administration.(a) "The canonical disabilities," said Sir J. Nicholl, (b) "such as consanguinity-affinityand certain corporal infirmities, only make the marriage voidable, and not ipso facto void, until sentence of nullity be obtained, and such marriages are esteemed valid unto all civil purposes, unless such sentence of nullity is actually declared during the lifetime of the parties. Civil disabilities, such as a prior marriage, want of age, idiotcy, and the like, make the contract void ab initio, not merely voidable; these do not dissolve a contract already made, but they render the parties incapable of contracting at all; they do not put asunder those who are joined together, but they previously hinder the junction, and if any persons under these legal incapacities come together it is a meretricious and not a matrimonial union, and therefore no sentence of avoidance is necessary." CHAP. XV. When a woman, whose marriage has been dissolved on Wife divorced. the ground of the husband's adultery and desertion dies intestate, the husband will not be entitled to take out administration. (c) Where a married woman, having been deserted by her husband, obtained a protection order under 20 & 21 Vict. c. 85, s. 21, by reason of his desertion, the Court on her death intestate in the life of her husband, decreed letters of administration, limited to such personal property as she had acquired or become possessed of since the desertion, without specifying of what that property consisted, to be granted to one of her next of kin. (d) (a) See Browning v. Reane, 2 Phillim. 69, as to the husband being condemned in costs where the wife was of weak mind. (b) Elliott v. Gurr, 3 Phillim. 19. (c) Re Hay, 35 L. J. P. & M. 3. (d) Re Worman, 1 Sw. & Tr. 413; Re Faraday, 2 Sw. & Tr 316. Wife desented by husband. CHAP. XVI. Specific performance on the ground of part perform ance. Principles on which Court acts. CHAPTER XVI. SPECIFIC PERFORMANCE. OTWITHSTANDING the provisions of the fourth section of the Statute of Frauds, 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 shall be brought, 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 authorized; the Court will in some cases decree specific performance of a parol contract, where there have been acts of part performance on the part of the plaintiff. (a) The leading case on this point is Lester v. Foxcroft, (b) where the acts of part performance consisted in the plaintiff's pulling down an old house and building new houses according to the terms of the agreement. The principles upon which the Court acts were thus laid down by Lord Redesdale in Bond v. Hopkins: (c) (a) As to specific performance generally, see Fry on Specific Performance. Dart. V. & P. 5th ed. 981; W. & T. L. C. notes to Lester v. Foxcroft; Woollam v. Hearn; Seton v. Slade. (b) 1 Coll. P. C. 108; S. C. nom. Foxcraft v. Lyster, 2 Vern. 456. (c) 1 Sch. & Lef. 433. "The Statute of Frauds says that no action or suit shall be maintained on an agreement relating to lands which is not in writing, signed by the party to be charged with it, and yet the Court is in the daily habit of relieving, where the party seeking relief has been put into a situation, which makes it against conscience in the other party to insist on the want of writing so signed as a bar to his relief. The first case (apparently) of this kind was Foxcraft v. Lyster. (a) That case was decided on a principle acted upon in courts of law, though not applicable by the modes of proceeding in a court of law to the particular case. It was against conscience to suffer the party who had entered and expended his money on the faith of a parol agreement to be treated as a trespasser, and the other party to enjoy the advantage of the money he had laid out. At law fraud destroys rights. If I mix my corn with another's he takes all, but if I induce another to mix his corn with mine I cannot then insist on having the whole. The law in that case does not give me his corn. The case of Foxcraft v. Lyster, therefore, I conceive was decided on clear principle, though whether the cases founded on that case have been all so well considered I will not take upon me to say. But it appears from these cases that courts of equity have decided on equitable grounds, in contradiction to the positive enactment of the Statute of Frauds, though their proceedings are in words included in it." (b) In the case of The Duke of Leeds v. The Earl of Amherst, (c) Shadwell, V. C., said: "I take it that the general wisdom of mankind (a) Cited 2 Vern. 456; and reported in Colles's Parl, Cas. 108. (b) See also Clinan v. Cooke, 1 Sch. & Lef. 41; Dillwyn v. 742. (c) 20 Beav. 239. CHAP. XVI. CHAP. XVI. has acquiesced in this-that the author of a mischief is not the party who is to complain of the result of it, but he who has done it must submit to have the effects of it recoil upon himself. This, I say, is a proposition which is supported by the Holy Scriptures, by the authority of profane writers, by the Roman civil law, by subsequent writers upon civil law, by the common law of this country, and by the decisions in our own courts of equity." Position of parties must be altered. Acquiescence. And in the recent case of M'Cormick v. Grogan,(a) Lord Westbury defined the principles upon which the Court acts in decreeing specific performance as follows: The Court of Equity has from a very early period decided that even an Act of Parliament shall not be used as an instrument of fraud; and if in the machinery of perpetrating a fraud an Act of Parliament intervenes, the Court of Equity, it is true, does not set aside the Act of Parliament, but it fastens on the individual who gets a title under that act, and imposes on him a personal obligation, because he applies the act as an instrument for accomplishing a fraud. In this way the Court of Equity has dealt with the Statute of Frauds." It is in general of the essence of an act of part performance that the Court shall by reason of the act itself, without knowing whether there was an agreement or not, find the parties unequivocally in a position different from that which, according to their legal rights, they would be in if there were no contract. (b) Where the parties have for a great length of time acted under the impression that a binding contract existed, the Court will not allow the defence of the Statute of Frauds (a) L. R. 4 H. L. 97. (b) Dale v. Hamilton, 5 Hare, 381, per Wigram, V. C.; see also Att.-Gen. v. Day, 1 Ves. S. 218; Taylor v. Beech, ib. 297. to be set up, although the acts of part performance relied on are such as probably would not have been considered sufficient in themselves to take the case out of the statute. (a) CHAP. XVI. Acts of part performance must be unequivocal, not An act merely introductory or ancillary to the agreement, though attended with expense, does not amount to part performance, (b) and an act which, though in truth introductory done in pursuance of a contract, admits of explanation with- or ancillary. out supposing a contract, is not in general admitted to constitute an act of part performance taking the case out of the statute. (c) Thus the giving instruction to a solicitor to prepare a lease, (d) or a conveyance, (e) even though the defendant has altered the draft in his own hand, and sent it back to be engrossed, (f) admeasurements by a surveyor, (g) going to view the estate, (h) the delivery of an abstract of title, (i) the appointment of a person to appraise stock,(k) or of an arbitrator to value the land, (1) registering the conveyance,(m) are not acts of part performance to take a case out of the statute. Nor will the preparation and signature by the defendant of a deed (a) Blachford v. Kirkpatrick, 6 Beav. 232, (b) Whitbread v. Brockhurst, 1 Bro. C. C. 412. (c) Dale v. Hamilton, 5 Hare, 381, per Wigram, V.C.; and see Gunter v. Halsey, Amb. 586; Lacon v. Mertins, 3 Atk. 4; Ex parte Hooper, 19 Ves. 479. (d) Cole v. White, cited 1 Bro. C. C. 409. (e) Clerk v. Wright, 1 Atk. 12; Whitchurch v. Bevis, 2 Bro. C. C. 559; Redding v. Wilkes, 3 Bro. C. C. 400. (f) Hawkins v. Holmes, 1 P. Wms. 770; Stokes v. Moore, 1 Cox, 219. (g) Pembroke v. Thorpe, 3 Swanst. 441 n. (h) Clerk v. Wright, 1 Atk. 12. (1) Whitbread v. Brockhurst, 1 Bro. C. C. 412; Thomas v. Blackman, 1 Coll. 301. (k) Whitchurch v. Bevis, 2 Bro. C. C. 559. (1) Cooth v. Jackson, 6 Ves. 17, 41. (m) Hawkins v. Holmes, 1 P. Wms. 770. |