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 See Sterling v. Baldwin, 42 Vt. 306.
3 Marshall v. Green, 1 C. P. D. 35, per Coleridge, J.
3 Roberts on Frauds, 126.
1 Wells v. Cowles, 2 Conn. 567.
2 Townsend v. Ash, 3 Atk. 336; Drybutter v. Bartholomew, 2 P. Wms. 127.
3 Bligh v. Brent, 2 Y. & C. 268.
1 Watson v. Spratley, 10 Exch. 236.
2 See Milton v. Giraud, 1 De G. & Smale 183; Sparling v. Parker, 9 Beav. 450; Myers v. Perigal, 11 C. B. 00; Duncnft v. Albrecht. 12 Sim. 189; Bradley v. Holdsworth, 3 Mees. & W. 422; Humble v. Mitchell, 11 Ad. & E. 205; Curling v. Flight, 5 Hare 242; Vauxhall Bridge Co., ex parte, 1 Glyn & J. 101; Home, ex parte, 7 Barn. & C. 632. For a recent analogous decision under the Statute of Mortmain, see Entwistle v. Davis, L. R. 4 Eq. 272; and see also Robinson v. Ainge, L. R. 4 C. P. 429. Many stock companies have been formed in England under statutes expressly providing that the stock "shall be personal estate, and shall not be of the nature of real estate." See Agnew, Statute of Frauds, pp. 147-151, where the English cases under these statutes are collected. See Johns v. Johns, 1 Ohio St. 350. It was early held in Massachusetts that the shares in a turnpike corporation were personal property simply. Tippets v. Walker, 4 Mass. 595. But quaere, if the law in New York is not different from that stated in the text. Vaupell v. Woodward, 2 Sandf. Ch. 143. In England, the Court of Common Pleas have acted upon the authority of Watson v. Spratley, though declining to commit themselves to its correctness. Powell v. Jessopp, 18 C B. 336.
1 Forster v. Hale, 5 Ves. 309. See also Jeffereys v. Small, 1 Vera. 217; Jackson v. Jackson, 5 Ves. 591; Elliott v. Brown, 3 Swanst. 489, note; Fereday v. Wightwick, 1 Russ. & M. 45; Essex v. Essex, 20 Beav. 442; Dyer v. Clark, 5 Met. (Mass.) 562; Burnside v. Merrick, 4 Met. (Mass.) 537; Howard v. Priest, 5 Met. (Mass.) 582; Fall River Whaling Co. v. Borden, 10 Cush. (Mass.) 458; Henderson v. Hudson, 1 Munf. (Va.) 510; Hanff v. Howard, 3 Jones (N. C.) Eq. 44; Fairchild v. Fair-child, 64 N. Y. 471; Boyers v. Elliott, 7 Humph. (Tenn.) 204; Wells v. Stratton, 1 Tenn. Ch. 328; Jones v. McMichael, 12 Rich. (S. C.) Law, 176; Allison v. Perry, 130 111. 9: Personette v. Pryme, 34 N. J. Eq. 26; Collins v. Decker, 70 Me. 23; McKinnon v. McKinnon, 56 Fed. Rep. 409. See Allison v. Perry, 28 111. App. Ct. 396. This subject is discussed in a valuable opinion of Lowell, J., In re Farmer, Ex parte Griffin, reported 10 Chicago Legal News 395. Cases apparently contra are Gray v. Palmer, 9 Cal. 616; Hale v. Henrie,2 Watts (Penn.) 144.
§ 260. In Dale v. Hamilton, the question was presented in the English Chancery in a somewhat modified form. There the plaintiff, being a surveyor and land agent, alleged that he proposed to the defendant's testator an arrangement for the purpose of speculation, by which he and a third party were to furnish the capital for buying land, the plaintiff to lay out the lots and effect the sales, and each of the parties to be interested one-third in the profits and losses. It was admitted that lands were acquired under some such general arrangement, but denied that the plaintiff was, as alleged, a partner therein; and the farther question was made whether, if he was a partner in fact, verbal proof (or written proof imperfect in view of the Statute of Frauds) of the alleged partnership was sufficient to take the case out of the Statute of Frauds, in a case where, as here, the entire subject of the transaction was land, and the partnership grew solely out of that subject, and whether the cases in which that effect had been given to a partnership contract were not cases in which the dealing in land was only an incident to the partnership business. Vice-Chancellor Sir James Wigram delivered a very elaborate and careful opinion, in which, while admitting the general principle as to land acquired by an established partnership, he remarked that whether a simple case like that before him, divested of everything but an agreement for a partnership, could be brought within the scope of the cases, was a question of no inconsiderable difficulty. He also well stated the difficulty, in the way of principle, which must present itself against holding such an agreement efficacious to affect the rights of the parties to the land; for, says he, "if A. alleges that B. agreed to give him an interest in land, the statute applies; but if he adds that the land was to be improved and resold at their joint risk for profit and loss, then, according to the argument, the statute does not apply." Nevertheless, upon a nearer view of the cases,1 he found himself unable to decide that the plaintiff was barred by the statute from recovering, if the agreement alleged was really made, and that fact he directed to be tried by a jury.2
1 Thornton [Thompson] v. Dixon, 3 Bro. C. C. 199; Bell p. Phyn. 7 Ves. 453; Balmain v. Shore, 9 Ves. 500. But see Wilcox v. Wilcox, 13 Allen (Mass.) 252; Shearer v. Shearer, 98 Mass. 107.
2 Per Lord Eldon, in Selkrig v. Davies, 2 Dow P. C. 230; Townsend v. Devaynes, cited in Montagu on Partnership, Vol. I., App. 97. See also Vol. I. p. 164 of that treatise, and Crawshay v. Manle. 1 Swanst. 495; also 8 Kent Com. § 37; Clagett v. Kilbourne, 1 Black (U. S.) 348. See also Marsh v. Davis, 33 Kansas 326; Richards v. Grinnell, 63 Towa 44; Bates v. Babcock, 95 Cal. 479; Speyer v. Desjardins, 144 111. 641.
§ 261. This doctrine prevails, however, as would seem from a well-considered case decided in the Supreme Court of Georgia, only as between the partners, or between them and third parties dealing with them in regard to the partnership land. Where a bill in equity alleged that of three persons who had formed a partnership for speculation in lands by purchases and resales, one (the defendant) agreed to sell to the plaintiff a third part of his interest in the lands held by the partnership, and in the proceeds from the sales, and in the speculations and profits, that court refused to decree a specific execution of the agreement, in the absence of a sufficient memorandum or equitable circumstances avoiding the effect of the statute. They say: "It is true that in a court of equity real estate owned by a partnership may be treated as a part of the partnership funds, and, as a consequence, as personal estate. But this rule grows out of the peculiar nature of the partnership relation, and is adopted for the purpose of doing justice between partners, or between them and others having dealings with them, and for the purpose of propereadjusting the relations between them, or between them and others having dealings with, or relations to, the partnership. It is not an arbitrary rule by which a court of equity transmutes real estate into personal property when it is once owned and possessed by a partnership, and causes it to take that character outside of and independent of the exigencies of the partnership, and as to persons having no relations to that partnership. "1 They add, that here the purchase was "of an interest in the profits to be realized by the defendant from the sale of these lands by the partnership, and that he was not and could not have been a partner, or had any relation to the partnership himself." The defendant "was individually responsible to him, and not as one of the partnership. The complainant then was a stranger to this firm, and as to him these lands were, to all intents and purposes, real estate."