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.
2 Mellon v. Read, 123 Pa. St. 1.
3 Buttemere v. Hayes, 5 Mees. & W. 455. See Smith v. Tombs, 3 Jur. 72; Smart v. Harding, 15 C. B. 652.
4 Howard v. Easton, 7 Johns. 205. which was afterwards quoted to the same point and affirmed in Lower v. Winters, 7 Cow. 263. Shortly after Howard v. Easton there was a case in New York where one man agreed to remove his fence so as to open a certain road to its original width, and in consideration thereof another agreed to pay him a sum of money; the court held that this was not an agreement concerning an interest in land, since no interest in land was to be conveyed. But it would seem that gagee might recover possession before any breach of the condition, if there was no agreement to the contrary, it was held that such an agreement must be in writing as affecting the title to real estate by divesting the party of the right of possession.1 And it was apparently on the same ground that it was held in Connecticut, that a verbal agreement, made at the delivery of a deed, that the grantee should not take possession nor record his deed until he should pay the first instalment of the purchase-money, was inoperative.2
§ 232. An easement in the land of another is, by common law, grantable only by deed, and of course no verbal agreement which amounts to conferring an easement or a right in the nature of one can be, as such, available to either of the parties to it. The law on this point is too well settled to require any detailed citation of authorities.3 Many cases have arisen, however, in England and in this country, where such a verbal agreement, when it has been so far acted upon by one of the parties that it would be a fraud upon him to repudiate it, has been held binding against the other in a here the former party gave up the possession of his land, if he did not give up the fee by dedication to the public, and that the fact that the latter party did not personally acquire it should make no difference. From the words former width, however, it may be gathered that the bargainor had without right enclosed part of the highway, in which case he evidently had nothing in the land in question to part with. The case is Storms v Snyder, 10 Johns. 109. See also Onderdonk v. Lord, Hill & D. (N. Y.) 129; Rice v. Roberts, 24 Wisc. 461.
1 Norton v. Webb, 35 Me. 218; Colman v Packard, 10 Mass. 39.
2 Gilbert v. Bulkley. 5 Conn. 262. In Kerr v Shaw, 13 Johns. (N.Y.) 236, it was held that a warranty for the quiet enjoyment of land was within the statute, and must express the consideration of it. As to the possession of land being an interest, etc., within the statute, see, further, Smart v. Harding, 15 C. B. 652; Whittemore v. Gibbs, 24 X. H. 484; Miranville v. Silverthorn, 1 Grant (Pa.) 410; Sutton v. Sears, 10 Ind. 223.
3 See the decisions collected and reviewed in Gale and Whatley on Easements, cap. 3, § 1. Also in Angell on Watercourses, §§ 168 et seq. And see ante, §§ 21 et seq., in relation to licenses to be exercised upon land. A contract to convey an existing easement is within the statute. Ferrell v. Ferrell, 1 Baxt. (Tenn.) 329.
§ 233. Although the improvements put upon land, such as buildings and other erections, tillage and labor generally, may be so incorporated with the land itself as to be inseparable therefrom in fact, yet it would seem that they ought to be so far separately regarded as to be capable of a distinct purchase and sale by verbal contract. In Falmouth v. Thomas, where the action was upon a verbal agreement by the lessee of a farm, "to take at a certain valuation growing crops thereon, and certain work, labor, and materials which the plaintiff had done and expended upon the land," Lord Lynd-hurst said: "The defendant would not have the benefit of the work, labor, and materials, unless he has the land; and we are of opinion that the right to the crops, and the benefit of the work, labor, and materials, were both of them an interest in the land; but if either of the two were properly an interest in the land, this would form a sufficient objection to the special counts," etc. And again, of the latter part of the agreement, he says, "It was a contract for that which was, at the time of such contract, an interest in the land, and for that which never was, and never could be, separated from it."2 It will be observed, however, that his Lordship himself admitted it to be unnecessary to the case to decide this point; and doubtless his attention was upon that account less strictly bestowed upon it. It is certainly settled in England that an agreement to pay an increased rent in consideration of repairs is not to be treated as a new lease, and this seems to cover the principle which has been stated.8
1 See post. Chap. XIX.
2 Earl of Falmouth v. Thomas, 1 Cromp. & M. 89. See Vanghan v. Hancock. 3 C B. 766.
3 Hobv v. Roebuck, 2 Marsh. 433; 8. c. 7 Taunt. 157; Price p. Ley-burn, Gow 109. In Angell v. Duke, L. R. 10 Q. B. 174, the agreement as to repairs and furniture was held not to be within the statute. So a
The American courts have taken the broader, and on the whole more reasonable view of the subject, and, however the law might now be held in England in a case directly presenting the question, it appears to be settled, so far as this country is concerned, that these improvements put upon land are not necessarily to be regarded as land, because incorporated with it. In New York, in a case where a verbal promise to pay the plaintiff (who had without any title entered and occupied and improved the defendant's land) for his tillage, and sundry buildings erected thereon, was held by the Supreme Court to be binding, Spencer, J., delivering the opinion of the court, thus clearly and rationally set forth the view on which the decision proceeded: "This was not a contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, but related to the labor only which had been bestowed upon the land, under the denomination of improvements. Was it ever supposed that a parol contract to pay for work to be done on land, or for what had been done, was a void undertaking as under the statute? The contract in such case does not go to take from the promisor the land or any interest in or concerning it." 1 promise to keep down rabbits upon leased land may be binding, though by parol. Morgan v. Griffith, L. R. 6 Ex. 70. See Beach v. Allen, 7 Hun (N. Y.) 441.