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.
§ 265. The distinction in favor of what are called judicial sales appears to have been first made by Lord Hardwicke in the case of the Attorney-General v. Day. There, the Master in Chancery having reported a scheme for carrying out a verbal contract of which specific execution had been ordered, and his report having been allowed, his Lordship said he did not doubt the propriety of carrying into execution against the representative a purchase by a bidder before the Master, though the purchaser had subscribed no agreement; that it was a judicial sale of the estate, which took it entirely out of the statute.1 This remark has been strongly criticised by Judge Kent, but apparently without necessity. He had occasion in the case before him only to hold that a sale by a sheriff required to be consummated by deed, and that his seizure of land under a fi. fa. and return on the execution did not suffice to devest the debtor's estate in it.2 This is true also of a judicial sale, which should be followed up by a deed from the Master, or other officer of the court. The decision of Lord Hardwicke was simply that, after confirmation of the report, the parties were bound to carry out the sale, notwithstanding no memorandum of it had previously been made in writing. The grounds of this rule are well stated by Story, J., in the case of Smith v. Arnold. "In sales directed by the Court of Chancery, the whole business is transacted by a public officer under the guidance and superintendence of the court itself. Even after the sale is made, it is not final until a report is made to the court and it is approved and confirmed. Either party may object to the report, and the purchaser himself, who becomes a party to the sale, may appear before the court, and, if any mistake has occurred, may have it corrected. He, therefore, becomes a party in interest; and may represent and defend his own interests; and if he acquiesces in the report, he is deemed to adopt it, and is bound by a decree of the court confirming the sale. He may be compelled by process of the court to comply with the terms of the contract. So that the whole proceedings from the beginning to the end are under the guidance and direction of the court; and the case does not fall within the mischiefs supposed by the Statute of Frauds."1 Sales by sheriffs on execution are not, as we have seen, to be regarded as judicial sales,2 nor sales by town officers, nor by trustees, nor by administrators. The remarks of Judge Story in the case from which we have just quoted, and where the point decided was that an administrator's sale of land was not saved from the statute as a judicial sale, are entirely applicable to all these varieties. "In the case of an administrator, the authority to sell is indeed granted by a court of law. But the court, when it has once authorized the administrator to sell, is functus officio. The proceedings of the administrator never come before the court for examination or confirmation. They are mere matters in pais, over which the court has no control. The administrator is merely accountable to the Court of Probate for the proceeds acquired by the sale, in the same manner as for any other assets. But whether he has acted regularly or irregularly in the sale is not matter into which there is any inquiry by the court granting the license, or by the Court of Probate having jurisdiction over the administration of the estate. So that the present case is not a judicial sale in any just sense, but it is the execution of a ministerial authority. The sale is not the act of the couut but of the administrator."3
1 Chiles n. Woodson, 2 Bibb (Ky.) 72. And see Allen v. Richard, 83 Mo. 55.
2 Campbell v. Taul, 3 Yerg. (Tenn.) 548; Lamar v. Wright, 31 S. C. 60.
3 Blagden v. Bradbear, 12 Ves. 466. The rule is too familiar to require the citation of authorities. They will be found collected in Chitty on Contracts, 271.
4 See Tate v. Greenlee, 4 Dev. (N. C.) 149; Ingram v. Dowdle, 8 Ired. (N. C.) 455; Emley v. Drumm, 36 Pa. St. 123; Ruckle v, Barbour, 48 Ind. 274; Warfield v. Dorsey, 39 Md. 299; Brent v Green, 6 Leigh (Va.) 16; Wolfe v. Sharp, 10 Rich. (S. C.) Law, 60; King v. Gunnison, 4 Pa. St. 171; Carroll v. Powell, 48 Ala 298; Jones v. Kokomo Association, 77 Ind. 340; Joslin v. Ervien, 50 N. J. Law 39; White v. Farley, 81 Ala. 563.
1 Attorney-General v. Day, 1 Ves. Sen. 218. See also Blagden v. Bradbear, 12 Vea. 466; Smith v. Arnold, 5 Mas. (C. C.) 474; Boykin v. Smith, 3 Munf. (Va.) 102; Trice v. Pratt, 1 Dev. & B. (N. C.) Eq. 626; Jenkins v. Hogg. 2 Treadw. (S. C.) 821; Hudson v. Coble, 97 N. C. 260.
2 Simonds v. Catlin, 2 Caines (N. Y.) 61. Ante, § 28.
§ 266. An agreement by which a party shall ultimately be bound to sell or purchase land is, of course, as much within the statute as if he bound himself immediately to do so.4 A verbal engagement, therefore, to execute a written agreement to convey land is invalid,1 or to make a will of lands.2 And so where it was attempted to prove that a deceased owner of land had said, during his lifetime, that he had sold it to the plaintiff and that the proceeds belonged to him, the evidence was rejected, because it worked the same result as oral proof of an executory contract to sell the land.3
1 Smith v. Arnold, 5 Mas. (C. C.) 420. See also Hutton v. Williams, 35 Ala. 503; Fulton v. Moore, 25 Pa. St. 468; Halleck v. Guy, 9 Cal. 181; Armstrong v. Vroman, 11 Minn. 220; Watson v. Violett, 2 Duvall (Ky.) 332; Andrews v. O'Mahoney, 112 N. Y. 567.
2 Ante, § 264. Also see Brent v. Green, 6 Leigh (Va.) 16.
3 Smith v. Arnold, 5 Mas. (C. C.); Wolfe v. Sharp, 10 Rich. (S. C.) Law, 60; King v. Gunnison, 4 Pa. St. 171.
4 Rucker v. Steelman, 73 Ind. 396.
§ 267. The statute extends to any agreement by which rights already acquired in real estate under a deed or other sufficient writing are enlarged or qualified.4 Not only is an agreement to execute a mortgage invalid without writing,6 but also an agreement to make a defeasance to an absolute conveyance,6 or to convert a written mortgage into a conditional sale,7 or to foreclose a mortgage, even when the agreement is made by solicitors in anticipation of a decree of court to the same effect.8 It would seem to be very clear that a defunct mortgage cannot be revived by a parol agreement;9 and it has been decided that a defunct written agreement for the sale of land could not.10 Nor can a written executory contract for the sale of land be rescinded by parol.11