28. The plaintiff courted one of the daughters of Ayliffe v. Sir T. Haslewood, and treated with the father about Wms. 65. Tracy, 2 P. the marriage, who consented, and wrote a letter signed with his name to his daughter, intimating that he had met the plaintiff, had agreed to give him 3,000 7. as a portion; to which the plaintiff, he said, seemed to assent; and that they were to meet the next day, when the affair was to be fully concluded. They met accordingly, and agreed to the marriage. The father gave money to the daughter to buy wedding clothes. The wedding-day was appointed, but the father died prior to it, having made his will long before, and given his daughter 2,000l. The daughter did not show this letter to her intended husband whom she afterwards married. The 2,000l. was paid to the husband; who did not make any settlement on his wife. Lord Macclesfield said,―This being no more than a communication, had no ingredient of equity. The husband made no settlement: he did not know of the letter, it being written to the daughter; he therefore could not be supposed to have married in consequence of it; and dismissed the bill. 29. Notwithstanding the statute of frauds, parol Parol Agreements good agreements have been frequently enforced in equity in Equity. in the following cases. 1. Where the reducing them into writing has been prevented by fraud. 2. Where there has been a part performance of them. is Fraud. 30. Where the reducing an agreement into writ- Where there. ing, or the signing of it, is prevented by fraud, the Court of Chancery will support it; because it is one 1 Ab. Eq. 19. of the principal objects of a court of equity to relieve against fraud. 31. A father, on a treaty for the marriage of his Mallett v. daughter with the plaintiff, signed a writing com- Prec. in Cha. Halfpenny, 404. 526. prising the terms of the agreement, and afterwards designing to elude it, directed his daughter to get the plaintiff to deliver it up, and then to marry him, which she did. The plaintiff was relieved. Maxwell v. 32. It is laid down by Lord Macclesfield, that Montacute, Prec. in Cha. where on a treaty for a marriage, or on any other treaty, the parties come to an agreement, but the same is never reduced into writing, nor any proposal made for that purpose, so that they rely wholly on their parol agreement; unless this be executed in part, neither party can compel the other to a specific performance; for that the statute of frauds is directly in their way. But if there be any agreement for reducing the same into writing, and it is prevented by the fraud and practice of the other party, the Court of Chancery will in such a case give relief: as where instructions were given, and preparations made for the drawing of a marriage settlement, but before the completing of it, the woman was induced, by the assurance and promises of the man to perform it, to marry him. 1 P. Wms. 620. Where there formance. 33. It was also said by the Court, in the same case, that where there was fraud, equity would relieve, even against the words of the statute; as if one agreement in writing should be proposed and drawn, and another fraudulently and secretly brought in and executed, in lieu of the former. 34. It is said in the Treatise of Equity, b. i. c. 3. § 8. is a Part Per- that if a parol agreement be carried into execution by one of the parties, as by delivering possession, and such execution be accepted by the other, he that accepts it must perform his part; for where there is a performance, the evidence of the bargain does not lie merely upon the words, but upon the fact performed; and it is unconscionable that the party who has received the advantage, should be admitted to say that such a contract was never made. 35. Lord Cowper, in confirmation of this doctrine Gilb. R. 2. has said, that wherever a parol agreement is begun to be put in execution, and intended to be continued, there, though there be no writing, yet the Court of Chancery will enforce its execution, notwithstanding the statute of frauds. are a Part 36. With respect to the acts which have been held What Acts to be a part performance of an agreement, the general Performrule is, that they must be such as could be done with ance. no other view or design than to perform the agreement; such as delivery of possession; and payment of the whole, or a considerable part of the consideration. Possession. 37. The delivery of possession and laying out Delivery of money has always been held to be a part performance of a parol agreement; so as to take it out of the 3 Atk. 1. statute of frauds. 38. The plaintiff having a house in London, agreed Floyd v. Buckland, with the defendant for a lease of a piece of ground 2 Freem. 268. adjoining, for as long time as he had in the house : thereupon the plaintiff entered upon the ground, built a wall, and made a vault, for the convenience of his house when he had so done, the defendant refused to make him a lease; whereupon the plaintiff preferred his bill to have an execution of the agreement. The defendant pleaded the statute of frauds; the agreement not being in writing. The plea was over-ruled by the Lord Keeper; and the Master of the Rolls decreed the defendant to perform the agreement, saying, that the statute was not made to encourage frauds and cheats; for the plaintiff having 1 Vern. 363. laid out his money in pursuance of the agreement, 2 455. Aylesford's Case, Stra. 783. Wills v. Stradling, 3 Ves. 378. Payment of Main v. and taken possession of the land, the defendant ought to execute a lease. 39. There was a parol agreement for a lease for 21 years, upon which the lessee had entered and enjoyed for six years; then the lessor brought a bill to oblige the lessee 'to execute a counterpart, for the residue of the term; to which he pleaded the statute of frauds; which was over-ruled, the agreement being in part performed. 40. It is laid down by Lord Hardwicke in the case of Lacon v. Mertins, that payment of had money always been held to be a part performance of an agreement. But in Seagood v. Meale, where a guinea only was paid out of £150; that was said not to be a part performance; it being only meant as earnest. 41. In a modern case, where five guineas were 4 Ves. 720. paid, upon a parol agreement, for the purchase of a lot of land, of which the price was 105 l.; Lord Rosslyn said, that though payment of a substantial part of the purchase money would take an agreement, as to land, out of the statute of frauds, on the ground of part performance; yet that payment of a small sum would not do so; and allowed the plea of the statute. Introductory 42. It has however been always held, that acts merely introductory to the completion of an agreement, such as giving instructions for a settlement, or going to view an estate contracted for, are not such a part performance as to take it out of the statute. 43. In consequence of a treaty of marriage, the 1 Ab, Eq. 21. lady's father and the intended husband went to Mr. Prec. in Cha. Minshul's chambers, who was to draw the settlement, as counsel for the lady; and Mr. M. took down minutes thereof in writing, The next day the lady's father died, and the day after the marriage took Bawdes v. Amhurst, 402, place. The husband and wife brought a bill for a specific execution of the agreement; but it was declared not to be such as the Court of Chancery would execute. And Lord Cowper said he had always been tender in laying open that just and wise provision the Parliament had made. That the act had not only directed such agreements to be in writing, but went further, and directed them to be signed by the parties themselves, or some other lawfully authorized by them for that purpose. Bro. Parl. 44. Mr. Bagenel entered into a parol agreement Whaley v. with Whaley for the sale of an estate in the county of Bagenel, Carlow, delivered to him a rent-roll of the lands, Ca. 345. which was dated and altered with Bagenel's own hand, and showed by the title of it, that an agreement had been made, between him and Whaley, for the sale of the estate at 21 years purchase: an abstract of the title was also delivered to Whaley together with the deeds. Bagenel wrote letters to several of his creditors, informing them that he had contracted with Whaley for the sale of his estate at 21 years purchase, and sent the tenants to treat with Whaley for the renewal of their leases. Upon an inquisition held by virtue of a writ of elegit, sued out by one of Bagenel's creditors, his agent produced a witness to prove that the lands were sold by Bagenel to Whaley, in consequence of which the jury found a verdict that Bagenel was not seised of the lands. Bagenel afterwards refused to perform his agreement. Whaley filed a bill in Chancery in Ireland for a specific performance: Bagenel pleaded the statute of frauds, in bar of the discovery and relief; which was allowed. On an appeal to the House of Lords of England, it was contended by the appellant, that the statute of frauds was made in order to prevent the danger of VOL. IV. E |