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4. If the purchase shall be completed at the time and PRECedent VI. in manner hereinbefore provided, the costs and expenses of and incidental to this agreement shall be paid by the vendor and purchaser in equal shares.
SALE OF NEXT PRESENTATION.
6. Costs of the agreement.
5. If the purchaser shall pay the said purchase-money 7. Vendor to pay to the vendor, and complete his purchase, the vendor will interest. pay to the purchaser interest on the said purchase-money at the rate of 4 per cent. per annum from the time of payment of such purchase-money until the said next presentation shall fall vacant, and will pay such interest by equal half-yearly payments on the
as the purchaser can derive no pecuniary benefit from his purchase, it is for his interest to have the purchase completed, and the purchase-money paid by the day fixed. That a vendor may make time the essence of such a contract and may, under such a clause as that in the text, rescind the sale, see Hudson v. Temple, 30 L. J. 251, Ch.
Disposition of a presentation to a during a contract vacancy falling
If a vacancy fall after a contract for sale of an advowson, but before the conveyance to the purchaser, the purchaser cannot present, even though the church remain void till after the conveyance: Viner's Abr. p. 318, pl. 11; 2 Lutw. 1631; for the next presen- for sale. tation is a chose in action which cannot be transferred. And it would seem that, in such case, neither vendor nor purchaser has any remedy by quare impedit: Leak v. Bishop of Coventry, Cro. Eliz. 811.
To avoid any questions of this sort, the presentation should be made before the conveyance of the advowson; and, in that case, the vendor having the legal estate is clearly the person to present. But it seems equally clear, on principle, that he is only a trustee for the purchaser, and must present such person as the purchaser shall nominate. It seems to have been decided in Wyvill v. Bishop of Exeter, 1 Price, 292, 295, that if a purchaser is guilty of delay, taking frivolous objections to the title, he will not be entitled to a vacancy occasioned by resignation, although he may be left at liberty to complete his purchase when the church is full; it is, however, doubtful if that case was properly decided: Sugd. V. & P. 293, 14th ed. (d) There is nothing simoniacal in such a stipulation where the vendor is not the incumbent: Sweet v. Meredith, 31 L. J. 817, Ch. Advowsons vested in, or in trustees for, inhabitants, freeholders, ratepayers, or other persons forming a numerous class and deriving no pecuniary benefit therefrom, may be sold under the Act 19 & 20 Vict. c. 50.
Statutory powers for selling ad
PRECEDENT VI. day of
SALE OF NEXT PRESENTATION.
and will make the first payment of interest on such of those days as shall occur next after payment of the said purchase-money (d), IN WITNESS, &c.
SALE OF STAND-
What agreements for sale of timber, crops, &c. must be in writing.
AGREEMENT for the SALE of STANDING TIMBER (a). AN AGREEMENT, made this between A. B., of, &c. [vendor], of the one part, and C. D., of, &c. [purchaser], of the other part.
(a) An agreement for the sale of growing poles, Teall v. Auty, 4 Moo. 542, or standing underwood, Scorrell v. Boxall, 1 Y. & J. 396, and à fortiori timber to be cut by the purchaser, is within the 4th section of the Statute of Frauds and must be in writing; but an agreement for the sale of timber already felled or to be felled by the purchaser is not within the statute: Smith v. Surman, 9 B. & C. 561. So a written agreement is required for the sale of growing grass, whether to be mown by the purchaser, Crosby v. Wadsworth, 6 East, 602; Carrington v. Roots, 2 M. & W. 248, or to be fed off exclusively by him, Jones v. Flint, 10 A & E. 760, growing fruit, Rodwell v. Phillips, 9 M. & W. 501, and generally for any crop which would not go as emblements to the executor, Evans v. Roberts, 5 B. & C. 829, Smith v. Surman, supra; while a parol agreement is sufficient for the sale of a crop which would be emblements, as wheat, potatoes, turnips, Dunne v. Ferguson, 1 Hayes, 541, hops, Waddington v. Bristow, 2 Bos. & Pull. 452; but in none of these cases is it prudent to dispense with a written agreement: Dart, 131.
A parol agreement for the sale of crops between an outgoing and incoming tenant may be good: Mayfield v. Wadsley, 3 B. & C. 357; but a purchaser of the crops of any person engaged or employed in husbandry on any lands let to farm must not take, use, and dispose of any hay, straw, grass, turnips, or other roots, or other produce, or any manure or dressings intended for such lands and being thereon, in any other manner or for any other purpose than the seller ought to have taken, used, or disposed of the same, if no such sale had been Tenants' fixtures. made: 56 Geo. 3, c. 50, s. 11. A written agreement is not required for the sale of a tenant's fixtures to the landlord, even though they be affixed to the freehold, Hallen v. Runder, 1 Cr. M. & R. 266, nor for the sale of railway shares, where the Act makes them personal estate: Duncuft v. Albrecht, 12 Sim. 189; nor for the sale of shares in mines conducted on the cost-book principle, Watson v. Spratley, 10 Ex. 222; Powell v. Jessop, 18 C. B. 336; but an agreement for
Railway and mining shares.
SALE OF STAND-
1. The said A. B. will sell, and the said C. D. will PRECEDENT VII. purchase, at the price of £, to be paid as hereinafter mentioned, the 1127 oak trees, and the 235 elm trees, now marked with and standing in or upon the 2. Agree for the several woods, plantations, and parcels of land hereinafter mentioned, (that is to say,) ALL THAT, &c. [parcels].
sale of the tim
3. Payment of money.
4. Purchaser to have liberty to
2. £, part of the said purchase-money, shall be paid by the purchaser to the vendor immediately after the execution of these presents, and £, the remainder thereof, on or before the 3. The purchaser shall be at liberty up to the day of next, to enter upon the said woods, planta- enter, &c. tions, and parcels of land, and to fell the said trees in such manner (b) as he shall think fit, and there to lop, cut, and strip off the branches, tops, and bark thereof, and to make the same into convenient faggots and stacks, and to remove the said trees, branches, tops, and bark, with horses and waggons, using for that purpose as far as may be only the existing or accustomed roads and tracks (c).
4. All such if any of the same trees, branches, tops, and bark as shall not be removed by the purchaser before the day of shall thenceforth be forfeited to the
the sale of mining shares not under the cost-book system must be in writing Boyce v. Green, Batty, 608. If part of an agreement would, and part would not fall within the terms of the 4th sect. of the Statute of Frauds, it must be in writing, or it will be void as to the whole: Sugd. V. & P. 127. See further on this subject, Sugd. V. & P. 124 et seq.; Dart, 102 et seq.
(b) If it be intended that the purchaser shall cut down the trees in any particular manner, as, for instance, by taking or cutting them out by the roots, this should be expressly stipulated.
(c) "Where the law doth give any thing to any one, it giveth impliedly whatsoever is necessary for the taking and enjoying the same:" Co. Litt. 56, a.; and, therefore, upon a sale of standing trees, the rights of entry, and other rights necessary for the removal of the trees, belong to the purchaser by implication: 11 Co. Rep. 52. But as it is not clear what are the rights which necessarily pass to the purchaser by implication, it is usual and desirable to express in the agreement the powers he is intended to have.
5. Timber to be vendor, if not removed by a given day.
forfeited to the
As to agreements
5. The purchaser shall, before the
day of SALE OF STAND- repair all hedges and fences damaged by the fall or removal of the said timber, or in any manner, by him, and 6. Purchaser to shall make good all other damage which he shall commit or occasion in or upon the vendor's lands.
make good all damages.
7. Arbitration clause.
6. If any dispute shall arise respecting any of the matters aforesaid, the same shall be settled by two referees or their umpire, in the following manner: each party shall, within fourteen days after notice to that effect shall have been given, appoint one referee by writing, and the referees so appointed shall, before they commence their duty, appoint an umpire by writing, and the decision of such referees if they agree, or of such umpire if they disagree, shall be final. If either party shall refuse or neglect to appoint a referee within the time specified, or if the referee appointed by either party shall refuse or neglect to act, the referee appointed by the other party shall make a final decision alone. IN WITNESS, &c.
PROVISIONAL COM AGREEMENT between the PROVISIONAL COMMITTEE of a RAILWAY COMPANY and a LANDOWNER and the LESSEES of his MINERALS for WITHDRAWING PARLIAMENTARY OPPOSITION to the PASSING of the BILL. The COMMITTEE consenting to make DEVIATIONS from their ORIGINAL LINE and to EXECUTE their WORKS in a PARTICULAR MANNER, and to AFFORD RAILWAY ACCOMMODATION.
AN AGREEMENT, made this day of, 18—, between A. B., of, &c., and C. D., of, &c., two of the members of the provisional committee (a) of a company
(a) As to the power of promoters to enter into contracts, binding on and enforceable by the future company, see Edwards v. Grand Junction Railway Co., 1 My. & Cr. 650; Hawkes v. Eastern
2. The land
owner assenting to the line passing through his
intended to be incorporated under the name of the Railway Company, on behalf of themselves and all other the proprietors of the said intended company, of the first PROVISIONAL COMpart, E. F., of, &c., of the second part, and G. H., of, &c., and the said A. B. carrying on business as copartnership under the name of and hereinafter distinguished as the "B. Company," of the third part, IN CONSIDERATION of the said E. F. having assented to the pass ing of the said intended railway through his N. estate, in the parish of, &c., a plan of which is hereunto annexed, in the line hereinafter mentioned, and having agreed to withdraw all opposition to the passing of the said Act of Parliament intended to be applied for for the purpose of incorporating the said intended company, the said A. B. 3. the proviand C. D., on behalf of themselves jointly and severally, agree to make and of all other the proprietors of the said intended com- deviation. pany, do and each of them doth hereby undertake and agree with the said E. F. as follows:
1. The line originally marked out upon the plans deposited with the clerk of the peace for the county of D. (b) for the said intended railway to pass through the N. estate shall be abandoned, and the line of the said intended railway shall enter into and pass through the N. estate as shown by the line coloured upon the said plan hereunto annexed, notwithstanding the new line may exceed or transgress the limits of deviation from the original line allowed by the Standing Orders of the Houses of Parliament, and notwithstanding the original line may be sanctioned by Parliament.
2. The railway company, before entering on any part 4. To buy at a
Counties Railway Co., 1 De G. M. & G. 737; 5 H. of L. Ca. 231; Caledonian, &c., Railway Co. v. Magistrates of Helensburgh, 2 Macq. 391; Capper v. Earl of Lindsay, 3 H. of L. Ca. 293.
(b) With very few exceptions, no deviations from the line laid down in the parliamentary plans and books of reference are permitted: Hodges, p. 438, and where sections as well as plans are deposited the sections are incorporated in the Act, and prescribe a vertical as well as a lateral limit to the works: Ware v. Regent's Canal Co., 3 De G. & J. 212.
fixed rate the land required.