(q) Stat. 32 Hen. VIII. c. 9, s. 2, now repealed by stat. 60 & 61 Vict. c. 65, s. 11.

Sale of pre-tenced right or title.

(r) See Jenkins v. Jones, 9 Q. B. D. 128,134.

(s) It was held that this Act did not prevent the sale, pending the completion of a contract for the sale of land, of the purchaser's interest in the land sold; Wood v. Griffith, 1 Swanst. 43, 55, 56; Sug. V. & P. 356; or the sale by an expectant devisee of his interest under the expected devise; Cool v. Field, 15 Q. B. 460, 471.

(t) Stat. 32 Hen. VIII. c. 9, s. 4.

(u) Plowd. 87, 88; Doe d. Williams v. Evans, 1 C. B. 717; Jenkins v. Jones, 9 Q. B. D. 128, 134, 135; Kennedy v. Lyell, 15

Q. B. D. 491, 495

(x) Wood v. Downes, 18 Ves. 120; Cholmondeley v. Clinton, 2 J. & W. 1, 135, 136, 4 Bligh, 1, 43 - 45, 75, 82; Prosser v. Edmonds, 1 Y. & C. 481, 496 - 499.

(y) See Wright v. Wright, 1 Ves. sen. 409, 411; 2 Prest. Abst. 204. 205.

(z) Stat. 8 & 9 Vict. c. 106, s. 6; held not to extend to right or title of entry upon a forfeiture for condition broken; Hunt v. Bishop, 8 Ex. 675, 680; Hunt v. Remnant, 9 Ex. 635, 640; Crane v. Batten, 2 Comm. Law Rep. 1696, 23 L. T. O. S. 220; Wms. on Seisin, 125; Jenkins v. Jones, 9 Q. B. D. 128, 131.

(a) Jenkins v. Jones, 9 Q. B. D. 128; Kennedy v. Lyell, 15 Q. B. D. 491, 496.

(b) Above, p. 773, n. (q).

(c) Sprye v. Porter, 7 E. & B. 58; Rees v. Be Bernardy, 1896, 2 Ch. 437, 446, 447.

(d) Wood v. Griffith, 1 Swanst. 43, 56; Hartley v. Russell, 2 S. & S. 244; Harrington v. Long, 2 My. & K. 590; Hunter v. Daniel, 4 Hare, 420, 430; Cockell v. Taylor, 15 Beav. 103, 117; Knight v. Bowyer, 2 De G. & J. 421, 443 - 445; Myers v. United, etc. Co., 7 De G. M. & G. 112; James v. Kerr, 40 Ch. D. 449, 456. 457.

(e) Above, n. (d); and see Anderson v. Radcliffe, E. B. & E. 806. As to the question, how far this doctrine is applicable to an action to recover damages for a wrong, see Wins. Pers. Prop. 149, 150, l5th ed.; and an article by the writer in L. Q. R. x. 143, 147 sq.; above, p. 749.

(/) Simpson v. Lamb, 7 E. & B. 84.

(g) Anderson v. Radclife, E. B. & E. 806.

Again, some contracts are made void or are rendered unenforceable by statute, though not prohibited. Of this kind are contracts made by way of gaming or wagering (h); and if any contract for the sale of land be so made, it will be void accordingly (i). So we have seen that contracts for the sale of land are not enforceable unless put into writing and signed by the party to be charged or his agent (k). And as every assurance (/) of land to or for the benefit of any charitable uses is void unless made in accordance with the conditions imposed by the Mortmain and Charitable Uses Act, 1888 (m), it appears that any contract to sell land to be assured to such uses is void if not made in compliance with such conditions (n). For a sale of land is in effect an assurance of the equitable estate therein (o), and if the Act avoids, as it does, a conveyance not in accordance therewith made on a completed sale of land (p), it must equally annul the assurance of the land effected in equity by a contract for sale thereof. And if the assurance so made be void, the promise to convey the land, which is the cause of such assurance, must also be void (q); if this obligation were enforceable, the Act would be easily evaded (r). The promise to pay the price must therefore be equally unenforceable; for if the contract were not under seal, there would be no consideration for this promise. And if the contract were made by deed, yet on an executory contract of sale, the obligations to convey the property and to pay the price are, as a rule, dependent on each other, the liability on either of them being conditional on the performance of the other, so that if the one be void the other must be discharged (s).

Sales made void or unenforceable, but not prohibited.

Contract to sell land for the use of a charity.

(//) Stat. 8 & 9 Vict. c. 109, s. 18.

(i) Consider Rourke v. Short, 5 E. & B. 904; lie Gieve, 1899, 1 Q. B. 794.

(k) Above, pp. 3 - 9.

(l) Any transaction which operates to transfer the property in lands or goods and any document evidencing such a transaction is an assurance; see Shep. Touch.

1 ; 2 Black. Coram. 294; Re Roberta, 36 Ch. D. 196; Re Ray, 1896, 1 Ch. 468, 476.

(m) Stat. 51 & 52 Vict. c. 42, 88. 4, 10; above, pp. 394, 397. 398.

(n) See A.-G. v. Day, lVes.sen. 218, 222, 223; A.-G. v. Gardner, 2 De G. & S. 102, 116, 118.

(o) Above, pp. 438 sq.

(p) Above, p. 397.

(q) See A.-G. v. Gardner, 2 De G. & S. 102, 118.

(r) If this were not so, the charity would be in the same position as a lessee under a lease made by an unsealed writing for a term exceeding three years; as to which, see Walsh v. Lonsdale, 21 Ch. D. 9; Furness v. Bond, 4 Times L. R. 457; Lowther v. Heaver, 41 Ch. D. 248, 264; Crump v. Temple, 7 Times L. R. 120; Foster v. Reeves, 1892, 2 Q. B. 255; Manchester Brewery Co. v. Coombs, 1901, 2 Ch. 608; Zimbler v. Abrahams, 1903, 1 K. B. 577. But it is impossible to suppose that the Act can be so evaded; see Wickham v. Bath, L. R. 1 Eq. 17.

Assurance.

Illegal contracts are altogether void; no proceedings can be maintained thereon at law or in equity; and if either party sue the other in respect thereof, the latter is at liberty to plead the illegality of the agreement as a defence (t). It follows that if an illegal contract be wholly or partly executed, no action can, as a rule, be maintained to recover any money paid or property transferred thereunder (t). Thus if land be sold for an illegal purpose and the contract be completed, the vendor cannot afterwards recover the land, nor the purchaser the price; if the purchaser pay the whole or part of the price to the vendor before the land be conveyed to him, the vendor may plead the illegality of the agreement as a bar to any action by the purchaser either to compel conveyance or recover the money paid (t); and if the vendor convey the land without payment, he cannot get it back, or enforce payment of the price, either directly, or indirectly by suing upon any bond, covenant or note given to secure such payment (u). Here it may be mentioned that, where land is purchased in order to be used for an illegal purpose, the contract is only void if such purpose be known to both parties to the sale (x). If one contract to buy land, intending to use it for an illegal purpose but without disclosing this intention to the vendor, the purchaser cannot in this case allege his own unlawful intent in order to avoid the contract (y); and the contract is enforceable by the vendor. And it seems that this is equally the case, although the vendor may suspect that the purchaser intends to put the property to an unlawful use, so long as he is not actually aware of any definite intention so to use it (z). If the purchaser's unlawful purpose were at first unknown to the vendor, but the vendor afterwards became aware of it before completion, the contract is in effect voidable at the vendor's option; he may then plead the purchaser's illegal purpose as a bar to the enforcement of the contract (a): but the purchaser himself cannot do so.