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 appear to 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.

The statute extends, in some cases, not merely to contracts relative to houses, or lands, in the common acceptation of those 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 (k). There has been a similar decision in the case of a contract for growing hops (1), and growing turnips (m); 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 (n). 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 (o).

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 contemplated only a sale of goods, as the produce of the soil. Thus in Evans v. Roberts (p), a parol agreement to pur

(k) Crosby v. Wadsworth, 6 East, 602. Sed qu. vide the subsequent authorities. An agreement to take land for 14 years, and to pay for seeds and tillages is within the 4th section, even as to the seeds and tillages. Earl of Falmouth v. Thomas, 1 C. & M. 89. (1) Waddington v. Bristow, 2 B. & P. 452.

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

(n) Parker v. Staniland, 11 East, 362.

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

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

R

chase 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. In Smith v. Surman (q), the plaintiff being the owner of trees growing on his land, verbally agreed with the defendant to sell him the timber at so much per foot. The plaintiff had cut some of the trees when the bargain was made, and was about to cut, and by the contract became bound to fell the remainder. The Court held that this was substantially a contract, not for growing trees, but for timber, viz. the produce of the trees when severed from the freehold. Mr. J. Littledale said,-" If in this case the contract had been for the sale of the trees, with a specific liberty to the vendee to enter the land to cut them, I think it would not have given him an interest in the land within the meaning of the statute. The object of a party who sells timber, is not to give the vendee any interest in his land, but to pass to him an interest in the trees when they become goods and chattels. Here the vendor was to cut the trees himself. His intention was not to give the vendee any property in the trees until they were cut, and ceased to be part of the freehold." And Mr. Justice Parke observed," The defendant could take no interest in the land by this contract, because he could not acquire any property in the trees until they were cut."

In Watts v. Friend (r), A. agreed to supply B. with a quantity of turnip seed, and B. agreed to sell the crop of seed produced therefrom at 1s. per bushel. This was held to be substantially a contract for the sale of goods within the 17th section; and not a contract conferring an interest in land under the 4th section; "for the thing agreed to be delivered would, (it was observed by Lord Tenterden, C. J.,) at the time of delivery, be a personal chattel."

There is great difficulty in reconciling with these authorities, the case of Scorell v. Boxall (s). This was an action of trespass for cutting and carrying away underwood. The plaintiff had purchased it whilst standing, and was to cut it down, but it did not

(q) 9 B. & C. 561, A. D. 1829. (r) 10 B. & C. 446, A. D. 1830.

(s) 1 Y. & J. 396. A. D. 1827,

appear when it was to be cut; or what state it was in as to growth, or whether the price depended on the quantity produced. The plaintiff was nonsuited, on the ground that the contract was within the 4th section of the statute. Mr. Baron Hullock drew a distinction between crops and other articles which are raised by the industry of man, and are emblements; and things which give no annual profit, and go to the heir, as trees (t).

A mere licence to use land has been held not to be within the statute; as a parol agreement for liberty to stack coals on a close for seven years, with the sole use of that part of the close during the seven years (u); or to stack hay on land for a convenient time until sold (x). So a parol licence to put a skylight over the defendant's area, which impeded the light and air from coming to the plaintiff's house through a window, is good, and is not within the Statute of Frauds as relating to an interest in land (y). In Hewlins v. Shippam (z), Bayley, J., in delivering the judgment of the Court, said, "We are of opinion, that although a parol licence might be an excuse for a trespass, till such licence was countermanded, that a right and title to have passage for the water, for a freehold interest, required a deed to create it, and that as there has been no deed in the case, the present action, which is founded on a right and title, cannot be supported. The case of Winter v. Brockwell, which was relied upon, on the part of the plaintiff, appears clearly distinguishable from the present. All that the defendant there did, he did upon his own land. He claimed no right or easement upon the plaintiff's. The plaintiff claimed a right and easement against him, viz. the privilege of light and air through a parlour window, and a free passage for the smells of an adjoining house through defendant's area, and

(t) The learned baron also questioned the dictum of Treby, C. J., in 1 Lord Raymond, 182, that a sale of timber, growing upon land, need not be in writing, because it is a bare chattel: to which Powell, J., is reported to have agreed. This dictum was however cited without disapprobation by Holroyd, J., in Mayfield v. Wadsley, 3 B. & C. 364; 5 D. & R. 224, S. C. See Sugd. V. & P. 8th ed. 75, 76.

(u) Wood (or Ward) v. Lake, Sayer R. 3; cited per Gibbs, C. J., in Taylor v. Waters, 7 Taunt. 384; and see Rex

v. The Inhabitants of Horndon, 4 M. & Selw. 562; where a personal licence to enclose a piece of waste, and erect a cottage, was heid not to confer an interest in land. Sed vide the observations in Sugd. V. & P. 8th ed. 73, 74, 75.

(x) Webb v. Paternoster, Palm. 71; Poph. 151; and 2 Rol. R. 143, 152, S. C.; cited in Winter v. Brockwell, 8 East, 308, per Lord Ellenborough, C.J. (y) Winter v. Brockwell, ubi suprà. (z) 5 B. & C. 232, 233; 7 D. & R. 783, S. C.

.

the only point decided there was, that as the plaintiff had consented to the obstruction of such his easement, and had allowed the defendant to incur expense in making such obstruction, he could not retract that consent without reimbursing the defendant that expense. But that was not the case of the grant of an easement to be exercised upon the grantor's land, but a permission to the grantee to use his own land in a way in which, but for an easement of the plaintiff's, such grantee would have had a clear right to use it. Webb v. Paternoster, Wood v. Lake, and Taylor v. Waters, were not cases of freehold interest, and in none of them was the objection taken that the right lay in grant, and therefore could not pass without deed.”

It has been decided that if, after a lease has been granted, the landlord make improvements on the estate, in consideration of an agreement to pay an additional sum per annum, (viz 10 per cent. on the expense incurred), this is an agreement collateral to the land, and is good though not reduced into writing (a).

It is settled that a sale of lands, even by public auction, is within the Statute of Frauds (b). But the auctioneer is the agent of both parties; and his signature to an entry in his books, or to a memorandum stating the terms of the contract and the parties thereto, or which refers to the particulars or conditions of sale, or is indorsed thereon, will satisfy the act (c.)

If an entire agreement be made for the sale of a real estate, and of goods also; and the agreement as to the land be void by virtue of the statute, it is also inoperative in regard to the personalty (d). But where A., being the occupier of a farm, quitted it on the 25th of May, 1821, and was succeeded in the possession by B.; and it appeared that A. had sown forty acres with wheat, and that, at a meeting between A. and B. in February, 1821, A. asked B. if he would take the forty acres of wheat at 2007., telling him that if he

(a) Hoby v. Roebuck, 2 Marsh. R. 433; 7 Taunt. 157, S. C.; see Price v. Leyburn, Gow R. 109.

(b) Walker v. Constable, 2 Esp. R. 659; 1 B. & P. 306, S. C.; White v. Proctor, 4 Taunt. 209; 3 V. & B. 57; Kenworthy v. Schofield, 2 B. & C. 947; 4 D. & R. 559, S. C.; Blagden v. Bradbear, 12 Ves. jun. 466; Sugd. 8th ed. 101, 87, 98. Sales of property in chancery, under a decree of the court, not within the statute; id., 101,

102. And it seems that the statute does not apply where the defendant, in his answer in chancery, admits the parol contract and terms thereof; id.,

102.

(c) See id.; Emmerson v. Heelis, 2 Taunt. 38; Sugd. 8th ed. 87, 88, 98,

101.

(d) Cooke v. Tombs, 2 Anst. 420; Sugd. 8th ed. 78. See Earl of Falmouth v. Thomas, 1 C. & M. 89; ante 241, n. (k).

did not he should not have the farm, and B. said that he would take it, and a person present then valued the dead stock, and having so done, asked to whom he was to value it, and B. said it was to be valued to him, and then promised to pay A. for the wheat and dead stock on a given day, and paid a sum of money on account, and took possession of the farm, the growing wheat, and dead stock; it was held, in indebitatus assumpsit for the crops and goods, that the contract for the dead stock was distinct from the contract as to the wheat and the farm, and therefore that A. was entitled to recover for the dead stock (e).

And if a party, under a void parol contract, fell and remove timber, or take away a growing crop, he becomes liable, on a new implied contract as for goods sold, although, had he not thus carried the new parol agreement into execution, he could not have been sued thereon (ƒ). And if a party repair premises under a void parol agreement so to do, in consideration of the assignment of a lease which the other party refuses to assign, an action for work and materials may be sustained to recover the value of the repairs performed (g).

At law, part performance of a parol agreement for the sale of an estate, will not render it binding; but equity will, in certain instances, uphold the contract when partly executed; as where possession has been delivered and taken under the parol agreement, &c. (h).

The requisites of the written memorandum, in regard to form and signature, in pursuance of the provisions of the Statute of Frauds, have been already noticed (i).

3. OF AN ACTION BY THE VENDOR AGAINST THE VENDEE OF AN ESTATE FOR A BREACH OF THE CONTRACT OF SALE.

It seems to be a general rule, that the vendor of an estate cannot sue the vendee on the contract to purchase, unless he, the vendor, has not only shewn, or offered to shew, a good title, if bound so to do, but has executed the conveyance, or offered to

(e) Mayfield v. Wadsley, 3 B. & C. 357; 5 D. & R. 224, S. C.

(ƒ) See id.; Teall v. Anly, 7 Moor, 547; Bragg v. Cole, 6 id., 114; Poulter v. Killingbeck, 1 B. & P. 397.

(g) Gray v. Hill, 1 R. & M. 420. See ante, 17.

(h) Sugd. 8th ed. 106 to 110. But in the case of a sale of GOODS, (a contract of minor importance,) the statute expressly excepts the instances of part performance, by the delivery of some of the goods, or a partial payment. (i) Ante, 56 to 60.