T. 10, CH. 4. to do it, or may be made to give damages for the breach PART III. of his agreement (a). 1688. A covenant by a vendor on the sale of a goodwill, not to carry on the business within a certain distance, is broken by his selling goods to persons who, as he knows, reside within that distance, though the goods were sold at a shop beyond that distance, and though the seller did. not in any way solicit their custom (b). 1689. trade mark. Although a trade mark is not strictly property, yet Use of a when a business is bonâ fide assigned for valuable consideration, the exclusive right to use a trade mark which has been appropriated to that business may be assigned with it (c). 1690. dividends a life stock. The purchaser of a life interest in stock in the public Right to funds, is entitled to the dividends accruing between the on a sale of date of the contract and its completion, in the absence of interest in a stipulation to the contrary; this advantage being given him in consideration of the precarious nature of the property, which may determine in five minutes after the contract is entered into (d). 1691. another's purchase Where an assignment is made to a person as a pur- Purchase in chaser, for a consideration which is not paid, he is liable name, when to a suit in equity by the vendor for the recovery of the money not purchase money, though he took the assignment as a (a) 9 Jarm. & Byth. by Sweet, 653-4; Churton v. Douglas, 1 Johns. 174; remarks of M. R. in Smith v. Everett, 27 Beav. 453. (b) Brompton v. Beddoes, 13 C. B. (N. S.) 538. (c) Leather Cloth Co. v. American Leather Cloth Co., 1 Hem. & Mil. 271; and see Sebastian on Trade Marks for the law relating to the assignment of trade marks, and goodwill. (d) 9 Jarm. & Byth. by Sweet, 67. The writer has deemed it advis able not to enter upon the subject paid. T. 10, CH. 4. PART III trustee for a third person, and on the faith of an acknowledgment in the deed and the assurance of such third person, as the real purchaser, that the purchase money been paid (a). 1692. Deposit. had A deposit is paid to the vendor as a guarantee that the contract shall be performed. And even where there is no clause of forfeiture of the deposit, if the purchaser repudiates the contract, he cannot have back the money, as the contract has gone off through his default (b). 1693. (a) Wilson v. Keating, 4 D. & J. 588. (b) Ex parte Barrell, L. R. 10 Ch. Ap. 512; and see Addison on Contracts, 8th ed. p. 897. TITLE XI. OF ALIENATION BY MERE WRITTEN AGREEMENT. CHAPTER I. OF ALIENATION AT LAW BY MERE WRITTEN AGREEMENT. But T. 11, CH. 1. Alienation EVEN at the common law, corporations regularly could PART III. not grant lands, goods, or chattels, except by deed. all natural persons might grant or give anything which lay without in livery without deed (a). 1694. deed. Frauds. But, in consequence of the Statute of Frauds, 29 Car. 2, Statute of c. 3, there must be a writing duly signed, if any estate beyond three years or even an estate for less than three years at a less rent than two-third parts of the value, be designed to pass (b). By s. 1, it is enacted, "that all leases, estates, interests of freehold, or terms for years, or any uncertain interests of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, made or created by livery and seisin only or by parol, and not put in writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised by writing, shall have the force and effect of leases and estates at will only, and shall not, either in law or in equity, be deemed or taken to have any other or greater force or effect." By the 2nd section, leases for three years, whereupon the rent reserved amounts to two-thirds of the full improved value, are excepted. And by the 3rd section it is enacted, "that (b) 2 Pres. Shep. T. 228. (a) 2 Pres. Shep. T. 229; Co. Litt. 169 a. 3. Prame, emates or interests, either of freehold or terms dor para se any uncertain interest, not being copyhold or meocary izverest, of in, to, or out of any messuages, etc., shall be aefurbel, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, manting, or surrendering the same, or their agents thereunto lawly authorised by writing, or by act or operation of law.” And by the 4th section it is enacted, "That no action shall be brought whereby to charge any person upon any agreement made upon consideration of marriage, or upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised." 1695. The 1st section appears to relate to cases where an estate or interest is created de novo, and actually passes to the grantee or lessee; the 3rd section, to cases where an estate or interest previously existing is transferred; and the 4th to cases where a right of action only is created by an agreement, or where an agreement is made respecting the future creation or transfer of an estate or interest. In cases within the 1st and 3rd sections the statute requires the agent to be authorised in writing, but not in cases within the 4th section (a). 1696. By a recent statute, as we have seen, a deed is now required in certain cases where a deed was not necessary, or where it was doubtful whether a deed was necessary at the common law (b). 1697. (a) See Sugd. Concise View, 72, 73, 94; Addison on Contracts, 8th ed.; on the Authentication of Contracts. (b) See supra, par, 1611. CHAPTER II. OF ALIENATION IN EQUITY BY MERE WRITTEN AGREEMENT. T. 11, CH. 2 At law, con covenants are considered merely as executory; equity, as in regard to conse quences. AT law, contracts and covenants to sell, convey, or transfer PART III. land or other property, are considered simply as personal and executory contracts and covenants, and not as attach- tracts and ing to the property in any manner as a present or future charge or otherwise (a). But it is a maxim of equity that personal and things agreed to be done shall be regarded as if actually but in performed, in respect to the consequences. And therefore, performed, in equity, from the time of a contract for the sale of land, the vendor and his heirs, even though he did not covenant for them, and any person or persons claiming under him as a subsequent purchaser or as assignees in bankruptcy or insolvency, become, as to the land, trustees for the purchaser and his heirs, devisees, or vendees; and the purchaser and his representatives or assignees in bankruptcy or insolvency become, as to the money, trustees for the vendor and his personal representatives. In cases not within the stat. 17 & 18 Vict. c. 113, and 30 & 31 Vict. c. 69, the personal representatives so become trustees as to the money. But in cases within those statutes, the persons on whom the purchased land devolves become such trustees (b). 1698. of contract [And now in cases of death after the 31st day of Completion December, 1881, it is provided by stat. 44 & 45 Vict. after death. c. 41, s. 4 (Appendix), that "(1) where at the death of any person there is subsisting a contract enforceable (a) See Story's Eq. Jur. § 714, 790. (b) Id. § 788-790; Sugd. Con cise View, 121-123, 143. And see |