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Сн. 32.
Art. 9.

8 T. R. 3, Clayton v. Blakey.

Parker v.

East 382.

Warwick v.
Bruce.

But a contract to sell and deliver the possession of, and improvements on, lands, must be in writing by the statute, as an interest in land. Collateral agreements not within the act, 12 East 513; 7 Johns. R. 205, Howard v. Easton; Sugd. Ven. 56.

§ 3. Shall have the force and effect of leases at will only. In this case the deft. had held the premises two or three years, under a parol lease of twenty-one years from a certain day named, to which the notice to quit referred. It was objected that this was but a lease at will, by the statute of frauds by legal construction, and as there was no count as on a lease at will, the declaration was bad. But there was a count that stated a holding from year to year determinable, May 12, 1797. Held, the declaration was good, "for such a holding now operates as a tenancy from year to year; that the meaning of the statute was, that such an agreement should not operate as a term; but what was then considered as a tenancy at will, has since been properly construed to enure as a tenancy from year to year." Though this reasoning may apply to our province act, or to written leases on our act of March 10, 1784, mentioning no time, yet it cannot be applied to our parol lease on that act, as the statute is express it shall be considered as a lease at will only. But of late years courts have as much as possible leaned in favor of leases from year to year where no time is stated. 3 Burr. 1609; 2 W. Bl. 1173.

4. Potatoes sold before dug, a mere chattel. As where Stoniland, 11 A agreed to sell B a crop of potatoes in a close, at so much a sack, to be got immediately. Held, the contract was confined to the sale of the potatoes, and conveyed no interest in the land, but merely an easement, a right to come on the land for the purpose of digging and carrying away the potatoes. And 2 Maul. & Sel. 205, the contract was for all the potatoes growing on a certain piece of land, at so much an acre, to be dug and carried away by the purchaser. Held as above, and that the contract was for a mere chattel. See Whipple v. Foot, Ch. 136, a. 16, s. 16. In Warwick v. Bruce, the contract was made about the time of digging potatoes, so different from Crosby v. Wadsworth, and other contracts that have for their object long possession of the land. But decided otherwise as to a crop of Turnips, 2 Taun. 30, Emmerson v. Heelis. The Emmerson v. Common Pleas held, that a public sale at auction of several Heelis.-Ses lots of turnips then growing, was a sale of an interest in land, Frear v. Har- so within the statute of frauds; and the court referred to WadJohns. R.272. dington v. Bristow, 2 Bos. & P. 452. The difference seems to be solely in the opinions not in the cases.

denburgh, 5

5. As to the estate's being void, and the parol contract as to lands being valid so as to recover damages, see Daven

CH. 32.

Art. 9.

port v. Mason, Ch. 93, a. 3, s. 41; Hollis v. Edwards, 1
Vern. 159; Bell v. Andrews, 4 Dall. 152; Ewing v. Tees, 1
Bin. 450. This distinction is by no means well settled except
perhaps in Pennsylvania, in the statute of which state, the pro-
vision in the 4th section of the 29th Ch. II. is omitted. As to
a parol license to erect mill dams &c., see Thompson v.
Gregory & al. Ch. 74, a. 8, s. 4. The case of Wood v.
Lake seems to be questioned by Sugden, on the good ground, 57, 59.
that in fact it was a lease for seven years, but see 2 Marsh
431.

§ 6. Sugden's editor in noticing Parker v. Stoniland above, refers to many American cases, as Boswick v. Leach, Frear v. Hardenburgh, Newcomb v. Ramer, Hughes v. Moore, Boyd v. Graves, Howard v. Eaton, Storms v. Snyder, Sherburne v. Fuller, Boyd v. Stone, all in this work, see table of cases. He further refers to Paxton's Lessee v. Price, 1 Yeates 500; Rice v. Rat, 15 Johns. 503; Henderson v. Hudson, 1 Mun. 510; Ebert v. Wood, 1 Bin. 216.

Sudg. Ven.

§7. What is a sufficient agreement, see Hatton v. Gray, Buckhouse v. Ch. 1, a. 7, s. 46; Cotton v. Lee, id.; Seton v. Slade, and Crosby, 2 Eq. Ca. Abr. 32, cases, Ch. 115, a. 10, s. 10; Wain v. Warlters, Ch. 1, a. 53; pl. 44Ch. 9, a. 20, s. 33; Ch. 11, a. 14: and sundry other cases 1 Root's R. there cited. See also 3 Taun. 169; 15 Ves. jun. 286, Bateman v. Phillips, 15 East 272; and Clason v. Baily, 14 Johns. R. 484 &c. ; 2 Ball and Beatty 58, 371; also Ch. 9, Ch. 11, and Ch. 32, generally; 9 Ves. jun. 234; 12 do.

466.

172, Allen v.

Bennet.

Calder-2

Call. 185.

$8. Equity is as much bound by the statute of frauds as the law 3 Taun. 176, is. What, said Lord Elden, is the construction of it, what Givens v. within its legal meaning, and what is a legal signing, are ques- Desaus. Ch. tions the same in equity as at law. In the construction of it, R. 189.-2 equity follows the law. 3 Hen. & Munf. 144 to 199, Argen- Roberts on bright v. Campbell & ux., and many cases there cited. 18 Frauds 157. Ves. jun. 183; 14 Johns. R. 488. Lord Mansfield's opinion above stated, that neither a court of law or of equity can make a contract for the parties, but can only inquire what is its legal meaning.

76.-See Ch.

liland.-3

§ 9. The agent how authorized. By the first and third sec- Sugd. Ven. tions of the statute of frauds, as to leases &c., must be by wri- &c. 74, 75, ting. Not so by the fourth and seventeenth sections, but by 9, Ch. 11, these it may be by parol. These sections, fourth and seven- Brown v. Gil. teenth, respect agreements to convey property. The auction- Desaus. Ch. eer is the purchaser's agent merely by his implied authority to R. 540.-8 write down his name and bid; (however decisions are differ- Ves. & Bea. ent on this point.) Standfield v. Johnson, 1 Esp. Ca. 101; 203-1Smith Coles v. Trecothick, 9 Ves. jun. 234; White v. Proctor, 4 233. Taun. 209; Kernys v. Proctor; so if he bid by an agent, 2

57.-2 Cam.

CH. 32. Taun. 38; 4 do. 209. Neither of the contracting parties can Art. 10. be the agent of the other.

752.-Hall v.

2 Bin. 59.

-

10. If the deft., in chancery, insist on the statute, though 8 Ves. jun. he confess the parol agreements, he will be held to perform 337-6 Ves. the better opinion, after various opinions, see Sugden's Venjun. 617.One Whichcote v. dors &c., 77 to 82, and many cases cited by him. Lawrence, 3 confidentially employed to sell as executor, trustee, agent, atVes. jun. 740, torney, guardian, &c. cannot purchase. Equity fears they will Noyes. 3 Bro. use their influence and knowledge fraudulently to their own C. C. 483 advantage, if allowed to purchase, so, on a general principle, 13 Ves. jun. forbids all such purchases, except in special cases, and where 601.-4 Bin. there is perfect fairness. Crowe v. Ballard, 3 Bro. C. C. 120; 43.-2 Raym. Fox v. Mackreth, 2 Bro. C. C. 400, 420; Cookson v. Whelpdale, 1 Ves. 9; Campbell v. Walker, 5 Ves. jun. 678, 683; 3 Desaus. Ch. R. 26; 3 Munf. 251; 4 Desaus. Ch. R. 651, Butler v. Haskell; Jackson v. Van Dalfsen, 5 Johns. R. 43, 48; Reynolds' Case, 5 Ves. jun. 707, 708; Davorce v. Fanning, 2 Johns. Ch. R. 257: 8 Bro. P. C. 63; 10 Ves. jun. 381, 393; Dawson v. Massey, 1 Ball & Beatty 219. The objection is, a trustee cannot purchase of himself, not that he cannot purchase of the cestui que trust. 4 Desaus. Ch. R. 487, 504; 1 Peter's R. 368; 10 Ves. jun. 246. Agreements not to be performed in a year, see Ch. 11, a. 4, above.

108.

Towers v.
Osborne, 2
Sel. 750;
doubted Ch.

ART. 10. Goods to the value of ten pounds &c., see Ch. 11, a. 4.1. This case is further explained, as above; the deft. bespoke a chariot, and when made refused to take it, 11, a. 4, s. 10. and held not to be within the statute. On this case it is observed in Selwyn, that it was not a contract to buy goods, but for the making of something which had not any existence at the time; Lawrence J. 7 T. R. 17, observed, this case went on the general principle that executory contracts were not within the act, "if by that were meant contracts for the sale of goods to be executed on a future day, such a construction would be a repeal of the act; but if it only meant such contracts as were incapable of being executed at the time, then the decision was right, and such was the case then in judgment."

Gross. J.

1 East 192,

1 Phil. Evid.

son v. Le

2. A and B being on the spot, A sold to B a stack of Chaplin v. hay, and B actually sold part of it to another person, who took Rogers, cited it away; this was a delivery to and acceptance by B, so as to 381-Hodg- take the case out of the statute of frauds; to do which on the sale of goods of the value of £10, or more, there must be eiBret, 1 Camp. ther 1st, a delivery of them, or of a part of them; or 2d, paybuyer writes ment of the consideration; or 3d, the agreement must be reduced to writing. But where goods are ponderous the delivery of the key of the warehouse &c., will do. "So if the

233-The

his

name on the goods is a delivery.

purchaser deals with the commodity as if it were in his actual possession, this will supersede the necessity of proving an actual delivery," as in the case of the hay stack, above, then there is no danger of deceiving others.

Сн. 32.

Art. 10.

Searle v.

3. The plt. was told by the deft. that he had a quantity 2 Esp. 598.— of rice to sell, and the plt. produced the deft's. order to Ben- 2 Selw. 751, net & Co. to deliver to the plt. 20 barrels of rice; and the Keeves, cited plt. proved by a witness, that the deft. told him that he had 1 Phil. Evid. sold 20 barrels of rice to the plt. for 17s. a hundred. Plt. 381.-13 delivered the order to Bennet & Co., who refused to deliver the rice, because forbidden by the deft. Held, this order amounted to a delivery, so as to take the case out of the stat

ute.

Johns. R.204.

Whitehouse

§ 4. It has been decided that where a sample is delivered 7 East 558, to, and accepted by, the purchaser; and this is to be account- Hinde v. ed for, as part of the commodity sold, this will take the case out of the statute. But otherwise if not a part of the commodity sold at large, Ch. 62, a. 5, then it is no delivery of a part of the things sold.

cery 2 C. 4.

5. Contract void as to land, is void as to goods. As 2 Com. D. where A agreed to sell lands and chattels to B. Plea the stat- 342, Chanute of frauds. A, during the negotiation, delivered a particular list of the whole goods &c., signed by him. Afterwards an agreement was made for a less price. Both parties gave instructions to the attorney to prepare the conveyance; and the deft. A, delivered to him the list of particulars, as instructions for the deed, which was prepared. But the court held the plea good, and that the agreement, being void as to the lands, was void in regard to the goods.

v. Smith.

6. In assumpsit, by the vendor against the vendee of land, 6 East 555, for not accepting it, and paying the purchase money, the Martin & al. plt. averred he was seised in fee of the land, and that the deft. 2 Smith 543. agreed to purchase it, on having a good title; and that the plt's. title to the land was made good, perfect, and satisfactory to the deft.; and that the plt. had been always ready and willing, and offered to convey the lands to the deft., but he did not pay the purchase money. On special demurrer, held good. For what the plt. averred was tantamount to performance of his part of the agreement, so as to entitle him to recover for the breach on the deft's. part, in not paying the purchase money. This was a sale at auction on various conditions of sale in writing, £300 earnest paid by the deft. Baxter v. Long special counts; special pleas and replications; special Lewis, 1 demurrer thereto, assigning special causes. Held, enough for Forrest's R. Excheq. 61; the plt. to state his title thus generally; especially that it was but 6 Tann made good, perfect, and satisfactory to the deft. Seisin in 561, case of Standley.

fee, is intended a legal seisin. It is the purchaser who is Sugd. 181.

VOL. I.

83

CH. 32.
Art. 10.

11 Mass. R.

494, 498, Randall v. Rich.

bound to prepare and tender a conveyance.
Seward v. Willock, 2 Atk. 208; Wilmot 218.

5 East 198,

§ 7. Surrender of a leasehold estate valid, though not in writing &c. Assumpsit for money had and received. October, 1808, Rich leased (under seal) a house to Randall, for one year. To secure the rent, Randall put into the hands of Rich the negotiable note ($183.75, on interest,) of Amos Wright. Randall occupied two quarters and part of a third, and moved out Towards the latter part of the third quarter Rich let this house to Mrs. Cooper, who entered &c., and became responsible for the rent to Rich, he having received 'the key of Randall when he went out, delivered it to her when she entered. Held, this was a legal surrender of this leasehold estate for a year, and a determination of the lease, though under seal, though by our statute of frauds, surrenders, &c. must be in writing. And if the lease was not ended by these acts, Rich's putting in Mrs. Cooper might be considered as an ouster of Randall, and so his rent at an end. Rich, without consulting Randall, sued said note in the name of Rich, and took lands in execution, and his title had become absolute. Held, Randall entitled to recover, in this form of action, the balance of the note over the rent he owed, though objected Rich had received only lands, not money; for this suit and levy might be considered a voluntary appropriation, by Rich to his own use, of the note, as in Floyd v. Day; especially as he did not offer to convey the land to Randall, or consult him as to the mode of satisfying the execution; for "the satisfaction of the execution ought to be considered as the payment of the debt in money," and the land was taken at money's worth.

8. Contracts as to land, not in writing, how made good. General principle. By the statute of frauds, 29 Ch. II. and our statutes, the general principle is, that all devises, legacies, and conveyances of any interest in lands, or contracts to convey such interest, must be in writing, or be void. The danger and evil these statutes meant to guard against, were the mistakes, the want of recollection, the prejudices and frauds of the witnesses to the devises, agreements, and bargains, on these subjects, not in writing. But writings have not been required when these mischiefs could be avoided without resorting to the witnesses, and have been attended with such facts and acts of the parties, as have proved the terms of them, though these facts and acts have been proved by parol evidence, especially as to conveying interests in lands. The grounds taken in these respects have varied. Once it was held, that as the statute of frauds required these matters to be in writing, as all devises, for instance, the whole intention of the devisor, or grantor of

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