Real Property
Amendment

Act.

of bargain and sale, or lease for a year, for giving effect to such release.

Next to be noticed is the Real Property Amendment Act (i), already referred to, which, in addition to its other provisions, effected an important change in the mode of conveying freeholds. For it rendered ununecessary any conveyance of land by way of lease and release, by declaring (j) that from thenceforth all corporeal hereditaments should, as regards the immediate freehold thereof, lie in grant as well as in livery, thus enabling all hereditaments, whether corporeal or incorporeal, to be conveyed by a simple deed Tortious feoff of grant. The Act also (k) put an end to the tortious operation of feoffments, and thus caused a feoffment in fee-simple by any tenant with a limited interest to operate as a conveyance of such interest only (). Lastly, we have to mention the Inclosure Acts (m), of which the 8 & 9 Vict., c. 118 (n), enables exchanges to be made through the instrumentality of the Land Commissioners (whose order permitting an exchange is good without any further conveyance or 11 & 12 Vict. release), whilst the 11 & 12 Vict., c. 99 (0), extends the above provisions to cases of partition.

ments put an end to.

Inclosure
Acts.

8 & 9 Vict. c.
118.

c. 99.

The last Acts to be mentioned in order of date are the Vendor and Purchaser Act, 1874 (p), the Conveyancing Act, 1881 and 1882 (q), and the Settled Land Act, 1882 (r). These, however, have not created any new modes of assurance, although they

(i) 8 & 9 Vict. c. 106.

(j) S. 2.

(k) S. 4.

(2) Shelf. R. P. Statutes, 637, note (k).

(m) 8 & 9 Vict. c. 118; 10 & 11 Vict. c. III; 11 & 12 Vict. c. 99; 12 & 13 Vict. c. 83; 15 & 16 Vict. c. 79; 17 & 18 Vict. c. 97; 20 &

21 Vict. c. 31; 22 & 23 Vict. c. 43; 31 & 32 Vict. c. 89.

(n) S. 147.

(0) S. 13.

(p) 37 & 38 Vict. c. 78.

(9) 44 & 45 Vict. c. 41; 45 & 46 Vict. c. 39.

(r) 45 & 46 Vict. c. 38.

have brought about important changes in their forms. And since these changes will be considered in detail in the subsequent chapters, it will not be necessary to discuss them now.

We have thus traced the history of conveyancing down to the date of the Statute of Uses; examined the great changes made by the statute, not only in the nature of legal estates, but in the modes also in which they could be settled and conveyed; and observed the origin and growth of the power of disposition by will; the safeguards against fraud provided by the Statute of Frauds and the Real Property Amendment Act; the abolition of the ceremony of attornment, and of the cumbrous process of fines and recoveries; the enactments by which the lease and release gave way, first to the release alone, and then to the simple grant; and finally the simplicity introduced by the Inclosure Acts into the exchange and partition of land. The result, from a conveyancing point of view, is that we have now the Grant and Assignment (comprehended under the general name of Purchase Deeds) for the sale of land; the Mortgage Deed for its pledge; the Lease to give its temporary possession; the Settlement whereby estates can, subject to due precautions, be preserved in families; and the Will, which can either operate as a settlement, or effect a direct transmission of property from one person to another.

In the succeeding chapters the assurances enumerated above will be considered; and we may take this opportunity of stating that our remarks will, as a rule, extend only to the simplest forms of those instruments which convey the legal estates in the various kinds of property which have been considered in the first part of this work.

CHAPTER II.

CONDITIONS OF SALE.

HAVING thus traced the history of conveyancing down to our own times, we have next to consider, in detail, the various instruments at present used for the transfer of real property. Now, each of these instruments marks the carrying out of some pre-existing purpose, which may have been that of one person, or of several. In the latter case, it will usually be found that the terms of the assurance have been the subject of previous negotiations, which have resulted in an agreement, or contract, and this contract forms an important part of the transaction, being the foundation of the edifice of which the assurance is the completion. This remark applies particularly to the ordinary case of vendors and purchasers of land. Hence, it is proposed, before considering purchase deeds of real and leasehold estates, to turn our attention to the contracts by which they are preceded.

Such a contract is, like all contracts, subject to various rules of law, non-compliance with which will render it invalid. There are also certain statutory requirements which are essential to the proof of its existence, though not to its creation. Under the former, a contract may be set aside on account of the incapacity of one, or more, of the parties to it; on account of there having been some fraud, or mistake, committed with reference to it; and on several other grounds which need not be further particularised. With these we shall not occupy ourselves, for our aim is simply to ascertain how a contract of sale of land ought to be drawn up, supposing it to have been

properly entered into. This, however, involves the consideration of the statutory requisites for such a contract, and of the judicial decisions upon the wording of Acts of Parliament relating to these requisites.

And it may be as well here to remind the reader that an important change has been lately made in our system of jurisprudence. For the Judicature Acts, 1873 and 1875 (a), have done away with the former distinction between Law and Equity. The Act of 1873 enacts (b), that except in matters therein particularly mentioned (none of which relate to our subject), whenever there is any conflict or variance between the rules of equity and the rules of the common law with reference to the same matter, the rules of equity shall prevail. Consequently, although reference will occasionally be made in this and the following chapters to rules of law which differed from those of equity, it will only be in order to mark out equitable doctrines with more distinctness.

Since, then, the preparation of a contract of sale of Division of the subject. land is governed by the enactments and decisions to which reference has been made above, we will, in this chapter, discuss separately, 1st, The statutory requisites for such a contract; and 2nd, The proper form of the contract when embodied in an Agreement, or in Conditions of Sale.

Frauds.

The principal statutory requisites for the contract Statutory requisites for the are to be found in the fourth section of the Statute contract. of Frauds (c). This section enacts that, from thence- Statute of forth, no action shall be brought 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

(a) 36 & 37 Vict. c. 66; 38 & 39 Vict. c. 77.

(b) S. 25, sub-s. II.

(c) 29 Car. II. c. 3.

Statute applies to every interest in land.

What is re

quired by the statute.

Written agreement.

contained in

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 first point to be noticed is, that these provisions of the statute apply to every agreement which is substantially one for the sale of an interest in land. Thus (d), where a lessee in possession had, verbally, agreed to give up his lease, in consideration that a third person (who had already obtained the promise of a lease from the lessor) should pay the lessee £150, and take certain fixtures at a valuation; this was held to be an agreement for the sale of an interest in land, and void for want of writing (e). We have next to consider what things are required by the statute. These are, (1) a written agreement, and (2) signature by the party to be charged or his agent lawfully authorised.

Since the agreement is to be in writing, it follows that the whole of it must be in writing, and the consequence is that an agreement is not binding upon either party unless it contains, in the body of it, or What must be by necessary implication, (1) the names of the conthe agreement, tracting parties as such, (2) the consideration, and (3) the subject-matter or object of the contract (ƒ). Hence, it has been decided that (g) a note of a sale of mining shares (which, under the circumstances, were held to be an interest in land), signed by the vendor, but consisting merely of a statement that he had "sold 100" shares, and not saying to whom, did not

(d) Smith v. Tombs, 3 Jur. 72.

(e) And see Hodgson v. Johnson, 5 Jur. N. S. 290; Smart v. Harding, 15 C. B. 652.

(f) Per C. J. Tindal, 2 Bing. N. C. 742.

(g) Boyce v. Greene, Batty, 608-a case under the Irish Statute of Frauds, 7 Wm. III. c. 12, containing the same provisions as the 29 Car. II. c. 3; and see Williams v. Lake, 29 L. J. (Q. B.) 1; Williams v. Byrnes, 2 N. R. 47.