Chapter VI. Cases within the 4th sect. Cases not within the 4th sec. [*95] The point to be determined in such cases is, whether the interest contracted for be an interest in land within the meaning of the 4th section of the statute of fraudsin which case a written agreement is necessary or whether the contract be merely for the sale of chattels; in which case, however, unless the price be under £10, there must, under the 17th section, be a written agreement or memorandum, or part payment of the price, or part acceptance of the goods. An agreement for sale of the exclusive right to the ves ture of land, or for sale of crops which would not go as emblements to the executor,(t) as moving grass,(u) standing underwood, poles, or timber, is within the 4th section; nor, in the case of grass, does it appear to be material whether it is to be mowed or fed off by the purchaser; this is, if, in the latter case, he is to have the exclusive right to it :(v) so, also, an agreement for the sale of growing fruit, (e. g., pears,)(x) is within the 4th section. But if the agreement be for sale of the crop after the seller shall have reduced it to a chattel by severance from the freehold, as where standing timber is to be felled by the vendor, the 4th section does not seem to apply:(y) and the same distinction would, it is conceived, exist in agreements for the sale of gravel,(z) stone, or other minerals: nor does the 4th section seem to affect sales of crops which would go as emblements :(a) such as hops,(b) *wheat, potatoes, turnips, &c. : nor does it appear material in such cases whether the crop at the time of sale be mature or otherwise, or whether it is to be removed by the buyer or seller, or to be paid for by the quantity, or by the acre; and even in the case of grass, if the vendor retain possession of the land, and the right of turning on his (t) See judgment in Evans v. Roberts, 5 B. & C. 829; Sug. 99. (v) See Jones v. Flint, 10 Ad. & E. 760. (x) Rodwell v. Phillips, 9 Mee. & W. 501; sed qu. Whether so, if the crop is mature at the time of sale? (y) Smith v. Surman, 9 B. & C. 561; and see 1 Cromp. & Mee. 105. (a) Sug. 100; but see Waddington v. Bristow, 2 Bos. & P. 452. own cattle, and the purchaser have no right of severance, Chapter VI but only to feed it off along with the vendor, the agreement is merely for agistment, and is not within the 4th section:(w) but in none of these cases is it prudent to dispense with a written contract. ment good ants; between les coming tenant; And a parol agreement, for the sale of growing crops, Parol agree. which would otherwise be void under the 4th section, between tenmay be good as between outgoing and incoming tenants:(r) but where a farm is let by parol, a sale of the but not as growing crops by the lessor to the incoming tenant, seems sor and into require a written contract under the 4th section.(y) And although an agreement be void under the 4th sec- Vendor's tion, the seller, (except perhaps the parties be lessor and purchaser tenant,) can recover the value of the crop if it be taken crop. or received by the purchaser: but he cannot recover on the terms of the agreement, but only on a quantum meruit.(z) An remedy if takes the ment for sale fixtures Agreement or abate. [*96] A sale of tenant's fixtures by the tenant to the land- Parol agreelord, has been held not to be within the 4th section, al- of tenant's though they be sold while attached to the freehold. (a) sufficient. agreement by a tenant to pay an increased sum by for increase, way of rent, in consideration of improvements to be made ment of rent. by the landlord, has been held not to be within the act; and therefore to be valid although by parol:(b) but a different rule has been laid down as respects an agreement for abatement of rent.(d) If an agreement relating to the sale of land be void Void agree. under the 4th section, it will also be void as respects any the sale of other matters which are either inseparably mixed up with, void in toto. or are dependent upon, the principal agreement: e. g.: where a tenant agreed to rent a furnished house, and the landlord was to supply additional furniture after the tenant had taken possession, it was held that the want of a (1) Jones v. Flint, 10 Ad. & E. 760. (*) Mayfield v. Wadsley, 3 B. & C. 357; and see Sug. 100. (y) Lord Falmouth v. Thomas, 1 Cromp. & Mees. 89. (*) 1 Cromp. & Mees. 109. (a) Hallen v. Runder, 1 Cr. M. & R. 266. (b) Donnellan v. Reade, 3 B. & A. 899, 904; Hoby v. Roebuck, 7 Taunt. 157. (d) OConnor v. Spaight, 1 Sch. & Lef. 306. ment for land, where Chapter VI. written contract was a bar to an action for non-delivery of the furniture; (e) so, upon a parol agreement to let a house, and to make certain repairs, which the tenant was to pay for, it was held that the landlord could not sue him for the cost of such repairs.(ƒ) As to formal agreements. As to naming the represen parties. (2.) As to the preparation of formal agreements. Upon formal agreements for sale, few questions arise distinguishable from those which have been already considered with reference to the particulars and conditions. In framing such agreements, it is usual to make the tatives of the parties agree, each "for himself, his heirs, executors, and administrators;" the insertion of the word "heirs," however, is scarcely correct, unless the instrument be under seal; and it is not necessary, although the general practice, to name the personal representatives. Agreement, on sale by auction, re fers to par. ticulars, &c. What to be tract. private con[*97] Matters to be provided ment for sale to pub lic com panies, &c. Upon a sale by auction, the agreement, of course, refers to, and is generally written or printed upon a copy of the particulars and conditions. Upon a sale by private contract, the agreement, as a general rule, comprises whatever stipulations and other *matter would, had the sale been by auction, have been comprised within the particulars and conditions; except such matter as exclusively applies to an auction; when it is probable that special stipulations, as to title, &c. will be necessary, the agreement should be prepared in blank before the estate is offered for sale. In preparing agreements for the sale of land to profor, in agree. moters of public undertakings, care should be taken to state whether the purchase-money is to be in lieu of those accommodation works which the promoters are prima facie bound to make and maintain for the owners of adjoining land; and whether the ordinary or statutory rule as to the expenses of the purchaser is to operate (g) the agreement for sale to a Railway or Waterworks Company, (e) Mechelen v. Wallace, 7 Ad. & E. 49. (f) Vaughan v. Hancock, 10 Jur. 926; and see Lord Falmouth v. Tho mas, 1 Cromp. & Mees. 89. (g) See Frend and Ware's Railway Conveyancing, p. 146. should, if such be the intention, expressly state that the Chapter IV. mines and minerals are included in the purchase.(h) (3.) As to what informal documents may constitute an agreement. Informal agreements give rise to questions of greater Informal difficulty. by agreements. be a suf agreement within the statute. We may lay down as general, although not universal What may rules, 1st, that any writing signed by the party to be ficient charged, or his agent, and which, either expressly or reference to other writings, determines the parties to and subject-matter of a contract, and fixes, or provides the compulsory means of fixing all its terms, is a sufficient agreement within the Statute; and, 2ndly, that no writing is a sufficient agreement, which fails in any of the abovementioned particulars.[1] (h) See 8 & 9 Vict. c. 20, sect. 77; and 10 & 11 Vict. c. 17, sect. 18. [1] Whether an agreement for the sale of land, signed by one partner, in behalf of himself and his co-partners, would be valid agreement as against the purchaser, under the N. Y. statute of frauds which requires the contract to be signed by the party by whom the sale is to be made · Quere? More v. Smedburgh, 8 Paige, 600. If a person, intending to convey lands, request a witness who is present to sign his name to the deed for him, which the witness does in his presence; quere, is the deed sufficiently executed under the statute of frauds to convey lands? Wallace v. McCullough, 1 Richardson's Eq. Rep. 426. Supposing such a deed not to be sufficiently executed to convey the lands, then quere, can the person intending to convey subsequently assent, so as to make the deed binding on the parties? Ib. In Massachusetts, by the statute of frauds, (Rev. Stat. 59, § 29,) an oral license to erect and continue a mill dam on one's land, is of no legal validity as against a subsequent grantee of the land. Stevens v. Stevens, 11 Met. Rep. 251. An oral promise, made by the mortgagee to the mortgagor's creditors, to relinquish his claim to the land mortgaged, if they will accept from the mortgagor another mortgage thereof, and give him time of payment, is inoperative and void by the statute of frauds; and though such creditors, on the faith of such promise, take a second mortgage, and give time of payment to the mortgagor, they acquire no right thereby, as against the first mortgagee. But such promise is presumptive evidence, (which may be rebutted,) that the first mortgage was not made bona fide. Parker v. Barker, 2 Met. Rep. 423. Chapter VI. Letters. Thus, letters are constantly held to constitute a binding contract; and often where such a result is a surprise upon A verbal agreement to purchase land at sheriff's sale, for the benefit of another, is void under the statute of frauds, and cannot be enforced against the purchaser. Schmidt v. Gatewood, 2 Richardson's Eq. Rep. 162. Where an agent had agreed, by parol, to bid for his principal, at a sheriff's sale, for certain real estate, and who took the titles in his own name, the case will be taken out of the statute of frauds, by an account made out and signed by him, charging his principal with the purchasemoney; in which case, the agent was decreed to hold the estate in trust. Denton v, McKenzie, 1 Des. 289. A receipt signed by the vendor in these words: "Received of A. twenty dollars, being on account of a plantation on the Cypress, sold to him this day for 2,200 dollars, payable in different instalments, as per agreement.. Charleston, August 1, 1816," was held sufficient to take the case out of the statute of frauds. Cosack v. Descoudres, 1 McCord Rep. 425. The memorandum of sale, to be effectual, must not only be signed by the party to be charged, but must contain the substantial terms of the contract, expressed with such certainty that they may be understood from the contract itself, or some other writing to which it refers, without resorting to parol evidence. Parkhurst v. Van Cortlandt, 1 Johns. Ch. Rep. 273; S. C., on appeal, 14 Johns. Rep. 15; Abeel v. Radcliff, 13 Johns. Rep. 297; Guens v. Calder, 2 Des. 188; Parker v. Bodley, 4 Bibb, 102; Colson v. Thompson, 2 Wheat. 336-341. See Waterman's American Chancery Digest, vol. 1, 259, 260. As to what contract for sale and purchase of land is sufficient in Virginia to charge vendee, see Smith v. Jones, 7 Leigh, 165. Part performance of an agreement by parol, and, without writing, to sell land, will, in certain cases, in equity, take the agreement out of the statute of frauds. The agreement, to be enforced, must be clearly proved, and the acts of part performance must unequivocally appear to relate to the identical contract set up. What facts will amount to a part performance sufficient to justify the interference of chancery, depends upon circumstances. As a general rule, delivery of possession is part performance. So, also, the making of beneficial improvements on the land. Formerly, payment was considered part performance; but it is now held, that payment of part, or even the whole of the purchase-money, is not of itself, and without something more, a part performance that will take the case out of the statute. See 2 Kent, 451; King v. Bardeau, 6 Johns. Ch. Rep. 38; King v. Hamillon, 4 Peters' U. S. Rep. 311; Seymour v. Delancy, 6 Johns. Ch. Rep. 222; Benedict v. Lynch, 1 John. Ch. Rep. 370; Parkhurst v. Van Cortlandt, 1 John. Ch. Rep. 273; S. C., 14 Johns. Rep. 15; Keats v. Rector, 1 Arkansas Rep. 391; 1 Hammond's Ohio Rep. 251; 1 Binney, 131; 3 Watts & Serg. 56; Jervis v. Smith, 1 Hoffman's Ch. Rep. 470; 2 Scam. Rep. 218; 2 Wharton Rep. 387; 6 Ohio Rep. 483; 9 Watts' Rep. 85; 6 Wharton, 153; 1 Watts & Serg. Rep. 383; 1 McMullan's S. C. Rep, 311; 1 Harrington's Del. Rep. 532; 8 Greenl. 320; 9 N. H. Rep. 385; 2 Watts' Penn. Rep. |