Judgment of the Court
J.-The plaintiff fails, I think, for noncompliance with the Statute of Frauds.
The agreement which he alleges in his statement claim is an agreement with the defendant McDonald for the purchase of an interest in certain coal mining licenses-admittedly an interest in lands within the meaning of that statute.
I am unable to agree with the court below that, upon the evidence, the plaintiff can succeed as upon an agreement for the purchase of an interest in the proceeds of the sale of the licenses as distinguished from an interest in the licenses themselves. The oral agreement proved was an agreement for the purchase of an interest in the licenses. And there is no sufficient evidence that prior to the agreement there had been such a conversion of that interest as would take away its character as real estate.
No memorandum in writing was produced. As regards the lost receipt referred to, there was no finding of the learned trial judge regarding the nature of its contents; and, considering the unsatisfactory character of the evidence and the evident hesitation of the court below upon the point, I think one J. ought to give effect to one's view that the contents of and McDonald's signature to the document have not been sufficiently proved.
With great respect, moreover, I must disagree with the view of the court below that the plaintiff has made out a case enabling him to take advantage of the doctrine known as the doctrine of part performance.
A condition of the application of that doctrine is thus stated by Lord Selborne, in Maddison v. Alderson(1), at page 479:
i.e. to an agreement respecting the lands themselves; and, as further explained in that case, a plaintiff who relies upon acts of part performance to excuse the non-production of a note or memorandum under the Statute of Frauds, should first prove the acts relied upon; it is only after such acts unequivocally referable in their own nature to some dealing with the land which is alleged to have been the subject of the agreement sued upon have been proved that evidence of the oral agreement becomes admissible for the purpose of explaining those acts. It is for this reason that a payment of purchase money alone can never be a sufficient act of performance within the rule. Here there is nothing in the nature of the acts proved which bears any necessary relation to the interest in land said to have been the subject of the agreement in question. A sale and purchase of the stock and bonds actually transferred would suffice to explain them.
A further point remains to be noticed. It is said that McNeil cannot avail himself of the statute. do not see why.
The fourth section of the Nova Scotia Statute of Frauds provides that
It is not suggested that there was any deed or note in writing in compliance with this enactment; the plaintiff was, therefore, compelled to base his action and did in fact base it upon the allegation -of an agreement by McDonald to sell to him the interest referred to.
But section seven of the statute provides that no action shall be brought upon a contract of sale of land or any interest therein unless the contract or some memorandum or note thereof is in writing signed by the person sought to be charged. Such a contract in the absence of such a note or memorandum or acts of part performance, being non-enforceable, could not, it seems to me clear, be held to vest by its own operation in the purchaser such an interest in the subject matter of the agreement as would entitle him to maintain an action in respect of it. If the purchaser were entitled to maintain an action to compel the execution of an assignment of the subject matter of the agreement he would in equity be treated as having such an assignment; but I know of no principle under which a purchaser of an interest in land under an oral agreement for sale non-enforceable by reason of non-compliance with the Statute of Frauds can be held by virtue of the non-enforceable agreement alone to have vested in him any interest in the subject matter of it.
It is true the statute was not pleaded originally; but I think that, having regard to the course taken at J. the trial respecting the defendant's application for leave to amend and in the actual conduct of the trial itself, the respondents could not now resist such an application.
Appeal allowed with costs.