Opinion by
Defendants, who are husband and wife, are the owners as tenants by the entireties of a house and three adjoining lots of ground in the City of Washington, Pennsylvania. An auctioneer was employed to advertise and sell the property, a public sale was held and plaintiff became the purchaser. A memorandum of the receipt of the down payment and terms of the sale was prepared and signed by the husband defendant and the *82 plaintiff and witnessed by tbe auctioneer, but it was not signed by the wife. Plaintiff bad tbe title examined and made preparation for settlement but defendants refused to accept a tender of tbe balance of tbe purchase money and to deliver a deed for tbe premises. Plaintiff filed a bill in equity for specific performance. Hearing having been bad, tbe court held that be was not entitled to specific performance but only to recover tbe expenses be had incurred. He now appeals from that decision.
It is elementary that an estate by entireties is incapable of dissolution by one of tbe owners without tbe consent of tbe other and that neither spouse alone may alienate bis or her interest in tbe property during tbe other’s lifetime:
Thees v. Prudential Insurance Co. of America,
Plaintiff seeks to avoid tbe effect of tbe statute by contending that it should not be held to apply to tbe purchase of a property at a public auction sale. Both tbe auctioneer (called as plaintiff’s witness) and tbe husband defendant testified that tbe property was not knocked down to plaintiff at tbe auction on bis bid of $8,000, but that tbe auctioneer, tbe plaintiff and tbe husband conferred privately and plaintiff then agreed to pay $8,100 which was tbe least tbe husband would accept. However, tbe chancellor found as a fact that tbe property was knocked down to plaintiff at tbe sale
*83
on Ms bid of $8,000, and that Ms subsequent agreement to pay an additional $100 was a voluntary act on bis part. In view of that finding of tbe court tbe transaction must accordingly be regarded as an auction sale and therefore governed by tbe law applicable to such sales. Unfortunately for plaintiff, however, this does not afford him any relief, because it is universally held that sales by auction are within tbe provisions of tbe statute of frauds to tbe same extent as any other sale or contract of sale relating to land: 37 C.J.S. 17, §122;
Kurtz v. Cummings,
Plaintiff urges, as a further contention, that tbe statute of frauds should not be applied in tbe present case because tbe chancellor found that there was sufficient evidence to support inferences that tbe wife bad knowledge of tbe proposed sale of tbe property, that she knew that tbe auction was being advertised in tbe local newspapers over notices bearing tbe names both of herself and her husband, that she knew of tbe employment of tbe auctioneer, that she was on the premises at tbe time of tbe sale, that prior to tbe sale she showed tbe premises to tbe plaintiff, that although she knew that her husband was going with the auctioneer and tbe plaintiff to an attorney’s office to prepare the legal papers incident to tbe sale she did not attempt in any way to interfere. Even assuming, however, all these “inferences” to be facts, (although there would seem to be strong evidence to tbe contrary), they never-.
*84
theless do not, either individually or collectively, permit of the entry of a decree of specific performance against the wife on the ground of estoppel, since the principle of estoppel may not be invoked against the operation of the statute of frauds:
Miranville v. Silverthorn,
Under the interpretation that has been given to our statute of frauds a recovery of damages may be had for non-performance of a parol agreement for the sale of land, the measure of such damages being the money that was paid on account of the purchase and the expenses incurred on the faith of the contract. Accord
*85
ingly the court entered judgment for plaintiff in the sum of $222.90, which was made up of an item of $150 for attorney’s fees for searching the title and preparing the legal papers, and an item of interest lost by plaintiff on his bank deposits which he had transferred to his checking account in preparation for the settlement; the court also ordered defendants to pay the costs of the suit. Plaintiff contends that he should have been allowed an additional recovery of $500 for counsel fees incurred in connection with the present proceedings, but there is no provision in our law for the allowance to a party of compensation for his expenses in retaining counsel to advise and to try his case, or to warrant the imposition as court costs of the fees of counsel:
Winton’s Appeal,
The order and judgment of the court below are affirmed, defendants to pay the costs.