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. Cн. 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 Taun. 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. 11 Mass. R. 494, 498, Randall v. Rich. bound to prepare and tender a conveyance. 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 an interest in lands, must appear in writing. Hence, however clear the evidence was, the devisor meant to give in lieu of dower, for instance, it was to no purpose if his meaning was not expressed in writing. But now a different construction of the statute is given; and we may prove the existence of a contract in these cases, by proving facts, the existence whereof cannot be accounted for, on other grounds than the existence of a certain contract or agreement. Thus A makes an absolute deed of black-acre to B. But A says it was a mortgage. B denies this. A offers to prove, by C and D, who heard the bargain, this fact. But they are not admissible witnesses to the terms of it, as it respects land. The statute holds it unsafe to trust to the recollection of the witnesses to the very terms of the contract, and hence rejects them. But A can prove certain facts in the case to exist, where there is no such danger of mistakes or mis-recollections, which facts clearly prove a contract must have existed, and the precise terms of it to a common intent; and the court sees these facts could not have existed, unless there had been such a conveyance of black-acre as A alleged there was. This he may do on the modern construction of the statute. He therefore proves by witnesses, that when he gave this absolute deed to B, B held against A a bond for $500, that B has retained that bond for seven years, and annually received the interest on it from A. That A, with B's privity and consent, has remained in possession of black-acre the whole time, and has never been called on to pay any rent to B. That A has repaired and paid the taxes as on his own estate; also received the profits from year to year, as of his own lands. Thus it is proved that A and B have invariably acted exactly as mortgager and mortgagee always do act; and most unnaturally, if B has been all the time absolute owner of this black-acre. Now these facts prove the deed was a mortgage. This manner of proving the fact, the deed was a mortgage, by proving these facts by parol evidence, is correct, as such facts are usually proved by such evidence. And all such evidence is properly admissible on A's bill in equity, (the usual course to redeem ;) and chancery treats B as trustee. Facts are thus proved, which prove the very terms of the contract 9. So if the party to be charged confesses in writing, as in his plea, his answer, &c. the exact terms of the contract set up by the party claiming the benefit of it. This also takes the case out of the statute on its modern construction, for the court sees the contract is proved without relying on the witnesses for proving the terms of it, and without danger of mistakes or perjuries. This seems to be a liberal and fair construction of such statutes; but I doubt the conclusion an able Cн. 32. Art. 10. CH. 32. judge has drawn from it, namely that any fact which shews Art. 10. the testator's intention, though dehors the will, may be proved to get at his meaning and true construction of it, provided the fact stands well with the will; for this any fact, though it may tend to shew the testator's intention, yet it may have no relation to the terms of the devise or bequest set up or claimed. Whereas every fact proved in the above case, (and in every case in which properly admitted to be proved,) was of a nature not to exist if the terms of the contract, the mortgage contract set up had never existed. Lofft 342, 3 Dallas 415. 12 Mass. R. 26, Hills v. Elliot. See word volun tary in the Index. § 10. One will not be aided who comes to demand the performance of an illegal contract, but will be where he comes to annul it. And in the last case the law will relieve him, though particeps criminis, but see Worcester v. Eaton. A promise to pay another's debt must be wholly in writing under the English statute of frauds (in force in Rhode Island.) It cannot be added to or varied, nor so far explained by parol testimony as to affect the import of the writing. § 11. Trust estates to defraud creditors &c. may be proved by parol &c. Held, 1. The principle that a trust estate canSugden 461, not legally exist without a declaration in writing, signed by 480. See the the person holding the legal estate, does not apply to secret trusts and confidences, created for the purposes of defeating or delaying creditors, which may always be proved by parol; and when so proved will defeat the formal transactions which may have heen adopted for such purposes by the parties: 2. Where a mortgagee makes a deed of assignment on the back of the mortgage deed, or by a separate instrument referring to ît, the assignee is put in the place of the mortgagee to all intents and purposes, unless a different intent is apparent from the contract: 3. Usury must be pleaded in an action on a specialty between the original parties: but 4. In a real action a purchaser may avoid a prior conveyance from the grantor, by giving usury in evidence on the general issue of nul disseisin 5. Where a mortgagee assigned her interest in the mortgaged premises for money lent her, and verbally promised to repay the money and interest, except the assignee received the same from the mortgaged premises; held, she was trustee of the assignee to the amount of the monies so promised. As to the purchaser he may not be apprised of the usury till it is too late to plead it, and when he offers to prove it, the adverse party may have time to rebut such evidence. 3 Johns. R. 12. The form of the note in writing required by the statute of frauds, is not material; but it is material this note contain the substance of the agreement with reasonable certainty, so that the contract may be understood from the writing itself, 13 Johns. R. 297.-14 Do. 15.-1 Johns. Ch. R. 273.-11 East 142. CH. 32. Art. 11. and without recourse to extraneous or parol evidenee; and it must be signed by the party to be charged or by his agent. Hence, if A sell goods to B, and in his book of jobs enters B's name as the purchaser, and the terms of the sale are read to B's agent, making the purchase, who owns the entry is correct, this is not such note, not being so signed: 2. There may be a constructive delivery of the goods sold, and effectual, but then the acts done to be equal to an actual delivery, must be such as to leave no doubt of the party's intentions: 3. Where the vendor agreed with the vendee as to the storage of the goods, and a delivery by him of the export entry to the vendee's agent; held, not a constructive delivery so as to change the property. See Whitwell v. Wyer & al., 11 Mass. R. 6. § 13. An entire contract part void by the statute, is void for 8 Johns. R. the whole. As a parol contract to pay the plt. for an easement, a right of way over his land, (alone valid) also for a dis- Morrill. tinct piece of land (as to this invalid.) Held, the whole contract was void. Like principle, 1 Phil. Evid. 359, cites 2 Ventr. 224; and 7 D. & E. 201, Chater v. Bukett; 3 Taun. 282. ART. 11. What a fraudulent conveyance to defeat creditors. This respects personal estate as well as real; voluntary deeds relate to both. Frauds in conveying and in contracts to convey lands, and interest in and concerning them will be more fully considered under the heads of conveyances of, and contracts to convey lands &c. A few further cases may be stated here, though such conveyances and contracts to convey are more generally the grounds of real or land actions, yet by no means always so; but in many instances they are the grounds of assumpsit, as already appears. The price of lands conveyed if not paid, is usually recovered in assumpsit, where not claimed on a deed, and in this action the statute of frauds as to lands is often in question. 253, 256, Crawford v. v. Bedford 1. If one be not embarrassed, his conveyance of his pro- 11 Mass. R. perty for love and affection, is good against after creditors, 421, Bennet and as to them is not fraudulent, and the jury may find he was Bank-Bac. not in embarrassed circumstances when he conveyed. And a Abr. Agreevoluntary conveyance of property; that is, for love and affec- ments C. Sundry cases. tion only, is good against all persons but such as were credi-Eq. Ca. tors at the time, and so against such if the grantor retain suffi- Abr. 19, 28. cient property, and especially lands, to pay his debts, and also keeps his credit good, and there being no evidence of secresy or of trust, in the conveyance or about the time of it. 2. A like principal recognised, as against one a creditor 12 Mass. R. before the conveyance; and held, that by our statute of 375, Jenny v. Alden jr.frauds, lands cannot be vested in interest by way of trust in Eq. Ca. Abr. 19, 28.-Pr. Ch. 200.-1 Vern. 210, 220, 363. |