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ing the agreement, to admit parol evidence of the contents of that agreement. As to part performance, it might be evidence of some agreement; but of what, must be left to parol evidence? I always thought the Court went a great way. They ought not to have held it evidence of an unknown agreement, but to have hąd the money laid out, repaid. It ought to have been a compensation. Those cases are very dissatisfactory. It was very right to say, the statute should not be an engine of fraud; therefore compensation would have been very proper. They have, however, gone farther, saying it was clear there was some agreement, and letting them prove it ; but how does the circumstance of a man's having laid out a great deal of money, "prove that he is to have a lease for 99 years ? The common sense of the thing would have been to have let them bring an action for the money. I should pause upon such a case.
47. This doctrine has been confirmed by Sir W. Grant, who has said—“ I am aware there are cases, that acts done by the defendant can make a ground for compelling him to perform the agreement; but it is difficult to bring those cases to bear; for to what do those acts amount, when there is no prejudice to the plaintiff? only to proof of the existence of an agreement. The existence of the agreement may be put out of all doubt by the acts; but the objection upon of the statute, that the agreement is not in writing, remains where it did. The Court does not profess to execute a parol agreement merely because it is satisfactorily proved. In Whaley v. Bagenel, which being before the House of Lords, must supersede the authority of every other case, various acts had been done which implied that the party had sold the estate, and did not consider himself any longer the
7 Ves. 347.
ante, & 44.
owner of it. The question still remained, whether that agreement should be carried into execution ; and it was held, that the acts done by the defendant did not entitle the plaintiff to have it specifically performed.”
48. It was formerly held, that if a bill was brought Parol Agreein Chancery for the execution of a parol agreement, decreed which was in no part executed, and the defendant though conby his answer confessed the agreement, without in- Prec. in Cha. sisting on the statute of frauds, the Court would 208. 374. decree an execution of the agreement; because, when the defendant confessed it, there was no danger of perjury, the only thing the statute intended to prevent. 49. This doctrine has been altered, and it seems to Cooth v.
Jackson, be now settled, that upon a bill for a specific per- 6 Ves. 17. formance of a parol agreement, the defendant, though admitting the agreement by his answer, may, if he insists on the statute, have the benefit of it at the hearing; and Sir W. Grant has decided, that where Blagden v. the defendant insists on the statute of frauds, admis- 12 Ves. 466.
Bradbear, sions by the answer are immaterial. 50. If, however, the defendant admits the agree. Spurrier v.
Fitzgerald, ment in his answer, and submits to perform it, he 6 Ves. 548. will not be allowed to take advantage of the statute of frauds, in his answer to an amended bill.
51. Although a written agreement cannot be A written altered or contradicted, in particular parts, by parol
discharged evidence; yet it is laid down by Lord Keeper by Parol. North, that an agreement might, notwithstanding 2 Ab. Eq. 32. the statute of frauds, be discharged by parol.
52. An agreement was entered into in writing for Legatt v, a lease of a house at 32l. a year: part of the agree. 2 Ves: 299
Miller, ment was, that the owner should put the house in repair. It was afterwards discovered not to be worth
while, barely to repair the house, but better to pull it down ; therefore, without alteration of the written agreement, the house was pulled down by consent of the tenant, and an agreement was made by parol to add 8l. a year to the 321. The tenant brought his
bill for a specific performance of the written agree3 Ves. 40. n. ment, and the defendant set up the parol agreement, 9250. Sugd. Vend.
which Sir J. Strange, M. R allowed. This doctrine 113, 3d Edit, has been assented to in modern times. Where an 53. In consequence of this statute, no averment, Averment is admissible.
founded on parol evidence, is admissible of what passed, before or at the time when a written agreement was entered into, which tends to contradict or vary it. But in many cases, averments founded on parol evidence are admitted to explain, elucidate, or
support a deed or written instrument; of which an infra, c. 19. account will be given in a subsequent chapter.
it will now be necessary to consider the several kinds of
Deeds. kinds of deeds which are known to the law, together with their various incidents and qualities.
AU deeds by which lands may be conveyed or charged, derive their effect either from the common law, or the statute of uses. Of those which derive their effect from the common law, some may be called original or primary, which are those by means whereof the estate is originally created : others are derivative. or secondary, whereby an estate, already created, is enlarged, restrained, transferred, or extinguished, There is a third class, which are used, not to convey,
but to charge or incumber lands, and to the discharge them again.
2. The original conveyances deriving their effect from the common law are, 1. A feoffment. 2. A gift. 3. A grant. 4. A lease. 5. An exchange. 6. A partition. The derivative • conveyances are, 1. A release 2. A confirmation. 3. A surrender. 4. An assignment. 5. A defeazance. Deeds which operate to charge or discharge lands aré, 1. A bond.
2. A recognizance. 3. A defeazance on a bond. Of a Feoff 3. A feoffment, feoffamentum, is derived from the
word feoffare, or infeudare ; to give one a fief or feud ; 1 Inst. 9 a.
therefore a feoffinent was properly called donatio feudi : and Lord Coke says the ancient writers called a feoffment donatio, from the verb do or dedi, which is the aptest word of feoffment.
4. A feoffment is evidently taken from the breve ante, c.l.
testatum of the feudal law. The proper and original meaning of the word feoffment was the gift of a feud; but by custom it came afterwards to signify a gift of a free inheritance, or liberum tenementum, to a man
and his heirs; respect being had rather to the perpeMad. Form. Dissert. 4. tuity of the estate granted, than to the tenure.
5. A charter or deed of feoffment must be sealed and delivered in the same manner as other deeds. The proper and usual words of a feoffment are, give, grant, and enfeoff; but any other words of equal
import will be sufficient. Denton's
6. Thus where a bargain and sale was made to J. S. Case, and his heirs, by deed indented, but not enrolled 2 And. 68. Benicomb v.
and the bargainor made livery of the land, secundum Parker,
formam chartæ : this was held a good feoffment. 1 Leon: 25. Livery of 7. The mere signing and sealing a deed of feoffSeisin.
ment was in no instance sufficient to transfer an estate I lost. 48 a. of freehold, unless the possession was formally deli.