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Under the first head are classed parishioners or inhabitants of any place, or churchwardens, who are incapable of purchasing lands by those names; except in London, where it seems the parson and church wardens are a corporation to purchase lands (e); and also except in the case of a workhouse for the poor, which churchwardens and overseers are enabled by the statute 9 G. 1, c. 7, s. 4, to purchase as trustees (f).

Under the second division are classed aliens (g); persons who have committed felony or treason, or been guilty of the offence of præmunire (h); who may respectively purchase, but not hold against the crown; and corporations, sole or aggregate, lay or ecclesiastical, who cannot hold without licence from the crown or act of parliament (i).

Under the third head, which relates to persons incapable of purchasing, except sub modo, are ranged infants, who may at full age either confirm or waive the purchase (k); femes covert, whose husbands may disagree, and bring an action for the purchase money; although it seems married women may purchase lands pursuant to an authority given by the husband, and that he cannot afterwards avoid it (). Here also may be mentioned, lunatics and idiots, who cannot themselves, it appears, waive the purchase, even when they recover their senses; but in case of their death during their lunacy or idiocy, their heirs may avoid the purchase (m): so may the king upon office found ("); and also the committee after the lunatic is found so by inquisition (o).

In addition to the legal incapacity which obtains in these instances, there are certain rules of equity which restrict persons holding particular characters from making a valid agreement for the purchase of the property with which they are, by reason of their sustaining such characters, connected. The class of persons thus affected comprises (p) agents; arbitrators; attorneys, where they act

(e) Warner's Case, Cro. Jac. 532; Hargrave's n. (4) to Co. Lit. 3 a. (f) See further, ante, 232; Steer P. L. 89.

(g) Ante, 150; Co. Lit. 26; The King v. Holland, All. 14; Sty. 20, 40, 75, 84, 90, 94; 1 Rol. Ab. 194, pl. 8. (h) Co. Lit. 26; Rex v. Inhabitants of Haddenham, 15 East, 463; ante, 152, 153.

(i) Co. Lit. 99 a.; 1 Bla. C. 475. (k) Kelsey's Case, Cro. Jac. 320; 1 Rol. Ab. 731 (R); Co. Lit. 26; and

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as such on behalf of their vendors; assignees of bankrupts; auctioneers; commissioners; creditors who have been consulted as to the mode of sale, or other persons confidentially consulted or employed in the management of a bankrupt's affairs; commissioners of inclosure before the expiration of five years from the time of making their award (q); trustees except when merely nominal; and mortgagees in trust for sale.

It appears that a Court of Equity will not refuse to enforce a contract for the sale of an estate, on the behalf of the vendor or purchaser, on the ground of mere inadequacy of consideration; unless it were induced by fraud or gross misrepresentation; or by an industrious concealment of a defect in the estate (r).

It is often provided in the conditions of the sale, that any error or misstatement in the particulars shall not vitiate the sale; but that an allowance shall be made in the purchase money. In the Duke of Norfolk v. Withy (s), the estate sold, was described as being "about one mile from Horsham," (a borough town). The conditions contained a clause to the above effect. The purchaser brought an action to recover the deposit; the estate being between three and four miles from Horsham. Lord Ellenborough said, that he conceived the clause in the conditions was meant to guard against unintentional errors, not to compel the purchaser to complete the contract if he had been designedly misled. His Lordship left it entirely to the jury, whether this was merely an erroneous misstatement, or the misdescription was wilfully introduced to make the land appear to be more valuable. And the plaintiff had a verdict. This doctrine was recognised in a subsequent case (t), by Best, C. J. The particulars in that case described two houses as Nos. 3 and 4, and stated that the taxes of No. 3, were paid by the tenant. The houses ought to have been described as Nos. 2 and 3; but the names of the occupiers were correct; and it should have been said, that the taxes of No. 3, were farmed by the landlord. The houses Nos. 2 and 4, were of the same rate; but No. 4, was in the best state of repair. It was held that these misdescriptions were not cured by the provision, "that no error should vitiate," &c. In Sherwood v. Robins (n), Lord Tenterden adopted the distinction between

(q) 41 G. 3, c. 109, s. 2.

(r) Ante, 26. Sugd. V. & P. 241, 242, and the cases there cited; see also Turner v. Harrey, 1Jac. 169,

(s) 1 Camp. 337.

(1) Leach v. Mullett, 3 C. & P. 115.

(u) Mood. & M. 194; 3 C. & P. 339, S. C. In this case, the sale was of a

unintentional mistake, and wilful misdescription; but said, “that he thought even an unintentional error would vitiate the sale, notwithstanding the clause in question, where no calculation can possibly be made as to the amount of compensation which should be allowed or paid to the purchaser."

Where the agreement was to sell the unexpired term of eight years' lease, &c., and it appeared that at the date of the agreement, the unexpired term was only seven years and seven months; Lord Ellenborough said (a), "the parties cannot be supposed to have meant that there was the exact term of eight years unexpired, neither more nor less by a single day. The agreement must therefore receive a reasonable construction; and it seems not unreasonable, that the period mentioned in the agreement, should be calculated from the last preceding day when the rent was payable, and including therefore the current half year. Any fraud or material misdescription, though unintentional, would vacate the agreement; but the defendant might have had substantially what he agreed to purchase."

In cases where there is a material mistake, not aided by the conditions, even if the vendor offer to make an allowance pro tanto, he has no claim against the vendee; for the purchaser is not bound to take an estate or interest which he did not agree to purchase (y).

It seems to have been vexata questio, where an estate was sold by auction in separate lots, and the same person became the purchaser of several lots, whether a distinct contract arose as to each, or whether there was but one contract as to the whole; but the better opinion appears to be, at least at law, that a distinct contract is created as to each lot (z).

If an estate be sold in one lot, either by public auction or by

reversionary estate, described "as absolute on the death of a person, aged sixty-six." That person was only sixty-four; and the reversion was not absolute, as the property would be divided if he left more children than

one.

(x) Belworth v. Hassell, 4 Camp. 140; see Sugd. 264, and MS. cases there.

(y) Favier v. Nightingale, 2 Esp. Ca. 639; Thomson v. Miles, 1 Esp. Ca. 184; Hearn v. Tomlin, Peake's Ca. 192; Hibbert v. Shee, 1 Camp.

Ca. 113; Duffell v. Wilson. 1 Camp. 401; Sugd. V. & P., 265, MS.

case.

(2) Emerson v. Heelis, 2 Taunt. 38; Johnson v. Johnson, 3 B. & P. 169; James and another v. Shore, 1 Stark. 430; Roots v. Lord Dormer, 4 B. & Ad. 77; Lewin v. Guest, 1 Russ. 330; Poole v. Shergold, 2 Bro. C. C. 118; Sugd. V. & P., 268, 270: sed vide Chambers v. Griffiths, 1 Esp. Ca., 149; Gibson v. Spurrier, Peake's Addl. Ca. 49; Boyer v. Blackwell, 3 Anst. 657.

private contract, the vendor cannot enforce the contract at law, unless he has a title to the whole estate (a). Perhaps in equity, if a separate value were put on different parts, the contract may be considered distinct; but at law, on an entire contract, a vendor cannot recover any part of the purchase money where he cannot make a title to the whole estate; nor is a purchaser entitled to retain that part to which the title is good, and vacate the contract as to the rest (b).

The private employment by the vendor, of puffers at a sale by auction, is a fraud upon the purchaser, and will vitiate the sale (c). And Lord Tenterden, in the case of Wheeler v. Collier (d), stated the strong inclination of his opinion to be, "that if only one person be employed to bid with a view to save the auction duty, the sale is void, unless it be announced that there is a person bidding for the owner; that the act itself was fraudulent: that the statute relative to the duty was made for a different purpose, with a view to the duty only, and could not be made to sanction what is in itself fraudulent. And the Court of Common Pleas seem to have been of the same opinion in the case of Crowder v. Austin (e). And if the advertisements or particulars state that the estate will be sold without reserve, it has been decided that, if a person be employed on behalf of the vendor to keep up the price, he can have no claim to the aid of a court of equity to enforce a contract against the defendant under such circumstances (ƒ). It has been decided in a late case (g), that if a purchaser, by unfair conduct, deter other persons from bidding at the sale, and cause the goods to be knocked down to him, he does not acquire any property in the goods.

(a) Tomkins v. White, 3 Smith, 435. (b) Johnson v. Johnson, 3 B. & P. 162; Sugd. V. & P. 270.

(c) Howard v. Castle, 6 T. R. 644; Benwell v. Christie, Cowp. 396; Blachford v. Preston, 8 T. R. 93; Crowder v. Austin, 3 Bing. 368; 11 Moore, 283, S. C., and 2 Car. & Pay. 208, S. C.; Fuller v. Abrahams, 6 Moore, 318; Rer v. Marsh, 3 Y. & J. 332.

(d) M. & Mal. 126.

(e) 3 Bing. 368; 2 C. & P. 208, S. C. See also, per Alexander, C. B., in Rex v. Marsh, 3 Y. & J. 332. Sir

Edward Sugden, however, appears to be of opinion, that one person may, without public notice of the fact, be appointed to bid; and he quotes several cases decided in the Court of Chancery in support of his opinion; see Sugd. V. & P. 8th ed. 23, 24, 25. The safer mode is to give public notice that some person is appointed to bid on the part of the vendor.

(f) Meadows v. Tanner, 5 Madd. 37.

(9) Fuller v. Abrahams, 6 Moore,

318.

2. OF THE STATUTE OF FRAUDS AS IT AFFECTS AGREEMENTS FOR THE SALE OF REAL PROPERTY.

By the Statute of Frauds, 29 Car. 2, c. 3, s. 1, it is enacted, that "all leases, estates, interests of freehold, or terms of years, or any uncertain interest of, in, to or out of any messuages, manors, lands, or tenements, or hereditaments, made or created by livery and seisin only, or by parol, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised by writing (h), shall have the force and effect of leases or estates at will only; and shall not, either in law or equity, be deemed or taken to have any other, or greater force or effect; any consideration for making any such parol leases or estates, notwithstanding."

The second section excepts "all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during such term, shall amount unto twothird parts at the least, of the full improved value of the thing demised."

The third section enacts, "that no leases, estates, or interests, either of freehold, or terms of years, or any uncertain interest, not being copyhold, or customary interest, of, in, to, or out of any messuages, manors, lands, tenements, or hereditaments, shall at any time be assigned, granted, or surrendered; unless it be by deed or note in writing, signed by the party so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorised by writing, or by act or operation at law."

By the fourth clause it is enacted, amongst other things, that "no action shall be brought whereby 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 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 authorised (i).

(h) It should be remarked, that under the 1st and 2nd sections, which relate to the actual creation or transfer of a title, the agent must have a written authority; aliter as to the 4th section, which relates to a mere contract for an interest; see Sugd. 8th ed.

96, 97; ante, 171.

(i) See comments upon these scctions, Sugd. 69 to 73, 8th ed.; and per Littledale, J., in Smith v. Surmun, 9 B. & C. 571. It is observable, that under the 4th section, the agent need not have a written authority.

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