authority to convey to the purchasers. The confirmation of the report, if the sale has been fairly conducted, is of course. And Thompson, J.

added in conclusion, "There has been no suggestion that the decree by consent was obtained by fraud or imposition, or that the mortgaged premises were not sold for their full value; and he (Monell) is now seeking to set aside this sale, made pursuant to his own agreement, for the purpose of vesting in himself, solely, the title, and to prevent the equitable distribution of the surplus among the creditors of Sackett. The order of the Chancellor therefore, was affirmed; but Spencer, J. and 10 senators voted for reversing.

[85]

(*)CHAPTER III.

OF PAROL AGREEMENTS AND PAROL EVIDENCE.

WITH a view to prevent many fraudulent practices which were commonly endeavored to be upheld by perjury, it was enacted by the 29 Car. II. c. 3, usually called the statute of frauds, that(a) “all leases, estates, interests of freeholds, or terms of years, or any uncertain interest of, in, or out of any messuages, manors, lands, tenements or hereditaments, made and created by livery and seisin only, or by parol, and not put in writing by the parties so making or creating the same, or their agents thereunto lawfully authorized by writing, shall have the effect of leases or estates at will, any consideration for making any such parol leases or estates notwithstanding." But, nevertheless, leases not exceeding three years, whereupon the reserved rent should amount to two thirds of the full improved value, were excepted (b). The Act then requires the assignment, grant, and surrender of existing interests to be made by writing(c); and then(d) enacts that "no action shall be brought, whereby to charge any person upon any agreement made upon any contract, or sale of lands, tenements, or hereditaments, or any interest

(a) Sect. 1. (b) Sect. 2.

(c) Sect. 3.
(d) Sect. 4.

in or concerning them(1)(29), 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."

In treating of these legislative provisions, we may consider-1. What interests are within the statute:2. What is a sufficient agreement :-3. What agreements will be enforced, although by parol;-and 4. In what cases parol evidence is admissible to vary or annul written instruments.

(I) "Or upon any agreement not to be performed within a year;" which clause does not extend to any agreement concerning lands. Hollis v. Edwards, 1 Vern. 159. It is quite clear, that an agreement for sale of lands must be in writing, although the contract is to be performed the next day. See Bracebridge v. Heald, 1 Barn. and Ald.

722.

(29) MEMORANDUM. In most of the United States, provisions by statute, for the prevention of frauds and perjuries, have been found necessary. The English Statute of 29 Car. 2. c. 3. has been the guide to legislative enactment s on this subject. In some of the states, this act has been adopted, almost verbatim; in others, similar provisions, though with some modification, have been enacted. The want of uniformity of legislation, in the different states, has given rise to a corresponding diversity of judicial opinions. For a similar reason, the American decisions, on certain points, are not always in unison with those of Westminster Hall: But wherever the provisions of the English statute have been re-enacted, the construction given them by the English courts, has, generally, been adopted by our own. [Downey v. Hotchkiss, 2 Day, 225.] The American decisions referred to in this edition of Mr. Sugden's Treatise, either in support, or contradiction of the principles laid down by him, are to be understood as having reference to the legislative acts of the states, respectively, where such decisions were pronounced.

(*75)

SECTION I.

Of the Interests which are within the Statute.

It was observed in the case of Crosby v. Wadsworth (e), that collecting the meaning of the first section by aid derived from the language and terms of the second section, and the exception therein contained, the leases, &c. meant to be vacated by the first section, must be understood as leases of the like kind with those in the second section, but which conveyed a larger interest to the party than for a term of three years, and such, also, as were made under a rent reserved thereupon; and the Court therefore determined that a sale of a standing crop of mowing grass, then growing, was not within the first section of the statute, because neither of the foregoing circumstances were to be found in the agreement, although, as the agreement conferred an exclusive right to the vesture of the land during a limited time, and for given purposes, it was, the Court held, a contract or sale of an interest in, or at least an interest concerning lands.

It was not, however, necessary in the above case, to (*)decide upon the precise construction of the first section, which seems in this respect to be co-extensive with the fourth, and, consequently, every interest which is within the fourth section is equally within the first, unless it come within the saving of the second section. The first and second sections appear to enact, that all interests actually created without writing shall be void, unless in the case of a lease not exceeding three years, at nearly rack-rent, which exception must have been introduced

(e) 6 East, 610.

for the convenience of mankind, and under an impression that such an interest would not be a sufficient temptation to induce men to commit perjury. Perhaps, therefore, the first section ought to extend to every possible interest which is not within the exception in the second clause. If an estate, of whatever value, should be conveyed to a purchaser by livery of seisin, without writing, the act would avoid the estate, although the purchaser had paid his money. An actual lease for any given number of years, whether with or without rent, or any interest uncertain in point of duration, must, it should seem, equally fall within the provision of the first section, and cannot be sustained unless it come within the saving in the second section.

This, however, of itself would not have prevented all the evils which the act intended to avoid; for although actual estates could not be created, yet still parol agreements might have been entered into respecting the future creation of them. To remedy this mischief, the provision in the fourth section was inserted, which, it is conceived, relates not to contracts or sales of lands, &c. but to any agreement made upon any contract or sale of lands, &c.(I),

(I) This appears to be the true meaning of the statute, although this branch of the fourth section has been sometimes read as a distinct clause, in which case the word agreement is dropped, and the clause runs thus, "no action to be brought upon any contract or sale of lands," &c. See Anon. 1 Ventr. 361, and 6 East, 611; but this clause seems to be governed by the preceding one in the same section, as to agreements made upon consideration of marriage. The statute says, no action to be brought, "to charge any person upon any agreement made upon any consideration of marriage, or upon [any agreement made upon] any contract or sale of lands," &c. The words between crotchets must, it is submitted, be implied. At the same time, there is certainly ground to contend, that the clause would have the same operation if not governed by the words in the preceding clause.

The statute seems to have been strangely misunderstood in the case of Charlewood v. Duke of Bedford, 1 Atk. 497, the report of which