Frauds: extends. Statute of of the improvements, for the lessee's interest is the same as before; "it is only that there are bricks and other materials removed from the house, and some others substituted in their room :" Per Littledale, J., Donellan v. Read, 3 B. & Ad. 904. See Hoby v. Roebuck, 2 Marsh. 433; Lambert v. Norris, 2 M. & W. 333. An agreement for an abatement of rent, however, is clearly within the statute: O'Connor v. Spaight, 1 Sch. & Lef. 305; and see remarks on Donellan v. Read, infra, p. 310. See Buttemere v. Hayes, 5 M. & W. 456. So if a tenant agrees to make alterations in a house at his own expense, that is an agreement relating to an interest in land which will not be enforceable if made by parol: Vaughan v. Hancock, 3 C. B. 766; Simmons v. Simmons, 12 Jur. 8. Shares in a company pos Shares in a railway company are not an interest sessing land. in land within the 4th section, where the act of incorporation declares that they shall be deemed personal estate; nor would they be so, it seems, even in the absence of such a clause: Bradley v. Holdsworth, 3 M. & W. 422; Hibblewhite v. M'Morine, 6 M. & W. 200, 214. But shares in a mining company (which are transferable without the consent of the other partners, 1 Russ. & M. 49) have been held to be within the statute, Boyce v. Green, Batty, 608; also Westminster Improvement Bonds, Toppin v. Lomos, 16 C. B. 145; and a partnership in land: Caddick v. Skidmore, 2 De G. & J. 52. Shares in mines. Companies for purchasing land. Shares in companies, subject to the Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16), the Joint Stock Companies Act, 1856 (19 & 20 Vict. c. 47), and the Companies Act, 1862 (25 & 26 Vict. c. 89), are personal estate, and not of the nature of real estate. "The test," with regard to shares, "is not whether the holder can in some sense be said to be interested in land, but whether the share is such a share as, under any ordinary state of circumstances, can result to him in the shape of land. In other words, is the right of the shareholder merely a right to call for his share of the profits, and not for a specific part of the land itself:" per Page Wood, V. C., in Entwistle v. Davis, L. R., 4 Eq. 275. See also Morris v. Glyn, 27 Beav. 218; Freeman v. Gainsford, 34 L. J., C. P. 95; Robinson v. Ainge, L. R., 4 C. P. 429. No "interest in land" has been held to be conferred upon holders of shares in any of the following classes of undertakings: (i.) Mines on the cost book principle: Watson v. Speatley, 10 Exch. 222; S. C., 24 L. J., Ex. 53; Powell v. Jessop, 18 C. B. 336; 25 L. J., C. P. 199; Walker v. Bartlett, ibid. 845; Hayter v. Tasker, 4 K. & J. 243. (ii.) Mines abroad: Baker v. Sutton, 1 Keene, 224. (iii.) Gasworks: Sparling v. Parker, 9 Beav. 450. (iv.) Waterworks: Bligh v. Brent, 2 Y. & C. Ex. 268; Ashton v. Lord Langdale, 4 De G. & Sm. 402. (v.) Docks (x): Sparling v. Parker, ubi supra; Hilton v. Giraud, 1 De G. & Sm. 183. (vi.) Canals: Walker v. Milne, 11 Beav. 507; Ashton v. Lord Langdale, ubi supra; Edwards v. Hall, 6 De G., M. & G. 74. (vii.) Banks: Myers v. Perigal, 2 De G., M. & G. 599; Ashton v. Lord Langdale; Edwards v. Hall, ubi supra. (viii.) Insurance: March v. Att.-Gen., 5 Beav. 433. See Agnew, Statute of Frauds, 148. As to conversion of real estate used for partnership purposes, see Bligh v. Brent, 2 You. & C., Ex. 268; Cookson v. Cookson, 8 Sim. 529; infra, tit. PARTNERSHIP; and Lindley on Partnership, 4th ed., p. 667, and the cases there cited. A right to take water from a well is an interest in land: Tyler v. Bennett, 6 Nev. & M. 826. Statute of Frauds: to what it extends. contract, under the If part of an entire parol contract relates to land, Mixed parol or is otherwise void under the statute, and another where part part relates to a matter which is not within the only is void statute, the whole fails: Mechelen v. Wallace, 2 Nev. statute. & P. 224; Lord Lexington v. Clarke, 2 Vent. 223; Chater v. Beckett, 7 T. R. 201; Thomas v. Williams, 10 B. & Cr. 664; Earl of Falmouth v. Thomas, 1 Cr., M. & R. 89. See Corder v. Drakeford, 3 Taunt. 382; Harvey v. Grabham, 5 Ad. & El. 61; Hodgson (x) An agreement for allowing the use of a dock for repairs to ships is not within the statute, and accordingly need not be in writing: Wells v. Mayor, &c. of Kingston-upon-Hull, L. R., 10 C. P. 402. Statute of extends. V. Johnson, 28 L. J., Q. B. 88. But where the two to what it parts of the contract are not shown to be dependent on each other, that part which does not come within the statute will of course stand: Read v. Nash, 1 Wils. 305; Mayfield v. Wadsley, 3 B. & C. 357; S. C., 5 D. & Ry. 224 (ante, p. 285). See Hoby v. Roebuck, 7 Taunt. 157; Donellan v. Read, 3 B. & Ad. 899 (infra, p. 305); Russell v. Moseley, 6 J. B. Moore, 521; Mavor v. Pyne, 11 Id. 2; Thomas v. Williams, 5 Man. & Ry. 625; Watts v. Friend, Id. 439; Wood v. Benson, 2 Cr. & J. 94, and the observations on the last cited case in Williams v. Burgess, 2 Per. & D. 422. Vendor's lien. mortgage. The innovations upon the statute which Courts of Equity have sanctioned in the instances of a vendor's lien for his purchase-money, and the lien created by a deposit of title deeds, are treated of Assignment of infra, tit. MORTGAGES. It may be here noticed, that vendor's lien. the lien of a vendor has been considered to be assignable by parol: Dryden v. Frost, 3 My. & Cr. Assignment of 670. And, upon principle, it should seem that the benefit of any mortgage security upon real estate may be transferred in equity without writing; for the debt, no doubt, may be so transferred, and the mortgage, which is but an accessory to the debt, must follow its principal. See Richards v. Syms, Barnard, C. C. 90; Martin v. Mowlin, 2 Burr. at p. 979. Thus, it has been decided, that a mortgage of real estate may be the subject of a donatio mortis causâ, Duffield v. Elwes, 1 Bligh, N. S. 497; and though much was said in that case about the delivery of the deeds, there seems to be no objection, on the ground of the Statute of Frauds, to an oral assignment for good consideration, without any transfer of the deeds. In the case of Benbow v. Townsend, 1 My. & K. 506, Sir J. Leach, M. R., went farther. There, A. advanced a sum of money upon mortgage of copyholds, and directed the surrender to be made to the use of his brother, B., telling the mortgagor that the principal was to be for the benefit of B., but that he, A., should receive the interest; and Sir J. Leach held, that the principal, being personalty, was not within the 7th section, but belonged to B., by force of A.'s oral declaration. Statute of Frauds: to what it extends. garded. Cases not within the Mischief of the Act." In all Aim of the the cases on the Statute of Frauds in this Court, the Act to be reend and purport of making it has been considered, viz., to prevent frauds and perjuries; so that any agreement in which there was no danger of either, the court has considered as out of the statute." Per Lord Hardwicke, C., Att.-Gen. v. Day, 1 Ves. sen. 221. Consequently the Act does not extend to sales under the order of the Court, see Whitbread v. Brockhurst, 1 Br. C. C. 416; Lord v. Lord, 1 Sim. 503; but a purchaser in such cases is required to sign: Dart, V. & P. 197, n. It was at one time thought, that ordinary sales Sales by aucby auction might, by reason of their publicity, be tion. taken out of the statute, at least as to goods, Simon v. Metivos or Metivier, 1 W. Bl. 599; S. C., 3 Burr. 1921; but it has since been decided otherwise, both as to land and goods: Walker v. Constable, 1 Bos. & P. 306; Stansfield v. Johnson, 1 Esp. 101; Buckmaster v. Harrop, 7 Ves. 341; 13 Id. 456; Blagden v. Bradbear, 12 Ves. 466; Higginson v. Clowes, 15 Ves. 516; Kenworthy v. Schofield, 2 B. & Cr. 945. In most cases the transaction is sustained by the signature of the auctioneer or broker as the agent of the buyer; as to which vide infra, p. 323. agreement the statute. After some diversity of opinion it is now settled, Effect of adthat, although the defendant admits the agreement, mitting parol he shall not be obliged to perform it, if, at the same and pleading time, he insists on the statute as a defence: Rondeau v. Wyatt, 2 H. Bl. 63; Walters v. Morgan, 2 Cox, 369; Moore v. Edwards, 4 Ves. 23; Cooth v. Jackson, 6 Id. 12; Row v. Teed, 15 Ves. 375; Blagden v. Bradbear, 12 Ves. 466. And see Cottington v. Fletcher, 2 Atk. 155, a decision on the 7th section, contra. But, having once admitted the agreement, and submitted to perform it, he cannot claim the protection of the statute: Spurrier v. Fitzgerald, 6 Ves. 548. Nor can a plea of the statute be coupled with another defence: Cooth v. Jackson, 6 Ves. 12. Where the admission is such as the Statute of to what it Frauds: extends. Fraud. Part performance. plaintiff may take advantage of, he must take it as stated by the defendant, and cannot vary it, or introduce other terms by parol evidence: Pym v. Blackburn, 3 Ves. 34. See Wills v. Stradling, 3 Ves. 378. And if the plaintiff has mistaken the agreement, and the defendant admits a different agreement from that stated in the bill, the plaintiff may amend, and obtain a decree for performance of the agreement admitted by the defendant: Mortimer v. Orchard, 2 Ves. jun. 243. See Legal v. Miller, 2 Ves. sen. 299. The statute will not be allowed to be set up in defence of fraud; and if fraud is used to prevent the agreement being put into writing, that will take it out of the statute. See 2 Br. C. C. 565; 2 Ch. Ca. 135; Oldham v. Litchford, 2 Freem. C. C. 284; Dutton v. Poole, 1 Vent. 318; S. C., 1 Dick. 14; Podmore v. Gunning, 7 Sim. 644. And it is considered fraudulent if either party attempt to take advantage of the statute after the agreement has been partly executed (y). The act to be considered as part performance must be in its nature almost necessarily done in pursuance of the alleged contract: Gunter v. Halsey, Amb. 586; Frame v. Dawson, 14 Ves. 387; Ex parte Hooper, 19 Ves. 479; 2 Rose, 328; 1 Mer. 7. See 1 Swanst. 181. Therefore such preliminary acts, as the delivery of an abstract, giving directions for conveyances, going to take a view, or valuation of the estate, &c., being consistent with a mere treaty, are not sufficient: Clerk v. Wright, 1 Atk. 12; Whitchurch v. Bevis, 2 Br. C. C. 559; Redding v. Wilkes, 3 Br. P. C. 400; Earl of Glengall v. Barnard, 1 Kee. 769; Phillips v. Edwards, 33 Bea. 440. See also Hawkins v. Holmes, 1 P. Wms. 770, where the execution and registration of the conveyance by the plaintiff was held insufficient. The procuring of a release from a stranger in consideration of a free admission to the Pantheon, of the value of 157. per annum, was held not to be part performance, (y) Part performance as to one lot will not affect contracts between the same parties as to other lots sold at the same auction: Buckmaster v. Harrop, 7 Ves. 341; 13 Id. 456. |