of twenty-three years, at a rent of 55l., and as comprising a yard, one of the conditions was, that if any mistake should be made in the description of the property, or any other error whatever should appear in the particulars of the estate, such mistake or error should not annul or vitiate the sale, but a compensation should be made, to be settled by arbitration; and the yard was not in fact comprehended in the property held for the term at 55l., but was held by the vendor from year to year, at an additional rent; and such yard was essential to the enjoyment of the property leased for the twenty-three years. It was held, though it did not appear that the vendor knew of the defect, that this defect avoided the sale; and was not a mistake to be compensated for under the above condition, although after the day named in the conditions for completing the purchase, and before action brought by the vendee, the vendor procured a lease of the yard for the term to the vendee, and offered it to him.

So a misdescription of the quantity of land sold, in regard to the acres being statute or customary, is not a matter for compensation, but for setting aside the sale (b).

But where the particulars of sale described the property as a family residence, with the right of a pew in the centre aisle of the parish church, and the title to the pew was defective, it was held that as it was not essential to the enjoyment of the property, it gave a right to compensation only (c). And where the agreement was to sell the unexpired term of eight years' lease, &c., and it appeared that at the date of the agreement the unexpired term was only seven years and seven months, Lord Ellenborough said (d), "the parties cannot be supposed to have meant that there was the exact term of eight years unexpired, neither more nor less by a single day. The agreement must therefore receive a reasonable construction; and it seems not unreasonable that the period mentioned in the agreement should be calculated from the last preceding day when the rent was payable, and including therefore the current half-year. Any fraud or material misdescription, though unintentional, would vacate the agreement, but the defendant might have had substantially what he agreed to purchase."

(b) Price v. North, 2 You. & Col. 620.

(c) Cooper v.

2 Jurist, 29.

(d) Belworth v. Hassell, 4 Camp. 140; see Sugd. 264, and MS. cases there.

In cases where there is a material mistake, not aided by the conditions, even if the vendor offer to make an allowance pro tanto, he has no claim against the vendee; for the purchaser is not bound to take an estate or interest which he did not agree to purchase (e).

It seems to have been vexata questio where an estate was sold by auction in separate lots, and the same person became the purchaser of several lots, whether a distinct contract arose as to each, or whether there was but one contract as to the whole; but the better opinion appears to be, at least at law, that a distinct contract is created as to each lot (ƒ). Though it would be otherwise where a written contract is afterwards entered into and signed for the purchase of several lots at an aggregate price (g).

If an estate be sold in one lot, either by public auction or by private contract, the vendor cannot enforce the contract at law unless he has a title to the whole estate (). Perhaps in equity if a separate value were put on different parts, the contract may be considered distinct; but at law, on an entire contract, a vendor cannot recover any part of the purchase-money where he cannot make a title to the whole estate, nor is a purchaser entitled to retain that part to which the title is good, and vacate the contract as to the rest (i).

The private employment by the vendor of puffers at a sale by auction is a fraud upon the purchaser, and will vitiate the sale (j). And Lord Tenterden in the case of Wheeler v. Collier (k), stated the strong inclination of his opinion to be, "that if only one person be employed to bid with a view to save the auction duty,

(e) Favier v. Nightingale, 2 Esp. Ca. 639; Thomson v. Miles, 1 Esp. Ca. 184; Hearn v. Tomlin, Peake's Ca. 192; Hibbert v. Shee, 1 Camp. Ca. 113; Duffell v. Wilson, 1 Camp. 401; Sugd. V. & P. 265, MS. case; Jones v. Edney, 3 Camp. 284.

(f) Emerson v. Heelis, 2 Taunt. 38; Johnson v. Johnson, 3 B. & P. 169; James and another v. Shore, 1 Stark. 430; Roots v. Lord Dormer, 4 B. & Ad. 77; Lewin v. Guest, 1 Russ. 330; Poole v. Shergold, 2 Bro. C. C. 118; Sugd. V. & P. 268, 270; sed vide Chambers v. Griffiths, 1 Esp. Ca. 149; Gibson v. Spurrier, Peake's Addl. Ca. 49; Boyer v. Blackwell, 3 Anst.

657; Seaton v. Booth, 4 Ad. & E. 532.

(g) Dykes v. Blake, 4 Bing. N. C. 463; 6 Scott, 320, S. C. (h) Tomkins v. White, 3 Smith, 435.

(i) Johnson v. Johnson, 3 B. & P. 162; Sugd. V. & P. 270.

(j) Howard v. Castle, 6 T. R. 644; Benwell v. Christie, Cowp. 396; Blachford v. Preston, 3 T. R. 93; Crowder v. Austin, 3 Bing. 368; 11 Moore, 283, S. C., and 2 Car. & Pay. 208, S. C.; Fuller v. Abrahams, 6 Moore, 318; Rex v. Marsh, 3 Y. &

J. 332.

(k) M. & Mal. 126.

the sale is void, unless it be announced that there is a person bidding for the owner; that the act itself was fraudulent: that the statute relative to the duty was made for a different purpose, with a view to the duty only, and could not be made to sanction what is in itself fraudulent." And the Court of Common Pleas seem to have been of the same opinion in the case of Crowder v. Austin (1). And if the advertisements or particulars state that the estate will be sold without reserve, it has been decided that if a person be employed on behalf of the vendor to keep up the price, he can have no claim to the aid of a court of equity to enforce a contract against the defendant under such circumstances (m). It has been decided in a late case (n) that if a purchaser by unfair conduct deter other persons from bidding at the sale, and cause the goods to be knocked down to him, he does not acquire any property in the goods.

2. OF THE STATUTE OF FRAUDS AS IT AFFECTS AGREEMENTS FOR THE SALE OF REAL PROPERTY.

By the statute of frauds, 29 Car. II. c. 3, s. 1, it is enacted, that "all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands or 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 (o), shall have the force and effect of leases or estates at will only; and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect; any consideration for making any such parol leases or estates notwithstanding."

The second section excepts "all leases not exceeding the

(1) 3 Bing. 368; 2 C. & P. 208, S. C. See also per Alexander, C. B., in Rex v. Marsh, 3 Y. & J. 332. Sir Edward Sugden, however, appears to be of opinion, that one person may, without public notice of the fact, be appointed to bid; and he quotes several cases decided in the Court of Chancery in support of his opinion; see Sugd. V. & P. 8th ed. 23, 24, 25, 9th ed. 27. The safer mode is to give public notice that some person is appointed to bid on

term of three years from the making thereof, whereupon the rent reserved to the landlord during such term shall amount unto two-third parts at the least of the full improved value of the thing demised."

The third section enacts, " that no leases, estates, or interests, either of freehold or terms of years, or any uncertain interest, not being copyhold or customary interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall at any time 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 at law."

By the fourth clause it is enacted, amongst other things, that "no action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them; 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 (p)."

The effect of these sections upon a contract to demise lands in futuro, and upon a present letting thereof, will be considered in the next division of this subject. The first and second sections relate chiefly to the actual and immediate creation of a title; the third to the assignment or surrender of a title already created; and the fourth section to contracts for the future creation of an interest in or title to realty upon a sale, &c. thereof. It should seem that a contract within the fourth section of this statute cannot have any operation or be made available in any way as a contract, unless an action may be maintained upon it, though it may operate as a license, and afford a defence to an action of trespass for acts done under it (q).

The statute extends in some cases, not merely to contracts relative to houses or lands, in the common acceptation of those

(p) See comments upon these sections, Sugd. 69 to 73, 8th ed.; and per Littledale, J. in Smith v. Surman, 9 B. & C. 571. It is observable that under the 4th section the agent need not have a written authority. As to the form and requisites of a contract under this section, see Dobell v. Hutchinson, 5 Nev. & M. 251; 3 Ad. &

E. 353; 1 Har. & Wol. 394, S. C.; ante, 70. We have seen that it is sufficient if the party against whom the contract is to be enforced has signed, though the party enforcing it have not done so; ante, 71.

(9) Carrington v. Roots, 2 Mec. & W. 248, 254.

terms, but also to agreements, the subject-matter of which partakes of the realty and creates an interest therein.

Thus an agreement for prima vestura or growing grass, whereby the exclusive right to the land is obtained for a limited time and for given purposes, has been held to be within the statute (r). There has been a similar decision in the case of a contract for growing hops (s) and growing turnips (t); no time being stipulated for the removal, and the parties not considering the land as a mere warehouse for the hops and turnips. But where potatoes in a matured state of growth were sold by parol, and it was agreed that they should be immediately taken, the court held that this was not a contract for any interest in the land; as the parties contemplated nothing but the mere sale of a personal chattel (u). And where the sale was of potatoes stated to be then growing at so much per acre, and the purchaser was to take them away, but no time was appointed for so doing; the court held that the contract conferred no exclusive right to the land for a time, and was not within the fourth section (x).

In the latest cases upon this subject the courts seem to have considered that no contracts of this nature are within the statute as contracts relating to land, where the parties evidently and substantially contempleted only a sale of goods as the produce of the soil. Thus in Evans v. Roberts (y), a parol agreement to purchase a crop of potatoes, to be turned up by the seller, was held not to be within the fourth section, although the crop was in a growing state at the time of the sale. It was decided that a sale of the produce of the land, whether it be in a state of maturity or not, provided it be in actual existence at the time of the contract, is not a sale of any interest within the fourth section. And in Sainsbury v. Matthews, where defendant in June agreed to sell potatoes then growing on certain land at 2s. per sack, the plaintiff to have them at the usual digging time, October, and

(r) Crosby v. IVadsworth, 6 East, 602. Sed qu. vide the subsequent authorities. An agreement to take land for fourteen years, and to pay for seeds and tillages is within the fourth section, even as to the seeds and tillages; Earl of Falmouth v. Thomas, 1 C. & M. 89; Mechelen v. Wallace, 2 Nev. & P. 224.

(s) Waddington v. Bristow, 2 B. &

P. 452.

(t) Emmerson v. Heelis, 2 Taunt. 38. It seems difficult to reconcile this case with the subsequent decisions.

(u) Parker v. Staniland, 11 East,

362.

(x) Warwick v. Bruce, 2 M. & Selw. 205.

(y) 5 B. & C. 829; 2 D. & R. 611, S. C.