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1. Statement of the Statute. 34. Where there is a Part Per4. Construction of the 4th Sec
36. What Acts are a Part Per5. What amounts to an Agree
37. Delivery of Possession. 11. What is a sufficient signing.
40. Payment of Purchase Money 17. An Agent may be authorized
42. Introductory Acts not a Part to sign by Parol.
Performance. 18. A Letter is an Agreement.
48. Parol Agreements not decreed
though confessed. 23. Letters previous to Marriage. 51. A written Agreement dis. 29. Parol - Agreements good in charged by Parol. Equity.
53. Where an Averment is ad. 30. Where there is Fraud.
SECTION 1. THE first section of the statute, 29 Cha. II. c. 8. Statement of commonly called the statute of frauds and
perjuries, enacts, “ That all leases, estates, interests of freehold, or terms for years, or any uncertain interest, of, in, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases and estates at will only; and shall not either
" That no
in law or equity be deemed or taken to have any other or greater force or effect."
By the 2d section, leases for three years, whereupon
the rent reserved amounts to two thirds of the full improved value, are excepted.
2. By the 3d section it is enacted, “ That no leases, estates, or interests, either of freehold, or terms for years, or any uncertain interest, not being copyhold or customary interest, of, in, to, or out of any messuages, &c., shall be 'assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or sur-rendering the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law.".
3. By the 4th section it is enacted, action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage, or 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 lawfully authorized.” Construction 4. A great number of cases have arisen upon the of the 4th Section. construction of that part of the fourth section of this
statute which relates to marriage agreements, and contracts for the sale of lands; which I shall endeavour to class under the following heads : 1. What amounts to an agreement or contract : 2. What is a sufficient signing of an agreement or contract : 3. In what cases a written note or letter will be considered as a sufficient agreement : and 4. In what cases a parol agreement is out of this act, and supported in equity.
5. With respect to the agreement in writing re- What quired by the statute, no precise form is necessary; an Agreeit must however contain all the terms of the contract, ment. distinctly set forth ; and be made with the privity and consent of all the contracting parties.
6. Ảny written evidence of an agreement will Cannel v. operate as a contract within the statute. Thus an 2 P. Wms. instrument originally intended as a deed, but which became void by subsequent events, was held to amount to an agreement, upon which a specific performance was decreed. 7. A mere entry by a steward in his contract book Charlewood
v. D. of Bedwith the tenants, is however not evidence that there ford, is an agreement for a lease, between the lord and 1 Atk. 497. one of his tenants; unless supported by proof. 8. A particular in writing for the sale of an estate Cass v. Wa
terhouse, will not amount to an agreement, though it be proved Prec. in Cha. to have been shown to the purchaser; unless it be 29. also proved that it was shown to him on his purchase, and that he purchased by it.,
9. Where an estate is sold by public auction, and the auctioneer puts down the name of the purchaser in writing, this does not amount to an agreement within the statute, as to real property ; though sufficient for chattels. In a late case Sir W. Grant said —“ The proposition that the auctioneer's receipt Blagden v.
Bradbear, may be a note or memorandum of an agreement 12 Ves. 466. within the statute, is not denied : but for that purpose the receipt must contain in itself, or by reference to something else must show, what the agreement is. In this instance one very material particular, the price to be paid for this estate, does not appear upon
the receipt: for the amount of the deposit, unless we know the proportion it bears to the price, does not show what the price is ; and the receipt contains no
reference to the conditions of sale, to entitle us to
look at them for the terms." Att. Gen. v.
10. A bidding for an estate before a Master in Day. i Ves. 218. Chancery, amounts to an agreement within the
statute. Upon the same principle it is held, that the Court of Chancery will carry into execution, against the representatives, a purchase by a bidder before the Master, without the bidder's subscribing, after confirmation of the Master's report that he was the best bidder; the judgement of the Court taking it out of the statute. So if the authority of an agent, who subscribed for a bidder before the Master, cannot be proved, yet if the Master's report can be confirmed, the Court will carry it into execution ; unless there
be some fraud. What is a
11. It was formerly held, that an agreement must sufficient Signing. have been sealed as well as signed; otherwise it could Wheeler v.
only be considered as a párol agreement, and that Newton, Prec. in Cla. the writing was only evidence of it. But this was 16.
altered ; and signing being the only thing required by
the words of the statute, was deemed sufficient. 1 Cha. Ca. 12. In the case of Horton v. Gray, 36 Cha. II.; and 164. 2 Bro.
also in the case of Coleman v. Upcot, which will be R. 564.
stated hereafter; it was held that an agreement, signed by the party to be charged with the same, was
sufficient; and that it was not necessary for an Ves. 275. agreement to be signed by both parties. This doctrine - 351.
has been assented to in modern cases. Bawdes v. 13. It is said by Lord Cowper, that he knew of no Amhurst, Prec. in Cha. case where an agreement, though all written with the 402.
party's own hand, had been held sufficient, unless it had been likewise signed by him ; that the party's not signing it was evidence that he did not think it complete ; that he had left it to an after consideration, and might make alterations or additions in it: there.
fore, unless it was signed by him, or something equivalent done, to show that he looked upon it as completed, he thought such writing by the party himself was not sufficient to bind him within the statute. 14. Although a purchaser makes alterations in the Hawkins v.
Holmes, draft of an intended conveyance, and returns it to 1 P. Wnis. the attorney of the vendor; yet this is not a sufficient 770. signing within the statute.
15. It was resolved by Lord Hardwicke, that where Welford v. a person subscribed a deed, as a witness, to which Beazeley,
3 Atk. 503. she was not a party, but knew the contents of it, 1 Wils. 118. which constituted a complete agreement, such signing was sufficient. For the meaning of the statute was to reduce contracts to a certainty, in order to avoid perjury on the one hand, and fraud on the other. Therefore, both in the Court of Chancery, and in the Courts of Common Law, where an agreement has been reduced to such a certainty, and the substance of the statute has been complied with in the material part, the terms have never been insisted on. 16. In a modern case it was held by Lord Eldon, that Coles v.
Trecothick, à vendor of an estate was bound by the ssignature of 9 Ves. 234. the agent's clerk, thus, “Witness E. S. for Mr. Smith, agent for the seller," upon evidence of assent. He expressed his approbation of the doctrine laid down by Lord Hardwicke in Welford v. Beazeley, that where ante, $ 15. either the party himself, or a person duly authorized by him, ascertains the agreement, by a signature in the form of addition, that signature of that instrument ascertains the agreement sufficiently within the statute; though not a signing as an agreement, yet sufficient to identify the agreement: the instrument itself containing the terms; and therefore sufficient within the statute. But he expressed a doubt whe- Stokes v.
Moore, ther the insertion of the name in the body of the