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.
§ 8. In the third section of the statute, relating to the assignment, grant, or surrender of an existing term or estate, the distinction is plainly marked between a deed and a note in writing; the use of either being permitted. Accordingly, it has generally been held in both countries that an assignment, grant, or surrender of an existing term may be by writing unsealed.1
1 Baxter v. Browne, 2 W. Bl. 973; Goodtitle v. Way, 1 T. R. 735; Morgan v. Bissell, 3 Taunt. 65; Poole v. Bentley, 12 East, 168.
2 Mayberry v. Johnson, 3 Green (N. J.), 120, 121.
3 4 Greenl. Cru. Dig. 34; Roberts on Frauds, 249; Farmer v. Rogers, 2 Wils. 26. Maule, J., in Aveline v. Whisson, 4 Man. & G. 801. The enactment of 8 & 9 Vict. c. 106, § 3, providing that leases, etc., shall be by deed, is a circumstance strongly tending to show that previously a deed was not supposed to be necessary. So with Mass Gen. Stat. c. 89, § 3. In Allen v. Jaquish, 21 Wend. 628, the Supreme Court of New York says: "There is no doubt that either a surrender or a demise may be effected by a simple writing not sealed." And see Hill v. Woodman, 14 Me. 38; Lake v. Campbell, 18 111. 106.
§ 9. On the other hand it has been doubted whether, since the statute, a lease is sufficiently executed by being sealed, though not signed. Sir William Blackstone says the statute "revives the Saxon custom, and expressly directs the signing in all grants of lands and many other species of deeds, in which, therefore, signing seems to be now as necessary as sealing, though it hath been sometimes held that the one includes the other."2 Chief Justice Willes, in Ellis v. Smith, strongly disclaimed deciding to the contrary, and Blackstone's view appears to be favored by several recent cases in Massachusetts in which questions have been made as to the effect of a defective signature upon the validity of a deed.3 But the opinion stated in the Commentaries is opposed by another eminent writer, who says it was conceived through not attending to the words of the statute.4 The words in question, namely, "by livery of seisin only or by parol," defining those transfers which were thenceforth to be by writing signed, were examined in Cooch v. Goodman, in the Queen's Bench in 1842. It was not necessary in that case to decide the question we are now considering, but it is manifest that the remarks of Patteson, J., strongly support the position that the statute did not mean to require a signature to a sealed conveyance of lands.1 Again, in the more recent case of Aveline v. Whisson, where a declaration was in covenant upon an indenture of lease, a plea that the indenture was not signed by the plaintiff, nor by any agent authorized in writing, was held bad by the Court of Common Pleas; and Maule, J., said: "Can the other side contend that a deed requires a signature? This is not like a lease by parol." 2 And more recently still, in the Court of Exchequer, it has been stated to be settled that under the first section of the statute sealing alone is sufficient.3 These latter decisions appear to leave no room for question upon the point as matter of authority, and the language used in the statute, upon close inspection and analysis, does not seem easily reconcilable with any other interpretation.1 In this country also, that interpretation has received the approbation of the Supreme Court of Indiana, and it is considered by a respected American writer, in a recent treatise, to be the better doctrine.2
1 Beck v. Phillips, 5 Burr. 2827; Doe d. Courtail v. Thomas, 9 Barn. & C. 288; Holliday v. Marshall, 7 Johns. (N. Y.) 211; Allen v. Jaquish, 21 Wend. 628; Sanders v. Partridge, 108 Mass. 556. See § 42, post.
2 2 Bl. Corn. 306.
3 Ellis v. Smith, 1 Ves. Jr. 10; Wood v. Goodridge, 6 Cush. 117; Gardner v. Gardner, 5 Cush. 483. See also Hutchins v. Byrnes, 9 Gray, 369, per Bigelow, J. Soon after the act was passed, the question was raised in the Common Pleas upon another branch of the statute; three judges held the signature to be unnecessary to a will having a seal; the other doubted. Lemayne v. Stanley, 3 Lev. 1. That sealing a will is a signing of it was decided in Warneford v. Warneford, 2 Stra. 761. But see Smith v. Evans, 1 Wils. 313. This point is farther examined, post, § 355, under the head of the fourth section, relating to contracts, the language of which, as to the point in question, does not differ from that of the sections relating to conveyances.
4 Mr. Preston, in 1 Shep. Touch. 56, n. 24.
1 Cooch v. Goodman, 2 Q. B. 580. The following extract from the report is deemed justified by the doubt which has been entertained upon this important point. Counsel, speaking of the first section of the statute, says: -
"The section must be read as requiring every such lease to be in writing and signed, otherwise to have the effect only of a lease at will. Can any instance be found in which, since that statute, a lease under seal has been held valid without signature?"
[Patteson, J. "You read the statute so as to throw out the words 'or by parol.'"]
"Some words must be rejected. The meaning is that there shall be no leases by livery of seisin only, or by parol only; 'parol' may be construed as distinguished either from a deed or from a writing."
[Patteson, J. "'Livery and seisin only,'mean without deed; you give no sense whatever to the intermediate words."]
"The intention was that all demises should be evidenced by the signature of the party or his agent."
[Patteson, J. "The reference to the agent supports the agreement on the other side; had the intention been to include deeds, it would have required the agent to be authorized by deed, and not merely in writing."]
Lord Denman, C. J., in delivering the judgment of the court, says: "It is curious that the question should now for the first time have arisen in a court of law, and perhaps as curious that it is not now necessary to determine it."