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sale and purchase of estates.—If livery of seisin is made to a purchaser under an oral contract for the sale of a freehold estate, or of a leasehold estate exceeding three years in duration, and he is actually put into possession of the property agreed to be sold to him, yet he will have only an estate or lease at will, by reason of the fourth section of the Statute of Frauds, which enacts, as previously mentioned, that all estates of freehold, or terms of years, or any uncertain interest in lands, tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put into writing and signed by the parties creating them or their agents, shall have the force and effect of leases or estates at will only, excepting leases not exceeding the term of three years from the making thereof. But the purchaser so let into possession will be entitled to a conveyance of the estate; and the court will compel the vendor to execute such a conveyance, notwithstanding the provisions of the Statute of Frauds, on the ground that there has been a part performance of the contract, and that, possession having been given and accepted in the fulfillment of the bargain, it would be fraudulent in either party to withdraw therefrom without the consent of the other. (g) The equity arising from part performance operates against a company in like manner as against an individual, the enactments of the Companies Clauses Act, 1845, as to the mode in which contracts may be entered into on behalf of a company, not precluding the enforcement against a company of the ordinary equity based on part performance. (h) The mere naked

(g) Butcher v. Stapely, 1 Vern. 364. Pyke v. Williams, 2 Ib. 455. Fonblanque, 175, n. Reynolds v. Waring, Younge, 352. Caton v. Caton, L.

R., I Ch. 137, 148; 35 L. J., Ch. 292, 295.

(h) Wilson v. West Hartlepool Railway Company, 2 De G., J. & S. 475; 34 L. J., Ch. 241.

transfer of the possession of land alone is not, it has been said, sufficient to justify the courts in enforcing the performance of an oral contract for the purchase of the freehold and inheritance of such land on the ground that the transfer of the possession is a part performance of such oral contract. Acts done in performance, it has been observed, must be such as could have been done with no other view or design than to fulfill the particular contract sought to be enforced. (¿`) If, indeed, the change of possession is accompanied by the payment of money on the part of the occupier to the owner, under circumstances giving rise to the presumption that it was an installment of purchasemoney, and not a rent paid in advance, there would undoubtedly be a part performance of a contract, which could be no other than a contract of sale. (k) So, if the change of possession has been accompanied by the exercise of acts of ownership, such as the expenditure of money in building, repairs, drainage, and lasting improvements, quite inconsistent with the notion of a contract for a yearly tenancy, it is evident, from the acts done, that there has been a part performance, either of a contract for the purchase of the fee, (1) or for the grant of a lease for a long term of years. (m) Such acts as are ordinarily introductory or anciliary to contracts for the purchase and sale of an estate or interest in land, such as the giving of directions for a conveyance to be prepared, making valuations, or fixing upon parties to value fixtures or

(1) Gunter v. Halsey, Ambl. 586. Cole v. White, cited I Bro. Ch. C. 409. Frame v. Dawson, 14 Ves. 388. Reynolds v. Waring, I Younge, 350. O'Reilly v. Thompson, 2 Cox, 273. Clinan v. Cooke, I Scho. & Lef. 22. Watt v. Evans, 4 Y. & Coll. 579. But see Wilson v. West Hartlepool Rail

way Company, 2 De G., J. & S. 475.

(k) Main v. Melburne, 4 Ves. junr. 720. Coles v. Trecothick 9 Ib. 234. (1) Borrett v. Gomeserra, Bunb. 94. (m) Sutherland v. Briggs, I Hare, 26. Thornton v. Kamsden, 4 Giff. 519. Nunn v. Fabian, L. R., 1 Ch. 35; 35 L. J., Ch. 140.

stock, or the making of admeasurements, or the preparing of maps or plans, are not acts of performance of an oral agreement for the purchase or sale of an estate or interest in land, sufficient to take the contract out of the statute. (n) But if " the purchaser of lands under an oral contract files a bill against the vendor to carry such contract into execution, and the vendor puts in an answer admitting the contract as stated, it takes it entirely out of the mischief of the Statute of Frauds, and, there being then no danger of perjury, the court would decree it to be performed." (0)

512. Of the transfer of the estate in equity by the bargain before the execution of a conveyance.-The execution of a simple contract in writing for the sale and purchase of an estate in fee, atlhough accompanied by livery and seisin, or delivery of possession of the land to the purchaser, does not, since the passing of the Transfer of Property Act, transfer to the latter the legal estate or interest agreed to be sold. The written contract, if it amounts to a grant of the fee, would be a feoffment, and would be avoided by the section of the Act which enacts that "a feoffment (other than a feoffment made under a custom by an infant) shall be void unless evidenced by deed." A right to have a conveyance of the land passes by the contract to the purchaser, but not any legal estate or interest in the land itself beyond an estate at will. It is not necessary, however, for the alienation of property that there should be a formal deed of conveyance; a contract for a valuable consideration, by which it is

(n) Clerk v. Wright, I Atk. 13. Cooke V. Tombs, 2 Anstr. 420. Whitechurch v. Bevis, 2 Bro. Ch. C. 559. Redding v. Wilkes, 3 Bro. Ch.

C. 400. Phillips v. Edwards, 33 Beav.


(0) Att.-Gen. v. Day, I Ves. senr. 220. Gunter v. Halsey, Ambl. 586. Rondeau v. Wyatt, 2 H. Bl. 68.

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agreed to make a transfer of particular specified property, passes the beneficial interest, provided the contract is one which would be specifically enforced. (p) The estate, from the signing of the contract, becomes the real property of the vendee. It is vendible as his, chargeable as his, capable of being incumbered as his, devised as his; it may be assets, and will descend to his heir." (g) The purchaser, therefore, in such a case, is said to have the equitable interest in the land, whilst the vendor has the legal estate, and is deemed to be a trustee for the purchaser, holding the land upon trust to convey it to the latter upon the terms and conditions of the contract of sale, (r) whilst the purchaser is a trustee of the purchase-money for the vendor. (s)

This transfer of the equitable ownership is naturally accompanied with a corresponding transfer of the risk of loss, so that, if lands and houses are agreed to be sold, and the houses are burned down by fire, or destroyed by an earthquake, between the time of the making of the contract of sale and the execution of a conveyance of the legal estate, the loss will fall upon the purchaser, who will be compelled to accept a conveyance of the land without the houses, and to pay the full amount of the purchase-money to the vendor; (t) nor will he be entitled to the benefit of any insurance effected by the vendor in the absence of an express stipulation to that effect in the agreement for the purchase. (u) So, if a simple contract be entered

(4) Lord Eldon, Seton v. Slade, 7 (p) Holroyd v. Marshall, 10 H. L. C. 191; 33 L. J., Ch. 193.

Ves. 274.

() Davie v. Beardsham, 1 Ch. C. 39. (s) Green v. Smith, 1 Atk. 572. Pollexfen v. Moore, 3 Atk. 273.

(t) Harford v. Purrier, 1 Mad. 538 539. Rawlins v. Burgis, 2 Ves. & B. 387. Paine v. Meller, 6 Ves. 353. Cass v. Rudele, 2 Vern. 280. Poole v. Adams, 33 L. J., Ch. 639:

(u) Poole v. Adams, 33 L. J., Ch. 639.

into for the sale of an estate holden for two lives, and one of the lives drops before the conveyance is executed, the loss will be the loss of the purchaser. (x) And, if a man signs an agreement for the purchase of an annuity, payable during the life of a third party, and the latter "happens to die before the annuity is legally transferred to the purchaser, the death can form no objection to the specific performance of the contract," (y) and the purchaser must pay his money, although he can never enjoy that for which it was agreed to be paid. If, on the other hand, any profit or gain accrues, it will belong to the purchaser. Therefore, if a reversionary interest is agreed to be purchased, and lives drop between the time of the making of the agreement and the execution of a conveyance, the purchaser will have the benefit of it. estate is sold for an annuity to be paid by the purchaser during the life of the vendor, and the vendor dies after the signing of the agreement and before the execution of the conveyance, the purchaser will nevertheless remain the equitable owner of the property, and will be entitled to call upon the heir at law of the vendor for a conveyance of the legal estate; and he may thus acquire the property without the payment of a single shilling of money. (a) But he must not sleep over his rights. (b) And it must be observed

(x) White v. Nutts, I P. Wms. 62. So by the civil law, "cum autem emptio et venditio contracta sit, periculum rei venditæ statim ad emptorem pertinet, tametsi adhuc ea res emptori tradita non sit. Itaque, si aut ædes totæ vel aliqua ex parte incendio consumptæ fuerint, emptoris damnum est, cui necesse est, licet rem non fuerit nactus, pretium solvere. Sed et si post emptionem fundo aliquid ad emptoris com

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modum pertinet: nam et commodum ejus essedebet cujus periculum est." Instit. lib. 3, tit. 24, § 3.

(y) Kenney v. Wexham, 6 Mad. 357.

(2) Ex parte Manning, 2 P. Wms.


(a) Mortimer v. Capper, 1 Bro. C. C. 156. Jackson v. Lever, 3 Ib. 604. (6) Wyvill v. Bishop of Exeter. I Pr. 292.

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