How far possession delivered,taken, or kept, is a part-performance.

*[148]

Of the operation of the

statute on

copyholds.

act makes void the estate, but does not say the agreement itself, shall be void. And, therefore, though the estate itself is void, yet, possibly, the agreement may subsist. So that a man may recover damages at law for the non-performance of it; and if so, he should not doubt to decree it in equity. Which, as far as it is intelligible as to its terms, seems to savour rather of a scholastic refinement of reasoning, and to be best answered by the words themselves, by which the statute has declared its meaning. It seems to be pretty well settled, that if possession of the premises sold is given by the vendor to the vendee, this is a sufficient part-performance, at least on the part of the vendor, *to entitle him to the assistance of equity to compel a completion of the contract by the purchaser, notwithstanding the omission to reduce the contract to writing.(71) Thus, in the Earl of Aylesford's case,(9) where there was a parol agreement for a lease of 21 years, upon which the lessee entered and enjoyed for six years, and then the Earl brought his bill to oblige the lessee to execute to him a counterpart for the residue of the term, and the lessee pleaded the statute of frauds and perjuries; the plea was overruled, it being considered that the agreement had been in part executed.(72)

(q) 2 Str. 783.

(71) It seems hardly necessary to observe, that the possession must be legally and rightfully obtained. Hole v. White, before Lord Camden, 1767, cited 1 Bro. C. R. 409.

(72) The case of Borrett v. Gomeserra, Bun. 94, is characterised by some positive acts of ownership superadded to the possession, as bringing in bricks, fishing in the ponds, &c. It is observable, however, that the subject of the parol agreement in that case was copyhold lands; and that the reporter subjoins a query, whether copyholds are included in the general words of an act, and cites Heydon's case, 3 Rep. 8, and Hardress, 432. But the rule laid down in Heydon's case, is only, that general words in an act of parliament do not extend to copyhold lands, where the tenure, service, interest in the land, or other thing in prejudice of the lord or of the custom of the manor is thereby altered. And, therefore, copyhold lands are not within the statute de donis cónditionalibus; because then the donee would hold of the donor, and so the tenure would be altered; and upon the same reason it is held, that the statutes Westm. 2. of elegit: 27 H. 8, c. 10, of uses: 31 H. 8, and 32 H. 8, of partition to be made by writ de partitione facienda, 32 H. 8, c.

*On a similar ground in the case of Pyke v. Williams,() possession having been delivered by the seller to the purchaser, who refused to complete his purchase, and to give a colour to his possession, procured an assignment of a mortgage which he antedated, the possession delivered was held to be an act of part-performance; and accordingly the Lord Keeper decreed Pyke to go on with his purchase. The same point stands also upon the authority of Lockey v. Lockey,(s) and a variety of other cases; and the doctrine was recognised by the present Master of the Rolls,() in the above mentioned case of Buckmaster v. Harrop,(u) who there observes, that if the vendor had let the vendee's lessee into possession, that would have been an act by which he

(r) 2 Vern. 455. (s) Prec. in Chan. 518. (u) 7 Vez. jun. 347.

Grant.

(t) Sir William

28, of leases for 21 years, &c. by tenant in tail, &c. do not extend to copyholds. And it seems, that upon the same principle, copyholds would not have been comprised within the statutes of bankrupts without special words; they are expressly mentioned in the statute of 13 Eliz. and the acts of King James being subsequent and additional acts, and confirmatory and explanatory of that act of Elizabeth, are to be construed as if the word copyholds had been contained in them. It may be observed, however, that the assignee of the commissioners pays his fine, and therefore query as to any prejudice to the lord. The true rule of distinction seems to be, that the general words lands, tenements, or hereditaments, where they occur in a statute, do prima facie include copyholds; and though, wherever such construction can be shown to interfere with the rights or interests of the lord, the statute may be checked in its operation on that ground, yet these words, in their natural compass, shall extend as well to copyholds as freeholds, unless proof can be adduced of interference thereby with the rights or interests of tenure.

The judgment in the case of the Duke of York v. Sir John Marsham, Bart. Hardress, 432, wherein copyholds were claimed as forfeited under the act of attainder, for the murder of King Charles the First, was very satisfactory, and we cannot but particularly admire the Chief Baron's answer to the objection to his fourth reason.

Trying the question by the above-mentioned criterion, copyholds fall. properly within the 4th section of this statute, concerning the sale of lands, and the 7th section requiring declarations in trust to be in writing, sce Winters v. Withers, Ambler, 152, but they are neither within the statute of wills, nor the sections of the statute of frauds which relate to devises of lands.

might have had a prejudice. The *doctrine laid down in Seagood v. Meale, is sometimes mentioned as a contrary authority.(73) The position in which case is this, "where a man, on promise of a lease to be made to him, lays out money on improvements, he shall oblige the lessor afterwards to execute the lease, because it was executed on the part of the lessee. Besides, that the lessor shall not take advantage of his own fraud, to run away with the improvements made by another; but if no such expense had been incurred on the lessee's part, a bare promise of the lease, though accompanied with possession, is directly within the statute; as where a lessee, by parol, agreed to take a lease for a term of years certain, and continued in possession on the credit thereof, such agreement is nevertheless within the statute.(74) We observe that in the case put as above in Seagood v. Meale, the relief was sought by the person let into possession, who could not be said to have received any prejudice thereby if the agreement should not be performed, unless he had laid out money in the melioration of the premises; whereas, in the cases above cited, wherein such possession constituted the part-performance to ground the title to equitable relief, the party who had sold and delivered the possession, under the contract, to the purchaser, was the plaintiff in equity, and he was clearly in a predicament to receive a prejudice from the non-performance of the agreement, and so within the principle on which the doctrine of partperformance was placed by Lord Hardwicke, in Gunter v. Halsey, and Lacon v. Mertins, and by the present Master of the Rolls, in Buckmaster v. Harrop.(75) And it moreover appears *[151] *by the words 'continued in possession,' used in the said case of Seagood v. Meale, that the lessee was already in possession un

(73) See the Editor's note in the last edition of Strange, to the Earl of Aylesford's case, 2 Str. 783.

(74) It was necessary, in citing this part of the case, a little to transpose the language, as it would otherwise have been scarcely intelligible. (75) One general remark seems proper to be made on this part of the subject, viz. that the mere non-execution of a lease or conveyance, is not a circumstance of itself affording a presumption of the agrecment's having been waived. As long as it exists, the equitable estate exists, and the enjoyment must be under it accordingly. See Robson v. Collins, 7 Vez. jun. 130.

der an expired lease, and held over on the expectation of a re'newal or further grant: which state of facts affords a much weaker foundation for supporting an application to equity for specific performance, whether we consider the lessor or the lessee as the plaintiff. But if a house has been built or improvements made by such holder over, and especially if the landlord has received an increased rent, a ground is laid for specific performance notwithstanding the statute, at least, for inquiry into the circumstances so that if a plaintiff state these facts in his bill, and refer them to a particular agreement, it is probable the plea of the statute will be ordered to stand for answer with liberty to except.

The bill in the case of Wills v. Stradling,(x) stated the following case: The plaintiff was lessee of a farm for 7 years, at the rent of 341, a year, under the defendant, the widow of the lessor, under whose will she was entitled to the premises during her widowhood. The lease being to expire in 1794, the plaintiff, in June 1793, having an inclination to make some improvements on the premises, which would be attended with a very considerable expense, applied for a new lease for the term of fourteen years. The defendant agreed to grant a new lease for that term, if she should live and continue a widow, at the rent of 367. a year; and immediately, or very shortly after the agreement, the plaintiff, upon the faith of the agreement, and in confidence that he should enjoy for the fourteen years, under the agreement, began to make improvements, and laid out a great deal of money on the premises. The plaintiff continued in possession after the expiration of the former lease, and paid the increased rent, for which the defendant gave him receipts. The bill prayed a specific performance, and the defendant pleaded the statute. The Lord Chancellor, after premising that he felt a very strong inclination to support the statute of frauds, and to give a party *the benefit *[152] of it, by way of plea, declared his persuasion, that it was proper in that case to call upon the defendant, to make an answer to one part of the bill. His Lordship observed, that three grounds were stated possession by the plaintiff, which he refers to the agreement; payment of an increased rent, which he also refers to the agreement; and that considerable sums of money had been laid out upon the improvement of the farm. As to the first ground,

(x) 3 Vez. jun. 378, and see Mortimer v. Orchard, 2 Vez. jun. 243.

R

the fact of the continuance in possession (which is all the plea can admit for quo animo he continued in possession, is not a subject of admission) would not weigh. The delivery of possession by a person having the possession to the person claiming under the agreement, is a strong and marked circumstance ;(76) but the mere holding over by the tenant, which he will do of course, if he has no notice to quit, would not of itself take the case out of the statute, or call for an answer. As to the money laid out, his Lordship stated himself to feel the distinction, pressed by the Solicitor General, very strongly; that if it was part of the contract that money should be laid out, and one of the considerations of granting the lease, (the laying out of which must be then with the privity of the landlord) it was very strong to take it out of the sta tute. But the circumstance which he thought principally distinguished the case, was the payment of the additional rent. Payment of additional rent per se is an equivocal circumstance, it is true. It may be that he shall hold over from year to year, the lease being expired. There may be other inducements. But how stands the averment upon this plea? It is, that the landlord accepted the additional rent upon the foot of the agreement. Then the acceptance upon the ground of the agreement, which is the averment upon this plea, is not equivocal at all. It is in* [153] cumbent upon *the defendant to say, whether it was merely accepted upon a holding from year to year, or any other ground. Upon this reasoning, his Lordship ordered the plea to stand for an answer with liberty to except.

Payment of It appears to be well settled, that payment of money in part part of the of the purchase is a part-performance to take a case out of the purchasemoney, how statute.(77) The doctrine was distinctly laid down by Lord far a part

performance.

Of the doubt as to the pro

(76) That part of the foundation for relief which consists of the prejudice to the party, arising from his part-performance, seems to have been overlooked by the Chancellor in this case. Vide supra, the comments upon Buckmaster v. Harrop, 138, et seq.

(77) In Bac Abr. 1 vol. 120, a doubt is suggested as to the proper mode of proving the receipt of the money. It is there said to be clear, per mode of" that if the defendant by his answer confess the receipt of the money proving the for the purpose alleged in the bill, or if he deny the receipt, and it is receipt of the proved on him by written evidence, as a letter under his hand, he shall money. be obliged specifically to perform the agreement, because he has carried part into execution. But, if he confess the receipt of the money,