This section is from the book "Dart's Treatise On The Law And Practice Relating To Vendors And Purchasers Of Real Estate", by J. Henry Dart . Also available from Amazon: A treatise on the law and practice relating to vendors and purchasers of real estate.
The provision in the fourth section of the Statute of Frauds (a) that no action shall be brought on any contract or sale of lands, unless there is a memorandum in writing, signed by the party to be charged or his agent, has been replaced by s. 40 of the L. P. Act, 1925. The two enactments may be compared: A contract for the sale of land must he in writing.
Sect. 4 of the Statute of Frauds "No action shall be brought whereby to charge any person upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorised."
The L. P. Act, 1925, s. 40 "(1) No action may be brought upon any contract for the sale or other disposition of land, unless the agreement upon which such action is brought or some memorandum or note thereof, is in writing, and signed by the party to be charged or by some other person thereunto by him lawfully authorised.
"(2) This section applies to contracts whether made before or after the commencement of this,act and does not affect the law relating to part performance, or sales by the Court."
(a) 29 Car. H. c. 3.
These two enactments are so close in their wording that, speaking generally, the decisions under the Statute of Frauds will apply to the provisions in s. 40 of the new Act. It will be observed that s. 40 (2) adopts the doctrine of part performance which has long been firmly established. It will be noticed, however, that s. 40 only applies to contracts for the "sale or other disposition of land." It may, thus, be somewhat narrower than the corresponding provision in s. 4 of the Statute of Frauds. Concerning this provision, Kay, J., in Macmanus v. Cooke (b) observed - "It has often been decided that this section applies to contracts concerning an interest in land not being contracts of sale"; and in support of this statement he referred to Alchin v. Hopkins (o) and Ex parte Hall(d).
The enactment applies to sales by auction, and in bankruptcy (e), but not to sales by the Court (f); nor to purchases under the order of the Court, where the vendor makes no opposition to the confirmation of the report approving of the purchase (g).
To what cases the statute extends.
The enactment is "a weapon of defence, not of offence, and does not make any signed instrument a valid contract by reason of the signature, if it is not such according to the good faith and intention of the parties" (h). Moreover the contract, where it is not evidenced by writing, is not rendered void, but merely unenforceable (i).
(b) (1887) 35 Ch. D. p. 687. (c) (1834) 1 Bing. N. C. 99.
(d) (1879) 10 Ch. D. 615.
(e) Ex p. Cutts, (1837) 3 Dea. 267.
(f) S. 40 (2) of the L. P. Act, 1925, which is confirmatory of the previously established rule.
(g) See A.-g. v. Day, (1748) 1 Ves. sen. 218; Blagden v. Bradbear, (1806) 12 Ves. at p. 472.
(h) Per Lord Selborne in Hussey v. Horne-payne, (1879) 4 A. C. 311, 323; 48 L. J. Ch. 846; Pattle v. Hornibrook, 1897, 1 Ch. 25; 66 L.j. Ch. 144; and see Bristol Co. v. Maggs, (1890) 44 Ch. D. 616; 59 L. J. Ch. 472; Bellamy v. Debenham, (1890) 45 Ch. D. 492; 1891, 1 Ch. 412; 60 L. J. Ch. 166; Moritz v. Knowles, (1899) W. N. 40 and 83.
(i) Leroux v. Brown, (1852) 12 C. B. 801; 22 L. J. C. P. 1; and see Barkworth v. Young, (1856) 4 Dr. 1; 26 L. J. Ch. 153.
Sect. 205 (1) (ix) of the L. P. Act, 1925, contains the definition of the term "land," as used in the Act, except where the context otherwise requires. It includes (inter alia) land of any tenure, mines, minerals, and easements, rights and benefits in or over land, and other hereditaments, corporeal and incorporeal, but not an undivided share of land. The term "disposition" includes a conveyance, and "conveyance" includes an assurance of property by any instrument other than a will.
Any transaction which substantially deals with an interest in land (k), is within the enactment: e.g., an agreement to grant or assign a lease (l); an agreement by a lessee to give up possession, and allow another to become tenant for the remainder of the term, in consideration of his paying for certain repairs (m); an agreement by a lessee to surrender his lease in consideration of a sum of money to be paid to him by a person to whom the landlord had agreed to grant a new lease (n); an agreement by a person who has no interest in the property, to procure an assignment of a lease (o); an agreement by A. to pay a lessee 100l. to surrender his lease, and procure the landlord to accept A. as tenant (p).
Contracts within the section.
An agreement by a tenant to pay an increased rent in consideration of improvements to be made by the landlord has been held not to be within the Act, and therefore valid though by parol (q); but a different rule has been laid down as to an agreement for abatement of rent (r). In the one case the agreement is, in effect, to pay the landlord, by instalments, for services rendered and the additional 6um so agreed to be paid is not, it seems, "rent" in the legal sense, and could not be recovered by distress (s); in the other, the agreement is for a release of part of the rent.
Agreement for increase or abatement of rent.
(k) Kelly v. Webster, (1852) 12 C. B. at p. 290; and see L. P. Act,
1925, s. 53.
(l) Mechelen v. Wallace, (1837) 7 A. & E. 49; Vaughan v. Hancock, (1846) 3 Q. B. 766; Thursby v. Eccles, (1901) 49 W. R. 281.
(m) Buttemere v. Hayes, (1839) 5 M. & W. 456; 9 L. J. N. S. Ex. 44.
(n) Smith v. Tombs, (1839) 3 Jur. 72.
(o) Horsey v. Graham, (1869) L. R. 5 C. P. 9; 39 L. J. C. P. 58.
(p) Cocking v. Ward, (1845) 1 C. B. 858; 15 L. J. C. P. 245; Kelly v. Webster, (1852) 12 C. B. 283; 21 L. J. C. P. 163; Smart v. Harding, (1855) 15 C. B. 652; 24 L. J. C. P. 76.