writing) be for an extension of the term of a lease, the mere fact of the possession being continued by the lessee, who of course remains in possession until he receives notice to quit, can have no weight in taking the case out of the statute, or even call for an answer (s). Acts which are merely introductory or ancillary to the agreement, as giving instructions for a lease (t), &c., though attended with expense, are not considered a part performance (u); nor are acts, equivocal in themselves, or easily admitting of compensation. Therefore, where a tenant in possession, under an intimation from his landlord that he might be induced to grant a further term of ten years, but without any absolute promise or agreement, expended a considerable sum in rebuilding a party-wall, the court refused his claim for an extension of his term, first, because the act was equivocal, and would have taken place equally if there had not been any agreement; and, secondly, because the money might be recovered from the landlord if the expense was to be borne by him, and the parties be thus restored to their former situation; and the circumstance of the lessee's being obliged to resort to an action to recover his money was not deemed a reason for taking the case out of the statute (x). So, where there was a parol agreement between the plaintiff and defendant, that, upon the former obtaining from one Hammond a release of his claim to a certain messuage, the defendant would grant him, the plaintiff, a lease thereof, and the plaintiff obtained the release upon consideration of his giving Hammond the free admission to the Pantheon, value 157. per annum, the court was of opinion that this was merely a preparatory act, and no part performance (y). Payment of an additional rent is also of itself too equivocal (s) Wills v. Stradling, 3 Ves. 378. Morphett v. Jones, sup. Seagood v. Meale, Prec. Ch. 561. Savage v. Carroll, 1 Ball & Beat. 265. O'Rourke v. Percival, 2 Ball & Beat. 63. (t) 1 Bro. C. C. 409. And see Bawdes v. Amhurst, Prec. Ch. 402. (x) Frame v. Dawson, 14 Ves. 386. 271. a circumstance to prevent the application of the statute (~). But where a lessee before the expiration of his term entered into a parol agreement for an extension of it, at a different rent, and possession was continued for a period exceeding twenty years, and the new rent paid and received accordingly, the agreement was considered to have been sufficiently carried into execution, and a specific performance decreed (a). Whether the payment of a part or the whole of the consideration or purchase money would be deemed a part performance, has long been a subject of controversy, but the court seems now inclined to the negative (b). Indeed, as the ground upon which relief is administered in these cases is fraud (c), it may be stated, as a general rule, that nothing amounts to a part performance that does not put the party in a situation that is a fraud upon him if the agreement be not fulfilled (d); and as repayment, especially with interest, is deemed to place the parties in their former situation, payment of money is not deemed a part performance (e). And here we may remark, that although a written agreement for a lease, made in pursuance of a power by a tenant for life, may be enforced in equity against the remainderman (f); yet, if the agreement be by parol, the remainderman will not be bound, even though it be partly performed; as the ground of relief in cases of part performance is fraud, and fraud is personal (g). He might be affected with fraud, by showing that an expenditure had been permitted by him, with a knowledge that the party had only a parol agreement from the tenant for life (h), or by proving his acquiescence, (2) Wills v. Stradling, 3 Ves. 378. Lindsay v. Lynch, 2 Scho. & Lef. 1. (a) Lord Desart v. Goddard, Wallis, by Lyne, 347. (b) Clinan v. Cooke, 1 Scho. & Lef. 40. O'Herlihy v. Hedges, 1 Scho. & Lef. 123. Frame v. Dawson, 14 Ves. 388. (c) Seagood v. Meale, Prec. Ch. 561. Hawkins v. Holmes, 1 P. Wms. 771. Clinan. Cooke, 1 Scho. & Lef. 41. VOL. I. PP Morphett v. Jones, 1 Swanst. 181; (d) Clinan v. Cooke, sup. (f) Shannon v. Bradstreet, 1 Scho. (h) Blore v. Sutton, 3 Meriv. 247. and receipt of rent for several years, after the death of the tenant for life (i); but, without knowledge, there is nothing in the mere circumstance of expenditure to bind him (k). Lord Alvanley was of opinion, that the court had gone rather too far in permitting the statute to be evaded by part performance, and in admitting parol evidence of the contents of the agreement; and he thought that, instead of holding part performance to be evidence of an unknown agreement, the court should have ordered the money laid out to be repaid by way of compensation; for how, said he, does the circumstance of having laid out a great deal of money prove that he is to have a lease for ninety-nine years? The common sense of the thing would have been to let them bring an action for the money (1). Lord Redesdale too expressed his disinclination to carry the cases further than he was compelled by former decisions, adding, that the statute was made for the purpose of preventing perjuries and frauds, and that nothing could be more manifest to any person who had been in the habit of practising in courts of equity, than that the relaxation of that statute had been a ground of much perjury and much fraud (m). Lord Lifford also entertained a similar opinion (n). After a part performance of a parol contract, the testimony of one witness, supported by collateral circumstances, will prevail in favor of a bill for specific execution, against a denial of the agreement by the answer (o). But it is otherwise where the alleged agreement, being proved by one witness only, is positively denied by the answer, and that denial is also confirmed by circumstances (p). Notwithstanding an admission of the agreement, the statute may still be insisted on as a defence to the suit (q); and (i) Shannon v. Bradstreet, sup. Stiles v. Cowper, 3 Atk. 692. (k) Blore v. Sutton, 3 Meriv. 247. (1) Forster v. Hale, 3 Ves. 712. (m) Lindsay v. Lynch, 2 Scho, & Lef. 1. 5. (n) Palmer v. White, Wallis, by Lyne, 10. 23. (0) Pilling v. Armitage, 12 Ves. 80. See also Gregory v. Mighell, 18 Ves. 328. Toole v. Medlicott, 1 Ball & Beat. 393. 402. (p) Morphett v. Jones, 1 Swanst. 172; S. C. 1 Wils. 100. Lindsay r. Lynch, 2 Scho. & Lef. 1. (9) Moore v. Edwards, 4 Ves. 23. in answer to an objection that the statute could not be pleaded, as there was no danger of perjury, Lord Loughborough, C., observed, that that position had been often controverted, and was not decided that there was a case in Atkyns that misled people, where Lord Hardwicke was stated to have overruled the defence upon the statute, merely on the ground that the agreement was admitted, but that, having himself had occasion to look into it, he found it completely a misstatement, for it appeared by Lord Hardwicke's own notes, that it was upon the agreement having been in fact executed that the case was determined (r). Where the statute is pleaded, the defendant's answer must expressly deny the acts alleged as a part performance (s). Where, however, a party admitted a parol agreement for a lease, and his readiness at one time to execute a lease, and his wife, with his knowledge, received fines from the proposed lessee, he was not allowed the benefit of the statute of frauds (1) in answer to a bill for a specific performance (u). SECTION III.-OF THE FORM OF THE AGREEMENT, DISTIN GUISHING HEREIN AN AGREEMENT FOR A LEASE FROM AN ACTUAL LEASE. The form of the agreement next claims our attention, which is required to discriminate between language importing an actual lease, and terms which amount to no more than an agreement for one. This distinction, as we shall shortly see, led to so much dispute and inconsistency as to call for a check from parliament; and with this view, the act "to simplify the transfer of property" (x) contained a provision (y), that no lease in writing of any freehold, copyhold, or leasehold land, (r) 4 Ves. 24. Bowers v. Cator, 4 Ves. 91. Wills v. Stradling, 3 Ves. 378. (t) 7 W. 3. c. 12, the Irish Act, the 2nd section of which is couched in the same language as the 4th section of the English Act of 29 Car. 2. c. 3. (u) Hartly v. Wilkinson, Ridgew. Lap. & Sch. 357. (x) 7 & (1) Sect. 4. Vict. c. 76. should be valid as a lease unless the same should be made by deed; but that any agreement in writing to let any such land should be valid and take effect as an agreement to execute a lease; and that the person who should be in the possession of the land in pursuance of any agreement to let might, from payment of rent or other circumstances, be construed to be a tenant from year to year. The 13th section, however, declared that the act should commence and take effect from the 31st of December, 1844, and should not extend to any deed, act, or thing, executed or done, or (with an exception relating to contingent remainders) to any estate, right, or interest, created before the 1st of January, 1845. In the next session (z), this act, so far as concerns our subject, was repealed as from the 1st of October, 1845, and it was enacted (a), that a lease required by law to be in writing of any tenements or hereditaments made after that day should be void at law unless made by deed. Hence, instruments in writing made before the 1st of January, 1845, falling within the 13th section, are not affected by the 4th section of the act of 7 & 8 Vict. c. 76; neither are they within 8 & 9 Vict. c. 106, which comprehends only instruments made after the 1st of October, 1845. They must, therefore, be governed by the rules of the old law: and instruments under seal executed after that day must be interpreted in like manner; for though the last act requires a deed for the validity of leases required by law to be in writing, it does not declare that a deed shall not operate as an agreement for a lease. So, again, the old question of lease or agreement may arise on a written contract for a demise for a term not exceeding three years where the rent shall amount to two-thirds of the full improved value, mentioned in the statute of frauds (b); as leases of that description are not required by the act of 8 & 9 Vict. c. 106, to be by deed. There can be no doubt that this act, by rendering a deed necessary to the validity of leases required to be in writing, (2) 8 & 9 Vict. c. 106, entitled "An act to amend the law of real property." (a) Sect. 3. (b) 29 Car. 2. c. 3. ss. 1 and 2. |