CONTRACTS, bargain was executed, and a specific performance must be decreed 9.

&c.

Again, where, previous to the defendant's marriage, a sum of money, the property of his wife by a former marriage, was agreed to be assigned to trustees for her separate use during coverture, and to be applied after her death to such uses as she should appoint; and after the marriage a draft of an assignment was prepared, and corrections made in the husband's hand-writing; and he suffered her to receive the interest of it to her separate use during the coverture. These circumstances were considered by Lord Hardwicke as a part performance, and as taking the agreement out of the statute. His Lordship observing that, if the statute were suffered to be pleaded to the discovery even of a parol agreement in such cases, it would be very mischievous'.

And an agreement by parol partly performed, will be decreed against the heir of the vendor under it. But as the principle which governs the court is, that the act done in part performance, is presumptive evidence that the agreement was really made, it must be of such a nature, as the court is satisfied would not have been done, unless on account of the agreement. And therefore, where a lessee agreed by parol to take a lease for a term of years certain, and continued possession on the credit of it; there being no writings to make out the agreement, it was held to be directly within the statute'.

9 Butcher v. Stapely et al. 1 Vern. 363; and see Pyke v. Williams, (et e contra), 2 Ib. 455; and Borret v. Gomeserra, Bunb. Rep. 94; 2 Eq. Ca. Abr. 48, pl. 17; also Lady Herbert v. Earl Powis et al. 6 Bro. Par. Ca. 102.

г

Taylor v. Beach, 1 Ves.

• Lacon v. Martins, 3 Atk. 1; 1 Ves. 312; 2 Dick. 664; and see Hawkes v. Hawkes, Finch. 300.

Sansum v. Butter, 1 Bac. Abr. 74; per Lord Hardw. 3 Atk. 4; Smith v. Turner, cited Prec. Cha. 561; and see Hole v. White, cited Bro, Rep. Cha. 409.

&c.

Marriage alone is not considered in equity as a part CONTRACTS, performance of an agreement made between the parties themselves, although it is considered as such to bind a third person": and therefore, though in the case before mentioned of a letter written by a father, promising to give such a fortune with his daughter to any one who should marry her, this entitles the husband to recover; because the agreement is executed on his part as far as it can be; yet a promise of marriage between parties by parol, upon certain conditions, and an intermarriage accordingly will not entitle either party to compel a performance of the conditions; and the reason why marriage alone is not looked upon as an execution of the parol contract between the parties, so as to take such case out of the statute, seems to be, that if it were, the statute would be entirely evaded; for all promises of this kind suppose a marriage had or to be had *.

The circumstance of one party desisting from his purchase in favour of another party on certain conditions stipulated, has also been said not to be such a part performance as to take an agreement in favour of the party desisting out of the statute: thus, where A. being about to purchase a toft of ground of B., and C. being also treating for the same premises, met together; and it was proposed and agreed, that A. should desist and permit C. to purchase, he agreeing to let A. have, at a proportionable price, that part of the ground he desired; and thereupon A. desisted, and B. completed his purchase; and afterwards A. refused to perform the agreement: on a bill filed by A. upon the ground of the agreement's being in part executed, by his desisting from prosecuting his purchase, a specific performance was decreed at the Rolls: but on appeal to the Chancellor, the decree was reversed (1).

" See Viscountess Montacute v. Maxwell, and San

sum v.

Butter, supra.

Prec. Cha. 561; and see Brownsmith v. Gilborne, Strange, 738.

(1) See Lamas v. Bayly, 2 Vern. 627; sed quare; and see Vin. Abr. 521, pl. 32; and 2 Eq. Ca. Abr. 45, pl. 10, both

which

Moreover, in a case where, on a bill filed for specific execution of a parol agreement for the purchase of an estate, proof was adduced of the delivery of a rent-roll to the purchaser, altered and dated by the seller in his own. hand-writing; of his delivering the deeds to the purchaser's agent, to be compared with the rent-roll, and laying an abstract of his title, and a case thereupon, before counsel, in which it was stated, that the purchaser had agreed with the seller for the purchase of the lands at twenty-one years purchase; of his giving the purchaser a list of his debts which affected the estate, and authorizing him to apply to his creditors, to several of whom, and to other persons, the seller was charged to have written letters himself, informing him that he had agreed with the purchaser to sell; and of his afterwards sending to the tenants to treat with A. as owner of the estate, for renewal of leases, and to cut down timber; and to prevent the effect of an elegit against him, of his producing evidence before a jury that such agreement and purchase had been made; all these circumstances were held to be insufficient, on the ground of a part execution, to take the agreement out of the statute of frauds.

Again, where, on a bill for a specific performance of an agreement for the sale of certain freehold premises and stock in trade, it appeared, that pending the negotiation, the defendant delivered to the plaintiff a particular of the premises and property to be sold, and the terms or conditions of the sale, all in his own hand-writing, and signed Whaley v. Bugenall, 6 Bro. Par. Ca. 45.

which seem to be the same case as that reported in Vernon, and these reporters rest the Chancellor's decree on the ground that there was no absolute nor positive agreement, the words being ambiguous and uncertain; and not on the› ground that the forbearing by agreement to do an act might not be a part performance, and raise as strong an equity to have the benefit stipulated in return, as an act done.

&o.

by him, when it was agreed, that the plaintiff should have CONTRACTS, till a certain day to consider of the purchase, as he objected to the price. It was afterwards agreed, that the purchase should take place at a reduced price; and verbal instructions for a conveyance were given by both parties together to an attorney, to whom the defendant delivered the particular as instructions for the deed, which was prepared, read over, and approved by the parties. The Court of Exchequer held, that these circumstances were not sufficient to take the agreement out of the statute: that the particular was not made out as evidence of any agreement, but merely as a list or catalogue of the matters for sale, to enable the purchaser to form a proper estimate of their value: that it was delivered into the attorney's hands for the same purpose: and was signed merely to authenticate it as such list that it was delivered in as the foundation of a sale at a higher price; and could be no evidence of the terms of the second contract, or even of its existence; since with the price, the parcels also may have been varied : that the instructing an attorney to draw conveyances, and his doing so, is no part performance of a contract: to take the case out of the statute, there must be a part execution of the substance of the agreement itself: that the agreement being void as to the land, must be void also as to the personal property, which was to be sold with it; it is one entire contract, and the whole must stand or fall together: that it could never be the intention of the parties, that the stock should be sold apart from the premises, as most of it was of little comparative value separately; and the agreement being for one entire sum, they could not sever it 2.

:

But possession, under a parol agreement, of however long standing, will not be a ground to establish it, if it appear that the persons who made such agreement had not a right to contract. As if an agreement for partition be

* Cooke v. Tombs, Anstr. 420; Lea v. Barber, Anstr. 425, n. S. P.

[BOOK III. PART I. CONTRACTS, made by two husbands, of land belonging to their wives, without the consent of the wives; for they cannot thereby bind the inheritance of their wives".

&c.

Having now sufficiently considered the requisites to constitute a valid contract or agreement, as the foundation of the deed by which such contract may be perfected, or executed, I shall proceed to consider the nature and different species of deeds themselves, and the ceremonies requisite to give them effect.

DEEDS.

IN

CHAP. II.

OF A DEED.

consequence of the admission of the right of property, or the allowance by the law of society of an exclusive right to those things which by the law of nature were in common, it was necessary that some means should be devised, not only by which that separate right or exclusive property should be originally acquired, which, we have more than once observed, was that of occupancy or first possession, but also by which this possession, when once gained, might be continued, and transferred from one person to another; for without this, upon the demise of the proprietor, it would again become common, and all those mischiefs and contentions would ensue, which the right of property was introduced to prevent. For the purpose, therefore, of continuing the possession, the municipal law of most countries has established descents and alienations; the former to continue the possession in the heirs of the proprietor, after his involuntary dereliction of it by his death; the latter to continue it in those persons to whom,

a Ireland v. Rittle, 1 Atk. 626.