statute, and that the statute seemed to mean land taken as mere land, and not the annual growing productions. Mr. Justice Spencer, in Frear v. Hardenberg, seems to have adopted the same principle of construction, (though what he said was many years prior to the other case,) for he observed that the statute had in view some interest to be acquired in the land itself by the contract, and not such as was collateral, and by which no kind of interest was to be gained in the land."

5 Johns, Rep. 276.

The English cases have made very refined distinctions on the subject, and such as are difficult to be reconciled. The sale of a quantity of timber or wood, growing, and to be cut and delivered, has been held not to be within the 4th section of the statute. 1 Lord Raym. 182, anon. Smith v. Surman,

9 Barnw. & Cress. 561. Yale v. Seely, 15 Vermont Rep. 221; but on this point, the case of Teal v. Awty, 2 Brod. & Bing. 99, is otherwise. The case of Claflin v. Carpenter, 4 Metcalf's Rep. 580, agrees with the decision in 1 Lord Raym., and restores it to the character of a sound authority. The sale of a crop of grass growing, has been held not to be a chattel, but within the 4th section of the statute. Crosby v. Wadsworth, 6 East's Rep. 602. Bayley, J., in Evans v. Roberts, 5 Barnw. & Cress. 829. A sale of corn or potatoes growing in the field, held not to be within the statute, for the growing crops were mere chattels. Jones v. Flint, 2 Perry & Davison, 594. 10 Adolph. & Ellis, 753. Jainsbury v. Matthews, 4 Meeson & Welsby, 343. A sale of the herbage in land passes a right in the land and possession thereof, and trespass q. c. fregit will lie against an intruder. But a sale of the products of land annually produced by labor (fructus industriales) is a sale of a chattel interest. Brittain v. McKay and Bates, 1 Iredell N. C. Rep. 265. See also Stewart v. Doughty, 9 Johnson, 113. A sale of hops and of turnips growing, is held to be within the statute. Waddington v. Bristow, 2 Bos. § Pull. 452. Emmerson v. Heelis, 2 Taunton, 38. Though if the contract was for turnips, thereafter to be raised, the case was not within the 4th section of the statute, though as a chattel it was within the 17th section. It does not appear to be of much moment whether the doubtful cases come within the 4th section, as being an interest concerning land, for if the subject contracted for be a chattel interest, and be of ten pounds and upwards in value, the contract falls within the 17th section, and must be in writing. The rule to be drawn from the cases would seem to be, that if the subject matter of the contract was not to be severed and delivered by the vendor as a chattel, but was a right in the soil to grow and bring the same to maturity, and a right of entry to cut and take it was part of the contract, the case falls within the 4th section of the statute of frauds. But when the agreement was for the trees, grass, or crop, when severed from the soil, and which were growing

Part performance of an agreement by parol, and without writing, to sell land, will, in certain cases in the judgment of a court of equity, take the agreement out of the operation of the statute of frauds, and authorize the court to decree a specific performance of the contract. Such a resort to equity is addressed to the sound judicial discretion of the court; and its extraordinary jurisdiction in this case is not to be exercised when the complainant has so conducted as to destroy his claim to such an interference. The court will always have an eye to the substantial justice of the case. The agreement to be enforced must be clearly proved, as charged in the bill, and the acts of part performance must unequivocally appear to relate to the identical contract set up. The ground of this interference of chancery is fraud, in resisting the completion of an agreement partly performed, and which part performance would work a fraud upon the party unless the agreement was carried into complete execution. What facts will amount to a

at the time; or if the contract was for the annual produce of cultivation and labour, or for emblements at maturity, and to be taken by entry, the case falls within the 17th section of the statute. This is the distinction taken by Mr. Rand, the learned editor of Long on Sales, p. 80. In Green v. Armstrong, in 1 Denio, 550, it was adjudged that a contract for the sale of growing trees with a right to enter and remove them, was a contract for the sale of an interest in land, and must be in writing; but growing crops of grain and other annual productions raised by the industry of man, are personal chattels and not within the statute. See a clear and forcible illustration of the same doctrine by Ch. B. Joy, in Dunne v. Ferguson, 1 Hayes' Rep. 542. Benedict v. Lynch, 1 Johnson's Ch. Rep. 370. Brown v. Haines, 12 Ohio Rep. 1. Frisby v. Ballance, 4 Scammel, 287.

Phillips v. Thompson, 1 Johns. Ch. Rep. 131. St. John r. Benedict, 6 ibid. 111. Frame v. Dawson, 14 Vesey, 386. Clinan e. Cooke, 1 Sch. & Lef. 41. Lindsay v. Lynch, 2 ibid. 8. King v. Bardeau, 6 Johns. Ch. Rep. 38. Lord Ormond v. Anderson, 2 Ball & B. 369. King r. Hamilton, 4 Peters' U. S. Rep. 311. Seymour v. Delaney, 6 Johns. Ch. Rep. 222. Bonedict v. Lynch, 1 ibid. 370. Parkhurst v. Van Cortlandt, 1 ibid. 273. Keatts v. Rector, 1 Arkansas Rep. 391. Maine, New-York Legal Observer for

S. C. in error, 14 Johns. Rep. 15.
Ex parte Slover, U. S. D. C. in
October, 1846.

part performance sufficient to justify the interference of chancery, depends upon circumstances. Generally it may be observed, that delivery of possession is part performance. So, the making of beneficial improvements on the land may be taken for part performance.Þ It was formerly held, that payment was part performance, but the more modern doctrine now is, that payment of part, or even of the whole, of the purchase money is not of itself and without something more, a performance that will take the case out of the statute, for the money may be repaid.d

Lacon v. Mertyns, 3 Atk. 1. Lord Manners, in Kine v. Balfe, 2 Ball & B. 348. Wilber v. Payne, 1 Hammond's Ohio Rep. 251. Earl of Aylesford's case, Str. 783. Murphet v. Jones, 1 Swanston, 181. Pike v. Williams, 2 Vern. 455. Billington v. Walsh, 1 Binney, 131. Pugh v. Good, 3 Watts & Serg. 56. Gregory v. Mitchell, 18 Vesey, 328. Hart v. Hart, 3 Dessauss. S. C. Rep. 592. But the possession must be referable to the agreement, and taken with the consent of the vendor. Gregory v. Mitchell, ubi supra. Jervis v. Smith, 1 Hoffman's Ch. Rep. 470. If the purchase money be paid and possession delivered, that is a sufficient part performance. Thornton v. Heirs of Henry, 2 Scammon's Ill. Rep. 218.

b Lord Rosslyn, in Wills v. Stradling, 3 Vesey, 378. Parkhurst v. Van Cortlandt, 1 Johns. Ch. Rep. 274. Gregory v. Mitchell, 18 Vesey, 328. Morphett v. Jones, 1 Swanston, 172. Wack v. Sorber, 2 Wharton, 387.

Lacon v. Mertyns, 3 Atk. 4.

a Clynan v. Cook, 1 Sch. & Lef. 40, 41. 129. 3 Vesey, 379,380. Story's Com. on Eq. Jurisprudence, vol. ii. 64. Sites v. Keller, 6 Ohio Rep. 483. M'Kee v. Philips, 9 Watts' Rep. 85. Parker v. Wells, 6 Wharton's Rep. 153. Allen's estate, 1 Watts & Serg. Rep. 383. Hatcher v. Hatcher, 1 M Mullan's S. C. Rep. 311. But see Townsend v. Houston, 1 Harrington's Del. Rep. 532, in which it was held that payment of a substantial part of the purchase money, was, in chancery, a sufficient part performance. In the state of Maine, the supreme court declared, that it had power to decree the specific performance of a contract, in writing, to convey land; but not when it was a parol contract, even though the contract should be confessed by the answer. Sterns v. Hubbard, 8 Greenleaf, 320. But in New-Hampshire, a court of equity may decree a specific performance of a parol contract for the sale of lands, if there has been part performance. Tilton v. Tilton, 9 N. H. Rep. 385. It is now the settled English law that to a bill for a specific performance of a parol contract to convey land, if the answer insists upon the statute of frauds in bar, and there be no acts of part performance to take the case out of the statute, the courts of equity allow it to be a bar, not only VOL. IV. 37

The common law went further than this provision in the statute of frauds. It is deemed essential, in the English law, to the conveyance of land, that it should be by writing sealed and delivered; and, though a corporation can do almost any business of a commercial nature by a resolution without seal, yet the conveyance of land is not one of the excepted cases, and they cannot convey, or mortgage, but under their corporate seal. Deeds were originally called charters; and from the time of the Norman conquest, the charter was authenticated, by affixing to it a seal of wax, and it derived its validity from the seal. The statute law in South Carolina requires the conveyance of all freehold estates in

when the existence of the contract is denied, but when it is confessed by the answer. Eyre, Baron, in Eyre v. Ivison, and Stewart v. Careless, cited in 2 Bro. 563, 564. Walters v. Morgan, 2 Cox, 369. Lord Rosslyn, în Rondeau v. Wyatt, 2 H. Blacks. 68. Lord Eldon, in Cooth v. Jackson, 6 Vesey, 37, and Rowe v. Teed, 15 ibid. 375. Sir William Grant, in Blagden v. Bradbear, 12 Vesey, 471. Story's Com. on Eq. Jurisprudence, vol. ii. 59. In Pennsylvania, where there are no courts of chancery distinct from the courts of law, the Commissioners appointed to revise the Civil Code, in their Report, in January, 1835, provided, that the action of covenant brought for a breach of covenant to sell in fee, for life, or for a term of years, any real estate, should have the effect of a bill in chancery for the specific performance of the contract, under the provisions in the act, and which are new and anomalous. The remedy was also to be applied to contracts in writing for the sale of lands, though not under seal, but there was no provision for the case of a part performance of a parol contract to sell land. In Henderson v. Hays, 2 Watts' Penn. Rep. 148, it was adjudged, as they had no court of chancery in that state, that the vendee could enforce in ejectment the specific performance of an agreement for the sale and purchase of lands, whenever a court of chancery would sustain a bill for that purpose; and that the exercise of the power depended upon the equity and justice of all the circumstances which surround the case; and that cases might occur where the agreement was valid, and the price adequate, and no blame attached to vendee, and yet a specific performance would not be decreed, as for instance, when the vendor was of intemperate habits, and the land more advantageous to him than the purchase money. In Massachusetts a parol contract for the sale of land is not so utterly void, but that the party who is able and willing to fulfil the contract can retain the money advanced on the contract Conghlin v. Knowles, 7 Metcalf, 57.

• London Waterworks v. Bailey, 4 Bingham's Rep. 283.

land to be by writing, signed, sealed, and delivered, or, in other words, to be conveyed by deed. The statute law in Virginia,a and Kentucky, requires the same thing as to all estates or interests in land exceeding a term of five years; and the statute law in Rhode Island, as to estates exceeding a term for one year. There are probably similar statute provisions in other states; and where there are not, the general rule of the common law, that the conveyance of land must be by deed, is adopted and followed, with the exception of Louisiana, where sales of land are made by writing only, and must be registered in the office of a notary. It had been adjudged in New-York, in 1814, that a conveyance of a freehold estate must be by deed, or a writing under seal; and the decision was founded upon the doctrine of the English common law. The Revised Statutes have adopted this rule, by declaring, that every grant *452 in fee, or of a freehold estate, must be subscribed and sealed by the grantor, or his lawful agent, and

с

• Revised Code of Virginia, vol. i. 218, Act of 1792.

Civil Code of Louisiana, art. 2415. 2417. In Connecticut the statute declares, that all grants, bargains, and mortgages of land, shall be in writing, subscribed by the grantor, and attested by two witnesses, and duly acknowledged and recorded; (Statutes of Connecticut, 1821. Ibid. 1838, p. 390,) and I should infer, that a bargain and sale of land, made according to the provisions of the statute, would be valid without a seal, and yet statutes have been passed in 1824, 1836, and 1838, confirming conveyances of real estate previously executed without seal. Statutes of Connecticut, 1838, p. 393, 394. In Massachusetts, conveyances of land are by deed. Revised Statutes of 1835.

Jackson v. Wood, 12 Johns. Rep. 73.

◄ Vol. i. 738, sec. 137. In Georgia the ancient English statute laws respecting the rights of persons and property, are followed and adopted with remarkable precision, all conveyances of lands must be by deed of bargain and sale, or by deed of lease and release, or by deed of feoffinent, enrolled or registered in the clerk's office, signed and sealed by the party conveying before two or more witnesses. But a writing with a scroll or other representation of a seal annexed, shall be sufficient for a seal of wafer or wax. Hotchkiss' Codification of the Statute Law of Georgia, 1843, pp. 406. 408.