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acts, that no contract for the sale of goods, wares, and merchandise, for the price of ten pounds or upwards, shall be allowed to be good, except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part of payment, or that some note or memorandum of the bargain be made and signed by the parties, to bo charged by such contract or their agents thereunto lawfully authorised, (a) But notwithstanding this inclination, it is not to be supposed that the courts will ever repudiate the distinction of Lord Ellen, borough in the case of Crosby v. Wadsworth, where he said, with respect to a growing crop of grass, that, in the outset, he felt himself warranted in laying wholly out of the case, the provision contained in the seventeenth section, as not applicable to the subject matter of that agreement, which could not be considered in any proper sense of the words as a sale of goods, wares, or merchandise, the crop being at the time of the bargain (and with reference to which he agreed with Mr. Justice Heath in Waddington v. Bristow, (J) that the subject matter must be taken) an umevered portion of the freehold, and not moveable goods or personal chattels, (c)
In a late case, (cZ) where a farm was agreed to be let by parol, and the tenant was to take the growing crops and pay for them, and also for the work, labour, and materials, in preparing the land for tillage, it was decided that this case was within the fourth section of the statute. It was held by the court, that at the time when the contract was made, the crops were growing upon the land, the tenant was to have had the land as well as the crops, and the work, labour, and materials were so incorporated with the land as to be inseparable from it. He would not have the benefit of the work, labour, and materials, unless he had the land, and they were of opinion that the right to the crops, and the benefit of the work, labour, and materials were both of them an interest in the land.
It must, therefore, be concluded, that a license to work mines is within the first, third, and fourth sections of the Statute of Frauds; that it must be in writing, either from the grantor or an agent lawfully authorised by writing under the first section; that it must be transferred, or surrendered in writing either by the assignor, surrenderor, or some agent also lawfully authorised by writing, under the third section; and that under the fourth section a bare agreement only for a license, if in writing, may be entered into either by the intended grantor or his agent lawfully authorised, and the authority of the a^ent need not be in writing. But a license cannot be within the exception of the second section, which applies only to leases.
(a) See Waddington t,. Bristow, 2 Bos. and Pull. 452. Evans v. Roberts, 5 Barn, and Cress. 829. Parker v. Staniland, 11 East, 362. Warwick v. Bruce, 2 Man. and Sel. 205. Smith v. Surman. 9 Barn, and Cress. 561. Sainsbury v. Matthews, 4 Mees. and Wcls. 343. Dunne t,. Ferguson. 1 Hayes, 541.
(6) Supra. (c) See also Boyce v. Green, Batty, 608, supra.
(d) Lord Falmouth v. Thomas, 1 Crompt, and Mees. 89.
It was decided in the above case of Carrington v. Roots, (a) that an agreement under the fourth section, though altogether void, may have some operation in communicating a license, so far as to excuse what would otherwise be a trespass, but such a license could confer no interest, and would be always countermandable at the will of the party.
It is a general rule, that a bare personal right or a bare power cannot be assigned. We have seen, however, that a license to work mines confers a distinct interest in the land, which may, therefore, be assigned in the samo manner as a power coupled with an interest, or a power to cut down trees. But the right or liberty must, of course, be exercised by the assignor in the manner pointed out by the original grantor. (6) A license often expressly extends to the assigns of a grantee.
The general construction and duration of a license will be considered in the next chapter.
An agreement was entered into by the committee of a lunatic, under the following circumstances. The lunatic was tenant for life, without impeachment of waste, with remainder to his first and other sons in tail, with other remainders over. The lunatic was unmarried. Coal was found upon the estate, but not in sufficient quantity to justify the sinking of a shaft; but the coal might be worked by means of a shaft in the adjoining land. Part of the estate of the lunatic was mortgaged, and the mortgagee was in possession. The income of the lunatic was considerably reduced, and there were other debts which could not be satisfied. The committee, therefore, agreed with the owner of the adjoining land to work the coal. The master, who was attended by the next of kin, reported this to be for the benefit of the lunatic. Lord Eldon, on confirming the report, said, the circumstances were singular. The next of kin had an interest that the coal should be worked. The heir at law had no interest, there being various remainders over. He thought it might be done by the committee; it was like cutting timber. (<?)
TRANSFER BY DEED.
Having thus discussed the provisions of the first four sections of the Statute of Frauds with respect to the alienation of mining property, we may now proceed to enquire into the mode of alienation sanctioned and required by the common law, independent of that Statute.
(a) 2 Mees. and Wels. 257. See also 3 Barn, and C. 232. (6) Warren v. Arthur, 2 Mod. 317.
(c) Ex parte Tabbert, 6 Ves, 428, As to leases and agreements on the part of lunatics and infante, See 1 Will. IV. c. 65.
All contracts and conveyances effected by deed or specialty, must be both signed and sealed. Signature is now required in all cases by the statute, and sealing is required by the common law. But, of course, when sealing is not required by the common law for giving validity to any instrument, signature alone will be sufficient.
Thus, leases were originally granted for a very small term of years, and though afterwards granted for longer periods, they continued to be created, before the statute, by parol, for any number of years. It follows, therefore that since the statute, leases for years may both be created and assigned by simple signature without sealing. But they will not, in this state, acquire the full operation of an indenture or deed, and the covenants which usually accompany them, are specialties which require the proper formalities to be observed. Leases and assignments therefore, are usually made in the same manner as deeds in general.
When the mines form part of the general inheritance, they will, of course, be transferred along with the lands without being expressly mentioned in the conveyance; but when they form a distinct possession or inheritance, a title to them must be established without reference to the general title to the lands in which they are situate.
In the latter situation, the mines will still, of course, retain the qualities of real estate, and will be transferred by conveyances applicable to the particular disposition of them intended to be made.
They are capable of livery, and of being made the subjects of ejectment, (a) "By the name of minera" says Coke, " orfodinaplumbi, &c, the land itself shall pass in a grant, if livery be made, and also be recovered in an assise." (o)
It has been stated that if a grant of mines be made without livery, the grantor will only take a power to dig and work them, (c) But although the grantor would, in such a case, take no legal estate or right at all, except the liberty to work, yet his title might be perfected by a court of equity on • the ground of contract.
It has been- stated, indeed, that a common recovery could not have been Buffered of a quarry, or a mine, because they are not in demesne, but in profit only, (d) But since the later cases upon the subject of mines, it may be clearly laid down that there is no distinction. Mines and minerals arc parts of the very lands or demesnes themselves.
A distinction has been attempted to be taken between the transfer of opened and of unopened mines. Unopened mines have been thought so far to resemble an estate in remainder as to be incapable of livery of seisin, and to be only passed by grant. This opinion has been founded on the
(a) Comyn v. Kyneto, Cro. Jac. 150. Barnes v. Mawson, 1 Man. and 8. 77.
(6) Co, Lite. 6 a. (c) Shepp. Tonch 9C. (<f) Pigot, 96. 18 Vin. Abr. 218.
decision that unopened mines are not liable to dower. (a) It will be afterwards shewn (6) that that doctrine rests upon very different grounds from those founded on the notion that unopened mines bear any resemblance to an estate in remainder. All mines, whether opened or unopened, are parts of the freehold and inheritance, and they are equally, in all cases, in the possession of the tenant. (c) It has been expressly held teat mines do not lie in grant. Ql) As real hereditaments, they pass by livery of seisin. Unopened mines are not incapable of livery. The mines are not the subjects of transfer, but the minerals which are acquired by mining. These minerals, or the mineral veins, are almost always so far accessible from the surface as to be capable, either by ordinary or mechanical means, of livery, without the actual operation of mining. It is submitted, therefore, that there is no distinction in this respect, between opened and unopened mines; but it would certainly appear, that the modern form, by lease and release, is more applicable in both cases, than a conveyance depending upon livery of seisin.
It may here be observed, that a license for a grantor and his heirs to exercise a right over the lands of another person will confer a freehold interest; and will, therefore, require to be created by deed, without reference to its being an interest in land under the Statute of Frauds, (e)
It is scarcely necessary to add, that all leases and licenses for lives, or any other freehold interest, will require similar formalities. A license being an incorporeal hereditament, should be created by grant; but a license for years may be created, like a lease for years, by simple signature under the first section of the Statute of Frauds, although it is a usual practice to confer it in the form of a demise, accompanied with the ordinary covenants and stipulations.
The subject of leases and licenses will be resumed in the next chapter.
Mines are very frequently excepted in a conveyance. When the exception contained in a deed of feoffment is in favour of the grantor, there can be no necessity for livery, because the grantor will never have been out of possession of the thing expected. (/) But when the exception is in favour of third persons, or strangers to the legal estate, this livery cannot be dispensed with.
A conveyance in fee was made by a mortgagor and a mortgagee, in fee of certain lands to a purchaser; and the purchaser, by the same deed, covenanted and granted to the mortgagor and his heirs, that it should be lawful for them to enter and work coal or other mines, with a proviso that deduction for damages done should be made from a yearly rent which was also
(o) Burton's Comp. 386. (I) See sec . 4 in this chapter.
(c) Lewis v. Branthwaite, 2 Bam. and Ad. 437,
(d) Chatham v. Williamson, 4 East, 476,
(/) Co. Litt. 47 a. Doe dem. Douglas v. Loclc, 1 Ad. and £11, 748.
granted to the mortgagor. The mines were worked under the authority of persons claiming under a title derived from the purchaser; and an action of trover was brought against them by one claiming under a title derived from the mortgagee. The question was, whether the mortgagor had an exclusive right to the coal under the lands conveyed, or only a concurrent right with the purchaser, from whom the defendant claimed—and it was contended for the plaintiff, that the covenant and grant amounted to a reservation and exception of the coal in the grant to the purchaser; the legal estate and inheritance of which remained in the mortgagor, and those claiming under him. It was held by Lawrence J., that the covenant could not operate as an exception or reservation in favour of the^mortgagor who had no legal estate in him at tho time, but only the equity of redemption. He was in law no more than a stranger to tho estate, and could not except or reserve that which he had not before. The covenant, therefore, could only operate as a grant; but a grant would not pass the land itself without livery. (a)
It must also be observed, that there must be an express exception or reservation of the mines, or a clear intention that they are not to pass under the conveyance, even when the grantor is in possession of the legal estate— for otherwise they may be granted over, and a mere license to work for, and carry away the minerals, may thus be only reserved.
This was the case of Lord Mountjoy, who was seised of two parts of a manor, and who conveyed them to purchasers, with a proviso and covenant, that it should be lawful for the grantor and his heirs to dig in the heath ground of the premises, sufficient ores for the making of alum or copperas, without interruption of the purchasers or their heirs. This was no exception of the minerals. (6)
There is nothing to engage particular attention in the transfer of mines and minerals by will, but there are some consequences arising from the duties of executors and trustees, which it will be proper to consider in this place.
Mines, under almost any circumstances, are of variable and uncertain value. They are described by Lord Hardwicke, as being in the nature of a trade. (c) Mines, therefore, constitute part of the perishable property of a testator, which is subject to particular regulations.
(a) Chetham v. Williamson, 4 East, 469. See Earl of Cardigan v. Armitage, 3 Barn. and C. 197.
(4) Lord Mountjoy'a case, Godb.17. 4. Leon. 147. 1 And. 307. Moore, 174. (c) 1 Bro. C. C. 289. 8 Atk. 14.