SECTION VIII. AGREEMENT IN CONSIDERATION OF MARRIAGE. Ir is clearly settled, that mutual promises to marry are not within the statute, and that its provisions extend only to agreements to pay money, or do some collateral act in consideration of marriage. Where a father promised his daughter 3000/., and died before her marriage, leaving her 20007. only, a bill filed by her husband, to obtain the other 1000l., was dismissed, because the marriage was not contracted in expectation of 3000/.b A parol agreement to pay money, or make a settlement in consideration of marriage, is void, and a recognition after marriage of a parol promise before marriage, will not take the case out of the statute.c A subsequent marriage is not sufficient to take a previous parol agreement out of the statute, as a part performance.d *SECTION IX. CONTRACTS FOR THE SALE OF LANDS. *1039 of which A CONTRACT for the sale of lands, &c., within the meaning Contracts of the fourth section, must relate to the sale of the fee simple, the subor of some less interest than the fee and give to the purchaser ject matter an exclusive right to the land for a limited period. The statute partakes however, is not confined merely to contracts relative to houses of the realand lands in the common acceptation of those terms; it extends ty, must to agreements, the subject matter of which partakes of the be in writrealty.(1) ing. An agreement to take lodgings is within the meaning of the statute, and cannot be enforced unless reduced to writing.f Where in a contract for letting a furnished house the defendant A contract undertook to supply proper furniture; held, in an action for for letting not supplying the furniture after the plaintiff had taken pos- a furnish a B. N. P. 280. Harrison v. Cage, Ld. Raym. 386. 1 Salk. 24. Cocke v. Baker, Stra. 33. b Ayliff v. Tracey, 2 P. Wms. 45. Randall v. Morgan, 12 Ves. 73. Maxwell v. Montacute, Prec. Chan. 526. Ves. 297. See Shaw v. Jakeman, 4 East, 201. 1 P. Wms. 618. Taylor v. Beech, 1 Per Littledale, J., in Evans v. Roberts, 5 B. & C. 839. (12 Eng. C. L. 382.) And in Smith v. Surman, 9 B. & C. 573. 'Edge v. Stafford, 1 C. & J. 391. (17 Eng. C. L. 446.) (1) (Mumford v. Whitney, 15 Wend. 380.) the statute ed house session, that the contract for letting the house and supplying is within the furniture was entire, and related to an interest in land, within the 4th section of the statute of frauds, and there being no memorandum thereof in writing, the action could not be Contracts maintained. So is the sale of growing underwood to be cut relating to by the purchaser. So is an agreement for prima vestura, or the grow growing grass to be mown and made into hay by the vendee, ing produce of the whereby the exclusive right to the land is obtained for a limited time.c earth. A sale of growing turnips, no time being stipulated for their removal, and the degree of their maturity not being positively found, has been held to be a contract for an interest in land within the meaning of this section.d But in a subsequent case, where all the previous decisions were reviewed, it was held that the sale of a growing crop of potatoes was not a contract, or sale of lands, &c., within the fourth section, but a sale of goods, merchandises, &c., within the 17th section; for it did not give to the vendee a right to the possession of the land. Bayley, J., said, " that the contract was not for the sale of any interest in or concerning land, but a contract for the sale of things, which at the time of the delivery were to be goods and chattels; crops raised by labor, such as corn and potatoes, were emblements, which went to the executor and not to the heirs, they might be seized under a *1040 *fi. fa.; therefore, in contemplation of law, they must be considered chattels. They were distinguishable from the natural and permanent productions of the soil, such as growing grass, apples upon trees, &c., which belonged to the freehold, and went to the heir. It was immaterial that the vendee acquired a right by his contract to have the crop continue in the land of the seller until it arrived at maturity; for a party entitled to emblements had the same right, and yet he was not by that right considered to have an interest in the land." Holroyd, J., said "that the vendee acquired no interest, so as to entitle him to the possession of the land for a period, however limited; he had only an easement, a right to come upon the land for the purpose of taking up and carrying away the potatoes; but that gave him no interest in the soil." Littledale, J., was of opinion "that a sale of the produce of the land, whether it was in a state of maturity or not, provided it was in actual existence at the time of the contract, was not a sale of lands, &c., within the meaning of the fourth section, which seemed to him to mean land taken as mere land, and not its annual growing productions."'e And in a subsequent case, where the plaintiff, being the • Mechelen v. Wallace, 2 Nev. & Perr. 224. ⚫ Scorell v. Boxall, 1 Y. & J. 396. 420. Crosby v. Wadsworth, 6 East, 602. Shelton v. Livins, 2 C. & J. 411. 2 Tyr. ◄ Emmerson v. Heelis, 2 Taunt. 38. • Evans v. Roberts, 5 B. & C. 829. (12 Eng. C. L. 377. owner of trees growing upon his land, sold to the defendant the timber at so much per foot; the court held, that it was not within the meaning of the fourth section; for it was not a contract for the growing trees, but for the timber at so much per foot; i. e. for the produce of the trees when they should be severed from the freehold; the vendee could take no property in them until they were cut. It was a contract for the sale of goods within the seventeenth section.a But if there be one entire contract made at the same time, partly an interest in land, and partly for crops or other chattels, the latter part falls within the meaning of the fourth section as well as the former. As where the plaintiff let a farm to the defendant for 14 years, and the latter agreed to take the crops growing thereon, at a valuation, in assumpsit for the value of the crops, and for work and labor, and materials *1041 done and used in preparing the land for tillage; the court held that the agreement was within the fourth section, for the contract was entire, both for the crop and the land. When the contract was made, the crops were growing on the land; by the agreement the defendant was to have the land as well as the crops and the work, labor, and materials, were so incorporated with the land, as to be inseparable from it. The defendant could derive no benefit from the work and labor unless he had the land. The court were of opinion that both a right to the crops, and the benefit of the work, labor, and materials, were an interest in the land; but if either of the two was properly an interest in the land, it would be a sufficient objection to the action, the contract not being in writing." Where the land is sold, and the vendee takes from the vendor the growing crops, the latter are considered part of the land. It is otherwise, however, when the contracts respecting the crops or chattels is distinct from that relating to the land. As where the plaintiff quitted his farm in March, and was succeeded by the defendant; there being forty acres of wheat sowed by the plaintiff he asked the defendant if he would take the wheat at 2004., telling him that if he did not, he should not have the farm; the defendant said he would take it. The defendant also took the dead stock at a valuation, and promised to pay for the wheat and the dead stock on a given day; held, that the contract relating to the wheat and the dead stock was not within the fourth section. The result of the authorities on this subject appears to be Result of Smith v. Surman, 9 B. & C. 561. (17 Eng. C. L. 443.) See Watts v. Friend 10 B. & C. 446, (21 Eng. C. L. 109,) post, 1053. The Earl of Falmouth v. Thomas, 1 C. & M. 89. 3 Tyr. 26. Cooke v. Tombs, 2 Anst. 420. Per Littledale, J., in 3 B. & C. 366. (10 Eng. C. L. 114.) & Mayfield v. Wadsley, 3 B. & C. 357. (10 Eng. C. L. 110.) Per Bayley, J., and Holroyd, J. Abbott, C J., doubted whether the contract relating to the wheat was within the 4th section. Littledale, J., was of opinion in the affirmative. All agreed that the contract relating to the dead stock was not within the statute. VOL. II.-18 rities. *1042 the autho- that contracts for the sale of crops cultivated by labor and *expense, such as corn, potatoes, clover, &c., which do not confer on the vendee any other right to the land than what is necessary for his enjoyment of the crops, do not fall within the meaning of the 4th but of the 17th section:" whereas contracts relating to the natural productions of the soil, such as growing grass, trees, &c., fall within the 4th section, unless they are to be cut down immediately, in which case they are to be deemed chattels, and therefore within the 17th section. If a party under a void parol contract fell and remove timber, or take away a growing crop, he is liable as for goods sold, although had he not carried the new parol agreement into execution, he could not have been sued thereon. If a party repair premises under a void parol agreement so to do, in consideration of the assignment of a house which the other party refuses to assign, action for work and materials may be sustained to recover the value of the repairs performed. Plaintiff having really bargained with J. E. for the sale of some houses, sold the bargain to defendant for 401.; and J, E. at the request of defendant, conveyed the premises to P., who was not a trustee for defendant; a verdict having been found. for the plaintiff in an action for the recovery of this 407, the court refused to enter a nonsuit, which was moved for on the *1043 grounds, first, that the oral bargain for the interest in the houses could never have been enforced, and therefore could not form the consideration of an assumpsit; secondly, that the house had never been conveyed to the defendant. If the agreement does not strictly relate to land, it will not come within the act. A tenant having agreed with his landlady that if she would accept another for her tenant in his place, (he being restrained from assigning the lease without her consent,) he would pay her 401. out of 100l. which he was to receive for the goodwill, if her consent were obtained; and • Parker v. Staniland, 11 East, 362. Warrick v. Bruce, 2 M. & S. 205. Evans v. Roberts, 5 B. & C. 829. (12 Eng. C. L. 377.) Crosby v. Wadsworth. Scorell v. Boxall, ante, 1039. Smith v. Surman, ante, 1040. A contract for the sale of an interest in land, without a note in writing, may operate as a license so as to excuse the entry of the purchaser on the land, but it cannot be made available in any way as a contract. Therefore where a party had purchased by a verbal contract, a growing crop of grass, with liberty to go on the close wherein it grew for the purpose of cutting and carrying it away; it was held, that he could not maintain trespass against the seller for taking away his horse and cart from the close, which he had brought there for the purpose of carrying away the grass; for that it was in substance an action charging the defendant on the contract, within the 4th section; which, as it was void by reason of its not being in writing, could not be available to give a right capable of being enforced by action. Carrington v. Roots, 2 Mees. & Wels. 248. 1 Mur. & H. 14. Teall v. Auty, 2 B. & B. 99. (6 Eng. C. L. 32.) 4 Moore, 542. Bragg v. Cole, 6 Moore, 114. (17 Eng. C. L. 19.) Poulter v. Killingbeck, 1 B. & P. 398. Gray v. Hill, R. & M. 420. (21 Eng. C. L. 479.) e 2 Stark, 277. (3 Eng. C. L. 345.) Seaman v. Price, 2 Bing. 437. (9 Eng. C. L. 469.) gill, 4 East, 557, n. And see Adams v. Fairbank, But see Bartlett v. Pickers having received the 1007. from the new tenant, who was cog-. nisant of that agreement, he is liable to the landlady in an action for money had and received to her use, the consideration being executed, and therefore the case being taken out of the statute of frauds, as a contract for an interest in land." The statute does not invalidate an executed parol contract, so as to prevent a party to it from maintaining an action for a breach of it, where the breach does not relate to an interest in land, although the contract itself stipulates that the defendant shall be substituted as tenant in the stead of the plaintiffs, of premises in their occupation. If A. agree with B. to let him land rent-free, on condition that A. shall have a moiety of the two succeeding crops, the agreement need not be in writing under the statute. A. grants a lease of premises to B., who afterwards takes C. into partnership; B. and C. apply jointly to A. to enlarge the premises, agreeing to pay 107. per cent per annum on the money laid out, which is accordingly done, and B. and C. dissolve partnership; held, that the agreement is only collateral to the lease, and not a new demise, and therefore, that it is not within the statute of frauds, and that A. is entitled to recover on it in an action against B. and C.d A license to enjoy a beneficial privilege, or grant of an easement *to be exercised upon the grantor's land, is within the *1044 statute, and must be in writing; but a parol permission to the grantee to use his own land in a way in which, but for an easement of the grantor, such grantee would have a clear right to use it, is not within the act; and in the latter case the grantor could not retract his license without reimbursing the grantee any expense incurred in consequence of it." The day for the completion of a purchase of an interest in land inserted in a written contract cannot be waived by a parol agreement, and another day substituted in its place so as to bind the parties, for that would be virtually to allow an action to be brought on an agreement relating to the sale of land partly in writing signed by the parties, and partly not in writing but by parol only, which would be in contravention of the statute of frauds.f a Griffith v. Young, 12 East, 513. Price v. Leyburn, Gow. 109. (5 Eng. C. L. 477.) • Poulter v. Killingbeck, 1 B. & P. 397. And see Bristow v. Waddington, 2 B. & P. 452. a Hoby v. Roebuck, 2 Marsh. 433. 7 Taunt. 157. (2 Eng. C. L. 57.) See Winter v. Brockwell, 8 East, 309. Hewlins v. Shippam, 5 B. & C. 221. (2 Eng. C. L. 207.) In the former case a parol license 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, was held good. But a parol license to have the water flowing in. a tunnel over the grantor's land is void. Fentiman v. Smith, 4 East, 107. And see Hewlins v. Shippam. A mere license to use land is not within the statute. Wood v. Lake, Sayer, 3. Webb v. Paternoster, Palm. 71, ante, 1017. See 'Stowell v. Robinson, 3 Bing. N. C. 928. (32 Eng. C. L.) Goss v. Lord Nugent, 5 B. & Ad. 58. (27 Eng. C. L. 33.) |