But when a contract was that, in consideration that the plaintiff would advance £2000 upon the security of a mortgage of certain land upon the defendant making out a good title to mortgage it, the defendant promised to pay him the expenses to which he might be subjected, in case the loan should go off by reason of the defendant changing his views or of the defectiveness of the defendant's title, the Court of Exchequer clearly held that the contract merely related to the investigation of the title, and did not relate to any interest in land (p).
A promise founded on a valuable consideration to make a will leaving an interest in land is within the 4th section, and cannot be enforced against *the estate of the promiser in the absence of a writing (q).
Again, a contract professing to give a right to go over certain land and kill game there, and to take away a fourth of the game shot, is a contract for a profit a prendre, and, therefore, for an interest in land, and so must be in writing to satisfy this section (r).
In all these cases, however, the observation applies which I have made in the former Lecture with reference to cases falling within this section in general. The contract, even if by mere words, is not void, but merely incapable of being enforced by action (s). And there(o) Cocking v. Ward, supra; Kelly v. Webster, supra. See ante, p. *99, as to the effect of part performance, according to the rules of Equity.
(p) Jeakes v. White, 21 L. J. (Ex.) 265; 6 Ex. 873.
(q) Alderson v. Maddison, 5 Ex. D. 293; 49 L. J. (Q. B.) 801; 7 Q. B. D. 174; 50 L. J. (Q. B.) 466; Maddison v. Alderson, 8 App. Cas. 467; 52 L. J. (Q B.) 737; Humphreys v. Green, 10 Q. B. D. 148; 52 L. J. (Q. B.) 140.
(r) Webber v. Lee, 9 Q. B. D. 315; 51 L. J. (Q. B.) 174, 485.
(s) Leroux v. Brown, 22 L. J. (C. P.) 1; 12 C. B. (74 E. C. L. R.) 801. See Laycock v. Pickles, 23 L. J. (Q. B.) 43.
10 145 fore it has been held, that, if it actually has been executed, for instance, in the case of a sale of growing crops, by the vendee's reaping them and taking them away, an action will lie to recover the price as for goods sold and delivered (t).
A curious point has been decided upon this section with reference to a parol demise of land. *Such a demise, if for not more than three years, is good within the Statute of Frauds, the 1st section of which enacts, 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 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 or estates at will only." The 2d section excepts "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' (u).1 But an agreement for such a lease falls, not within the
(0 Parker v. Staniland, 11 East, 362; Poulter v. Killingbeck, 1 B. & P. 897. And see the judgment in Teal v. Auty, 2B.&B. (6 E. C. L. R.) 99. (u) 29 Car. II. c. 3, ss. 1, 2. See 8 & 9 Vict. c. 106, s. 3, ante, p. *37.
1 By the Massachusetts statute, all parol leases (without exception as to duration) have the effect of leases at will only: Ellis v. Paige, 1 Pick. 43; Hing-ham v. Sprague, 15 lb. 102; Hollis v. Pool, 3 Metc. 551; Kelly v. Waite, 12 lb. 300. So in Maine: Little v. Pallister, 3 Me. 15; Davis v. Thorupson, 13 lb. 214. By the New York Revised Statutes (2 Rev. St. p. 194), no estate or interest in land other than leases for a term not exceeding one year can be created, unless by operation of law or by writing. In Connecticut (statute of 1S28) such leases are invalid, except as against the grantor. The Pennsylvania statute (1772) is, as to this, exactly copied from that of 29 Car. II; omitting, however, the part as to the reservation of rent. This part, however, it will be perceived, was evidently inserted in the English statute as a guard against perjury, in supporting a parol lease for three years or less.-R.
1st, but within the 4th section; for it is an agreement for an interest in lands; and, therefore, though a lease for a year would be perfectly good though made verbally, an agreement [so made] for such a lease cannot be enforced. That was the point decided in Edge v. Strafford (x) : "It may be said," said Bayley, B., delivering the judgment of the Court in that case, "that it is strange that the 2d section of the statute has made a lease for less than three years from the making valid, and *yet that no action shall be maintainable upon it until it is made effectual as a lease by the entry of the lessee. But, first, the legislature might intend to make a distinction between those cases in which the complaining party was contented to confine himself to its operation as a lease, and sought nothing more than as a lease it would give him, and those in which he went further, and founded upon it a claim for damages, which might far exceed what he could claim under it in the character of a lease; or, secondly, this distinction might not have been contemplated, but may be the result of the true construction of the Statute of Frauds. The first section of that statute provides-that all leases, estates, interests of freehold, or terms of years, or any uncertain interest in lands, made by livery and seisin only, or by parol, and not put in writing, etc, shall have the force and effect of leases or estates at will only; and excepts, nevertheless, all leases not exceeding three years from the making thereof, whereupon the rent reserved shall amount to two-thirds of the full improved value. The 4th section enacts, that no 'action shall be brought whereby to charge the defendant upon any contract or sale of lands, or any interest in or concerning them, unless the agreement on which such action shall be brought, or some memorandum thereof, be in writing.' Is, then, the agreement on which this action is brought 'a contract of an interest in lands'? *Inman v. Stamp (y) says distinctly it is: unless that case be successfully impeached, it must govern the present." l