Buckmaster v Harrop
| Jurisdiction | England & Wales |
| Judgment Date | 18 June 1807 |
| Date | 18 June 1807 |
| Court | High Court of Chancery |
English Reports Citation: 33 E.R. 365
HIGH COURT OF CHANCERY
buckmaster v. harrop. Dec. IQth, 17th, lStht 1806 ; March 28th, 1807. To entitle the heir to the performance of an Agreement for a purchase out of the personal estate the Agreement must have been binding upon the parties contracting ; so that the property was converted in equity before the death. New evidence on an Appeal from the Rolls ; being in truth a Re-hearing. Sale of land by auction is within the Statute of Frauds. Whether the Statute is satisfied by the auctioneer, as the agent of both parties putting down the biddings, &c., Qucere : that fact not being proved to be cotemporary ; and the auctioneer being also vendor. Payment of the auction duty does not satisfy the Statute of Frauds upon the ground of part-performance. Part-performance by taking possession, cutting the crops, &c. This cause (reported 7 Ves. 341. See the references) was heard upon an Appeal by the Plaintiff, from the Decree pronounced at the Rolls, dismissing the Bill. [457] The evidence of a memorandum in writing by the auctioneer did not shew, that he had made entries of the biddings at the time of the sale ; and an objection was taken upon that ground by the residuary legatee. A general objection was abo taken upon the interest of Wright the auctioneer, as being himself the vendor ; who could not by his own writing, after the sale, putting down upon the Conditions the name of the purchaser, and the price, make evidence, which, having that interest, he could not give upon his oath. The answer given on the part of the Plaintiff to that objection was, that the object was not to give any direct evidence by the vendor, but merely to prove his hand-writing to the memorandum which he signed in his character of auctioneer, though after the sale, as agent for the purchaser ; that the objection would go to the extent, that his book, if signed immediately, could not be received ; that an objection, from an interest in the auctioneer, however remote, would be a wide inlet to fraud ; as, if he was a creditor; the sale being for the benefit of creditors ; an interest, of wrhich no one might be aware; that every auctioneer must have an interest, in respect of his commission; and the extent of the interest cannot make a difference upon the objection to the competence of a witness. It was urged in reply, that there is a plain distinction between a mere auctioneer, and a person, having that character, being also the proprietor, and not known by the purchaser to be so : that his interest as auctioneer is known : but the purchaser is not aware, that his interest extends beyond his commission, to the whole subject of the sale. Another objection was to the introduction of evidence, that had not been produced at the Rolls ; to which it was answered, that an appeal from the Rolls [458] is in truth only a re-hearing (13 Ves. 423, East India Company v. Boddam) \ and therefore new evidence may be introduced ; and Dashwood v. Lord Bulkeley and the cases there referred to, were cited. (10 Ves. 230 ; see the note, 237, and the authorities referred to in Mr. Wyatt's edition of the Practical Register, 34.) 366 BUCKMASTER V. HARROP 33 VES. JUN. 459. The Lord Chancellor concurred in that distinction ; and with reference to the other objections the evidence was read de bene esse. The Solicitor General [Romilly], Mr. Richards, and Mr. Wetherell, for the Plaintiffs, Appellants. At least this Decree should have directed an inquiry as to the third Lot : but upon other grounds a specific performance of the agreement ought to have been directed as to all the Lots. First, this is not a case, which can be affected by the Statute of Frauds (stat. 29 Ch. II. c. 3). Either a sale by auction is completely out of that Statute, according to the opinion of the Court of King's Bench in Simon v. Metivier (1 Black. 599; 3 Bur. 1921) as to sales of goods by auction ; or the auctioneer must be considered the agent of both parties ; to which extent that case was acknowledged in the late case, Hinde v. Whitehouse (7 East, 558). It is true, Lord Chief Justice Eyre and the Court of Common Pleas afterwards held (Walker v. Constable, 1 Bos. & Pul. 30G. S tans field v. Johnson, 1 Esp. Ni. Pri. Ca. 101) that not applicable to land : but with the exception of this and another case (Blagden v. Brad-bear, 12 Ves. 466) lately decided at the Bolls, there is no decision, perhaps no dictum, in this Court, that a sale by auction of real estate is within that Statute. [459] In Coles v. Trecothick (9 Ves. 2.34), Lord Eldon expressed a strong opinion upon this subject. The intention of the Legislature must have been to put an end altogether to sales by auction, if they are reached by this Statute. Upon this hypothesis the thing cannot exist. A sale by auction in its nature includes an undertaking by the vendor, that the subject shall be the property of that person, who shall be the highest bidder. The effect of each subsequent bidding is to discharge all previous biddings ; and, if the person, who is the highest bidder, can discharge himself, by refusing to sign an agreement in writing, the necessary consequence is, that any person may thug be prevented from selling his estate. Upon this hypothesis a new contract in writing is necessary, and other terms may be insisted on. In Simon v. Metivier (1 Bla. 599; 3 Bur. 1921) the Judges must have proceeded upon such grounds as these ; that, if it were necessary, that there should be an agreement in writing, to give effect to the transactions at the auction, the thing must be at an end. The observation of Lord Eldon (9 Ves. 249), that the two clauses of the Statute cannot be distinguished in this respect, is unanswerable; and the consequence is, that the decision in that case as to goods is an authority as to real estate. 2dly, A very important point, that was not discussed at the Rolls, is, that the residuary legatee cannot make this objection. It might equally be contended, that, though executors had not thought it proper to insist upon the Statute of Limitations, the residuary legatee might afterwards take advantage of that defence : but it has been long decided, that in general cases an executor is not bound to insist upon the Statute of Li-[460]-niitations, and cannot be charged by the residuary legatee with a Devaslavit for omitting to do so; and even an infant's remedy is lost by such omission. That discretion of an executor, not to resist a just demand, though the law would not compel payment, and though the effect is to diminish the assets for other debts, has never been controlled. The executor has a similar discretion not to set up the Statute of Frauds against a just claim in equity and conscience; and a mere residuary legatee cannot represent that as a breach of trust. The law of this Court is now clear, that, if a parol agreement is admitted, and the Statute is not insisted on, the agreement shall be carried into...
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