settlement, or effect a direct transmission of property from one person to another.

The succeeding chapters will be devoted to the consideration of the assurances enumerated above, 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.

OF 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 particularized. 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, very lately, made in our system of jurisprudence. For the Supreme

Court of Judicature Act 1873,1 which is to come into operation on the 1st of November, 1875,2 aims at doing away with the former distinction between. law and equity. It therefore enacts, 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 differ from those of equity, it will only be in order to mark out equitable doctrines with more distinctness. The reader will also understand that such differences will shortly cease to have any exist

ence.

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 2d, The proper form of the contract when embodied in an Agreement, or in Conditions of Sale.

1 36 & 37 Vict. c. 66.

3 S. 25, sub s. 11.

2 37 & 38 Vict. c. 83.

Statutory

requisites for the contract.

Statute of
Frauds.

Statute applies to

every interest in land.

What is required by the statute.

Written agreement.

What must be contained in the agreement.

The principal statutory requisites for the contract are to be found in the fourth section of the Statute of Frauds. This section enacts that, from thenceforth, 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 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 authorized.

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, 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. 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 authorized.

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 by necessary implication, (1) the names of the contracting parties as such, (2) the consideration, and

1 29 Car. II. c. 3.

2 Smith v. Tombs, 3 Jur 72.

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

4 [The cases upon this point are not uniform in this country, owing to some extent to a variation in the terms of the statute. See Story on Sales, § 257, note; 2 Story on Contracts, § 1448, 5th ed.]

(3) the subject-matter or object of the contract.1 Hence, it has been decided that 2 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 bind him; that an agreement, signed by the purchaser, to purchase a horse over £10 in value (such an agreement being required by another section of this statute to be in writing) was void, because it did not state the price; and 5 that a written agreement, signed by both parties to it, for the grant of a lease, was not binding on either of them, since it did not state for how long a term the lease was to be made. These cases, however, it must be remembered, only go to the length of deciding that the agreement must contain, within itself, the means of ascertaining the essential parts of the contract, but do not make it necessary that those parts should be precisely stated. It has, therefore, been held that a contract signed by an agent" as agent for the vendors," but not naming them, was a sufficient description of the latter as contracting parties, when indorsed on a paper stating the vendors to be "the executors of Admiral F., deceased." 8 And that a letter, signed by the ven

1 Per C. J. Tindal, 2 Bing. N. C. 742.

2 Boyce v. Greene, Batty, 603, -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.

8 Elmore v. Kingscote, 5 B. & C. 583; and see Blagden v. Bradbear, 12 Ves. 466.

4 S. 17.

5 Clinan v. Cooke, 1 Sch. & L. 22; and see Kenworthy v. Schofield,

2 B. & C. 945.

6 And see Nesham v. Selby, L. R. 7 Ch. 406.

7 Hood v. Barrington, L. R. 6 Eq. 218.

8 And see Warner v. Willington, 3 Drew. 523, 530; Bourdillon v.

Collins, 24 L. T. (N. S.) 344.

9 Waldron v. Jacob, Ir. R. 5 Eq. 131.