(o) James Jones & Sons v. Tankerville, 1909, 2 Ch. 440.

(p) See Smart v. Jones, (1864) 15 C. B. N. S. 717; 33 L. J. C. P. 154; and Doe v. Wood, (1819) 2 B. & Ald. at p. 738; 15 L. J. Ex. 41; Wood v. Manley, (1839) 11 A. & E. 34; 9 L. J. Q. B. 27.

(q) Carrington v. Roots, (1837) 2 M. & W. 248; 6 L. J. N. S. Ex. 95; Marshall v. Green, (1875) 1 C. P. D. 35; 45 L. J. C. P. 153; Webber v. Lee, (1882) 9 Q. B. D. 315; 51 L. J. Q. B. 485; and see Wells v. Kingston, etc. Corp., sup., and Smart v. Jones, (1864) 15 C. B. N. S. 717; 33 L. J. C. P. 154.

(r) Crosby v. Wadsworth, (1805) 6 East, 602; Wright v. Stavert, (1860) 2 E. & E. 721; 29 L. J. Q. B. 161; cf. Inman v. Stamp, (1814) 1 Stark. 12; Edge v. Strafford, (1831) 1 Tyr. 295; 9 L. J. (O. S.) Ex. 101; and see Lavery v. Pursell, (1888) 39 Ch. D. at p. 514; 57 L. J. Ch. 570.

(s) As to what amounts to a demise, see Doe v. Wood, (1819) 2 B. & Ald. 724; Northam v. Bowden, (1855) 11 Ex. 70; 24 L. J. Ex. 237 (action of trover); Wilson v. Tavener, 1901,1 Ch. 578; 70 L. J. Ch. 263.

(t) 1909, 2 Ch. 440.

Under a contract to build a house the builder takes no interest in the land except a mere licence to enter thereon for the purpose of his work (x).

Building agreements.

In Lowery v. Pursell (y), a contract for the sale of building materials of a house, with a condition that all materials should be cleared away by a certain date, after which the purchaser's right of access was to cease, was held to be within s. 4 of the Statute of Frauds.

Sale of building to be pulled down.

Though an agreement for a licence may be unenforceable, yet not being void it may be proved by parol evidence as a defence to an action for trespass (z).

Licence not in writing may excuse trespass.

Licences coupled with an interest must be distinguished from profits a prendre (a). The latter are incorporeal hereditaments; hence an agreement to grant a profit a prendre must be in writing (b).

Profits a prendre.

(u) 1909, 2 Ch. pp. 442, 443.

(x) Camden v. Batterbury, (1859) 5 C. B. N. S. 808; 7 ib. 864; 28 L. J. C. P. 335; New River Co. v. M. B. Co., (1877) 36 L. T. 539; Sanderson v. Graves, (1875) L. R. 10 Ex. 234; 44 L. J. Ex. 210. Cf. Addams v. Bagger, (1879) 4 Q. B. D. 480.

(y) (1888) 39 Ch. D. 508; 57 L. J. Ch. 570.

(z) Carrington v. Boots, (1837) 2 M. & W. 248; 6 L. J. N. S. Ex. 95; and see Crosby v. Wadsworth, (1805) 6 East, 602.

(a) See Wickham v. Hawker, (1840) 7 M. & W. 63, 78; 10 L. J. Ex. 153; Sutherland v. Heathcote, 1892, 1 Ch. 475; 61 L. J. Ch. 248.

An agreement merely collateral to a proposed dealing with land does not seem to be within the enactment: e.g., an agreement by an intending mortgagor to pay to an intending mortgagee his costs of investigating the title, should such title prove bad (c); or an agreement by a wife that if hex husband will buy the lease of a house, where she desires that they shall reside, she will, out of certain money coming to her, repay him the amount of the purchase-money (d). So, where the agreement so far as it relates to land has been executed, it has been held that an action will lie for the non-performance of a special promise to be performed after execution, as, e.g., an undertaking to repay part of the price on a certain event (e). If a person, relying on an unwritten agreement for a lease, expends money on alterations with the consent of the lessor, by whose default he is ultimately prevented from taking possession, he can recover the money so spent on a quantum meruit (f).

Agreement merely collateral, e.g., by mortgagor to pay costs.

A written agreement by A. to transfer, in consideration of a certain payment, the benefit of a parol (and therefore unenforceable) agreement for purchase of an estate, will be valid as between transferor and transferee, at all events if the latter actually obtains a conveyance from the vendor (g).

Written transfer of parol agreement.

(b) Webber v. Lee, (1882) 9 Q. B. D. 315; 51 L. J. Q. B. 485; and see Smart v. Jones, (1864) 15 C. B. N. S. 717; 33 L. J. C. P. 154, which is often cited as an authority; but the interest there discussed was clearly not a profit a prendre, but only a licence coupled with an interest; in the report in the Law Journal it is called an easement.

(c) Jeakes v. White, (1851) 6 Ex. 873; 21 L. J. Ex. 265.

(d) Boston v. B., 1904, 1 K. B. 124; 73 L. J. K. B. 17.

(e) Green v. Saddington, (1857) 7 El. & Bl. 503; Cocking v. Ward, (1845) 1 C. B. 858; 15 L. J. C. P. 245; and see Griffith v. Young, (1810) 12 Ea. 513. As to the doctrine of part performance, see the notes to Lester v. Foxcroft, 2 Wh. & T. L. C. 9th ed. p. 410 et seq.

(f) Pulbrook v. Lawes, (1876) 1 Q. B. D. 284; 45 L. J. Q. B. 178; disapproving Hodgson v. Johnson, (1858) El. Bl. & El. 685; 28 L. J. Q. B. 88; and see Cooking v. Ward, (1845) 1 C. B. 858; 15 L. J. C. P. 245.

(g) Seaman v. Price, (1825) By. & M. 195; 2 Bing. 437; 3 L. J. (O. S.) C. P. 58.

If an agent for purchase enters into a parol agreement, pays the purchase-money, and procures a conveyance, he can sue his principal for the amount (h).

Where A. contracts to sell to B. the benefit of an agreement which is voidable at the option of a third party, B. may repudiate the contract at any time before the voidable agreement is made secure by release of the option (i).

The interest of a purchaser of land before conveyance (k), and debentures creating a floating charge on leaseholds (l) are within the enactment.

Equitable interests.

A contract of partnership need not be in writing merely because it is intended that the partnership property shall consist of land, or even though the sole object of the business is to deal in land (m). But a contract by an owner of a mine to enter into partnership with a person who thereby acquires an interest in the mine (n), or by a retiring partner to convey his interest in the partnership land to the continuing partners, is within the section (o). Where the partnership land is vested in trustees or in one of the partners, and the partners have only an interest in the profits thereof, the interest of a partner is not an interest in land (p).