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or conditional, that is, to a third person, to keep it till some thing is done by the grantee: in which last case it is not delivered as a deed, but as an escrow, that is, a scrow or writing, which is not to take effect, till the condition is performed; when it becomes a good deed.

88. Where a deed is delivered as an escrow, it is Touch. 59. of no force till the condition is performed; and although the party to whom it is made, should get it into his possession, before the condition is performed, yet he can derive no benefit from it. But if either of the parties die before the condition is performed, and afterwards the condition is performed, the deed becomes good, and will take effect from its first delivery. 3 Rep. 35 b. For there was traditio inchoata in the lifetime of the

parties; et postea consummatio existens, by the performance of the condition.

89. Where a person who delivers a deed as an Idem. escrow, has not power or ability in law at that time to make the deed, and before the second delivery he attains such power, there the deed is void. But where the person at the first delivery has power and ability in law to contract, but cannot perfect it till an impediment be removed; there, if the impediment be removed, before the second delivery, the deed is good.

90. If an unmarried woman delivers a deed as an Idem. escrow, and before the second delivery, she marries or dies; in such a case, for necessity, ut res magis valeat quam pereat, by fiction of law, this shall be a good deed, ab initio.

91. In the delivery of a deed as an escrow, two Touch. 58. things must be attended to. First, that the form of

the words used in the delivery be apt and proper; proper words are these" I deliver this to you

The

Idem.

1 Inst.36 a. 9 Rep. 137 a.

8- Attestation by Wit

nesses.

2 Rep. 5 a.

Garret v.
Lister,

1 Lev. 25.

Park v.

& Pul. 217.

asian escrow, to deliver to the party as my deed, 'upon condition that he deliver to you 201. for me;" or upon any other condition then mentioned. This mode of delivery ought to be taken notice of in the attestation.

92. Secondly, that the delivery of the deed as an escrow, be to a stranger; for if a person delivers a deed to the party himself, to whom it is made, as an escrow, upon certain conditions, the delivery is absolute, and the deed will take effect immediately: nor will the party to whom it is delivered, be bound to perform the conditions.

93. The eighth and last circumstance necessary to a deed, is the attestation of it by witnesses; which is not a thing essential to the deed itself; but only constitutes the evidence of its authenticity.

94. In the reign of Queen Elizabeth, deeds were often without witnesses. In 13 Cha. II. a counterpart of an old lease without witnesses, was allowed as good evidence; and Mr. Justice Windham said, he had seen several deeds made in Queen Elizabeth's time without witnesses.

95. It is not necessary that the witness should Mears, 2 Bos. actually see the party execute the deed; for if he be in an adjoining room, and the party after executing the deed brings it to him, tells him he has done so, and desires him to subscribe his name as a witness, that is sufficient.

TITLE XXXII.

DEED.

CHAPTER III.

Of the Statute of Frauds..

1. Statement of the Statute.

4. Construction of the 4th Section.

5. What amounts to an Agree

ment.

11. What is a sufficient signing. 17. An Agent may be authorized

to sign by Parol.

18. A Letter is an Agreement.

34. Where there is a Part Per

formance.

36. What Acts are a Part Per-
formance.

37. Delivery of Possession.
40. Payment of Purchase Money
42. Introductory Acts not a Part
Performance.

48. Parol Agreements not decreed
though confessed.

23. Letters previous to Marriage. 51. A written Agreement dis

29., Parol Agreements good in

Equity.

30. Where there is Fraud.

charged by Parol.

53. Where an Averment is ad

missible.

SECTION 1.

HE first section of the statute, 29 Cha. II. c. 3. Statement of

THE

commonly called the statute of frauds and perjuries, enacts, "That all leases, estates, interests of freehold, or terms for years, or any uncertain interest, of, in, 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 authorized by writing, shall have the force and effect of leases and estates at will only; and shall not either

DS

the Statute.

Construction of the 4th Section.

in law or equity be deemed or taken to have any other or greater force or effect."

By the 2d section, leases for three years, where

upon

the rent reserved amounts to two thirds of the full improved value, are excepted.

2. By the 3d 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 authorized by writing, or by act and operation of law."

3. 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, 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."

4. A great number of cases have arisen upon the construction of that part of the fourth section of this statute which relates to marriage agreements, and contracts for the sale of lands; which I shall endeavour to class under the following heads: 1. What amounts to an agreement or contract: 2. What is a sufficient signing of an agreement or contract: 3. In what cases a written note or letter will be considered as a sufficient agreement: and 4. In what cases a parol agreement is out of this act, and supported in equity.

amounts to

5. With respect to the agreement in writing re- What quired by the statute, no precise form is necessary; an Agreeit must however contain all the terms of the contract, ment. distinctly set forth; and be made with the privity and consent of all the contracting parties.

Buckle,

342.

6. Any written evidence of an agreement will Cannel v. operate as a contract within the statute. Thus an 2 P. Wis. instrument originally intended as a deed, but which became void by subsequent events, was held to amount to an agreement, upon which a specific performance was decreed.

v. D. of Bed

7. A mere entry by a steward in his contract book Charlewood with the tenants, is however not evidence that there ford, is an agreement for a lease, between the lord and 1 Atk. 497. one of his tenants; unless supported by proof.

terhouse,

8. A particular in writing for the sale of an estate Cass v. Wawill not amount to an agreement, though it be proved Prec. in Cha. to have been shown to the purchaser; unless it be 29. also proved that it was shown to him on his purchase, and that he purchased by it.

Bradbear,

9. Where an estate is sold by public auction, and the auctioneer puts down the name of the purchaser in writing, this does not amount to an agreement within the statute, as to real property; though sufficient for chattels. In a late case Sir W. Grant said "The proposition that the auctioneer's receipt Blagden v. may be a note or memorandum of an agreement 12 Ves. 466. within the statute, is not denied: but for that purpose the receipt must contain in itself, or by reference to something else must show, what the agreement is. In this instance one very material particular, the price to be paid for this estate, does not appear upon the receipt for the amount of the deposit, unless we know the proportion it bears to the price, does not show what the price is; and the receipt contains no

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