tract existed

at the death

of the testator by which he was bound and which he could be compelled to perform, the heir can have no right upon such contract to call for the personal estate to be appli ed; or the personal representative to call upon the heir to part with the estate.

who approved of the title; but before any conveyance was made, or the 50%, or any rent became due, F died. The bill was filed by the heirs at law of F, against the executors, the residuary le gatees, and the vendor, praying a specific performance of the [ 142 ] contract, and that the purchase-money might be paid out of the personal estate. The answers admitted the agreement: the vendor submitted to perform the contract, and the executor did not object: but the residuary legatee resisted the performance. For the plaintiffs three points were insisted upon, but the last Unless a cononly belongs to our present purpose. It was contended, that there was a clear part-performance, so as to take the case out of the statute. Part of the money was paid. Of lot 3, possession had been taken, and the produce sold, which acts must amount to part-performance; and the contract being entire, the consequence of such part-performance must extend to all the lots. The terms were different, but all the lots were sold by and to the same persons; and lastly, it was insisted, that the residuary legatee had no right to object to the performance of a contract, to which the testator himself had no objection. But the Master of the Rolls was of opinion, that the court could not speculate upon what the testator would or would not have done, but that the inquiry must be, whether at his death a contract existed, by which he was bound, and which he would be compelled to perform; for that that alone could give the heir a right to call for the personal estate to be applied, or to the personal representative a right to call upon the heir to convey. The question, his honour said, must be the same whether a purchase or a sale was insisted on: was the ancestor himself bound? was there such an agreement as converts the real estate into personal, or the personal estate into real? He was of opinion that every objection might be taken upon either, which it would have been competent to the deceased to take, if he had resisted the execution in his life-time. The money paid upon the auction duty was, in the opinion of the Master of the Rolls, no circumstance of part-performance; for the revenue laws ought never to be held to operate beyond their direct and immediate purpose, so as to affect the property and vary the rights of parties. Upon a sale by auction, so much was paid to the *vendor as part payment, and so much to the government as a tax. If the purcha

Payment of the auction duty no partperform

ance.

* [143]

Though it is true that a contract is

that conse

be void und

er the statute

as to any part of it, the

whole must fail; yet, where an es

ser refused to pay the tax, his bidding was void: if he paid it, the consequence was, that his bidding had the same effect, as it would have had if no such law had been made, and no other effect. That, without which there would have been no contract, cannot be said to be in part-performance of the contract. The only contract with the vendor, and which he could enforce, was for the price but supposing that the payment of the auction duty could be considered as part of the price; he did not see how that could bind the purchaser. In general, the party seeking the performance must show a performance on his side, as a reason for the interference of the court in his favour; for the ground upon which the court acts is fraud in refusing to perform after performance by the other party. The inquiry was, whether F, if so disposed, uld have resisted the performance; for if he could, upon the principle before stated, the heir was not entitled to call for an application of the personal estate for that purpose. But his refusal,, after paying part of his purchase money, would be no fraud upon the seller, but his own loss.

With respect to lot 3, his honour was of opinion, that what entire, and had been done in respect to that lot, supposing it to amount to quently if it part-performance, as to the particular premises contained therein, could not affect any other lot; for the several lots were included in distinct articles of sale, and so were unconnected.But as to that lot, he was of opinion, that there was no partperformance for the bargain with B, to whom the crops were tate is sold in sold, was the mere act of the vendee. The vendor had no predistinct lots, judice, and it therefore gave him no title to insist upon the completion of the purchase, against the statute, on the ground of purchaser of part-performance. He, the vendor, had done nothing to entihe whole, tle him to say the non-execution was a fraud upon him. If, inthe contract may be valid deed, he had let B into possession, that would have been an act under the statute as to by which he might have received a prejudice. B says he is now one lot, and in possession, which cannot be taken to be before the death of F, and nothing that passed since could influence the questhere may be tion, the inquiry being, *whether at his death he could have a part-performance as been compelled to perform his agreement.

altho' there

is but one

void as to an

other, or

to one, and

not as to the

The bill in Buckmaster v. Harrop was, as we have seen, filed by the real against the personal representative to have a contract [144] for a purchase by the deceased party carried into execution.

others.

The case of Lacon v. Mertins,(i) the converse in circumstan ces, affords the same principle. The bill was brought against the heir at law by the administrator of the deceased, to compel a sale according to the parol agreement of the intestate, for the benefit of the personal estate, and there being a part-performance on the side of the purchaser, so as to bind the deceased party; the court granted its relief according to the prayer of the bill; for, as the contract was binding, the thing to be done was considered as done, and the property was already converted in contemplation or equity. And it is to be observed, that the act of part-performance in this case of Lacon v. Mertins, was simply payment of part of the purchase-money, which was certainly a decided step on the one side towards the execution of the contract, and prejudicial to the party if such contract be not performed. The same doctrine is distinctly set forth by the same Chancellor, by whom Macon v. Mertins was determined in the case of the Attorney-General v. Day,(k) which came on a few years afterwards. There is no case, said his lordship, where the representative of the personal estate is entitled to claim the money arising by the sale of the lands as personal estate, except where one or the other of the contracting parties in the purchase is entitled to carry it into execution in a court of equity for where the court holds it ought not to be executed, there is no conversion of the real into personal estate in the consideration of the court, upon which that right of the executor depends. if not effectually converted into money, it must be considered according to its original nature as real, and the heir at law must have the benefit. Whether there is any such conversion, depends on there being an effectual agreement binding *on ail (69) [145] parties, so that under all the circumstances it ought to be carried into execution upon this general principle of equity-that what is

(i) 3 Atk. 1, Lord Hardwicke, Chancellor. (k) 1 Vez. 218.

For

(69) If it was binding on the deceased party, by reason of the part-performance on the side of the other contracting party, though the agreement was not in writing, it seems sufficient to convert the estate in equity, as between the real and personal representative; at least, such appears to be the doctrine of Lacon v. Mertins, and Buckmaster Harrop.

[146]

contracted, for valuable consideration, to be done, will by the court be considered as done; and all the consequences will arise as if it had been so done, and as if a conveyance had been made of the land, at the time, to the vendee. The first point of inquiry in the case was, whether what passed in the life of the deceased party amounted to a binding agreement on him for the sale; and this question, his lordship seemed to think, depended upon the sufficiency of the acts on the other side to amount to a part-performance.

Thus the cases of Lacon v. Mertins, and the Attorney-General v. Day, decided by Lord Chancellor Hardwicke, and the recent case of Buckmaster v. Harrop, are agreed on this nice and important doctrine: but the authority of Sir John Strange, in Potter v. Potter,(7) determined about two years after that of the Attorney-General v. Day, and while Lord Hardwicke was Chancellor, is not quite reconcilable with the opinions of Lord Hardwicke and the present Master of the Rolls on this subject. The great question in which case, on a bill filed by the devisce to have the testator's contract carried into execution, and the estate contracted for, conveyed to the uses in the will, was, whether the contract for the lands treated for in the testator's life-time, had at any, and what time, so far proceeded as to vest an equitable title in the testator, though no conveyance was executed of the legal estate. His Honour was of opinion, that the contract was so far carried into execution as to supply the want of writing. But it appears, that the only acts amounting to a part-performance, were done by the testator; and the cases above considered, particularly that of Buckmaster v. Harrop, turn evidently upon the doctrine, that the testator ought to have been bound by acts of part-performance on the side of the other contracting party, for the estate to be converted, so as to transmit a title to the party claiming by representation under the contract, to call for a spccific performance.

The Master of the Rolls in Potter v. Potter, seemed to think, that the acts of part-performance done by the party himself, bound him to the complete performance, and gave a title to the other party to come into equity for compelling the completion; in which opinion he seems not to have been followed by the present

(2) 1 Vez. 457.

Master of the Rolls, who has chosen rather to found himself upon the authority of Lord Chancellor Hardwicke, in the cases of Lacon v. Mertins, and the Attorney-General v. Day.(70)

[147] Of the doctrine, that if it is part of the agree ment itself, that the a

In the case of Hollis v. Whiting, (m) the Lord Keeper(n)ex pressed an opinion, that if the plaintiff had laid in his bill that it was part of the agreement, that the same should be put into writing, it would alter the case, and might possibly require an answer, i. e. that the statute could not be pleaded alone. But Lord Thurlow, in the case of Whitchurch v. Bevis,() observed greement shall be put upon this opinion of the Lord Keeper, " If you interpose the into writing, medium of fraud, by which the agreement is prevented from being put into writing, I agree to it, otherwise I take Lord North's pleaded. doctrine to be a single decision, and contradicted, though not expressly, yet by the current of opinions." This doctrine of the, Lord Keeper seems to have been connected in principle with another peculiarity in his views of this clause of the statute of frauds. In a subsequent case() before him, he remarks, that the difficul ty which arose on the act of parliament in that case was, that the

(m) 1 Vern. 151, and see Leak v. Morrice, 2 Cha. Cas. 135. (n) Lord Keeper North. (6) 2 Bro, C. R. 565. (p) Hollis v. Edwards, 1 Vern. 159; and see Leak v. Morrice, 2 Ch. Ca. 135.

the statute cannot be

(70) In perusing the cases of Potter. Potter, and Buckmaster. Harrop, cited in the text, the student should attend to the reasons which occasioned the difference of effect given to the admission of the agreement, which the answers to the bills on both those cases contained. In Potter v. Potter, there was a full admission by all the parties opposed in interest, which, at that time, according to the then prevailing doctrine on the subject, took a case out of the operation of the' statute, notwithstanding the statute was insisted upon by the defendant; but in Buckmaster Harrop, the bill being filed by the heir at law against the executors, the residuary legatee, and the vendors, to have the purchase-money paid out of the personal estate; though the executor admitted the agreement, and the vendor submitted to perform it, yet the residuary legatee, who was the party most interested in opposing the bill, contested it, and undertook to show that the plaintiff had no right to call for a performance of the agreement; and whether he admitted the existence of the agreement or not, yet as he insisted upon the benefit of the statute, according to the present inclination of the courts, it should seem that the statute would protect him. With respect to the admission by the executor, he had no right to give away the personal estate from the residuary legatee.