
    M. W. Whetmore vs. R. Barnwell Rhett.
    Frauds, Statute of — Sullivan's Island — Tenant at Will.
    
    Before 1857, the occupants of lots on Sullivan’s Island were mere tenants at will of the State, and had no interest in the land, so as to render a parol contract for the sale of a house on one of said lots void under the fourth section of the Statute of Frauds.
    Sucha contract was completed by delivery of the house — no memorandum in writing being necessary.
    BEFORE WITHERS, J„ AT CHARLESTON, JANUARY TERM, 1860.
    Thg report of his Honor, the presiding Judge, is as follows:
    “ This action was in assumpit for the price of a house, situate on Sullivan’s Island; and this was a second trial. The declaration contained several counts ; some set forth the contract of purchase to be 'for cash; and one had been added since the former trial, setting forth the contract of purchase to be on a credit of (I believe) sixty-five days.
    “ The evidence revealed this state of facts: that Thomas D. Condy, at the instance of C. J. Colcock, acting as the attorney of the plaintiff, sold the house in pursuance of the following notice:
    “ HOUSE ON SULLIVAN’S ISLAND.
    By Thomas D. Condy.
    On this day, the 24th instant, [to wit, August, 1854,] at 10 o’clock, A. M., that new and very pleasantly situated house on Sullivan’s Island, on the front beach, being the first house in the, front row, east of the Moultrie House.
    Conditions Cash — Purchaser to pay for title.”
    
      “The above notice had been cut from a newspaper, and pasted on a blank leaf in a book; and when' the house was knocked down, Condy, in pencil, wrote abqve the notice, ‘ M. W. Whetmore,’ and at the bottom, ‘ P. B. Phett, $1,450.’ No word showed Whetmore to be owner and vendor, and none described Rhett to be purchaser, and none stated one thousand four hundred and fifty dollars to be the "price bid.
    “ The circumstances attending the auction had been stated by Condy, (now deceased,) as witness on the former trial of this case, and his testimony then given was obtained from Mr. Petigru, who re-produced ' Condy’s evidence to this effect: That he was employed to sell the house by C. J. Col-cock, and communicated with Mazyck as Colcock’s clerk; .that he advertised the house, on the day of sale mounted the rostrum, and read the slip from the newspaper, (the one above copied,) which was pasted in a book, (and the book produced, Mr. P. said was the same Condy recognized;) that he wrote the names of P. B. Phett and M. B. Whetmore, in pencil; that he read the advertisement, and announced that ten days would be allowed to Phett, the then tenant, for removal ; that Mazyck bid up to one thousand two hundred dollars, and then said, ‘ I have finished’; that John Heart bid, and it was knocked off to his bid of one thousand four hundred and fifty dollars ; that he said he bid for Mr. Phett* and then he wrote the names, in pencil, above and below, as they appear, and before he spoke to Rhett; that after that, Phett walking up to him, said, 'I am the purchaser;’ to which he answered, ‘then as you are purchaser and tenant, you don’t require ten days notice to quit;’ Phett said, ' I have made a particular contract, and will give you a note at sixty or sixty-five days,’ adding that he had so agreed with Colcook if he purchased; to which Condy answered, he. and Colcock could arrange it among themselves; and that all passed in three minutes or so after the bidding, and he had nothing more to do with it.
    
      “ Mr. Petigru said Condy stated that he had, in speaking about a title deed, expressed the opinion that no right of dower existed, and a mere deed alone was requisite; that such was afterwards drawn and tendered to the defendant, who said, ‘leave it and I will examine it.’ Mr. Petigru added, that the deed was presented to Condy on the former trial, and he recognized it as the same; and he (Mr. P.) believed it was produced by this defendant.
    N. B. Mazyck said he was Oolcock’s agent, who (he believed) was Whetmore’s ; that he bid one thousand two hundred dollars at the auction in behalf of the owner; that Condy read the advertisement, and announced-the sale to be for cash; that the house was knocked down to a bid of Heart, who announced that Rhett was the bidder, the latter standing by him, and Condy wrote in a book; that Rhett also said he was the bidder; that Condy said nothing about a credit sale; that Rhett was in the house as tenant, some months, he thought, before the sale; rented it from Colcock, as plaintiff’s agent; that it was agreed between them, Rhett should have ten days to remove, if Whetmore ceased to be owner; that Rhett came to him before the sale, and said it was necessary for him to buy the house on account of the yellow fever; and on his telling Rhett the terms were cash, Rhett said he hadn’t it, and could not pay it, yet circumstances were such he must have the house ; that he said he (Mazyck) had instructions to purchase the house for a certain amount, and if it went beyond that Rhett could buy, and if at or under it, he could continue his occupation ; that Rhett proposed a note at sixty-five days, as the shortest time suitable for him; that he called on collector Colcock, and it was agreed to accede to the proposition of credit; that he told defendant he was acting for Colcock, and that he told him he had no authority to allow a credit, but from the relations existing between him and Colcock, he did it as a courtesy to him; that he-thought he had told this to Condy before the sale; and the defend- ■ ant remained in the house till the gale in September, 1854. This witness further stated that he wrote to Oolcock, who was in Alabama, what he had done, and left a note on defendant’s desk about the sale, and thought he stated that he should have to act from necessity, and had sent titles to Colcock to sign ; that when Condy sold, Oolcock was in Alabama, and no one here could make a title; that Colcock knew of the credit only when he informed him by letter ; that no note was ever given by the defendant; that the house was washed away in ten or fifteen days after the sale ; that he did not remember he ever called on defendant for a note. He recognized the note addressed to defendant. He supposed he wrote to defendant he would not take the note, because he had no title deed, but he could not fix the day, after the sale, when the note was written. After the gale, he said, he saw the lot and the material of the house was all in a pile, and in ■ confusion ; did not know when it was that a deed was tendered to defendant; that Condy received it from 'Tennessee. After the gale, while in the Fort, the defendant alluded to his loss by the gale, and the witness said he expressed his sympathy with him; that both of them alluded to the house, as he supposed; that he (Mazyck) spoke of the house defendant had bought, and the loss of it; that the defendant never tendered any note to him.
    
      “ Mr. Gray said he was in the habit of pasting an advertisement in a book, and making pencil entries at the auction, and then transferring the same to another book.
    
      “ A letter from defendant, dated 25th August, 1854, was put in evidence.
    
      “ So also a letter from him to Colcock, dated 28th November, 1854, was read. I have no copy. It acknowledged that a title deed had been received through Condy, and that it was declined, first, because it was not good for want of renunciation of dower, and Mr. Petigru had advised that a right of dower attached to the interest bought, being a base fee; that Whetmore himself never had such.a renunciation, and could not make a good title: Second, the title could not have been perfected between the sale and the destructive gale, and he was advised that his continued possession was no part performance of the contract, for that would be referred to his former teuancy. The letter proceeded to argue the matter at some length, and should be printed with this report. It proposed an arbitration.
    
    “The legislation of the State, in regard to the occupation of Sullivan’s Island, was referred to, to wit: A. A. 1787, (5 Stat. 39,) declaring void every grant of land on tbe Island since 1784, and all thereafter to be made: Resolution of 1791, January 81, permitting citizens of the State, who might wish to resort there for health, to build on one-half acre, on a penny a year —=—, having such exclusive right on one-balf an acre, being subject to remove their buildings, and to surrender up the one-balf acre, on requisition of the Governor.
    
      “ A. A. 1819, (6 Stat. 131,) declaring a mere shed or enclosure not enough to give the exclusive right theretofore allowed, but requiring a dwelling-house; and if that was destroyed or removed, and not re-built in a year, the lot was declared vacant.
    "Upon the'case thus made, the defendant moved fora nonsuit. The grounds were:
    “1. That the interest of Whetmore sold to Ehett was such an interest in land as came within the Statute of Frauds; and requiring, therefore, a memorandum of the agreement in writing, and that produced not being such as by the adjudications on the subject was necessary, the action was barred by that Statute. If it was such interest in, or concerning lands, &c., as was contemplated by the Statute of Frauds and Perjuries, I agreed that the memorandum was not sufficient, but I did not think it was such an interest in land as the Statute contemplated.
    “ 2. It was insisted, that if it was held to be personalty, still there was no conveyance of it, nor tender of any, nor any delivery or tender of any, between the 24th August and the 8th September, 1854, on which latter day the property perished by the vis major, and the title being in the vendor up to the time of the destruction, it was his loss.
    “ The doctrine I held was this: That being personalty, no title deed or written conveyance was needed to transfer- the property; that if the property was delivered before the storm occurred that destroyed it — in other words, if the defendant held possession by consent of the vendor of the house in pursuance and by virtue of the sale — his title was complete; and the jury must decide that question. I did recognize the doctrine, that the possession of land, or a chattel, on -rent or hire, or on any specific conditions, would be presumed to continue in the same character in which it originated, until some change in the character and right of the possession be shown. I thought one might have personalty on hire, or upon license, or for some specific purpose, and he might negotiate a purchase; and if, by agreement of parties, he should thenceforth hold it in pursuance of the purchase, and as owner, that the presumption of a continued possession on the original qualified or specific conditions, would be rebutted.
    “The case was referred to the jury with such instruction, and on the single inquiry stated, and they rendered a verdict for purchase money, and interest, for the plaintiff.”
    The defendant appealed and now renewed his motion for a nonsuit, on the grounds: •
    1. That the property sold was real estate — an interest in land, within the Statute of Frauds; and that there was no sufficient memorandum of the contract in writing. That even if the property had been personal estate, the objection that there was neither money paid, earnest given, nor note or memorandum of'the bargain signed, was fatal to the action, under the 17th section of the same Statute.
    2. That when property is destroyed by the vis major, the loss falls on the owner ; that the property in the house was not changed by the agreement to purchase, and the house continued the property of the plaintiff; and the loss by destruction of the property before the title passed to the purchaser, falls on the seller.
    Also for a new trial:
    1. Because his Honor charged the jury, that the case was not within the Statute of Frauds, and that no writing was necessary to transfer the property.
    2. That he left it to the jury to say whether the possession of defendant, after the 24th August, 1854, was a possession as purchaser, or a possession under his original holding, without telling them that the presumption of law is, that the possession of a tenant, after a contract to purchase, is not a part performance of the bargain, but is referred to his original holding.
    3. That on the issue submitted to the jury, they should have found that there was no delivery of possession under the contract of purchase ; because there was no evidence of such delivery, and much evidence the other way.
    
      Petigru and King, Pettigrew, for appellant.
    1. At law, the requisites of the statute must be strictly complied with by party attempting to enforce the-contract. Chit, on Con. 306 ; Jackson vs. Pierce, 2 Johns. R. 221; Smith vs. Smith, 1 Rich. Eq. 130.
    2. Fourth section of the Stat. of Frauds includes “ any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them.” 2 Stat. 525 ; 1 Hilliard on Vendors, 104, et seq. “All the crops from the large pear trees ” is an interest in the lands. Bodwell vs. Phillips, 9 Mees. & Weis. 501. A sale of growing turnips, ditto. Emerson vs. Heelis, 2 Taun. 38. An equity of redemption, ditto. Scott vs. McFarland, 13-Mass. 309. A contract to “sell and deliver up possession,” is within the statute. Howard vs. Enston, 7 John. R. 205. Even a license involving an interest is included. Cook vs. Stearns, 11 Mass. 538. Agreement to surrender to landlord and let defendant enter or be presented, or to persuade landlord to admit him, or to vacate premises and let defendant enter with consent of landlord, are all included. Smart vs. Harding, 29 E. L. & Eq. 252; Cooking vs. Ward, 1 Com. B. Rep. 858; Butiemore vs. Davis, 5 Mees. & Weis., 456; Kelly vs. Webster, 10 E. L. & Eq. 5L7. A verbal assignment of a Valid contract with a third party, for a purchase of lands, is within the statute. Simms vs. Killian, 
      12 Ired. 252. Vide, also, Folsom vs. Great Falls Go., 9 N. H. 355.
    3. Nature of this interest.
    This is not an “ estate at will,” for that is when one man lets to another to hold at his will. Litt. § 68, and text books passim ; 7 Rich. Eq. 344. Such an one has no interest in the land, and nothing to assign; his assignee is a trespasser. Coke on Litt. 57, a; 1 Cruise Dig. 244 If such an estate be granted to A and his heirs, the grant to “ his heirs” is void, and the heir entering will be a trespasser. Litt. § 82 ; Coke on Litt. 62, b. It is a greater interest than that of a copy-holder. It is an exclusive right to occupy forever a tract of land, and to transfer the same by deed or will, or by intestacy, subject to two restrictions only, viz.: 1st, forfeiture for neglect to build or rebuild in one year; and, 2nd, the obligation to deliver up the same temporarily when required by the Governor and Commander-in-Chief. Resolution of 31st January, 1791; A. A. 1819, 6 Stat. 131. The first restriction is similar to many that have been attached to estates in land, e. g., wrongful alienation, crimes, &c., and moreover this is a forfeiture to the State, which is equivalent to a return to its previous condition. The lot becomes vacant, and is liable to occupancy. The second restriction is a mere affirmance of the general law. Property taken for public use should -be taken by legal process and be paid for by the whole public; but in military affairs, there is little time for deliberation, and houses and lands near a fortress are liable to be seized by the commanding officer ex necessitate. Puff. 38, ch. 5, § 7. Mitchell vs. Harmony, 13 Iiow. 115. In South Carolina, there is no compensation for property taken for public use, due as of right. With regard to Sullivan’s Islaud, the Commander-in-chief is made the judge of the necessity, which discretion must be 'lodged in some military officer. The discretion of the Chief Magistrate is not to be likened to the “ will” of an individual. The Governor, the Grand Jury, the Attorney General, and all the other functionaries clothed with discretion, exercise that discretion according to law, for the benefit of the whole community; the “ will ” of a private individual is arbitrary.
    The plaintiffs therefore enjoyed all'the privilege of a fee simple absolute, except as to the first restriction, which depended on himself. His estate might continue forever, if he so chose. He is subject also to all the liabilities of such an estate. He is liable to taxation, supports a municipal government, may have his property taken from him by eminent domain, &c., &c. How then can it be said that he has no “interest in or concerning” “lands, tenements, hereditaments?” His interest was a fee conditional, or abase fee. Hence it fell within the statute, as to the oontract, in its inception. But even if that were not so, the plaintiff has never fulfilled his part of the contract; the property could not be delivered. Even the deed was defective, as dower had not been renounced. The deed, moreover, was a mere ceremony after the property had ceased to exist. 5 Stat. 350 ; 7 Stat. 113; Co. Litt. 27, a; 1 Bl. Cojp. 109 ; Sel. N. P. 1361.
    
      De Treville, contra,
    cited 5 Stat. 39 ; 2 Bl. Com. 145; Gale & Wheat. 402, 21; 4 Mass. 514; 8 Pick. 283.
    
      
      
         The note and letters referred to are as follows :
      Hox. R. B. Rhett.
      Dear Sir: — I expect we will have to make a “virtue of necessity,” and allow a credit of the Island house without taking your note, until I can hear from Mr. Colcock, as he has the power of attorney from Wetmore, and has not empowered his uncle or myself to act in the matter further than selling. A bill of sale, however, will be the only necessary paper, I believe.
      Very respectfully,
      N. B. MAZYCK.
      
        Friday Morning.
      
      My Dear Sir: — I bought, to-day, the summer house on Sullivan’s Island — made a previous arrangement with your agent here, that if I bought the house he would take my note at sixty-five days. I shall, accordingly, give him the note. It went off at one thousand four hundred and fifty dollars. If -I had not bid, a little Irish speculator would have got it at one thousand two hundred and twenty-five dollars, he and I being the only persons who bid after your agent ceased at one thousand two hundred dollars. So if you have any interest in the matter, you have got two hundred and twenty-five dollars by my bid. I bought the house only to prevent my being turned out, as it was understood between us, that unless the proprietorship continued, so that I would not bo molested in my possession, I should not pay the rent. I do not expect to pay you rent for the short time I occupied the house before the sale.
      (Signed; R. B. RHETT.
      
        August 25th, 1854.
      
        28th November, 1854.
      My Dear Sir : — I received the title through Mr. Condy, which I requested you to tender to me ; and I decline completing tlie sale of the house which it conveys, for two reasons :
      1. The title is not good.
      2. If good, I am not hound in law or equity to fulfil the contract of sale made on the 24th of August last.
      The title has been laid before Mr. Petigru, and he counsels me, that it is not complete, because_it contains no renunciation of dower upon it. In his opinion, a house on Sullivan’s Island is a base fee, inheritable, and amenable to dower. If this opinion is correct, your principal, Mr. Wetmore, never has had a good title himself to the house ; and when he directed you to sell the house, he neither enabled you to make good titles to the purchaser, nor had he himself the power of doing so, inasmuch as the title to him from Mr. Lee was equally defective, in having no renunciation of dower upon it; my conversation with Mr. Condy just after the sale, shows you my doubts upon this point at the time of the sale. I take it you will agree with me, that it was impossible to have cured this double defect in the title, if it could have been done at all, between the time of sale and tile destruction of the house.
      Mr. Petigru also counsels me, that there is no doubt of the correctness of the position I took in my letter of the Yth November, “that my possession of the house was not a part performance of the contract of sale.” Judge Story lays it down as law, that ‘ ‘ the mere possession of the land will not ho deemed a part performance, if it he independent of the contractand the very case is stated to exemplify the rule: “If the vendee he a tenant in possession under the vendor, his possession is properly referrable to his tenancy, and not to the contract of sale.” I presume the same rule would he applicable to a slave. If, instead of the house, I had hired a slave, and whilst in possession of him by hire, I had agreed with you to purchase him, and before title made or the purchase money paid, the slave had died, it would he your loss. Nor does the alteration of the terms of sale, from cash to a note at sixty days’ credit at all alter the case. The credit by the note was to he a closed, not an open credit. No delay in closing the contract could ax-ise fx-om this coux-se. The xxote was to have been given instead of the cash, and the contract would have been concluded just as soon by the note as by the cash. It did not occasion, and could not have occasioned, the delay in executing and closing the contract.
      If, however, I was prepared to disregard Mr. Petigru’s opinion as to the validity of the title, and to take the position which your tendered title assumes to he true, and Mr. Condy says has been ruled to be law, it would not better the ease for you. If a house on Sullivan’s Island is a mere chattel, and no dowel-, therefore, could exist upon it, the rule of law would apply, as laid down by Story, that “ no sale is complete so as to invest in the vendee an immediate right of property, so long as anything remains to be done by the seller and that “so long as anything remains to be done by the seller, the goods are at his risk.” The title to the house was certainly a thing to be done by the seller, before the sale could be completed ; and the delay in executing it was certainly not produced by me. The house was at the risk of the vendor.
      Besides these legal considerations, however, it does not appear to me (although I may be biassed in my opinion J that it is consistent with natural equity, that a loss should fall upon me in consequence of a delay which I was in no way instrumental in producing, and which, if it had not occurred, I would in all probability have been enabled to avert the loss from all of ns. And when it is considered that this delay, contrary to the advertisement by the vendor, was inevitable, from liis inability to make good titles, then or now, the equity of expecting me to bear the loss appears to me still more questionable.
      For legal grounds, such as I have stated, under the advice of able counsel, I presume you would hold me justifiable in simply refusing to comply with the terms of sale made on the 24th of August last. But as you deem yourself personally implicated and involved in the matter, I beg leave to propose to you, to submit the whole case, in all its aspects, legal, equitable and moral, to the adjudication of disinterested arbitrators. Bach of us shall nominate an arbitrator, and if they disagree, they shall appoint an umpire, who shall finally determine all differences between us. On my part, I will nominate Chancellor Dunkin as an arbitrator, not because he is an intimate or personal friend, (for he is neither,) hut because he belongs to the Church of Christ, as we do, and I feel confident, will decree what justice, morality and honor requires between us.
      I beg leave to enclose you the statement of facts I laid before Mr. Petigru for his opinion, which you will please return as soon as convenient; and
      Believe me, dear sir,
      Yours, most sincerely,
      R. B. RHETT.
      Mb. Chabees J. Colcock.
    
   The opinion of the Court was delivered by

Wardlaw, J.

The Statute of Frauds, 2 Stat. 525, provides that no action shall be brought to charge any person on any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning the same, unless the agreement, or some note or memorandum thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto, by him lawfully authorized.” The question in this case principally argued before us is, whether a house on Sullivan’s Island be an interest in land within the scope of this statutory provision ? And the decision of it requires some summary of the course of legislation concerning this subject. The Acts of the Legislature before 1787, show that the island had been to some extent appropriated to public purposes. 2 Stat. 40, 93, 161, 609. By seventh section of an Act, passed March 28, 1787, 5 Stat. 39, “every grant of land which has been obtained since March 21, 1784, or which may be hereafter obtained, for Sullivan’s Island, &c., or any other lands whatever, which have been or are now appropriated for any particular public purposes, shall be deemed and held null and void.” A joint resolution passed the House of Eepresentatives, January 31, 1791, and the Senate, February 2, 1791, “ That such of the citizens of this State, as may think it beneficial to their health to reside on Sullivan’s Island during the summer season, have liberty to build on the said island a dwelling and out-houses for their accommodation. And the person or persons so building, shall have the exclusive right to the same, and one-half acre of land adjoining thereto, as long as he, she or they may require, for the purposes aforesaid; provided, the person or persons building as aforesaid, pay to the treasurer one penny annually, if required, for the use of the said land; delivering up the same when demanded by the governor or commander-in-chief, for the time being' — -he, she or they having the liberty of removing the buildings which they may erect.” Res. 1791, p. 84; Ord. Moul. p. 4. Some subsequent legislation, provided for the appointment of commissioners to lay out streets; for the sale of the building called the Lazaretto; and assessment on the lots for the purchase or hire of a site elsewhere for such structure, and for the incorporation of Moultrieville, 5 St. 350; 7 St. 113; 8 St. 290, 353, 368; but this legislation did not affect the title to the soil, and it is carefully guarded, that the assessment shall be proportioned to the value of the improvements on the lots, and that the title of the purchasers of the Lazaretto and of buildings sold to pay assessments, shall not be more efficient or durable than that of the present occupants. An Act in 1819, 6 Stat. 131, reciting that “the privilege of occupying the said Island by the citizens, was originally granted by the Legislature, under the proviso, that each citizen taking a lot for himself should actually build thereon,” and that a mere shed or in closure was not an adequate building to carry the privilege, prescribed “that no exclusive right'to a lot on the said island shall be obtained by any citizen, otherwise than by his actually building a dwelling-house thereon: and if such dwelling shall be removed or destroyed, the, owner thereof shall have the exclusive right to rebuild on the same lot for one year thereafter; and if no dwelling-house be built by him within that period, such lot shall again be considered vacant.” These were the enactments of force August 24, 1854, when the contract was made, which is now in litigation. Afterwards, in 1856, 12 Stat. 480, houses and lots on Sullivan’s Island were subjected to taxes to the State at the same rate of taxation as other houses and lots; and in 1857, 12 Stat. 609, it was declared that the tenure of the owners of lots' under the license to build, should be that of tenants from year to year, and it was repeated that the lots should be delivered up whenever demanded by the governor, with liberty to the owners to remove the buildings.

No argument nor commentary can make it plainer than do the words of the Legislature in their fair import, that the occupants of Sullivan’s Island, before 1857, had no interest in the land itself, and were mere tenants at the will of the State. They were proprietors of the houses as chattels, expressly separated from the soil by agreement between them and the State, that they should have the privilege, or liberty, or license, as it is variously described in the Acts, to erect and to remove buildings, and that the State should not part with its title to the soil by grant, the usual mode, (no other mode of divestiture having been prescribed or exercised as to the island,) and might resume the possession whenever its agent should demand. A license by an owner of land to another person to build a house on the land, is not a grant of any right or interest in the land, but is merely a personal privilege which does not extend to the heirs and assigns of such person, and generally may be at any time recalled. Gale & What. on Ease. 21, 31; Wells vs. Bannister, 4 Mass. R. 514; Marcy vs. Darling, 8 Pick. 283; Ashmund vs. Williams, 8 Pick. 402; 10 Pick. 540; 1 Greenl. 117; 4 Jno. R. 418; 9 New II. Rep. 237. If such a license be executed by the erection of the house, and it be stipulated by the parties, as in this case, that the house may be removed by the builder, the house is his personal property. Prince vs. Case, 10 Conn. R. 375, and cases supra. Some contrariety exists in the cases as to timber, growing crops, and other things annexed to the soil, Smith vs. Surman, 9 B. & C. 561; Rodwell vs. Phillips, 9 M. & W. 501; but the better opinion seems to be that contract for the sale of the produce of land or of a structure upon it to be severed from the soil, is a sale of chattels, where the vendee needs only a license to enter and take the subject. 1 Greenl. Ev. 271, and n. 4 and 3. But it is unnecessary to discuss nice distinctions in this case, for it is settled and uncontroverted that a tenancy at will may be created without writing, as not amounting to an interest in land. Co. Litt. 57 a., 62 b.

It is suggested that the State cannot let lands at its will, and that a natural person only can be the landlord in such relation. Neither authority nor principle sustains this distinction. The State, with every body corporate, having complete title to lands, may exercise all the rights of a proprietor, and, in the exercise of such rights, acts as owner merely, and not by virtue of tbe eminent domain wbicb is reserved by implication in every grant of lands. In tbe manifestation of its will as landlord, tbe State should act from motives of public policy and in reference to tbe good of tbe community; and every private landlord should exercise bis will in subordination to honesty, policy and benevolence; but tbe discretion of neither can be regulated by fixed and precise rules.

It is said that tbe stipulation, that tbe tenancy shall be determined whenever the occupant does not rebuild for a year, is in tbe nature of a forfeiture, as for wrongful alienation of a limited estate, or for crime. Without undertaking to determine whether there can be forfeiture, by our law, for such cause, of an estate in fee, absolute or base, and such, according to tbe argument in behalf of defendant, is tbe estate in tbe occupants of tbe island — it is sufficient to say, that, according to our view, tbe estate is held at tbe will of tbe State, and that there is no forfeiture in the case, in any other sense than is applicable to tbe determination of every tenancy at will. Tbe right of the tenants to possession ceases, and the land returns to its previous condition.

Again it is said, that tbe liability of tbe tenants to surrender tbe possession when required by tbe agent of tbe State, is tbe mere expression of that wbicb is implied by universal law, that in time of war,, bouses and lands near a fortress may be seized, if necessary, in tbe exigency of affairs, and that in time of peace private property may be taken for public use. It is true that tbe agent of tbe State named to demand possession is designated by bis full constitutional title of office, governor and commander-in-chief, but this courteous designation is not employed in reference to a state of war, or to bis authority over the militia, and the agency is conferred on him appropriately, as tbe chief executive officer, and is not limited to military exigencies. I suppose that in respect to private estate elsewhere situate, the governor could not take it in time of peace for public use, without express direction from the Legislature or due process of law; but I cannot venture to affirm that he may not determine this special tenancy in the island, whenever, in his discretion, he may demand the possession; the tenants having the liberty of removing the buildings.

In all the documents offered in evidence, the subject of contract is described as a house merely, without intimation of title in the land. It is so called in the caption and body of the advertisement, in the letter from N. B. Mazyck to defendant, and in the letters of defendant, dated August 25, and November 28.

If, then, the parties were right in concluding that a house alone, a chattel, was the subject of contract, the house would pass by mere delivery, unaided by any written muniment; and the circuit Judge properly confined the consideration of the jury to the fact of delivery. His instructions to the jury, detailed in the report, are then unexceptionable, and their finding conclusive. Indeed, if defendant’s letter, written and sent on the day of sale it seems, although bearing date the day after, August 25, 1851, be properly weighed, it can hardly be doubted that he then took possession of the house as owner, discontinuing his possession as tenant.

These remarks dispose of the appeal; and we reserve from judgment the question as to the sufficiency of the memorandum under the statute, if the house be regarded as an interest in land. We say something on the topic, mainly to guard against the inference, that we adjudge the ruling of the Judge on circuit to be right. It is well settled, that it is sufficient if the required memorandum be signed by thé party alone who is to be charged by the action, and that signing by the auctioneer is a signing by one lawfully authorized, as well by the purchaser as the vendor, and that the signing may be in a letter or other separate writing. Gordon vs. Sims, 2 McC. C. 151. Now, here we have a memorandum fully describing the thing to be sold and the terms of sale, and below it, written bjr the auctioneer at the time of sale, the words “E. B. Ehett, $1450,” which, by fair intendment, may denote the purchaser and the price. Then we have the letter of Mr. Ehett, the defendant, written a few hours after the sale, fixing, if it were before doubtful, who was the purchaser, and what was the price. “ I bought to-day the summer-house on Sullivan’s Island. It went off at one thousand four hundred and fifty dollars. If I had not bid,”' &c. ■ Perhaps some departure from the strict requirement of cash, originally proposed, might be deduced, if the letters of N. B. Mazyck and the defendant were collated. In the letter of November 28, 1854, the defendant says: I received the title through Mr. Oondy, which I requested you to tender me; and I decline completing the sale of the house which it conveys, for two reasons: 1. The title is not good. 2. If good, I am not bound in law or equity to fulfil the contract of sale made on the 24th of August last;” and he proceeds to argue the two points, without intimating any deficiency in the memorandum. It further appears that he retained the title then received for two years or more, and until the former trial on circuit. It is not easy to point out any important element of the contract which is not proved by the signature of the purchaser, or waived by him. But this is suggestion, and not judgment.

It is ordered that the motions for nonsuit and new trial be dismissed.

O’Neall, C. J., and Johnstone, J., concurred.

Motions dismissed.  