SECTION II.

AUTHENTICATION BY WRITING SIGNED BY THE PARTY MAKING THE CONTRACT.

Leases.

It has been mentioned at the close of the last section, that the transfer of property act requiring all leases, for a longer duration than the ordinary tenancy from year to year, to be created by deed, does not extend "to any act or thing, executed or done before the first day of January, 1845." All leases, therefore, made and executed prior to that period, continue to be governed by the salutary provisions of the Statute of Frauds, whereby 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, tenements or hereditaments, made or created by livery and seizin only, or by parol, and not put into writing, and signed by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the force and effect of leases, or estates at will only, except all leases not exceeding the 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," and 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 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 authorized by writing, or by act and operation of law. (a)

Contracts for an interest in land.

By the fourth section of the Statute of Frauds, it is also further enacted, that 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 memo

(a) Mollett v. Brayne, 2 Camp. 103. Boothby v. Martin, 1 Camp. 318.

randum 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."

An interest in land within the statute is such an interest as conveys a right to an estate in reversion, or a right to the present possession of the land.

A contract for the sale of growing grass, (primæ vesturæ,) to be mown and made into hay on the land by the vendee, is a contract for the sale of an interest in land within the statute, inasmuch as it confers upon the vendee a right to the possession of the soil, from the date of the contract until the period when the grass should be cut and dried. (b) Grass is the natural growth and produce of the land itself, permanently remaining, not exhausted when once cut, but constantly growing and renewing. It cannot be seized in execution under a fieri facias as goods and chattels, and upon the death of the owner of the land, it goes to his heir-at-law, and not to his executors or personal representative. (c)

A contract for the purchase and sale of growing timber or underwood, not made with a view to its immediate severance and removal from the soil, has likewise been held to be a contract for an interest in land, as it confers upon the vendee a right to the casual profits of the trees, together with a right to the soil for the trees to grow in. (d) But when standing timber was sold at so much a foot, with a view to its immediate severance from the soil and delivery as a chattel to the vendee, it was held that this was not a contract for the sale of an interest in land, but for the sale of goods and chattels," the produce of the trees when they should be cut down and severed from the freehold." (e)

An agreement for the sale and purchase of growing fruit and of hops, is an agreement for the sale of an interest in land, as they are not distinguishable from the land itself in legal contemplation until actual severance, and pass to the heir, and not the executor; (f) but fructus industriales, such as growing crops of turnips, potatoes, and corn, and the annual productions of the soil raised by the labour of man, which are seizable by the sheriff under a fi. fa., and pass to the executor and not to the heir, are considered goods and chattels, and contracts for the sale of them are, from

(b) Crosby v. Wadsworth, 6 East, 610. Grif fiths v. Puleston, 14 Law J. Rep. N. s., Excheq. 33.

(c) Bayley, J., Evans v. Roberts, 8 D. & R. 615; 5 B. & C. 832.

(d) Scorell v. Boxall, 1 Y. & J. 398. Sugd. Vend. ch. 3, sec. 2.

(e) Smith v. Surman, 9 B. & C. 568. "From the nature of this contract it must be taken to be the same as if the parties had contracted for timber already felled." Lord Abinger, C. B.; 9 M. & W. 505.

(f) Rodwell v. Phillips, 9 M. & W. 504. Chambre, J., Waddington v. Bristow, 2 B. & P.

this their original nature, considered to be contracts for the sale of goods and chattels, and not of an interest in land, although they are to remain in the soil, and derive a nutriment therefrom, until they have arrived at maturity; and the mere license to come upon the land for the purpose of gathering and securing the crop which is incident to such a contract, is not a sale of a right concerning land within the meaning of the statute. (g)

"Fixtures, although annexed to the freehold, may be treated for some purposes as chattels : in the execution of a fi. fa. they may be seized and sold as falling under the description of goods and chattels, in like manner as growing crops of corn, or other fructus industriales, which go to the executor; (h) and it has been held, consequently, that a contract for the sale of fixtures is not a contract for the sale of an interest in land; neither is it a contract for the sale of goods and chattels within the meaning of the statute. (i)

Railway shares.--A contract for the purchase and sale of railway shares, does not come within the operation of the Statute of Frauds," since they are neither an interest in land, nor are they goods and merchandizes (k) within the meaning of the act. The transfer of property of this description is regulated by the various railway acts, and is generally required to be made by DEEd.

Furnished lodgings.-A contract by one person to let, and another to take a house, or furnished lodgings in a house, is a contract for an interest in land within the fourth section of the statute. Thus, where the defendant orally agreed to take apartments in the plaintiff's dwelling-house, to be entered upon at Christmas, at an annual rent to be paid quarterly, and the defendant, the day before he was to have taken possession, announced his determination to recede from the bargain, it was held that no action was maintainable against him, as the contract was a contract for an interest in land within the meaning of the fourth section of the act. (7)

All agreements for leases consequently, or for grants of any estate or interest in land to be made or created at any future period, must be expressed by some note or memorandum in writing, signed by the party to be charged therewith.

An oral agreement was entered into between the plaintiff and the

(g) Parker v. Stanilands, 11 East, 362. Warrick v. Bruce, 2 M. & S. 208. Mayfield v. Wadsley, 3 B. & C. 357; 5 D & R. 224, s. c. Evans v. Roberts, 8 D. & R. 614; 5 B. & C. 829, s. c. Watts v. Friend, 10 B. & C. 446. Sainsbury v. Matthews, 4 M. & W. 347. Jones v. Flint, 10 Ad. & É. 753; 2 P. & D. 594, s. c. (h) Parke, B., 1 C. M. & R. 275.

(i) Hallen v. Runder, ib. 266; 3 Tyr. 959, S. C. Lee v. Risdon, 7 Taunt. 191. Parke, J., 2 Sc. 249. Pinner v. Arnold, 1 Tyr. & G. 4.

(k) Parke, B., 6 M. & W. 214. Humble v. Mitchell, 11 Ad. & E. 205. Bradley v. Holdsworth, 3 M. & W. 422.

(1) Inman v. Stamp, 1 Stark. N. P. C. 12. Edge v. Stafford, 1 C. & J. 391.

defendant for a lease of a ready-furnished house at a certain specified rent, and the house being only partially furnished at the time of the making of the contract, the defendant promised to send in more furniture, and the plaintiff, relying upon this promise, took possession of the house, and occupied it for several months; and the furniture not being put in, he brought his action against the defendant, to recover damages for the breach of the defendant's promise in that behalf; but it was held that the promise formed part of an entire contract for an interest" in or concerning lands, tenements, and hereditaments, and ought consequently to have been expressed in writing." (m)

The plaintiff being possessed of a messuage and premises for the residue of a term of years, agreed to give up possession to the defendant, and suffer him to become tenant thereof for the residue of the term, in consideration of the defendant's undertaking to do certain repairs to the said messuage and premises; the defendant, in pursuance of the said agreement, entered into possession, and became tenant for the residue of the term, but neglected to fulfil his promise to repair the house; and it was held, that this was an agreement relating to an interest in land within the meaning of the statute. "Perhaps, if the declaration had stated an agreement to relinquish the possession merely, it might not have amounted to a contract for an interest in land: but it goes on to allege that the plaintiff was to suffer the defendant to become tenant thereof for the residue of the term. Now he could not become such tenant except by an assignment, and that would be a contract for an interest in land within the statute, and ought to be reduced into writing." (n)

Executed contracts.-The statute of course only applies to executory contracts for the use and occupation of land and realty, and the sale of the produce of the soil. If the contract has been executed in the one case by an actual entry upon the land, and an occupation thereof, or in the other by the actual severance and removal by the purchaser of the produce of the soil, an action is of course maintainable for use and occupation on the one hand, and for goods sold and delivered on the other, whether the original contract was or was not in writing. Parties have consequently often recovered upon an executed agreement, although they never could have prevailed upon the contract if it had been resisted and contested whilst it remained executory. (0)

(m) Mechelen v. Wallace, 7 Ad. & E. 49; 2 N. & P. 224, s. c. The sending in of the furniture was held, however, to be a condition precedent to the defendant's right of action for the rent agreed upon. 7 Ad. & E. 54, n. (b.)

(n) Buttemere v. Hayes, 5 M. & W. 456Parke, B., 459.

(o) Teal v. Auty, 2 B. & B. 100. Griffith v. Young, 12 East, 513, 515. Mavor v. Pyne, 11 Moore, 2.

A tenant in the actual occupation of a house under an existing demise, agreed to pay to the landlord, in consideration that the latter would put another story upon the house, 107. per cent. per annum upon the cost of the erection, in addition to the rent; and the story having been built, the landlord brought his action upon the contract for the increased payment, and it was held that the action was not barred by the statute. (p)

Guarantees and executory promises and contracts generally.

By the fourth section of the Statute of Frauds, it is further enacted, "that no action shall be brought whereby to charge any executor or administrator upon any special promise to answer damages out of his own estate; or whereby to charge the defendant upon any special promise to answer for the debt, default, or miscarriage of another person, or to charge any person upon any agreement made in consideration of marriage, 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 by him lawfully authorized."

The act of 9 Geo. 4, c. 14, further requires all acknowledgments and promises which operate to take a claim or cause of action out of the operation of the Statute of Limitations; and all promises made after full age to pay debts contracted during infancy, and all ratifications by adults of promises or simple contracts made during their minority, (q) and all representations concerning the character, credit, or conduct of third persons, to enable them to obtain credit, or money, or goods, (r) to be put into writing and signed by the party to be charged therewith. And in the case of annuities and transfers, and the sale or assignment of a copyright, certain written evidence and forms of registry are required by statutory enactment to give effect to the transaction. (s)

Agreements in consideration of marriage.

The clause in the fourth section of the Statute of Frauds, relating to agreements in consideration of marriage, does not extend to the marriage contract itself, promises of marriage consequently are binding, though

(p) Hoby v. Roebuck, 7 Taunt. 157; 2 Marsh. 433, 8. c.

(q) Hartley v. Wharton, 11 Ad. & E. 934. See post, § 2, p.

(r) Lyde v. Barnard, 1 M. & W. 101; 1

Tyr. & G. 250, s. c. Swann v. Phillips, 8 Ad. & E. 457.

(8) 53 Geo. 3, c. 141; 6 Geo. 4, c. 110. Power v. Walker, 3 M. & S. 7; 5 & 6 Vict. c. 46.