This section is from the book "A Treatise On The Construction Of The Statute Of Frauds", by Causten Browne. Also available from Amazon: A treatise on the construction of the Statute of frauds.
§ 1. The Statute of Frauds found the law of England in regard to the alienation of corporeal interests in land in a singularly unsettled condition. The ancient investitura propria, or actual delivery of the land by the donor to the vassal, which was practised in early feudal times, had been accompanied by such solemnities in the presence of chosen witnesses as gave the highest notoriety to the transaction and secured ample evidence of it. This was properly that livery of seisin which is mentioned in the first section of the Statute of Frauds, and it may be supposed that if it had been preserved in its original strictness and formality, the policy of the statute would not have demanded the substitution of any other ceremony. But the diffusion of landed property among the middle classes, and the extension of commercial intercourse between men, soon brought about infringement upon the ancient practice. The lord delegated the investiture of his tenant to the attorney or steward, and the attestation of common witnesses, instead of the pares curia of the particular manor, was received. Other relaxations of the ancient form followed, until there remained scarcely a vestige of the original ceremony. It had always been customary to make a brief written record of the investiture, and as the old formalities of the parol transfer fell into disuse, this record grew more elaborate, and finally came to be the sole resort for evidence of the transaction. Still, it was never indispensable, and down to the time when the Statute of Frauds was enacted, land could be transferred by parol with livery of seisin, loose and informal as that ceremony had then become, and consequently great danger was incurred of such transfers being attempted to be proved by false and fraudulent means. By this statute it was finally made essential to the conveyance of estates in land (with an exception to be hereafter noticed), that it should be by writing signed by the party or his agent; and all estates created "by livery of seisin only and by parol" were declared to possess no greater force or effect than estates at will. The statute made no provision, however, for the registration of the written conveyances, which omission doubtless left open a wide field for fraud, and was not cured in England till some years after, when recording acts were passed.
§ 2. It will be observed that the operation of the statute is confined to such interests in land as could formerly be conveyed by livery of seisin or by parol. Hence it is clear, and has always been held, that in regard to incorporeal estates no change has been introduced, but that they were left, as they stood at common law, transmissible only by deed or writing sealed.
§ 3. Again, if we consider the three first sections in connection with the fourth and sixth, the broad and comprehensive views of those who produced the Statute of Frauds will be still more clearly appreciated. The fourth section not only has the effect of preventing an action upon a verbal contract for the sale of any interest in land, but also cuts off those equitable claims to land which would arise upon such a contract made for a valuable consideration, and which might be enforced in equity so as ultimately to effect a transfer of real estate without writing. And so with the sixth section, which prevents any trust in real estate from being manifested or proved without writing. By virtue of all those sections, if faithfully enforced by courts of equity as well as courts of law, it becomes impossible to transfer any interest in land, other than the very small class of estates saved by the second section, except by complying with those formalities which the statute has wisely required.
§ 4. There is, it is true, a difference of phraseology between the sections just referred to, and it may be confessed that this and similar irregularities in the language of the statute lead to confusion and embarrassment in treating of the general topics to which it relates. The sections which speak of conveyances specify in detail the various grades of property which may exist in real estate, whether "leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, or out of, any messuages, manors, lands, tenements, or hereditaments." The section which prohibits actions upon contracts for real estate goes, it might be thought, even farther; it says "lands, tenements, or hereditaments, or any interest in or concerning them." The section which prevents trusts in real estate from being verbally proved simply uses the words "lands, tenements, or hereditaments." We shall have occasion hereafter to refer to cases where judges have dwelt upon the expressions "uncertain interests," "concerning," etc., as embracing particular cases then before them; but no case appears to have been directly decided upon the ground of any of these differences of expression.
§ 5. Sir Edward Sugden explains very clearly the mutual relation of the several sections which refer to the creation of estates in land. He says that the former seem to embrace interests of every description, and that all estates actually created without the formalities required therein are avoided by their operation; while, if the same estates rest in fieri, the agreement to perfect and consummate them cannot be enforced by reason of the latter section, relating to contracts.1 But it is to be remembered that the sections which relate to contracts for, and trusts in land, take a wider range than those which relate to transfers of land. The operation of the statute in the latter case is confined to corporeal estates, or such as could previously have been created by "livery of seisin or parol," and does not extend to incorporeal estates, which lie in grant, and which, as well after the statute as before, could only be created by deed. But actions cannot be maintained on verbal contracts for, nor verbal proof admitted of trusts in, incorporeal any more than corporeal estates. On a comprehensive view of the statute as it regards the alienation of estates in land, therefore, we see that all estates, great and small, corporeal and incorporeal, are now provided for. Where an incorporeal estate is to be conveyed, the common law demands a deed for that purpose; and the Statute of Frauds leaves that requirement untouched. Where a corporeal estate is to be conveyed, the statute demands a writing. Where a contract is made for the conveyance of either a corporeal or incorporeal estate, the statute prevents that contract from being enforced unless it be in writing; and if a trust is alleged in either corporeal or incorporeal estates, the statute requires written evidence of that trust to be provided.