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the language need in that case, by Lord Hardwicke, we perceive
clearly, that it. was upon this more general principle, that he
meant to ground his decision *f the case.
Held sum- According to Mr. Maddox, in arguing the case of Whitchurch cient as a- n ,
gainst the v- Bevis,(/) it seems formerly to have been thought necessary
party charg- that both parties must sign an agreement, or it would be binding ed, if the in- . stmment is upon neither in equity. But to show that the doctrine in this rc
bylL'wf"6'1 sPect natll,een changed, that learned gentleman cited a case of Cotton v. Lee, which was decided before the Lords Commissioners in 1770, wherein it was held sufficient, if only the party to be charged had signed ; and he observed, that the same had also been determined in the Lxchequer.( 61)
There may be cases too, as it is conceived, in which the signature of one of the parties may be binding upon both; as i where a bill is filed for a specific peiformance of an agreement, signed only by the defendant, the plaintiff acquiesces by his application for relief, in all the terms of the instrument which are required to be performed by him.(m) It items a I* appears, according to the Chief Justice in Saunderson v. printed name Jackson^n) that where a man has been in the habit of printing. fictenutgna- ^stead of writing his name, he may be said to sigB by his printtare. ed name; and on this ground, a tradesman's bill of "parcels, in
which the vendor's name was printed, was there deemed to be, though not the contract itself, yet a sufficient note or memorandum, in writing, of the contract signed by the party. It is to be observed, however, that in the case last-mentioned, the judgment did not rest upon that point alone, as there was a subsequent letter, written by the vendor to the purchaser, acknowledging, the sale, and which was judged capable of operating, together wjth the bill of parcels, so as to make out in conjunction an undoubted compliance with the 17th section of the statute of frauds. And this last-mentioned case is an illustration of some of the principles above stated, particularly that, if by writing his name, the party does not mean to sign the contract, yet if be
(0 2 Bro. Ch. Ca. 564. (m) Owens v. Daviee, 1 Vez. 82. (n) 2 Bos et Pull. 23a
(61) The same point was so decided in the case of Batton v. GrejJ about 7 years after the making of the sutute, 2 Ch. Ca. 164.
means to acknowledge or admit it9 authenticity, it is a sufficient signing to fulfil the intention of the statute.
On the Fourth Clause of the Fourth Section, respecting Contracts, or Sales of Lands, Isfc.
AS it has been thought proper in this treatise not to prosecute the consideration of the sections in the order in which they occur in the Act; but in an order more suited to the connexion between the subjects themselves; so, in treating of those sections which are split into distinct objects, the same privilege will be used in handling them in a succession more agreeable to the natural procedure from generals to particulars, and best calculated to save repetition. In pursuance of this method, the 4th clause of the 4th "section, which makes writing essential to a contract or sale of lands, hath been taken first into consideration; in respect to which some general questions first offer themselves.
•The statute declares that "no action shall be brought to • ^ 12$ ^ charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning the same, unless the agreement upon which such action shall be brought shall be in writing, and signed by the party to be charged therewith, or some other person by hint thereunto properly authorised."— In which clause we are first naturally led to consider the words which describe the subject matter of the contract. By which words the operation of the clause is clearly confined to real property, or an interest out of or relating thereto. And it seems, that a thing annexed to the land, if contemplated as severed therefroip, and so converted, in the view of the parties, into a substantive chattel, is not within this provision. A chattel, indeed, which is only affixed to the freehold, has evidently but an Thine*
... , ... ... u , , hexed to, or
accidental connexion with it ; and if growing umber or grass be growl„g. up.
the subject of the contract, though they accompany the estate °" the freein the freehold until they are disannexed, or severed, yet when regarded *»
sold in prospect of such separation, it is in the contemplation of chattels, if V, , , ,' , \. treatedforin
the parties a bare chattel ; and I conceive that as to this point, prospect of
/ their separa
though not on some other questions .(62) it is a matter of indifference whether the subject grows spontaneously, or is planted and cultivated by the hand of man.(o) Oftheexten- But when things affixed to or passing with the freehold are sold
sion of the the land, they clearly fall within the 4th section of the stawords used
in this clause tute. It need scarcely be added, that all freehold rents, of whatthe "subjects ever denomination, are within the operation of this clause ; the of its appli- words of which are-"-" upon any contract or sale of lands,, tenecation. ments, or hereditaments, or any interest in or concerning them;"
and even if the words in italies had been wanting, the word tenements would have included rents, as. it has been held to do under the section respecting the attestation *of wills.(/i) A share of * [ 127 ] the new River,(y) is clearly enough a species of property affected by this clause, and I presume it can as little be doubted, that it extends also to shares in canal navigations, and, in general, to all descriptions of tolls. The word ' tenements,' indeed, has in law so extensive an import, that it may be questioned whether the superadded words in this clause of the statute has enlarged the operation of the statute. It was the only word which the statute of Westminster 2, or 13 Ed. 1, cap. 1, de donis conditionalibus, used in expressing the subjects of its provisions. And Lord Coke, in speaking of the statute de donis1 observes, that the word tenement therein includes not only all corporate inheritances, which are or may be holden, but also all inheritances issuing out of an^ of those inheritances, or concerning, or annexed to, or exerciseable within the same, though they lie not in tenure ; as rents, estovers, commons, or other profits whatsoever, granted out of lands, or uses, offices, or dignities, which concern lands or certain places, and these may all be entailed within the statute, becauje they savour of the realty. Such things too, whereof a wife is dowable, as the profits of a stallage, market, or fair, a dove-house, or piscary, which have no connexion with the soil, as also a presentation to an advowson, tithes, the profits of courts,, fines, and hcriots, seem all to be included within the compass of this clause of the statute.
(o) lLord Raymond, 182, per Treby, Ch. J. and see 1 Bos. et Pull. 397, Poulter v. KiUengbeck. (/,) 2 Vez. jun. 23?. (q) 2 P. Wms. 127, • Drybutter u. Bartholomew.
(62) As on a question of title to emblements.
The three general questions treated of in the first part of this chapter, have anticipated a great deal of observation on this particular clause of the 4th section ;(63) and little else *seems to * [ 128 ] remain for me, on this subject, but to review the cases of part performance, which have tended so much in tcourts of equity to •(• [ 129 circumscribe the operation of the statute, and those wherein the much agitated question occurs, concerning the pleadings and jurisdiction of these courts, as coercing the consciences of the parties, in respect to the confession and discovery of the agreement. .
(63) The introductory chapter on the general question as to the admissibility of parol evidence, and that which succeeded on the doctrine of declared and implied trusts, have also greatly alleviated the pressure of this present part of my subject. All implied trusts, we have seen, are above the controul of the statute, and wherever the implication of a trust appears to the courts of equity as necessary to defeat the contrivances of fraud, whether the subject matter ofthe deceit be real or personal estate, the impediments of the statute are made to give way to the paramount exigency of substantial justice. We may observe, too, in general, that the courts of equity, in the construction and application of the statute, have always been tenacious of matters of jurisdiction ; the statute itself having given an example of the regard of the legislature to the constitution of these courts, in the exception which it has made of implied trusts, by the 8th section. On the Equitable same principle, all equitable liens are out of the statute; aud thus a liens and dedeposit, for the performance of a written agreement, though there be posits are out no writing by which such deposit is declared to be a security, is not °u"tetli^ *1** within the purview of the statute, as was held in the case of Hales v. Vanderchem.* And according to the doctrine ofthe court of Chancery, a.deposit of deeds entitles the holder to have his security perfected by a regular assignment, conveyance, or sale. Thus, in Russel v. Uussel.f where a lease had been pledged by a person, who afterwards became a bankrupt, to the plaintiff as a security for a sum of money borrowed, <. and the holder brought his bill for the sale of the leasehold estate, though it was insisted by the counsel, that the plaintiff's claim was opposed by the 4th section of the statute of frauds, as an attempt to charge land without writing, yet an issue was directed by the Lords Commissioners, to try with what intention the lease had been delivered ; and Lord Loughborough seemed to treat the contract as already executed in equitable contemplation, and not as a thing to be performed, observing, that the court had nothing to do but to supply the legal formalities. Upon the
Of the parti- The specific relief which it falls within the jurisdiction of a of courts of tourt of equity to afford in cases of fraud, is not less the occasion equity Mi ca- of sending the majority of those cases to that forum, than its party decrees' ticular authority to compel, upon oath, a discovery of latent facts, of injunction FPaud, in all its shapes, is alike obnoxious to the remedies of
perform- courts of equity and law,(64) but the difference in the extent of theance' relief afforded by them, consists in this, that the common law ju
dicature can only proceed negatively against it, by avoiding and annulling every act and deed into which it enters, as against the culpable party; but equity goes further, where it is necessary, and will compel a party to do a positive and specific act, where the fraud consists in omission, and the exigency of retributive justice cannot otherwise be substantially satisfied. Thus there is an unceasing call for its interference, in compelling what is technically denominated specific performance; to which extraordinary and beneficial remedy, Wc may add that correlative . * branch of its peculiar lurisdiction, which is exercised in putting a sudden and salutary stop to acts and proceedings, injurious or * [ 130 ] unconscientious, by decree of injunction.
Of the re- 'There is a positive fraud in attempting to profit by the mis
lief of those bAes of a person, which are the consequence of our own misrecourts a- . .....
gainst fraud- presentation, or of the false expectation raised in his mind by our
ulen.i S>if>" . own illusory behaviour : and there is a nrgatrve fraud in imposing
creations, and '' ° r o
suppres-' •ions, trial, the jury found that the lease was deposited as a security ; and
the cause afterwards coming on upon the equity reserved, before Lord Chancellor Thurlow, the court ordered the lease to be sold, and. the plaintiff to be paid his money.* The same point was, it seems, determined in the cases of Featherstone v. Fenwick, and Hereford v. Carpenter, where the same Chancellor determined that the deposit of deeds entitled the holder to have a-mortgage to effectuate his lien, although there was no agreement m writing to assign; the deposit af* fording a presumption of intention to that effect. ** (64) It was observed by Buller J. in Brodie v. St. Paul, i Vez. jun.
333, that there can be but one construction upon the statute of frauds. Whatever it is, it ought to hold equally in courts of law and equity; and that as it is settled in equity, that a part-performance takes it out of the statute, the same rule shall hold at law. But observe the remarks of the present Chancellor, Lord Eldon, on this passage of Mr. J. Bul. Icr's opinion, in the late case of Coote v. Jackson, 6 Vez. jun. 39.