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Сн. 32.
Art. 9.

6 East 602, Crosby v Wadsworth,

and many

Fraudulent

East 514.

2 M. & S. 208, 461.

§ 1. June 6, 1804, the plt. agreed by parol, with the deft., for the purchase of a standing crop of mowing grass, then growing in the deft's. close, in Claypole, for twenty guineas. The grass was to be mowed and made into hay by the plt., but no time was set for doing it; no earnest was given, nor any note in writing, nor did the plt. take possession; but it cases cited. was retained by the deft. July 2, deft. told the plt. he should See Ch. 109, not have the grass, and sold it to W. Carver, for twenty-five Convevances guineas. Plt., July 12, tendered the twenty guineas to the of Land.-12 deft., which he refused. July 13, plt. by his man finding the gate unlocked, entered and mowed about half the grass. July 15, the deft. forbid the plt's. taking the grass, and locked the gate; and by the orders of the deft. Carver carried away all the grass, including that mowed by the plt. Judgment for the deft.; for this was a contract or sale of an interest, in or concerning land, so void by the statute of frauds. But had it been in writing, the plt. would have had such an exclusive possession as to have maintained trespass quare clausum fregit against any one entering the close and taking the grass, even with the owner's consent. And such parol contract may be discharged by parol notice from the owner, before any part execution of it. And the first section of the statute of frauds, as construed by the second, is meant to avoid parol leases &c. conveying a greater interest than for three years, and whereon a rent is reserved. This could be no sale of goods, wares, and merchandise, within the seventeenth section of said act. The crop, June the 6th, being a portion of the freehold, " and not moveable goods or personal chattels." But the act did not vacate this contract, expressly or immediately touching an interest concerning lands; it only precluded the bringing of actions to enforce it by charging the deft. on it. Had it been executed, the parties could not have treated it as void, because by parol; but as it was executory, it was discharged by the deft. before any part was executed, July 2d. But if A raise grain on B's land, remaining in his possession, A may sell it growing, by parol; it is only a chattel. 2 Johns. R. 421, n. Newcomb v. Ramer; 2 Johns. R. 52, 418; 1 Bos. & P. 397; 2 Bos. & P. 452. The right to conduct water by a tunnel over another's land, cannot pass without deed. 6 East 604; see ch. 71, a. 3, s. 4.

1 Bos. & P.

392, Poulter v. Killingworth.-2 Selw. 744, 745.

§ 2. Land at the halves. In this case the plt. had let to the deft. land withuut rent, from which the deft. was to take two successive crops, and to render to the plt. a moiety of each, in lieu of rent. Afterwards the value of the crops was ascertained by appraisement, and the deft. became liable for a moiety of this value to the plt., in lieu of a moiety of the crops themselves. The plt. brought indebitutus assumpsit for

this moiety sold to the deft., not stating the special agreement, and recovered; for this was executed by the appraisement, and the action arose out of something collateral to it; and the court was rather of opinion that such an agreement need not be in writing under the statute of frauds. It was contended on the deft's. part, that this action could not be supported, as a special agreement had been proved. And that this was within the statute of frauds, as it related to lands, and as it was not to be executed within a year. But the court held the appraisement put an end to the point of the special agreement; as by it the deft. was to keep the crops, and pay a moiety of the value; this amounted to goods sold and delivered.

a

This opinion
contract, the
moiety of a

CH. 32.

Art 9.

6 East 612.

Buller J. Had there been no appraisement, this objection to the form of the action must have prevailed, and this agreement does not relate to any interest in the land. Per Ellenborough C. J. The contract originally was "to render what should have become a chattel, that is, part of a severed crop in that shape, in lieu of rent." may be just, if we view only one side of the plt's. right under it, to demand a mere chattel, severed crop. But can it be correct, viewing the original contract as it was, and by which the deft. was to occupy the land, and to take two crops; as to him it clearly was of an interest in or concerning the land, more so than was the case of the purchaser of the crop in Crosby v. Wadsworth. And it must Crosby r. be a novel opinion, that a contract must be concerning lands, Wadsworth. as it respects the lessee, at the halves, and not concerning lands, as it respects the lessor. It must seem, if the contract respected, or was concerning lands, in any respect, it was so in toto. If I agree to buy black-acre of A, and to pay him $100 for it, his claim or side of the contract is only to the money; mine to the land. It surely cannot be law to say this contract is not of an interest in or concerning lands; yet according to several cases, a contract must one side be in writing, and the other may not be.

2 Sel. N. P. 728, 729,

Phil. Evid.

In this case the deft. agreed, by parol, to allow the plt. to See Ch. 74, stack coals on his close for seven years; and that during this a 10, s. 6.time he should have the sole use of that part of his close. When the plt. had accordingly for three years stacked coals Wood r. there, the deft. locked up the gate of the close. The major- Lake, cited i ity of the court held this agreement good for seven years. As 356.-5 Johns the agreement was only for an easement, and not for an inter- R. 271. est in the land, it did not amount to a lease, so good. Foster J. agreed this did not amount to a lease, but thought the words in the statute of frauds, "any uncertain interest in land," extended to this agreement, so not good for above three years.

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. 8 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. See 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 Waddenburgh, 5 Johns. R. 272. dington v. Bristow, 2 Bos. & P. 452. The difference seems to be solely in the opinions not in the cases.

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.

Givens v.

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 Calder.-2 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.-3 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.
Art. 10.

8 Ves. jun.

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

§ 10. If the deft., in chancery, insist on the statute, though 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 752.-Hall v. .3 Bro. use their influence and knowledge fraudulently to their own

C. C. 483.

2 Bin. 59.

13 Ves. jun. 601.-4 Bin. 43.-2 Raym.

108.

Towers v.
Osborne, 2
Sel. 750;

advantage, if allowed to purchase, so, on a general principle,
forbids all such purchases, except in special cases, and where
there is perfect fairness. Crowe v. Ballard, 3 Bro. C. C. 120;
Fox v. Mackreth, 2 Bro. C. C. 400, 420; Cookson v. Whelp-
dale, 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. Fan-
ning, 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.

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 ob

doubted Ch.

Gross. J.

1 East 192, Chaplin v. Rogers, cited 1 Phil. Evid.

served 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."

§ 2. A and B being on the spot, A sold to B a stack of hay, and B actually sold part of it to another person, who took 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 son v. Le 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 rehis name on duced to writing. But where goods are ponderous the delivery of the key of the warehouse &c., will do.

233-The

the goods is a delivery.

"So if the

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