(i) Fisher v. Liverpool Marine Insee. Co., L. E. 8 Q. B. 469, 9 Q. B. 418.

8 (2)

Contract for sale of land to a charity.

(j) Manning v. Purcell, 7 De G. M. & G. 65, 57, 63, 66; Hampden v. Walsh, 1 Q. B. 13. 189, 192, 191; Strachan v. Universal Stock Exchange (No. 2), 1895, 2 Q. B. 697.

{k) Hampden v. Walsh, 1 Q. B. D. 189, 192, 194; Trimble v. Hill, 5 App. Cas. 3 12; Barclay v. Pearson, 1893, 2 Ch. 154, 168; Strachan v. Universal Stock Exchange, 1895, 2 Q. B. 329; affirmed, 1896, A. C.

166; Strachan v. Universal Stock Exchange (No. 2), 1895, 2 Q. B. 697, 699, 702, 705, 706.

(l) See previous note; and Biggie v. Higgs, 2 Ex. D. 422.

(m) Above, p. 759; Re Glubb, 1900, 1 Ch. 354; and see Harse v. Pearl, etc. Co., 1904, 1 K. B. 558.

(n) Barclay v. Pearson, 1893, 2 Ch. 154, 166 - 168.

{o) Above, p. 776.

Contracts falling within the 4th section of the Statute of Frauds (s) are governed by rules peculiar to themselves as regards the recovery of money paid thereunder (7). In such cases the contract is not made void, but is merely rendered unenforceable (u); the law regards the agreement between the parties as good (though not perfectly binding), and deems its performance to be meritorious. Thus if one buy land with notice of a prior oral sale to another, he has no equity against the other in case the oral sale be completed before he himself has obtained a conveyance (v). And delivery of possession upon an oral sale of land is a good consideration for a promissory note for the price (x). It is therefore held that, although there is in general no remedy by suing on the contract against a party who pleads the statute in bar {y), yet he is under an obligation quasi ex contractu to return money paid or to pay for work done under the agreement repudiated (z). Thus if the whole purchase money be paid on an oral contract for the sale of land, and the vendor plead the statute as a defence to an action to enforce conveyance, the purchaser can recover the price (a). And where a deposit is paid on such a contract, the vendor pleading the statute is not at liberty to retain it (b). But the better opinion is that the purchaser repudiating the agreement under cover of the statute cannot recover the deposit from a vendor who is willing and able to complete the contract; for such a contract cannot be rescinded by either party at will, as an illegal or a void agreement may (c); and if one party, having paid a deposit with full knowledge that there was no writing to bind him, choose to take advantage of the Act while the other is desirous of performing the agreement, the law will not assist him to get back that payment (d).

Contracts unenforceable under the Statute of Frauds.

(p) Howe v. Smith, 27 Ch. D. 89; above, p. 22.

(q) See note (k), above.

(r) See above, pp. 397, 398, and notes (r, u); and see Thurstan v. Nottingham, etc. Bdg. Socy., 1902, 1 Ch. 1, 13; affirmed, 1903, A. C. 6, 10, 12; and consider Simpson v. Nicholls, 3 M. & W. 240, 244, 5 M. & W. 702, and the American case of Thompson v. Williams, 58 N. H. 248, cited in Keener on Quasi-Con tract, 270, 271. If however one contract to buy land and pay for it with his own money, but direct the conveyance to be made to some charitable use, intending to give the land to the charity, and the conveyance be not in accordance with the Mortmain Act, the assurance of the legal estate is void, and the charity has no equitable interest in the land; but in equity the land belongs to the purchaser, who has done nothing effectual to divest himself of the equitable estate which he acquired under the contract for sale; Price v. Hathaway, 6 Madd. 304.

(s) Stat. 29 Car. II. c. 3; above, p. 3.

(t) See Pollock on Contract, 652, 7th ed.

(u) Above, p. 9.

(v) Dawson v. Ellis, 1 J. & W. 524.

If the performance of a contract, which was valid in its inception, be rendered illegal by some event occurring after the formation, but before the completion of the agreement, the contract is dissolved, so far as it remains unperformed, and the parties' mutual obligations are discharged (e). And it appears that in such case the parties are placed in the like position as if their obligations were discharged for impossibility of performance (f); the law will not interfere to set aside anything actually done in pursuance of the contract; and the parties cannot recover any money paid or property transferred under their agreement during its validity (g). But this doctrine of illegality supervening applies only to cases where the performance of the primary obligation created by the contract is rendered illegal by some event, which has occurred since the formation of the agreement; it does not extend to dissolve obligations arising from breach of the contract (h). Illustrations of this doctrine occur where the performance of a contract is rendered illegal by statute passed since its formation (i); and where the act agreed to be done cannot be accomplished without commercial intercourse with the inhabitants of some foreign State, which was friendly when the contract was made, but has become hostile before the time stipulated for performance of the agreement (k).

Illegality supervening since the formation of the contract.

(x) Jones v. Jones, 6 M. & W. 84; and see Laveryu v. Turley, 6 H. & N. 239.

(y) See above, pp. 9 - 16.

(z) See Pulbrook v. Leaves, 1 Q. B. D. 284.

(a) Anon., Freem. 486, case 664 b; Sag. V. & P. 153.

(b) Gosbell v. Archer, 2 A. &

E. 500

(c) Above, pp. 778, 780.

(d) Thomas v. Brown, lQ.B. D. 714, dissenting from Casson v. Roberts, 31 Beav. 613.

(e) Brewster v. Kitchell, 1 Salk. 198; Esposito v. Bowden, 7 E. & B. 763; Baily v. De Crespigny, L. R. 4 Q. B. 180, 186.

(/) See Krell v. Henry, 1903, 2 K. B. 740; Civil Service Co-op. Socy. v. General Steam Navigation Co., ib. 756; Chandler v. Webster, 1904, 1 K. B. 493.

(a) Furtado v. Rodgers, 3 B. & P. 191, 201; and see The Teuton in, L. R. 3 A. & E. 394, 417.

(A) See Flindt v. Waters, 15 East, 260, 266: note to Clemontson v. Blessig, 11 Ex. 145; Janson v.

Driefontein, etc., 1902, A. C. 484; see also Hanger v. Abbott, 6 Wallace (73 U. S.), 532, 536, 537.

(i) Brewster v. Kitchell, 1 Salk. 198; Baily v. Be Crespigny, L. R. 4 Q. B. 180, 186.

(k) Esposito v. Bowden, 7 E. & B. 763; see above p. 773; and next Chapter under the head of Aliens.