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the lease was granted, and he was put into possession by Chap. XVI. the defendant's solicitors and executed some repairs, it was held that although he might have been let into possession without authority from the defendant, there was a concluded agreement for a lease on the part of the defendant, and a sufficient part performance to take the case out of the statute.(a)

An agreement may be enforced, on the ground of part Either party performance by admission into possession, by the vendor agreement. as well as the vendee.(6) The laying out of money on land on the faith of the Expenditure of

money. contract, and with the knowledge of the owner, amounts to part performance.(c)

Where a tenant entered into possession of a farm, and expended moneys under an agreement that the landlord would grant a lease for twenty-one years, and make such improvements and repairs as he and the landlord should jointly agree, it was held on demurrer to a bill for specific performance, that the stipulation as to repairs was not of the essence of the agreement, and that the impossibility of the strict performance of that stipulation in consequence of the death of the landlord was no reason for allowing a demurrer to a bill for specific performance where the plaintiff had so long a possession, and had expended money on the faith of the agreement. (d)

(a) Shillibeer v. Jarvis, 8 D. M. G. 79; and see Powell v. Lovegrove, ib. 357.

(b) Kine v. Balfe, 2 Ball & B. 343.

(c) Floyd v. Buckland, 2 Freem. 268 ; Lester v. Foxcroft, 1 Colles P. C. 108; S. C. nom. Fo.ccraft v. Lister, 2 Vern. 456;

Mortimer v. Orchard, 2 Ves. J.
243; Wills v. Stradling, 3 Ves.
381 ; Toole v. Medlicott, 1 Ball
& B. 401 ; Wheeler v. D'Esterre,
2 Dow. 359 ; Crook v. Corpora-
tion of Seaford, L. R. 6 Ch.
551.

(d) Norris v. Jackson, 3 Giff.
396.

a

Chap. XVI. Expenditure by a tenant under the terms of his lease is Expenditure not an act of part performance. Thus where the plaintiff under terms of lease not part

was in possession, and was under an engagement which performance. bound him to make a fence and wall of a particular de

scription, for which he was to have an allowance, and which ought to have been made during the term of the lease which he had, and they were not completed during the term, but the allowance was made notwithstanding, it was held that this alone would not entitle the plaintiff to

a decree.(a) Acquiescence Where a colliery proprietor constructed a railway from in expenditure.

his colliery across the lands of several other persons, by agreement, and his solicitors wrote a letter to the defendant, across whose lands he desired to carry the railway, referring to the powers of a local act of parliament, supposed to enable him to take lands within a certain area for roadways, and offering on the part of the plaintiff to pay him for the land at a fair valuation, and the defendant did not reply to the letter, and the railway was made across his land without further communication with him, and after three or four years, the parties being unable to agree upon the price to be paid for the land, the defendant brought ejectment; the action was restrained upon the plaintiff giving judgment in the ejectment and paying a sum not less than the utmost valuation of the land into court. (6)

Again, where a canal was made in 1794 through land of which A was the owner, and B lessee, “with the full consent and approbation of, and in accordance with the

a

(a) Lindsay v. Lynch, 2 Sch. 300; and see Clavering's ('23. & Lef. 1; and see Frame v. cited 5 Ves. 690; Duke of Deron Dauson, 14 Ves. 386.

v. Eglin, 14 Beav. 530. () Powell v. Thomas, 6 Hare,

wishes of A,” and compensation was paid to the lessee, Chap. XVI. but not to A ; his representatives were in 1844, when the tenancy expired, restrained from asserting their legal rights, the Court considering that they were entitled to compensation to be determined by the agricultural value of the land taken as calculated in 1844, and not in 1794.(a)

But where a person knowing the rights of the owners of land is induced to build on the land without entering into a binding contract, he will not be entitled to relief. Thus, where the agent of a railway company made a verbal agreement with the contractor for the line, that if he would build on land of the company certain cottages more substantially than would be required for his own purposes, and would leave them for the use of the company, then the company would pay him £5,000, and the cottages were built and left on the land, it was held that the contractor could not claim compensation for having been induced to build on the land.(b)

And it appears that the parol contract under a power Parol contract of sale of a tenant for life, followed by expenditure on the by tenant for part of the purchaser, will not bind the remainder man power, remain

der man not who has not acquiesced in the expenditure.(c) “ It is,"

bound. said Sir W. Grant, M. R., “considered as a fraud in a party permitting an expenditure on the faith of his parol agreement, to attempt to take advantage of its not being in writing. But of what fraud is a remainder man guilty who has entered into no agreement, written or parol, and has done no act on the faith of which the other party could have relied ? The only way in which he could

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(a) Duke of Beaufort v. Patrick, 17 Beav. 60.

(b) Crampton v. Varna Railway Co., L. R. 7 Ch. 562.

(c) Trotman V. Flesher, 3
Giff, 1; Morgan v. Milman, 3
D. M. G. 33; Lowry v. Lord
Dufferin, 1 Ir. Eq. Rep. 281.

a

a

ance.

Cuap. XVI. be affected with fraud would be by showing that an ex.

penditure had been permitted by him, with a knowledge that the party had only a parol agreement from the tenant for life. Without that knowledge there is nothing but the mere circumstance of expenditure. For the prima facie presumption is that he who is making it has a valid lease under the power, or at least a binding agreement for a lease. That the remainder man in this case, or those acting on his behalf, had any such knowledge is neither alleged nor proved. The reason, therefore, fails, on which the case of a parol agreement in part performed

is taken out of the Statute of Frauds."(a) Whether

In Millard v. Harvey, (b) the plaintiff removed his change of residence sufficient place of business to a house belonging to the defendant, part perform

his father-in-law, upon the faith, as he alleged, of a parol promise by the defendant that he should occupy the house rent free during his life. During the period of his occupation he expended money in repairs. Upon a bill to restrain an action of ejectment, it was held that the change of the plaintiff's place of business did not constitute a sufficient consideration to support the parol agreement, and that he was not entitled to any lien in respect of the money spent in repairs. In Coles v. Pilkington,(c) it was decided that the statute could not be pleaded to a verbal agreement to allow the occupation of a leasehold house for life on payment merely of groundrent, rates, and taxes, where there had been a part performance by possession under the agreement, and the agreement had affected the mode of living of the occupying party. It does not appear, however, from the report that Millard v. Harvey was cited in this case.

(a) Blore v. Sutton, 3 Mer. (6) 10 Jur. (N. S.) 1167. 246.

(C) L. R. 19 Eq. 174.

must be refer

In order that a case may be taken out of the statute by Chap. XVI. acts of part performance, the acts must unequivocally Acts of part refer to a contract the non-execution of which would be performance & fraud.(a) “In order," said Sir T. Plumer, “ to able to an

agreement. amount to part performance, an act must be unequivocally referable to the agreement, and the ground on which courts of equity have allowed such acts to exclude the application of the statute is fraud; a party who has permitted another to perform acts on the faith of an agreement shall not insist that the agreement is bad, and that he is entitled to treat those acts as if it had never existed. That is the principle, but the acts must be referable to the contract." (b) And in Clinan v. Cooke, (c) Lord Redesdale laid down the principles upon which the Court acts as follows:-“I take it that nothing is considered as a part performance which does not put the party into a situation that is a fraud upon him, unless the agreement is performed; for instance, if upon a parol agreement a man is admitted into possession, he is made a trespasser, and is liable to answer as a trespasser if there be no agreement. This is put strongly in the case of Foxcraft v. Lyster ;(d) there the party was let into possession on a parol agreement, and it was said that he ought not to be liable as a wrong-doer, and to account for the rents and profits, and why? because he entered in pursuance of an

(a) Hollis v. Edwards, 1 Vern. 159; Hawkins v. Holmes, 1 P. Wms. 770; Walker v. Walker, 2 Atk. 100; Att.-Gen. v. Day, 1 Ves. 221; Whitbread v. Brockhurst, 1 Bro. C. C. 417; Wills v. Stradling, 3 Ves. 378; Buckmaster v. Harrop, 7 Ves, 346; Frame v. Dauson, 14 Ves, 386.

(6) Morphett v. Jones, 1 Swanst. 181; and see Farrall v. Davenport, 3 Giff. 363; Price v. Salusbury, 32 Beav. 459; affd. ib. 461.

(c) 1 Sch. & Lef. 41.

(d) 2 Vern. 456; Colles P. C. 108.

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