A. 497. It is also true that the alleged part performance relied on to take the case out of the statute of frauds must be founded on, and referable solely to, the specific terms of the agreement. Johnson v. Skillman, 29 Minn. 95, 43 Am. Rep. 192, 12 N. W. 149; Wheeler v. Reynolds, 66 N. Y. 227; Wiseman v. Lucksinger, 84 N. Y. 31, 38 Am. Rep. 479. In this case the respondents had parted with nothing whatever. They paid no consideration for the perpetual easement they claim to have purchased. They were out nothing for the construction of the stairway, and the evidence shows that they never at any time have assisted in maintaining or keeping up the stairway, or keeping the same cleaned or lighted; nor did the respondents offer to show upon the trial what agreement, if any, they made with reference to the maintenance of the stairway, or the care and lighting of the same, or the width thereof, or the character

show that a deed delivered to the grantee and absolute on its face shall take effect only upon the performance of some condition or the happening of some contingency unexpressed therein.

intended a license rather than an easement.

The trial court evidently concluded in this case that the acts and conduct of the parties amounted to an executed contract for a perpetual easement over the appellants' property, but we are clearly of the opinion that it only amounted to a license revocable at will. It follows that the judgment must be reversed, and it is so ordered. The cause is remanded, with directions to enter judgment in accordance with the views herein expressed. Costs awarded to appellants.

Stockslager, Ch. J., and Sullivan, J.,

concur.

W. G. WHITNEY, Respt.,

บ.

E. H. DEWEY, Appt.

(........Idaho........)

1. Where a motion for a new trial has been made, and the statement used on such motion contained an assignment and speci fication of errors, and an appeal is taken from the order denying the motion, and the original brief of appellant contains no enumeration of errors relied on, but refers to the transcript and discusses such errors, and prior to the argument in the appellate court a supplemental brief is filed by appellant, making a specific enumeration of such errors. the same will be regarded as a substantial compliance with the rules of this court, and the case will be examined on the merits.

2. Section 4427, Rev. Stat. 1887, gives to an aggrieved party an exception to the ruling of the court in granting or overruling a motion for a new trial, and on appeal from such order the appellant is entitled to have the assignment and specifi cation of errors contained in his statement used on the hearing of such motion examined and considered by the appellate court. 3. A deed absolute on its face cannot be delivered to the grantee therein named, to be by him held in escrow and a delivery which purports to be such will op erate as absolute and freed from all parol conditions, and title will vest at once.

4. It is a settled principle of law that the evidence of delivery of a deed must come from without the deed in other words, a deed does not upon its face show delivery, and therefore parol evidence is ad missible to show such fact.

5. Parol evidence is inadmissible to

*Headnotes by AILSHIE, J.

NOTE. For a case in this series holding that a deed cannot be delivered in escrow to the grantee. see Darling v. Butler, 10 L. R. A. 469, with note as to definition of escrow.

determined by the legal effect of the terms of the grant, and cannot be controlled by parol evidence.

7. A grantor cannot by warranty deed, absolute on its face, and free from conditions or restrictions, convey such a title to his grantee as will enable the grantee to pass a good title to a specific corporation, and at the same time attach such parol conditions to the deed upon its delivery as to preclude the grantee from transferring an equally good title to any other person or corporation.

S. Where B. executes a warranty deed free from any conditions or qualifications as to the vesting of title, and delivers it to the grantee. W., accompanied with a contemporaneous parol agreement to the effect that W. shall form a corporation and deed the property to such corporation, and thereupon pay B. $1,000 cash and deliver to B. $5,000 worth of first-mortgage bonds of the corporation secured on the property so deeded, and the deed is placed in the hands of the grantee to facilitate such transaction, -Held, that the delivery was absolute, and title vested at once in the grantee.

9. Even though a valid delivery of a deed had not been made at the time of its execution, still the grantor may thereafter ratify the wrongful taking of the deed by the grantee after the grantor has acquired complete knowledge of the facts of the transaction, and thereby perfect the title.

A

(February 23, 1905.)

PPEAL by defendant from a judgment of the District Court for Canyon County in plaintiff's favor in an action brought to quiet title to certain real estate. Reversed.

The facts are stated in the opinion. Messrs. N. M. Ruick and W. E. Borah, for appellant:

There is no rule of pleading and practice which will permit an allegation that a deed was delivered under the terms of a written contract, and proof of the fact that it was delivered under an oral contract, when the question of delivery is not an incident, but goes to the vital controversy in the case, and to the very validity of the deed itself.

Spader v. McNell, 130 Cal. 500, 62 Pac. 928; Frazier v. Ebenezer Baptist Church, 60 Kon. 404, 56 Pac. 752: Westchester F. Ins. Co. v. Coverdale, 9 Kan. App. 651. 58 Pac. 1029; Maynard v. Firemen's Fund Ins. Co. 34 Cal. 60, 91 Am. Dec. 672; Stout v. Coffin, 28 Cal. 65; Cox v. McLaughlin, 63 Cal. 207: Hinkle v. San Francisco & N. P. R. Co. 55 Cal. 627; Perkins Windmill & Ax Co. v. Yeoman, 23 Ind. App. 483. 55 N. E. 782; Stewart v. Cleveland, C. C. & St. L.

If a writing imports upon its face to be a complete expression of the whole agreement, it is to be presumed that the parties have introduced into it every material item and term; and parol evidence cannot be admitted to add another term to the agreement, although the writing contains nothing on the particular one to which the parol evidence is directed.

Harrison v. McCormick, 89 Cal. 327, 23 Am. St. Rep. 469, 26 Pac. 830; Nicholson v. Tarpey, 89 Cal. 617, 26 Pac. 1102; Thomp son v. Libby, 34 Minn. 374, 26 N. W. 1; Naumberg v. Young, 44 N. J. L. 333, 43 Am. Rep. 380; Hei v. Heller, 53 Wis. 415, 10 N. W. 620; Crecry v. Holly, 14 Wend. 26; Stone v. Harmon, 31 Minn. 512, 19 N. W. 88; Mackey v. Magnon, 12 Colo. App. 137, 54 Pac. 907; Ming v. Pratt, 22 Mont. 262, 56 Pac. 279; Judson v. Malloy, 40 Cal. 307: McIntosh Huntington Co. v. Rice, 13 Colo. App. 393, 58 Pac. 358; Irving v. Cunning- | ham, 66 Cal. 15, 4 Pac. 766; Liverpool, L. & G. Ins. Co. v. T. M. Richardson Lumber Co. 11 Okla. 585, 69 Pac. 938; Forsyth Mfg. Co. v. Castlen, 112 Ga. 199, 81 Am. St. Rep. 28. 37 S. E. 485; Hand v. Miller, 58 App. Div. 126, 68 N. Y. Supp. 531; Hilgar v. Miller, 42 Or. 552, 72 Pac. 319.

Whether a deed passes title or not must be determined by its legal effect. If it has been executed and delivered its effect is determined by its language. The deed cannot be delivered to the grantee as an

escrow.

Mowry v. Heney, 86 Cal. 471, 25 Pac. 18; Co. Litt. 36a; Williams v. Green, Cro. Eliz. pt. 2, p. 884; Shep. Touch. 59; Whyddon's Case, Cro. Eliz. pt. 2, p. 520; Braman v Bingham, 26 N. Y. 483; Worrall v. Munn, 5 N. Y. 238, 55 Am. Dec. 330; Blewitt v. Boorum, 142 N. Y. 357, 40 Am. St. Rep. 600, 37 N. E. 119; Lawton v. Sager, 11 Barb. 349; Fairbanks v. Metcalf, 8 Mass. 237; Ward v. Lewis, 4 Pick. 518; Darling v. Butler, 10 L. R. A. 469, 45 Fed. 332; Hubbard v. Greeley, 84 Me. 340, 17 L. R. A. 511, 24 Atl. 799; Hargrave v. Melbourne. 86 Ala. 270, 5 So. 285; Richmond v. Morford, 4 Wash. 337, 30 Pac. 241, 31 Pac. 513: Stevenson v. Crapnell, 114 Ill. 19, 28 N. E. 379; Neely v. Lewis, 10 Ill. 31; 3 Washb. Real Prop. 267; Kingsbury v. Burnside, 58 Ill. 310, 11 Am. Rep. 67; Jackson v. Cleveland, 15 Mich. 94, 90 Am. Dec. 266; Baker v. Baker, 159 Ill. 394, 42 N. E. 867; McCann

There was an attempt to show by parol evidence a trust which is in the teeth of our statute of frauds.

Rev. Stat. § 607; Feeney v. Howard, 79 Cal. 525, 4 L. R. A. 826, 12 Am. St. Rep. 162, 21 Pac. 985; Johnson v. Calnan, 19 Colo. 168, 41 Am. St. Rep. 224, 34 Pac. 905; Doran v. Doran, 99 Cal. 311, 33 Pac. 929; Highland Park Co. v. Walker, 13 Colo. App. 352, 57 Pac. 759.

If the grantor delivers the deed to the grantee, the law will not allow the solemn recital therein of conveyance and delivery to be so modified as to show that it was held by the grantee in escrow, or for some other purpose than that of conveying title.

Mays v. Shields, 117 Ga. 814, 45 S. E. 68; Sims v. Greenfield & N. R. Co. 102 Mo. App. 29, 74 S. W. 421; Findley v. Means, 71 Ark. 289, 73 S. W. 101; Galveston, H. & S. A. R. Co. v. Pfeuffer, 56 Tex. 72; Ward v. Dougherty, 75 Cal. 240, 7 Am. St. Rep. 151, 17 Pac. 193; Tunison v. Chamblin, 88 Ill. 379; McClendon v. Brockett, 32 Tex. Civ. Ann. 150, 73 S. W. 854; Hoffmire v. Martin, 29 Or. 240, 45 Pac. 754; Bury v. Young, 98 Cal. 446, 35 Am. St. Rep. 186, 33 Pac. 338; Ruiz v. Dow, 113 Cal. 490, 45 Pac. 867; Foley v. Cowgill, 5 Blackf. 18, 32 Am. Dec. 49; Hicks v. Goode, 12 Leigh, 479, 37 Am. Dec. 677; Moss v. Riddle, 5 Cranch, 351, 3 L. ed. 123; McGee v. Allison, 94 Iowa, 527, 63 N. W. 324; Beers v. Beers, 22 Mich. 43; Blewett v. Front-Street Cable R. Co. 49 Fed. 126; Bryan v. Walsh, 7 Ill. 567.

There was a complete delivery.

McLennan v. McDonnell, 78 Cal. 273, 20 Pac. 566; Kenniff v. Caulfield, 140 Cal. 34, 73 Pac. 803; Standiford v. Standiford, 97 Mo. 231, 3 L. R. A. 299, 10 S. W. 836; Hoffmire v. Martin, 29 Or. 240, 45 Pac. 754; Wittenbrock v. Cass, 110 Cal. 1, 42 Pac. 300; Martin v. Flaharty, 13 Mont. 96, 19 L. R. A. 242, 40 Am. St. Rep. 415, 32 Pac. 287; Phelan v. Hyland, 197 Ill. 395, 64 N. E. 360; Schlicher v. Keeler, 61 N. J. Eq. 394, 48 Atl. 393; Doe ex dem. Smith v. Roe, 3 Penn. (Del.) 233, 50 Atl. 59; Adams v. Baker, 50 W. Va. 249, 40 S. E. 356; Delaplain v. Grubb, 44 W. Va. 612, 67 Am. St. Rep. 788, 30 S. E. 201; Hargrave v. Melbourne, 86 Ala. 270, 5 So. 285. The transfer was ratified.

McNulty v. McNulty, 47 Kan. 208, 27 Pac. 821; Tucker v. Allen, 16 Kan. 312; Devin v. Himer, 29 Iowa, 297; Hall v. Vanness, 49 Pa. 457; Pittman v. Sofley, 64 Ill. 155; Swisher v. Palmer, 123 Ill. App. 432;