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 Wilson v. Clarke, 1 Watts & S. 554; McDowell v. Oyer, 21 Pa. St. 417; Moore v. Small, 19 Pa. St. 461; Ellet v. Paxson, 2 Watts & S. 418.
2 Herzog v. Herzog, 34 Pa. St. 418, explaining Jack v. McKee, 9 Pa. St. 235; Bash v. Bash, 9 Pa. St. 360; Malaun v. Amnion, 1 Grant 123. And see McCafferty v. Griswold, 99 Pa. St. 270.
3 See the various cases cited in this section, and, in addition, Soles v. Hickman, 20 Pa. St. 180; Kurtz v. Cummings, 24 Pa. St. 35; Malaun v. Ammon, 1 Grant 123; Pattison v. Horn, 1 Grant 301; Wible v. Wible, 1 Grant 406; Postlethwait v. Freaze, 31 Pa. St. 472; Washa-baugh v. Entriken, 36 Pa. St. 513; McKowen v. McDonald, 43 Pa. St. 441.
§ 227. With these preliminary observations, we pass to the examination of that clause of the fourth section which immediately forms the subject of the present chapter. Two questions present themselves under this clause which will be examined in order: first, as to what is embraced in the words "lands, tenements, or hereditaments, or any interest in or concerning them;" and, secondly, as to what is a "contract or [for] sale of " such lands, etc.; the one question relating to the subject-matter, and the other to the nature of the transaction.
§ 228. We have already had occasion to remark that the language which, in the first section, is used to describe the interest intended to be made grantable from that time by writing only, appears to be no more comprehensive than that here employed to describe the interest which it was intended should, from that time, be bargained for by writing only.1 Such we saw was the opinion of a very eminent writer;2 and a broad and rational view of the whole statute taken together, as it affects real property, leads to the conclusion that the Parliament which enacted these several sections, as well as that which concerns trusts, did not design to make any distinction between them in this respect. In the case of Wood v. Lake, so prominent in a former chapter on the subject of leases, it appears by one of the reports that Lee, C. J., took occasion to express an opinion upon the force of the term "any uncertain interest," etc., used in the first section, and considered that it meant uncertainty of duration, and not uncertainty of quantity, of interest.3 And it seems to have been supposed in a Massachusetts case, that the decision in Wood v. Lake, to the effect that the privilege of stacking coal on another's land for seven years could be conferred without writing, might be supported on the particular words in question.1 The repeated decisions in England since, however, overruling the principle of Wood v. Lake, show conclusively that, although the words still remain in the English statute, no such virtue can now be attributed to them. The words "lands, tenements, and hereditaments," which occur in every part of the statute where real estate is dealt with, certainly seem to embrace all that can be embraced by the other phrases occasionally used;2 and we may perhaps find the latter to be important in the construction of the statute only in the way of an illustration of the extreme solicitude of its framers to guard property of this nature from the perils of oral testimony.3
1 Ante, §§ 4, 5.
2 Sir Edward Sugden, in his Treatise on the Law of Vendors and Purchasers, p. 95.
3 See the report of that case in note to § 23, ante.
1 Stevens v. Stevens, 11 Met. 251.
2 It seems that a contract for the transfer of a pre-emption right, although this is not any interest in the legal title, but merely a right of occupancy for the time being, with privilege of purchase, would be within the statute. Lester v. White, 44 111. 464. See also Miller v. Specht. 11 Pa. St. 449, where one having an oral contract for the transfer of a lease was said to have no interest attachable on execution. James v. Drake, 39 Tex. 143; Grumley v. Webb, 48 Mo. 562.
3 Of the word tenements, which is the only word used in the Statute de Donis to express its subject-matter, Lord Coke says, that it " includes not only all corporate inheritances, which are or may be holden, but also all inheritances issuing out of any of those inheritances, or concerning, or annexed to, or exercisible within, the same, though they lie not in tenure." It was suggested by Lord Littledale in Evans v. Roberts, 5 Barn & C. 829, that the words " lands, tenements, and hereditaments," in the fourth section, were used by the legislature to denote a fee-simple, and the words " any interest in or concerning them" were used to denote a chattel interest, or some interest less than a fee-simple. But it is settled that the seventh section, in regard to trusts, extends to trusts in chattels real, though the latter words are not used (ante, § 82). And, on an examination of the whole statute, it is impossible to conclude that the framers of it meant to affix to these words their technical sense.. For instance, the fifth section provides that devises of lands and tenements shall be in writing, while the sixth provides that no written devise of lands, tenements, or hereditaments shall be revoked except in certain modes, but that all devises
§ 229. That the fourth section extends to and embraces equitable as well as legal interests in land is well settled. It has been held by Mr. Justice Story, that a verbal contract to buy a contract for lands, or, in other words, to buy another man's rights under an executory agreement for the sale of lands to him, was affected by the statute, because it was for the purchase of an equitable interest in real estate.1 Nor can a mortgagor's equity of redemption in the mortgaged real estate be bought or sold without writing.2 Nor, it would seem, can such equity be pledged without writing, though the contrary has been held in Kentucky;3 the contract in such a case must eventually work a transfer of the equitable right of lands and tenements shall continue in force till so revoked. Again, the seventh section provides that declarations of trusts in lands, tenements, or hereditaments shall be manifested by writing, while the eighth excepts resulting trusts in lands or tenements. Obviously it is unsafe, on a statute so loosely drawn, to determine anything on merely verbal differences.