T. 10, CH. 4. PART III. ledgment in the deed and the assurance of such third person, as the real purchaser, that the purchase money had been paid (p). 1692. Deposit. 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 (q). 1693. (p) Wilson v. Keating, 4 D. & J. 588. (9) Ex parte Barrell, L. R. 10 Ch. Ap. 512. TITLE XI. OF ALIENATION BY MERE WRITTEN AGREEMENT. CHAPTER I. OF ALIENATION AT LAW BY MERE WRITTEN AGREEMENT. T. 11, CH. 1. Alienation EVEN at the common law, corporations regularly could PART III. not grant lands, goods, or chattels, except by deed. But all natural persons might grant or give anything which lay in without 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 interest 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, (a) 2 Pres. Shep. T. 229; Co. Litt. 169 a. (b) 2 Pres. Shep. T. 228. T. 11, CH. 1. PART III. are excepted. And by the 3rd section it is enacted," that no leases, estates, or interests, either of freehold or terms for years, or any uncertain interest, not being copyhold or customary interest, of, in, to, or out of any messuages, &c., shall be assigned, granted, or surrendered, unless it be by deed or note in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully 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 (c). 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 (d). 1697. (c) See Sugd. Concise View, 72, 73, 94. (d) See supra, par. 1611. CHAPTER II. OF ALIENATION IN EQUITY BY MERE WRITTEN AGREEMENT. T. 11, CH. 2. At law, con covenants sidered merely as executory; Equity, as in regard 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 are con 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, to consethe 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. Notwithstanding the principle above-mentioned, it has been held by Lord Hatherley, C. (reversing the decision of Lord Romilly, M. R.), that a vendor of land may (a) See Story's Eq. Jur. § 714, 790. (b) Id. § 788-790; Sugd. Con cise View, 121-123, 143. And see T. 11, CH. 2. PART III. receive the balance of the purchase money, and convey the estate to the purchaser, without regard to the receipt of a notice that the purchaser had agreed to assign the contract (c). 1699. Vendor's right to interest, and purchaser's profits. In consequence of the principle above-mentioned, the purchaser is entitled to the profits of the estate from the right to the time fixed upon for completing the contract, whether he does or does not take possession of the estate; and the vendor, to interest for the purchase money, if it is not paid at the day; unless there is a material objection to the title, and it remains to be cleared up; or unless the delay is occasioned by the vendor, and he has notice from the purchaser or knows aliunde that the purchase money is lying idle; or unless the interest is greater in amount than the rents and profits; in which case the vendor will not be entitled to interest, but will have the interim rents and profits. This right to interest exists even in the case of a sale of a reversion; because the wearing out of the lives is equivalent to taking the profits. If no time is limited for the performance of the agreement, the purchaser must pay interest on the purchase money from the time of taking possession (d). Where a good title is not shown until a given period, the purchaser will pay interest only from that period, and he will of course take the rents from the same time (e). And interest on the purchase money of timber to be taken at a valuation will only commence from the valuation; because the increase in the value of the timber by growth is an equivalent for the interest (f). 1700. The vendor may stipulate that the purchaser shall pay interest at a given rate up to a given time, and then at a (c) M'Creight v. Foster, L. R. 5 Ch. Ap. 604; affirmed (nom. Shaw v. Foster), 5 H. L. 321. (d) Sugd. Concise View, 488-491, 494. (e) Sugd. Concise View, 494. |