SECTION 5.-CONTRACTS FOR THE SALE OF LANDS With reference to contracts for the sale of interests in land, the Statute of Frauds provides:

No action shall be brought 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 authorized.

A discussion of the various interests in land is beyond the scope of this book. It should be apparent, however, that there are many possibilities for dividing the sum total of rights of ownership in land. The highest interest in land is usually called a fee-simple interest. It is this interest which is commonly meant when we speak of a person as owning land. It is possible for one to have less than a fee-simple title. He may have but a life estate, or a lease for years. The deed, or will, or other instrument which created the interest, may provide that, upon the termination of the life estate, the fee-simple title or some lesser interest shall pass to a third party. This future interest is sometimes called a remainder. The interest which the grantor retains after creating an estate in another is called a reversion. There are various other kinds of future interests in land. The point here is not, however, to discuss the nature of these interests, but simply to note the fact that ownership. in land is capable of division into numerous interests of this char

acter.

There are other types of interests in land. A person may have acquired the right to use another's land in a particular way, as, for example, A. may have the right to drive across B.'s land and to use B.'s private roadway, or A. may have acquired the right to construct a drain pipe through B.'s land. These interests are called easements or licenses, depending upon the manner in which they are created. A. may have the right to take gravel from B.'s gravel bed. This is something more than an easement, because it involves the taking of something of value from B.'s land. Such a right is called a profit.

There are several interests in land which owe their origin to the doctrines of that branch of the law which we call equity, as, for example, the interest of the beneficiary of a trust in land, or that of a mortgagee.

Again it is customary, for some purposes, to regard as part of the land all fixtures attached to the realty, growing trees, and growing crops. The expression "interests in land" is very broad, for it includes a great many groups of rights capable of segregation from the total interest of ownership and of sale to different persons. In discussing the transfer of interests in land, there are two things which should be kept quite distinct: (1) The contract

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which creates the duty to transfer the interest; and, (2) the instrument which actually transfers the interest. The Statute of Frauds has nothing to do with prescribing the manner in which an interest in land shall be transferred. While we are not directly interested in this subject here, it may be remarked in passing that interests in land are commonly transferred either by deed or by will. Independent rules of law prescribe that deeds and wills must be in writing, and moreover that they shall conform to certain other formal requisites. Statutes of the various states prescribe, generally with considerable detail, the form by which interests in land are to be conveyed, whether by deed or by will.

We are here interested, however, in the contract which antedates the execution and delivery of the deed, and we find that such contracts must be in writing in order to be enforceable. Short term leases are, in most states, expressly exempted from the operation of the statute, which makes it possible to make a valid oral lease in many states for a period of one year, and in some states for a period as long as three years. The following cases will give some idea of a few of the questions that have arisen involving the interpretation of this section.

MOORE v. SMALL.

(Supreme Court of Pennsylvania, 1852. 19 Pa. 461.)

WOODWARD, J. The statute of frauds and perjuries, regarded as a rule of property, is simple and intelligible. Every mind is capable of understanding that contracts about land, if more is meant than a three years' lease, must be in writing. This rule is as apprehensible and appreciable by the common mind as those other statutory rules which make twenty-one years' adverse possession of land, title thereto; bar actions on simple contracts after six years' delay; require judgments to be revived once in five years; and liens of mechanics and material men to be entered within six months after the contract executed.

And what rule is more reasonable? Land is the most important and valuable kind of property. Or if it be not, there is no other stake for which men will play so desperately. In men and nations there is an insatiable appetite for lands, for the defence or acquisition of which money and even blood sometimes are poured out like water. The evidence of land title ought to be as sure as human ingenuity can make. it. But if left in parol, nothing is more uncertain, whilst the temptations to perjury are proportioned to the magnitude of the interest.

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WETOPSKY v. NEW HAVEN GAS LIGHT CO. (Supreme Court of Errors of Connecticut, 1914. 88 Conn. 1, 90 Atl. 30, Ann. Cas. 1916D, 968.)

Action by Sylvester Wetopsky against the New Haven Gaslight Company. From a judgment as of nonsuit, plaintiff appeals.

The complaint alleges that the defendant sold a dwelling house to the plaintiff (who then owned a lot on the opposite side of the street

to which he intended to remove it), for a good and valuable consideration then paid; that the defendant had knowledge of the purpose for which the plaintiff purchased the house; and that the defendant. afterwards refused to permit the plaintiff to remove or take possession of the house or to deliver the same to him. * * *

THAYER, J. * * * The plaintiff claims that the sale of a house to be immediately removed from the land on which it stands, and to which it is affixed, is a sale of personal property, and not of an interest in real estate, and so is not within the section of the statute of frauds which prevents the maintenance of an action upon agreements for the sale of real estate, unless the same shall be in writing.

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Williston says: "If the contract is to sell and deliver a house, even though the house is, at the time, affixed to the realty, it is a contract for the sale of goods, for the parties contract to buy and sell a house separated from the realty and moved from its foundations. On the other hand, if the parties attempt to make a present transfer of a building or materials fixed in a building, it is evident that they are attempting to make a sale of realty, even though it is also agreed that the subject-matter of the sale shall be severed in a short time." Williston on Sales, § 66. The Supreme Court of Massachusetts, speaking in a case where the contract related to growing trees, said: "It may be difficult in many cases to determine, from the terms of the contract, whether the parties intend to grant a present estate in the trees while growing or only a right, either definite or unlimited as to time, to enter and cut with title to the property when it becomes a chattel. If the former be the true construction, then it comes within the statute, and must be in writing; if the latter, then, though wholly oral, it may be enforced." White v. Foster, 102 Mass. 375, 378. There is great conflict in the decisions, but this is the rule in England and in many of our sister states. * * * We think, notwithstanding the numerous opposing authorities, that this is the better rule.

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Counsel for the defendant attempted to distinguish cases of contract to sell millstones or other fixtures attached to the realty and belonging to the owner thereof, or a case of contract to sell the boards and brick of which a building is composed, where the vendee is to remove the millstones in the one case and to tear down the building and remove the materials of which it is constructed in the other, from a contract to sell an entire building to be severed and removed by the vendee. We see no difference in principle between the cases.

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Where the intent to sell a building as a chattel is thus apparent from the contract and circumstances attending it, the severance may be made by the vendee. *** The fact that the vendee is to remove the building is important only as bearing upon the intent of the parties in determining whether the title to the building is to pass at once or only after severance from the realty. When the parties to the contract have in contemplation the sale of a building or a tree as a chattel, when it shall be detached from the land, there is no good reason why a court should not give effect to the contract as the parties understood and intended it. In such a case neither party intends that any interest in the real estate shall pass. The very purpose of the contract may be to rid the land of such tree or building. Until detached from the land, the thing contracted to be sold would remain a part of the realty, and a conveyance of the realty to a third party would carry it to the purchaser.

The implied license to enter and sever the chattel, if this was to be done by the vendee, would be revoked by such conveyance of the land, and the vendee's remedy must be against the vendor for breach of the contract.

Growing crops, fructus industriales, are an exception to the rule, and may be sold and the title pass to the purchaser before severance from the soil. * * *

The plaintiff was entitled to show that the contract was as he claimed for the sale of the house as a chattel after severance from the soil, and there was error in excluding the evidence offered for this purpose. There is error; the judgment is set aside; and a new trial ordered.

MILLER v. BALL.

(Court of Appeals of New York, 1876. 64 N. Y. 287.)

Appeal from judgment of the General Term of the Supreme Court in the Third Judicial Department, affirming a judgment in favor of plaintiff. This action was brought to compel a specific performance of an alleged parol contract for the sale of land.

The referee found in substance the following facts: That in the fall of 1863, Robert Miller, agent of plaintiff, without disclosing his agency, made a verbal contract with Philip Potter, defendant's agent, for the purchase of fifty acres of land at three dollars per acre, which he agreed to pay on delivery of a warranty deed, Potter agreeing to have a survey made and to procure the deed. This land was subsequently surveyed and its metes and bounds fixed. Defendant, upon receipt of the survey bill, executed a warranty deed of the premises to Robert Miller. The consideration was stated therein to be $100, and there was a reservation of mines and minerals, and the right to use and occupy all streams for logging and milling purposes. The deed was delivered by Potter to Robert Miller, who delivered it to plaintiff, who objected to the statement of consideration and to the reservations and returned it to Robert, who returned it to Potter, who agreed to have it corrected and returned. The deed was sent back to defendant, who, after promising several times to fix the matter satisfactorily, in April, 1867, refused to execute a deed unless paid two dollars more per acre. Plaintiff tendered a deed and demanded that defendant execute the same, which he refused. The referee also found as follows: "The land in question is situated about two and a-half miles from a highway in one direction, and about five miles in another, and was a wild, uncultivated lot, and of no practical value for cultivation until cleared, nor for any purpose without means of access to it by teams. In November, 1864, the plaintiff entered upon the lot, cut and constructed a road thereto across the adjoining lands of other parties, under a parol license from the owners, to construct, occupy and use the same, said road connecting with roads which the plaintiff also made upon the lot in question. He underbrushed and cut up fallen trees, preparatory to clearing about a quarter of an acre of land; built a bough shanty, and since that time and down to the commencement of this action, on the 12th day of April, 1867, he continued in the occupancy of the said lot, cutting trees and timber upon it, and paying the taxes thereon, and also continued to labor upon and improve the roads upon the lot and those connecting the same with the public highway.

EARL, J. We will assume, for the present purpose, that there was not a sufficient note or memorandum of the agreement between the parties to satisfy the requirement of the statute of frauds, and we still reach a conclusion adverse to the appellant. * * *

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It is not always easy to determine whether there has been sufficient. part performance of a parol agreement for the sale of land, in the sense of courts of equity, to free it from the operation of the statute of frauds. The general rule is that nothing is to be considered as a part performance which does not put the party into a situation which is a fraud upon him, unless the agreement is fully performed. * The principle upon which courts of equity hold that part performance is sufficient is that a party who has permitted another to perform acts on the faith of an agreement shall not be allowed to insist that the agreement is invalid because it was not in writing, and that he is entitled to treat those acts as if the agreement in compliance with which they were performed had not been made; in other words, upon the ground of fraud, in refusing to execute the parol agreement after a part performance thereof by the other party, and when he cannot be placed in the same situation that he was in before such part performance by him. Taking possession under a parol agreement, with the consent of the vendor, accompanied with other acts which cannot be recalled so as to place the party taking possession in the same situation that he was in before, has always been held to take such agreement out of the operation of the statute. * * *

The payment of the consideration alone, in a case where its recovery in an action at law would fully indemnify the party paying, would not be a sufficient part performance within the rule under consideration, and neither would mere possession be, without any other circumstance. of hardship or fraud. But payment of the consideration and possession under the agreement, or by the consent of the vendor, are facts which may be considered with other facts upon the question of part performance. Here the whole consideration-money was paid, and the plaintiff took all the possession of such a lot which is ordinarily practicable. He built roads to it and upon it; built a shanty and made some clearing. His improvements thus made were probably equal in cost to the consideration paid for the lot, and that cost would be lost to him unless the defendant be compelled to perform his agreement. He paid the taxes, and the money thus paid he cannot recover back. I am therefore of opinion that enough was done by the plaintiff to bring his case within the equitable rule as to part performance.

But before acts, otherwise sufficient for part performance, can have the effect within the rule, they must have been done in pursuance or fulfillment of the parol agreement, or in just reliance thereon. They must have been done with a view to the agreement, and be referable exclusively thereto. * * In the respects here mentioned, plaintiff's acts were sufficient. The plaintiff paid the entire consideration under the agreement.

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Judgment affirmed

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