ship, there are many dicta which, taken abstractedly, seem to go the whole length of the proposition here contended for. As however, in truth, it may be doubted whether they were not intended to apply principally to the wife's equitable property, respecting which, the doctrines of the courts of equity have in some points been till lately very unsettled, the bringing of them into this discussion would only increase the great amount of unfair reasoning which has been applied to this subject. In the case, however, of Burnet v. Kinaston,1 referred to by Sir William Grant, is a dictum of the lord keeper Wright, strictly in point. It was explicitly laid down by that judge, that “If a husband assigns a bond of his wife for valuable consideration, this assignment will not bind the wife if she survives." Seeing, therefore, that the wife surviving, has by the common law of England (and not by the authority of the court of Chancery), an absolute right to such part of her personal property, of a legal quality, as at the time of her husband's death remains "in action;" and that no case is to be found in which a court of equity has deprived her of such property; it remains to be seen, what "equitable" grounds have been alleged for establishing against her the claim of the assignee. We are told, that "the property is altered." If the expression is meant to be applied to the transfer of the husband's interest to the assignee, its correctness cannot be denied. Undoubtedly, all that the husband has to transfer passes by the assignment. But this argument goes too far; for (as was observed by Sir Thomas Plumer 3), “in bankruptcy also the property is changed, every thing being transferred to the assignees which the bankrupt himself could lawfully part with." Yet it is quite settled, that the wife's claim is not thereby affected. "The property" (in this sense of the word) which the husband has, is a right to reduce the thing into possession during his life. What more a purchaser can take by the transfer is inconceivable, for how can an absolute right to any thing pass, by an assignment of any description, out of one who had in himself but a limited and defeasible interest? "If," said Sir William Grant, in Morley v. Wright," the husband has but the right of reducing the wife's interest into possession, 1 Prec. Chan. 118. 2 Vern. 402. 2 1 Russell, 38. 4 11 Ves. 17. how can he for valuable consideration, or otherwise, convey more than he has? If he does not reduce it into possession, it clearly survives. If then he parts with it for valuable consideration, and the assignee acquires a right different from that which the husband had, he parts with something different from what he has." If, on the other hand, by “the property” it is meant that the subject-matter is altered, what ground is there for such an assertion? It is as much “in action," and therefore as much within the application of the rule of law, after the assignment as before. An action is as necessary on the part of the assignee as on that of the husband, with this difference, that though the husband might have sued for the recovery of it in his own name only, the assignee would have to employ the name of the wife to obtain possession of that property, the unqualified right to which would by law have become vested in her. What then are the extraordinary claims of the party in whose favor the widow is to be made the passive instrument of her own deprivation, perhaps ruin? He is one who buys a right of action; well aware of the chance of the husband's dying in the lifetime of the wife, and before the chose in action is reduced into possession; and who is bound to know of the wife's legal right by survivorship! Is this a case calling for the interposition of the court of chancery? Should a man be so ill advised as to purchase land entailed of the tenant in tail, without taking care to have the entail barred before payment of his purchase money, equity would not compel the issue in tail to vest the inheritance in the purchaser. So (to come nearer to the point) "in equity no agreement of the husband to part with the wife's inheritance shall bind the wife, or be carried into execution."1 There seems no reason for contending, that the purchaser of the wife's property, would in the one case any more than in the other, have that given to him by a court of equity, which he knew at the time of entering into the contract for purchase, it was not com→ petent to the vendor to convey to him. The right to the chose in action vests as clearly in the wife in the one case, as her right to the inheritance in the other; and if there be any truth in the professions of the courts of equity, that a married 1 Tr. Eq. b 1. c. 4. s. 23. woman is an object of their peculiar consideration, the difference in the nature of the property in question cannot afford a ground for an opposite line of conduct in the two cases. It would surely be as inconsistent with the principles of a court of equity as it certainly would be contrary to a clear legal principle, to deprive the widow of her property, in order to make good the speculation (for it is no more) of a dealer in suits at law. WHETHER PAYMENT OF PURCHASE MONEY WILL TAKE A PAROL AGREEMENT FOR THE SALE OF LANDS OUT OF THE STATUTE OF FRAUDS. FREQUENTLY as this most important point has occurred, the courts of equity (strange to say) have left it in an extremely unsettled state; and as it has not yet received the attention it deserves, either from text-writers, or the great judges who have occasionally touched on it, we propose to give it a brief discussion, and shall endeavour to elicit the principles on which it rests. We shall begin with observing that the question, in our opinion, depends entirely on the statute of frauds, and that the doctrines of equity, with respect to it, before that statute, are immaterial. This position, though seemingly obvious, we shall endeavour to establish, as one of the most popular of professional authors 1 enters upon the subject with a different impression. Mr. Sugden commences his examination of the doctrine with the four cases in Tothill, which arose previously to the statute, and which, he remarks, appear to be applicable to the point under consideration; as equity, even before the statute, would not execute a mere parol agreement not in part performed. But whoever scrutinises the cases to which that gentlemen refers, will, we think, be convinced that they do not support his proposition; and the firm 1 Sugd. Vend. 107. 2 William v. Nevil, Tothill 135. Ferne v. Bullock, ibid. 206. Clarke v. well, ibid. 228. Millar v. Blandist, ibid. 85. Hack and positive language in which it is stated, forms a singular contrast to the manner in which he gives their specific results. In two of them (Ferne v. Bullock, and Clarke v. Hackwell) "parol agreements were," he says, "enforced, apparently on account of the payment of very trifling parts of the purchase money; but the particular circumstances of those cases do not appear." And he concludes this part of his inquiry with observing, that though the decisions are not easily reconcileable, yet "the result of them clearly is, that payment of a trifling part of the purchase money was not a part-performance of a parol agreement." We apprehend that Mr.Sugden has forgotten the simple principle on which the doctrine depended prior to the statute of frauds, and that a recurrence to it will solve the difficulties, and reconcile the apparent contradictions, of the cases he has quoted. Before the statute there was not (as Mr. Sugden has imagined) any substantive rule in the courts of equity, that they would not execute a parol agreement, not in part performed. On principle a parol agreement, if proved, would have clearly bound the parties; but such an agreement was difficult of proof, and therefore the courts naturally leaned against it, except when it was fortified by concomitant circumstances of an unambiguous complexion. Of these circumstances, the part performance of the agreement, by the payment of the whole or any part of the purchase money, was one of the most decisive; but still it was important only as raising a presumption, and might consequently have been repelled by others of an opposite tendency. When, however, but a trifling sum was paid, the act was more equivocal, and therefore more controllable by positive evidence or accompanying facts. This explanation coincides with the true rule, which in a book of authority is expressed to be, that "the court was very cautious of relieving bare parol agreements for lands, not signed by the parties, nor any money paid." 1 We now come to the statute itself (29 Car. 2. c. 3.) which declares generally, that no contract relating to lands shall be binding, if not in writing. The student who has been taught in elementary text-books, that the power of parliament is transcendant, and its enactments equally binding on all our 1 Treatise of Equity, B. 1. c. 3. s. 8. courts of judicature, will be not a little surprised to find that equity continued, in some cases, to act as if this statute had no existence. 1 In the first case, indeed, subsequent to the statute, we find it laid down that a contract [parol] for land, and a great part of the money paid, is void. And this case appears to have been generally3 acted on, until the time of Lord Hardwicke, who laid it down broadly, that paying money had always been considered as a part performance; a dictum which, taken in its full extent, would virtually sweep away the line of demarcation between the ancient and modern doctrines of equity on this subject, and almost render the above enactment a dead letter. We afterwards find the distinction taken between the payment of a considerable and an inconsiderable part of the purchasemoney; but this distinction, if in other respects sound, would be rendered unsatisfactory from the vagueness of the word considerable, and the consequent necessity of taking the opinion of the Court on every case that arises until some definite proportion is fixed. Finally comes a decision by Lord Redesdale, holding clearly, that payment of purchase-money is not a part performance, and had never been deemed so." That the assertion with which this proposition is accompanied, is illconsidered, is evident from the authorities which have been referred to in the brief deduction; but the decision we conceive to be right in its fullest latitude, and we unite with Mr. Sugden in hoping that it will set the point at rest. The unsettled state of this doctrine strikingly exemplifies the evils which courts of equity produce when they aim at too much. In the 1 It is not quite unusual for courts of equity to set their veto on acts of parliament, and render the passing of them totally nugatory. They exercised this constitutional prerogative in the instance of the statute which required two witnesses form will of money in the funds, 35 G. 3. c. 14. s. 16. 2 Freem. 486. pl. 664 b. 3 The doctrine of this case seems to have prevailed in Leak v. Morrice, 2 Cha. Ca. 135. 1 Dick. 14, 5. to have been rejected in the subsequent case of Alsop v. Patten, 1 Vern. 472. and to have revived in the still later cases of Seagood v. Meale, Prec. Cha. 560. and Lord Fingall v. Ross, 2 Eq. Ca. Abr. 46. pl. 12. 4 In Lacon v. Mertins, 3 Atk. 1. 5 Main v. Melbourne, 4 Ves. J. 720. • Mr. Sugden (Vend. 112. 7 Ed.) properly remarks, that the reasoning of Sir Wm, Grant in Butcher v. Butcher, 9 Ves. J. 382. is applicable to this point. 7 Clinan v. Cooke, 1 Scho. & Lef. 22. 8 Vend. 113. I |