>- ^ME•UNIV!lft,^ ^lOSANCflfx^ ^MEUNIVEW-i %a3AINn-3WV ^lOSANCFlfj^ o •&AavMn-3 < ^tfOJIlVJ-JO"^ ^ < A\\MJNIVERS/A ^lOSANCElfj-^ o ^J^iliDNYSOl^ "^AiiaMNn^Wv' AOFCAlIFOff^ ^OFCAUFOff^ ^- ^^^VllBRARY(9/: ^ >5 ^-^ '•? \WEUNIVnf% ^lOSANCnfj> ^TiUDNvsoi^ '^^mtm\s^ ^•OFCAIIFO/?^ ^OFCAIIFOR)^ ^^WFUNIvn?% ^ o .^^^E•UNIVERy/A OS ^lOSANCnfX;> 6 "V/iajAiNiimv* A^HIBRARY^^. 5 i ir^ ^ -^lUBRARYQ^ %dnwjo^ ^-A,OFCAIIFO/?^ >&A«vaan# ^oinvDJo'^ ^OFCAUFORij^^ ^^Atfvaan-iJ^ #1 5^ltlBRARYQr Hyojnvj-jo'^ ^OFCAllFOff/j(>^ -j^lUBRARYQr ^OFCAIIFO% ^5MFUNIV!R% >- ^lOSANCE^r^ ^iJOJIlYJ-JO'^ ^J^JDNVSOl^ ^^^\FUNIVERy/^ %iUAiNnattV^ ^•IDSANCElflr^ %A«vaan-# "^(^Aavaan-aS^^ ^jjudnvsoi^ "^aiAiNfui^^ (-3 5 ^. THE LAAY VENDORS AND PURCHASERS OF REAL PROPERTY. BY FRANCIS HILLIARD, .AUTHOR OF THE LAW OF TORTS, THE LAW OF MORTGAGES, ETC., ETC. SECOND EDITION. REVISED AND GREATLY ENLARGED. BOSTON: LITTLE, BROWN, AND COMPANY. 1868. :^\/^ T Entered according to Act of Congress, in the year 1858, BY FRANCIS HILLIAED, in the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1868, BY FKANCIS HILLIAED, in the Clerlv's Office of the District Court of the District of Massachusetts. CAMBRIDGE : PRESS OF JOHN AVILSON AND SON. PREFACE. Many years ago, I conceived the design of preparing an extended view of The American Laiv of Real Property, and accordingly compiled the Treatise or Abridgment, the last edition of which bears that title.^ That work was modelled substantially upon the approved Digest of Mr. Cruise, which had long been used as the popular text-book upon this subject. In the preface, I took occasion to remark, that, in consequence of the disuse of many feudal doctrines, which our ancestors left behind them in emigrating to. this country ; the gradual adaptation of our law to the republican institutions here established ; and, above all, the numerous and various statutory enactments in the different States of the Union : the English Law of Real Property and the Amer- ican Law of Real Property had come to be two distinct systems, requiring, of course, to be stated and explained in distinct ele- mentary works. While the valuable Digest of Mr. Cruise had been the approved manual of the American lawyer, upon those branches of the general law of Real Property which alone he assumed to treat ; another portion of this extensive subject was then occupied by another work of equal merit and popularity ; to wit, Siigden on Vendors and Purdiasers. The line of division between tliese two works is very marked and apparent ; although it is quite imj)Os- 1 This work has heen some time out of print. Tlie fourth edition is now in press. IV PREFACE. siblc that each should not occasionally and incidentally encroach upon the limits of the other. The former treats of the title to Real Property ; the modes of acquiring such title, and the inci- dents, rights, and liabilities which appertain to it, after it is acquired : while the latter is restricted in plan, though not always in execution, to executory contracts of sale and purchase, by which, when carried out, the title will of course be changed, but which in themselves effect no such change. English law and American law are less divergeyit upon the latter tlian upon the former class of subjects ; and indeed their discrepancy in reference to mere execu- tory contracts concerning real property results chiefly from the different rules which prevail as to real property itself. Thus estates tail have been substantially abolished in the United States ; and, although there is no legislation immediately relating to con- tracts of sale and purchase, which by way of title to tlie property sold involve the nice points of entailment, still the one change necessarily involves the other, and upon both subjects alike virtu- ally supersedes those intricate and subtle distinctions which have given occasion to so many decisions in the English Courts. The same may be said of the obsolete titles of Fine and Recovery, Tithes, Advotvson, Copyhold, &g. ; and to some extent of those other numerous subjects — such as Doiver, Descent, Devise, Execu- tion, &c. — which have not themselves become obsolete in our law, but the rules and principles of which have been so extensively and vitally modified by American statute and usage. There are, moreover, many points of mere practice, in suits re- lating to the title of real property sold, more especially suits in Equity, which are peculiar to the English Courts, and may well be very cursorily noticed in an American treatise. Upon the whole, therefore, I may state, that the present work is designed to occupy the same ground in American law which has been so successfully occupied in the English law by Sugden on Vendors and Purchasers, and by the later work of Mr. Dart on the same subject. I mean the same ground for mere practical use ; PREFACE. V for, as I shall presently explain, this is the prcvailhig purjjosc of the book ; and I do not profess to have imitated the free discussion, criticism, and comparison of authorities, which are so characteris- tic of the AvoU-known work of Mr. Sugden (or, as he is now better known, Lord St. Leonards). Without, for the most part, under- taking to weigh and balance conflicting decisions, or to pursue the fine threads of distinction which run through opposing cases and judgments ; I have endeavored to })rcsent in a compact form the laiv as it is, in the shape of the English and American authorities ; usually accompanied, where there is a serious conflict in the cases, with a general expression of opinion as to the prevailing rule upon the particular topic of discussion. It has always seemed to me peculiarly impracticable, in an American text-book, for the writer to advance any proposition of his own as in the nature of the " responsa prudentum " of the Roman law, or, in other wofds, as the laio, authoritatively eliminated from the opposing cases ; be- cause, in each of the United States of America, the decisions of its own Court are the controlling rule ; and if, in a treatise de- signed for national use, the author should deduce an oracular conclusion from the concurring cases in a majority of the States* on one side, that conclusion would not be law in the minority of States, whose Courts agree on the other side. While, therefore, the highest respect is due to the private opinion of such a writer as Lord St. Leonards, and many of our American commentators, upon any controverted point, it is, after all, hut an opinion, the value of which in any particular locality is best tested by a sum- mary statement of the decided cases upon which it rests. Although the subjects treated are substantially the same as those in Sugden, the plan and arrangement are wholly different, and, as I venture to suggest, more intelligible and appropriate. I begin with the distinction between executed and executory con- tracts ; and proceed to explain what is necessary to constitute a contract, its consideration, parties, construction, and form, — including Sales by Auction, the Statute of Frauds, License, and VI PREFACE. Part-performance. Then follow the Time of Performance, the Title to the Property Sold, and, in natural succession, Partial Failure of Title, and the General Grounds for avoiding or re- scinding a Sale, in whole or in part, whether for total or partial want of title, for non-payment of the price, or other causes, — including Mistake, Fraud, the Sale of Expectancies, Breach of Trust, and Notice. Having completed my view of the rights and liabilities growing out of the contract, I proceed to the subject of the Remedies for enforcing it, — first, in Equity, including the extensive subject of Specific Performance ; and then, promiscu- ously, in Law and Equity, including. In more minute detail than before, the title which the vendor must show, and the grounds of objection which may be made against it ; the dependence or inde- pendence of the mutual covenants of the parties ; actions to recover back the price paid, and defences against notes and other securities given therefor ; the claim for Use and Occupation, Damages, Pleading, Parties, Sales by order of Court, and Miscel- laneous Points of Practice. In the present edition, the latest English and American authori- ties are very copiously not only referred to, but cited, sufficiently at length to present the points which they assume to decide. F. H. October, 1868. CONTENTS. CHAPTER I. Page Nature of the Contract for a Sale and Purchase of Lands . 1-12 1. Distinction between the exeeutorj' contract, and a transfer in pursuance of it; merger, &c. ; right of property and possession, at law. 3. T) ocirmQ in equity ; whether a title passes. 4. Whether the purchaser has a descendible and devisable interest ; application of funds; revocation and republication of will, &c. Devise by a vendor, and the etfect thereof. 12. Reforming a deed, for variance from the previous contract. CHAPTER n. What Constitutes an Agreement for the Sale and Purchase of Lands.- — Distinction between a Contract AND A mere Proposal, Offer, etc 13-17 1. An offer does not bind, till accepted. 2. Contract hy corresjioiulence. 7. Contract by several connected papers. CHAPTER IIL Consideration of a Contract of Sale. — Price. . . . 18-34 1. Necessity of a consideration. 3. Nature of consideration ; need not be expressed. 4. Price ; construction of the agreement for. 10. Sufhciency of security for. 11. Mutual rights and duties of the parties in connection with the price. Offer to perform, tender of deed, &c. 24. To whom the price shall be paid ; parties jointly interested. Viii CONTENTS. CHAPTER IV. Page Interest 35-50 1. Claim of a vendor for interest. 8. Rate of interest. 9. Interest in case of reversions. 11. Claim of a vendee for interest. 17. Interest on money paid into court. 23. Claim for im/jrovements. CHAPTER V. Parties to Contracts 51-72 1. Necessity of parties ; uncertainty, &c. 5. Joint parties. 6. Particular tenants ; in tail, for life, &c. 13. Husband and wife. 19. Representatives of a party deceased ; heirs ; infants. 34. Trustees and cestuis que trust. 35. Aliens. 36 Aliens. Agents ; their authority, — it may be verbal ; construction of written pow- ers, &c. ; form of the contract ; whether it binds the agent or the principal. CHAPTER VI. Sales by Auction 73-96 1. Forms of sale ; sales by auction. 2. What is an auction; effect of a bid; separate estates; letting by auction. 12. Puffing. 18. Combination of purchasers to reduce the price. 22. Rights and duties of an auctioneer. 29. Statute of Frauds, as applied to auctions. 36. Parol evidence ; part-performance. 40. Deposit. CHAPTER VII. Statute of Frauds 97-119 1. Form of contracts for the sale and purchase of lands. -=- Statute of Frauds. 1 a. To what parties and contracts the statute applies. 2. What property is within the statute; products of the soil; growing wood, &c. 4. Other property connected with the realty. 7. Property not within the statute; products of the soil, &c. 9. Paper securities relating to land. CONTENTS. IX Paqe 10. Agreement as to boundary. 11. Whether the statute applies to a claim for the/>Mce. 14. Construction of the statute as to the form of executing a written memo- /^ randum; what is a signing; reference of different papers to each other, &c. 20. Form of pleading or reh'ing upon the statute. CHAPTER VIII. Parol License 120-137 1. Part -performance and license. 2. Nature of a license. 3. Tmjilied license. 4. Distinction between a license and a lease or an easement. 8. A license creates a personal right; by whom, and at what time, it is to be executed ; wlio are bound by it. 11. Whether and how far a license is revocable. CHAPTER IX. Part-performance 138-161 1. License and part-performance. 2. Part-performance, at law. 6. Entire performance, in equity. 6. Part-performance in equity. 7. ■ Who may avail himself of part-performance. 8-15. What acts are sufficient. 11. Proof of the terms of a parol agreement. 12. The effect of part-performance is founded on fraud. 12 a. Effect of payment. 15. Qualifications of the general rule. 16. Subsequent purchasers; notice. .17. Doctrine in the United States. 18. Compensation for expenditures, &c. CHAPTER X. Construction of Contracts 162-179 1. General rules. 8. Certainty. 12, Reservation of right to change the contract. 13. Separate instruments ; map or plan. 17. Parol evidence ; in general, eixcluded ; exceptions. 19. As, to subsequent agreement; waiver; variation, &c. 22. Of collateral circumstances. CONTENTS. CHAPTER XL Page Time of Performing Contracts 180-207 1. Time, when of the essence of the contract. 3, When not of the essence of the contract. ^ 5. Title at the time of hearing, &c., when sufficient. 10. Waiver, &c., as to time. 14. Necessity and effect of notice in reference to time. 15. Time, in connection with delivery of abstracts. 19. Deterioration from lapse of time. 20. Construction of contracts as to time. CHAPTER XII. Title of the Vendor 208-216 1. General importance of the subject; in general, the vendor is bound to convey a good title; grounds of objection to the title; mutual rights and obligations of the parties, as to conveyance of the land and payment of the price. CHAPTER Xin. Requisites of a Valid Title 217-241 1. In what a valid title consists; a cZom6{/«. Vanbuskirk 441 Boughton V. Jewell 289 Boulds V. Atkinson 363 Boults V. Mitchell 184 Bowen v. Irish 444 468 V. IMorris 71 Bower v. Cooper 165 Bowers v. Cator 304 Bowles V. Round 77 V. Woodson 112 Bowyer v. Bright 278 Box V. Stanford 118, 157 359 Boyd V. Cox 13 Boyer v. Blackwell 280 V. Porter 219 Boyes v. Liddell 283 Boy man v. Gutch 221 Boynton v. Hubbard 879 Boys V. Ancell 533 V. Ayerst 117 Bozza V. Rome 99 , 115 Brabstou v. Gibson 496 ,497 Paox Brackett v. Evans 108 Bradbyn v. Ord 407 Bradley v. Bosley 424, 427 Bradshaw v. Bennett 44, 96 V. Bradshaw 460 Bramley v. Alt 79 V. Teal 461 Branch r\ Doane 128 Brandeis v. Newstadtl 97, 118, 139 Brashier v. Gratz 181 Brawdy v. Brawdy 231 Breadalbane v. Chandos 12 Breithaupt v. Thurmond 214, 218, 244 Brereton v. Gamul 676 Brewer v. Bessinger 19 V. Church 445 Bridges v. Purcell 104 Brill V. Stiles 4, 6 Brink v. Morton 458 Brocas' case 265 Brock V. Cook 141 V. Hidy 199, 457 Brockenbrough v. Blythe 35, 36 Broderick v. Broderick 361 Brodie v. St. Paul 138 Bronson v. Cahill 18 Brook V. Jones 86 Brooke v. 285 Brookes v. Whitworth 565 Brooks V. Wheelock 156, 176, 501 Broome v. Monck 7, 8, 10 Brothers v. Brothers 403 Brown v. Bellows 111, 112 V. Budd 412 V. Frost 588 V. Gannon 268 V. Haff 422 V. Stadton 92 V. Witter 429 Browning v. Clymer 25 Bruck V. Lantz 4C0 Bryan v. Duncan 398 V. Whistler 131 Bryant i-. Busk 290 V. Hanibrick 524 Bubier v. Bubier 157 Buchanan v. Lorman 35 Buck V. Lodge 460 V. McCaughtry 313 V. Pickwell 100 Buckley v. Beardsley 99 V. Briggs 83 Buckmaster v. Grundy 624 V. Ilarrop 87, 92, 144, 151 Bulkley v. Wilford 393 Bull V. Allen 665 V. Willard 5 Bullett V. Worthington • 5 Bullin V. Fletcher 10 Bullock V. Beemiss 320 V. Bullock 237 Bumpus V. Plainer 500 Burger v. Potter 468 Burgess v. Wheate 430 XX INDEX TO CASES CITED. Page Paok Burgett V. Bissell 100 Carpenter v. Bailey 268 Burke v. Crosltie 59 V. Blandford 203 Burkett v. Randall 144 V. Brown 473 Burlington v. Boesler 181 V. Lockhart , 111 Burnell v. Brown 35, 137, 257 Carr v. Hilton 408 Burns v. Allen 15 V. Holliday 368 V. Taylor 20 V. Roach 5 Burrough v. Oakley 460 Carrington v. Roots 101 V. Skinner 93 CarroUs v. Cox 152 Burt V. Cole 85 Carson v. Lucore 30 I'. Porter 398 Carter v. Ely 184 Burton v. Johnson 487 V. Harber 493 V. Todd 44 V. Toussaint 98 Bushell V. Bushell 407 Cartwright v. Gardner 495 Butcher v. Butcher 151 Cary v. Whitney 7 V. Stapley 408 Casady v. Scallen 457 467 Butler V. Buckingham 55 Casborne v. Barsham 391 V. Haskell 380 Case V. Abeel 400 V. Hicks 404 V. Waterhouse 117 V. Miller 330 Cassamajor v. Strode 275 278 V. O'Hear 454 Cassell V. Collins 106 V. Stevens 411 Castleman v. Griffin 347 Buttemer v. Hayes 302 Cathcart v. Keirnaghan 89 Buttrick v. Holden 29 V. Robinson 282, 375, 422 432 Byassee v. Reese 105 Caton V. Caton 138, 146 148 Byers ;;. Aiken 474 Cator V. Pembroke 430 Byrd v. Odem 147 Cattell V. Corrall 309 Byrne v. Romaine 152 Cattle V. Gamble Cave V. Allen Chad wick v. Felt 105 394 153 C. V. Maden Chamberlain v. Lee 70 252 Caballero v. Slater 21 Chambers v. Griffiths 279 Cabe V. Dickson 454 V. Lecompte 118 Cadraan v. Horner 842 445 V. Livermore 371 ,444 Cain V. McGuire 105 V. Massey 450 Calcraft v. Roebuck 42 310 V. Tulane 210 Calef V. Foster 68 Champernowne v. Brooke 42, 325, 327, Calhoun v. Jester 129 407 413 Callaghan v. McCready 97 Champion v. Brown 8,52 Caller v. Hilty 121 V. Rigby 391 394 Callonel v. Briggs 573 Champlin v. Dotson 496 Calloway v. Witherspoon 369 v.Laytin323,325,327,407 ,413 Calverly v. Williams 12 343 Chandler v. Duane 126 Cameron v. Ward 150 V. Marsh 493 Camfield v. Gilbert 309 V. Spear 130 Campbell i'. Campbell 151 Chaplin v. Rogers 98 V. Carchar 183 Chapman v, Ogden 4 V. Gittings 475 Charlewood v. Bedford 116 ,303 V. Home 553 Charnley v. Hansbury 461 V. Pennsylvania 401 Chase v. Hogan 316 V. Walker 393 399 V. Weston 498 Canada v. Canada 250 Cheney v. Cook 14 Canchar Co. 183 Chesterman v. Gardner 603 Cane v. Baldwin 219 Child V. Abingdon 35 Canham v. Barry 357 V. Godolphin 464 Cann v. Cann 235, 259 590 Childress v. Hunt 581 Cannel v. McCIean 524 Chinn v. Heale 313 Cannon v. Mitchell 92 ,274 Chivall V. NichoUs 407 Capel V. Girdler 7 Christian v. Nixon 31 Capps V. Holt 438 ,439 Chubb V. Peckham 452 Capren v. Attleborough 123 Church V. Brown 233 Carleton v. Leighton 380 Church V. Farrow 170 Carlisle v. Fleming 145 154 V. Legeyt 285 INDEX TO CASES CITED. XXI Claflin V. Carpenter 105 V. Bell 336, 337 Clark V. Condit 495 V. Graliam 66 V. Hackwell 151 V. Hardgrove 255 V. Redman 215 268 V. Sears 448 V. Snelling 499 V. Underwood 358 Clarke v. Elliot 463 V. Faux 244 V. Grant 171 V. Hughes 213 V. Locke 257 V. Reins 59 V. Rochester 443 V. Wilson 459 Clary v. ]\Iarshall 467 Clason V. Bailey 111 Clayton v. Ashdown 443 V. Freet 341 V. Gregson 164 Cleavland i'. Burton 327 Clement v. Durgin 122 t'. Evans 428 Clerk V. Wright 141 144 Clifford V. Laughton 282 Clinan v. Cooke 117 148 Clinton v. McKenzie 120 126 Clitherall v. Ogilvie 374 Clowes V. Higginson 166, 440 Clute V. Jones 195 V. Robinson 254 268 Cobb V. Hall 505 Coburn 131 134 V. Ware 492 Cochrane v. Willis 339 Cocker v. Cooper 131 Coe V. Harahan 53 269 Coffey V. Coffey 84 580 Coffin V. Cooper 195 Coffman v. Huck 516 Cole V. Gill 4 Coleman v. Garsigues 65 Coles V. Brown 341 V. Trecothick 97, 117, 151, 370, 380, 398 400 450 Collard v. Groom 312 V. Sampson 223 Collett V. Thompson 575 Collier v. Coates 483 V. Jenkins 281 V. Lanier 825 ,326 V. McBean 217 CoUinge's case 554 Collins V. Smith 456 ,457 V. Vandener 467 ,468 Colson V. Thompson 24 Colt V. Beaumont 438 Colton V. Wilson 291 Combs V. Fisher 489 V. Tarlton 528 Commonwealth v. Harnden 85 Conant v. Jackson Concord Bank v. Gregg Condrey v. West Congdon v. Perry Connelly v. Pierce Conner v. Banks Connolly v. Parsons Converse v. Blumrich Conway v. Kingsworthy Conwell i\ Claypool Cook V. Bean V. Clay worth V. Cole V. Stearns Cooke V. Toombs Cooper V. Denne V. Emery V. Pena Coote V. Coote V. Mammon Coppee V. Spencer Coppin V. Fernyhough Cordage v. Cole Corder v. Morgan Cord well v. Mackrill Cornwallis's Case Cory V. Cory Cosens v. Bognor Coslake v. Till Coster V. Monroe V. Turner Costigan v. Hastier Cottington v. Fletcher Cotton V. Ward Cottrell V. Watkins Couch V. IngersoU Covell V. Moseley Coward v. Odingsale Cowell V. Lippitt Cowgill V. Oxmantown Cowley V. Watts Cowper V. Bakewell Cox V. Chamberlain V. Cox V. King V. Montgomery V. Strode Coxe V. Halsted Craddock v. Aldridge V. Cabiness V. Shirly Crafts V. Aspinwall Craig V. Kittredge Crawford v. Barkley V. Morris V. Murphy V. Paine Creamer v. Ogden Creigh v. Shatto Cripps V. Reade Crisdee v. Bolton Crockford v. Alexander Crofton V. Ormsby Crompton v. Melbourne Paqs 369 350 494 141 473 430 77 409 190 31 456 369 370 124, 131, 132 117, 118 212 289 441 76 413 103 301 151 212 593 415 369 438 165, 186 500 251 226, 328 465 195, 196 215, 290 243 333 188 588 221, 252 16, 167 40 554 150 240 352 521 681, 582 264 367 256 33 339 68 177 218 444 318 214 480 531 10 300, 415 425 XXll INDEX TO CASES CITED. PAtJE Croome v. Lediard 171, 560 Crosby v. Davis 467 V. Percy 227 V. Wadsworth 101 Crosse v. Lawrence 272 Crowden v. Austin 77 Cruise v. Cliristopher 371 Cruso V. Crisp 74 Crutclifield v. Haynes 398 Crutcliley v. Jerningliam 460 Cudbury v. Duval j 396 Cuff?;. Penn 98 Cullum V. Bank 423 Cummings v. Antes 17 Cunningham v. Fithian 350 V. Morrill 264 V. Sharp 277 Currie v. Cowles 438 Currier i-. Howard 467 Curtis V. Blair 188 V. Created 92 V. Mundy 408 V. Price 588 Curtiss V. Hoyt 137 Cutler V. Pope 105 V. Simons 461 Cutts V. Salmon 78 V. Thodey 202, 204, 258 D. Daggett V. Daggett . Dahoney v. Hall Daily v. Litchfield Dakin v. Cope Dalby v. Pullen Daly I'. Duggan V. Osborne Damon v. Granby Daniel v. Hill V. Mitchell Daniels v. Adams V. Davidson V. Lewis Darcus v. Crump Dare v. Tucker D 'Arras v. Kej^ser Darrington v. Borland Darris's case Davidson v. Ernest V. Little V. Van Pelt Davie v. Beardsham Davies v. Penton V. Tilton Davinney v. Morris Davis V. Farr V. Jones V. M'Vickers V. Nisbett V. Penton V. Rogers 211 467 457, 467 42 251, 277, 312 22 285 123 455 356 67 415 141, 420 395 289 190 581 8 508 374 269, 399 7 533 171 393 405 108 60 490 20 533 34J Paoi Davis V. Stevens, 447 V. Symonds 176, 439, 548 V. Tarwater 349, 350 V. Townsend 107, 463 Davison v. Davison 452 Dawson v. Brinkman 292 V. Yates 317 Day V. Newman 375, 452 Dean v. Comstock 244 V. Dean 465 Deane v. Rastron 371 V. Wade 19 Dearborn v. Cross 173 De Hoghton v. Morey 564, 566 Delane v. Moore 412 Deller r. Prickett 95 Dement v. Bonham 448 Den V. Baldwin 120, 134 V. McKnight 395 Dennis v. Loftin 412 V. M'Cagg 199 Denny v. Wickliffe 438 Denston v. Morris 423 De Bidder v. Schermerhorn 168 Desloge v. Pearce 128 Deven i>. Davenell 87 Deverell v. Bolton 226, 227, 231, 309 De Vesme v. De Vesme Dewar v. Maitland Dibble v. Jones Dick V. Cooper V. Donald Dickenson v. Adams Dickey v. Lyon Dill V. Shahan Dimmock v. Hallett Dixon V. Astley Doar V. Gibbes Dobell V. Hutchinson V. Stevens Dodd V. Seymour Dodge V. Clark V. Hopkins Doe V. Ashburner V. Edgar V. Lufkin V. Miller V. Sandham Doggett V. Emerson Dolittle V. Eddy Doloret v. Rothschild Dominick v. Michael Donald v. Morton Donaldson v. McRoy Donovan v. Fricker Dooley i'. Watson Doolubdass v. RamloU Doremus v. Bond Dorn V. Dunham Dorr V. Munsell Dorsey v. Packwood Dorsey v. Wayman Doty V. Wilder Dover v. Kennerly 44 226 445 84 57 151 410, 415 324 78, 347, 353, 582 257, 459 202, 455 112, 113, 280, 299 361 450, 466 457 19, 477 294 193 416 462 233 343, 355, 388 128 183 184, 256 368 77, 79 47 167, 434, 436 79 492 505 869 18 166 85, 87, 89 469 INDEX TO CASES CITED. XXlll Dowell V. Dew 459 Draper i'. Bryson 408 Drayton v. Drayton 400 Drewe v. Corp 272 V. Hanson 275 Driggs V. Dwight 522,528 Drury v. Conner 146 Dryden v. Frost 413 Dubignon i\ Loud 30 Dubois V. Bauni 183 Duckenfielcl v. Whichcott 343 Duddell V. Simpson 261 Duff V. Fisher 457 Dugan V. Cohuille 458, 461 Duke V. Shore 30 V. Worthy 94 Dula v. Cowles 317 Dumars v. Miller 525 Duraphe v. Hay ward 61 Dunbar v. Tredennick 383 Duncan v. Blair 108 V. Cafe 94 V. Tanner 524 Dunk V. Hunter 294 Dunlap V. Mitchell 55 V. Wilson 414 Dunn V. Ferguson 101 V. Moore 159 V. Salter 583 Dunnica v. Sharp 621 Durand v. Sage 448 Durant v. Bacot 340 Durham, Bishop of 662 Durrett v. Simpson 332 Dutch V. Mott 195 Duvals V. Ross 353 Dwight )'. Cutler 213 Dyer v. Hargrave 35 Dykes v. Blake 279 E. Eames v. Savage 480 Earl V. Baxter 290 V. Halsey 454 Early v. Garrett 483 East V. Alford 439 V. Hiester 14 Eastburn v. Wheeler 143 Eastern v. Hawkes 433 Easterwood v. Linton 340 Eaton V. Sanxter 10, 400 409 V. Whitaker 55, 139, 141, 147 151 Edgarton v. Peckham 102 Edgell V. Day 92 Edman v. Allen 207 Edwards v. Burt 381 383 V. Handley 445 V. Harvey 548 V. Hiiickwar 90 V. Hodding 94 V. M'Leay 280 V. Meyrick 392, 394 Edwards v. Wickwar Egerton v. Jones Eichelberger v. Barnitz Ekins V. Treshara Elder v. Elder Eliason v. Henshaw Elliot V. Edwards Elliott V. Baleora Ellis V. Burden V. Ellis V. Hoskins Elworthy v. Billing Ely V. Stewart Emery v. Grocock V. Wase Emmerson v. Heelis Emmons v. Kiger Engel V. Fitch English V. Benedict Eno V. Woodworth Enraught v. Fitzgerald Ensign i'. Kellogg Erskine v. Plummer Erwin v. Saunders Esdaile v. Stephenson Espy L'. Anderson Evans v. Brown V. Kingsbury V. Llewellyn V. Prothero V. Roberts Everett v. Towns Everson v. Kirtland Ewer V. Myrick Eyston v. Symonds Eyton V. Dicken Fagan v. Davison V. Newson Fain v. Ayers Fairfax v. Muse Falkner v. Guild Fall I'. McMurdy Falls V. Carpenter Falmouth v. Thomas Fane v. Spencer Farebrother v. Simmons Farley i-'. Vaughn Farmers, &c. v. Hunt Farwell v. Rogers Fashott V. Reed Faure v. Martin Feemster v. May Fellowes v. Gwydyr Fellows V. Fellows Fenlason v. Rackliff Fenner v. Tucker Fontiman v. Smith Fcnton v. Browne Feret v. Hill Ferguson v. Franklin Page 236 287 400 361 11 13 229, 480 164 178, 215 159 27 582 346 218, 236 57, 60, 450, 453 76, 87, 101 296, 477 623 369 21 37 432, 435 105 199 37 214, 215, 269 374 60, 332 327 97 106 441 269 493 255 221 30, 213, 215, 526 358 289 77 605 274 197 102 227 89 505 209 28, 206 35 258 214, 208, 489 356 395 155 81 131, 134 40, 299, 590 357 582 XXIV INDEX TO CASES CITED. Page Ferguson v. Tadman 205 Feme v. Bullock 151 Ferron v. Sturgeon 164 Ferry v. Williams 476 Fessenden v. Musse}' 114 Field V. AVoodmancy 264 Fielder v. Higginson 550 Fildes V. Hooker 228, 233 297 Finch V. Newnham 418 Fingal v. Ross 151, 161 Finley v. Lynch 277 Finucane v. Kearney 151 Fisher v. Kay 489 V. Salmon 490 V. Wilson 141 V. Worrall 352 Fisk V. Lacher 404 Fiske V. M'Gregory 91 Fitch V. Casey 209 V. Fitch 382 Fitchburg v. Boston 129 Fitzgerald v. Fauconberge 414 Fitzhugh V. Wilcox 368 Fitzpatrick v. Featherstone 350 Flagg V. Mann 411 Fleetwood v. Green 258 283 Fleming v. Gilbert 199 503 V. Harrison 215 Fletcher v. Button 209 V. Carter 294 Flight V. Bolland 63, 441 443 V. Booth 281 FKnt V. Woodin 85 Flower v. Hartopp 287 309 Fludyer i'. Cocker 37,40 256 Flureau v. Thornhill 623 Foley V. AVyeth 3 Folsom V. Moore 120 124 Foot I'. Newhaven 127 Forbes v. Deniston 407 V. Hall 407 V. Peacock 550 Ford V. Hitchcock 369 Fordyce v. Ford 181, 182, 272 ,280 Forster v. Hale 148 V. Rowland 117 Fort V. Bunch 408 V. Clarke 224 V. New Haven 127 Fosgate v. Herkimer 5 Foster v. Deacon 205 V. Jared 493 Fowle I'. Freeman 112 Fox V. Birch 464 V. Harding 521 V. Mackreth 364 ,405 Foxlowe V. Amcoats 204 Frame v. Dawson 153 France v. France 459 Franchot v. Leach 173 Frank v. Harrington 105 Frank v. Purrington 605 Franklin v. Brownlow 285 Frear v. Hardenburgh 19, 101 ,109 Page Frederick v. Campbell 330 360 Freebody v. Perry 464 Freer v. Hesse 234, 274 557 French v. Bent 22 521 Friess v. Rider 199 Fripp V. Fripp 372 Frisbee v. Hoffnagle 491 Frobock v. Edwards 554 Frost V. Brunson 283 V. Raymond 267 Frostburg v. Thistle 145 Frye v. Shepler 153 Fulke V. Fulke 19 Fuller V. Bennett 414 V. Dame 397 V. Hovey 447 V. Hubbard 26, 32, 319 482 V. Wilson 355 Funk V. M'Keoun 48 Fyler v. Givens 99 G. Gabriel v. Smith 292 Gaby V. Driver 45,93 Gaither v. Hetrick 483 Gale V. Archer 184 V. Nixon 110, 505 Galloway v. Barr 554 Gans V. Renshaw 222, 232, 504 Garbrand v. Allen 570 Gardiner v. Corson 248 Gardner 200 V. Armstrong 65 V. Ogden 435 Garley v. Price 209, 244 Garlock v. Lane 495 Garnett v. Macon 182 375 V. Yoe 29 187 Garret v. Malone 109 Garrett v. Garrett 395 Garrow v. Brown 367 Garth v. Ward 416 Gaskell v. Durdin 418 Gaugmere 367 Gay V. Hancock 265 Gazley v. Price 266 268 Gehr v. Hagerman 317 Gell V. Watson 47 George v. Pritchard 230 V. Richardson 371 German v. Machin 157 Gerrish v, Towne 177 436 Getchell v. Jewett 111 Gibbes v. Cobb 408 Gibbs V. Blackwell 467 Gibert r. Peteler 354 Gibson v. Clarke 285 459 V. D'Este 354 V. Filer 3 V. Jeyes 394 V. Lair 407 V. Patterson 194 INDEX TO CASES CITED. XXV Gibson v. Spurrier Giddings v. Eastman Gilbert v. Trustees Gilchrist v. Stevenson Gill V. Bicknell Gillespie v. Battle 118, I'. Moon Gillett V. Maynard Gilman ;.■. Schwartz Gilmore v. Johnston V. Morgan V. Wilbur V. Wilson Gimell i\ Adams Givens v. Calder 62, 112, 118, Glascock V. Eand Glazebrook v. Woodrow Glenn v. Thistle Goddard v. Divoll I'. Mitchell Goelth V. White Gonpertz Goodall V. Pickford Gooday v. The C. & S. V. R.R. Goodell V. Field 326, Goodhue v. Barnwell Goodisson v. Nunn Goodtitle v. Way Goodwin v. Clarke V. Lynn V. Lyon Goodwyn v. Lister Goom V. Afflalo V. Clarke V. Sims V. Trevelyan Gordon v. Clarke Gore V. Gibson V. McBrayer Gorham v. Reeves Gosbell V. Archer Goss V. Nugent V. Thompson Gourlay v. Somerset Gowland v. De Faria Graham v. Graham V. Hendren V. Nesmith V. Oliver V. Yeates Grandy v. Kittredge Granger v. Worms Grant v. Coombs V. Craigmiles V. Johnson V. Munt Grantland v. Wight ' 243, Gray v. Dougherty Gray v. Gutteridge V. Handkinson Green v. Armstrong V. Courtland V. Green V. Lowes Page 279 400 393 463 408 70 139 493 341 320 25 458 337 130 130 68 145 152 494 248 499 395 483 316 284 584 Co. 425 339 341 145 248 293 592 243 189 63 111 180 592 584 585 16 180 369 104 489, 490 90 529 173 301 508, 510 452, 453 370, 380 525 334 272 278 144 28 299 332, 333 98, 119 246, 264 276, 362 273, 329 250 93 491 100, 125 447 482, 485 592 Green v. IMcDonald 496 V. Pulsford 238 V. Winter 403 Greene v. Cook 399 r. Reynolds 249 Greenhill v. Greenhill 7 Greenleaf r. Cook 498 Greenlee v. Greenlee 176 Greenlow v. King 397 Greenwood v. Ligon 214 ,268 Greer v. Caldwell 341 Gregg V. Von Phul 198 Gregor v. Duncan 374 Gregory v. Mighell 304 V. Wilson 233 Gregson v. Riddle 181 Greville v. Da Costa 481 Griffin v. Coffey 149 V. Reynolds 520 Griffith V. Depew 320, 350 ,430 V. Eby 347 V. Heaton 47 V. Spratlcy 373 Griggs IK Woodriif 32, 347 427 Griswold v. Smith 327 Growsock v. Smith 43 Guest V. Homfrey 181 ,273 Guier v. Kelley 395 Guitard v. Stoddard 176 Gunn V. Brantley 399 Gunnis v. Erhart 90,91 Gunter v. Halsey 141 Gwillim V. Stone 296 Guynne v. Heaton 373 H. Hackenbury !>. Carlisle 391 Hackney v. Jones 32 Haden v. Weare 325 Haight V. Childs 463 Haldeman v. Chambers 454 457 Hale V. Grove 51 Hall V. Betty 226, 247 260 V. Hall 118, 141 148 V. Hallet 391 V. Hardy 59 V. Laver 258 V. Smith 298, 409 Hallett V. Collins 379 V. Wylie 293 Hallewell v. Morrell 478 Halsey v. Grant 278 Halsmith v. Castay 97 Ham I'. Goodrich 152 Hamburgh v. Edsall 81 Hamilton v. Buckraaster 225 V. Grant 376 V. Hamilton 82 V. Royse 409 Ilammatt v. Emerson 345, 359 Hammer v. M'Eldowney 440 Hammersley v. De Biel 2 Hamsmitb v. Espy 216 XXVI INDEX TO CASES CITED. Hanbury v. Litchfield Hansbrough v. Peck Hanson v. Lake Hardacre v. Stewart Hardingbam v. Nicliolls Hardwicke v. Sandys V. Vernon Hargreaves v. Rotbwell Harkness v. Remington Harnett v. Yielding Harrington v. Hoggart V. Wheeler Harris v. Brown V. Miller V. Pepperell Harrison v. Coppard V. Deramus V. Talbot V. Town V. Wheeler Harrow v. Johnson Hart V. Brand Hartley v. Pehall Hartly v. Wilkinson Haryey v. Graham V. Mountague V. Phillips V. Young Hasbrouck v. Tappen Hasker v. Sutton Hatch V. Cobb V. Garza Hatcher v. Hatcher Hatton V. Gray Haughery v. Lee Havens v. Bush Hawkes v. Eastern Hawkins v. Holmes V. Hunt V. Obeen Hawley v. Cramer Haydon v. Bell Hayes v. Camyll V. Richardson Haynes v. Crutchfield Hays V. Hall V. Richardson Hayward v. Ellis Hazal V. Dunham Hazelrig v. Hutson Hazelton v. Putnam Head v. Egerton Heaphy v. Hill Hearn v. Tomlin Hearne v. Tenant Heaton v. Ferris Heckard v. Sayre Hedges v. Kerr Heeney v. Heeney Heirn v. Mill Helvenstein v. Higgason Hemmer v. Cooper Hennessey v. Andrews Hepburn v. Auld Paoe Paoe 298 Hepburn v. Dunlap 44 , 65, 197, 255 316 Herbert's case 410 554 Herbert v. Odlin 340 92 Heriot's, &c. v. Gibson 168 577 Herndon v. Venable 623 200 Heme v. Meers 371 388 Herrick v. Grow 64 414 Hertford v. Boore 254 445 Hertzog v. Hertzog 525 441 Heth V. Wooldridge 176 46 Heuer v. Rutkowski 455 181, 182, 189 Hewit 405 100 Hewitt V. Isham 128 104 Hewlins v. Shipman 127, 131 840 Heyer v. Deaves 583 549 Heyward's Case 128 438 Hick V. Phillips 446 336, 337 Hickman v. Grimes 422 450 Higdon V. Thomas 56, 111, 112 182 Higgins V. Shaw 418 141 Higginson v. Clowes 86, 92, 172 550 Hill V. Buckley 274 212 V. Fisher 187 305 V. Fiske 249 302 V. Hobart 269, 484 418 V. Meyers 99 290 V. Ressegien 62, 209 362 V. Spalding 108 605 Hillary v. Waller 236 222 Hilton V. Barrow 464 249, 458 Hinde v. Whitehouse 87 351 Hinder v. Streeter 555 109, 151, 157 Hine v. Dodd 407, 408, 414 442, 443 Hipmell v. Knight 183, 200, 204, 206 293 Hitchcock V. Giddings 491 264 Hitchens v. Nonques 463 308 Hite V. Kier 218 116 Hobson V. Bell 197, 206 458 Hocker v. Gentry 100, 118 63 Hodges 168 402 Hodges V. King 531 232 V. Litchfield 527, 575 182, 183 Hodsdon v. Smith 493 131 Hoe V. Simmons 454 83 Hoggart V. Scott 254 422, 501 Holland v. Eyre 13 127 V. Hoyt 108 397 Hollingshead v. McKenzie 118 77 Hollis V. Whiteing 304 439 Holman v. Crane 21 120 V. Vallego 469 577 Holmes v. Holmes 187 203 Holt V. Clemmons 61 510 V. Payne 61 189 Homer v. Purser 428 126 Hone V. WoodrufiT 165 189, 197 Hood V. Bowman 145, 151, 153 215 V. Fahnestock 428 124 V. Huff" 35 170, 409 Hook V. Nebeker 30 492 Hooker v. Pynchon 435, 467 346 Hopcraft v. Hickman 453 412 Hope V. Ellis 295 195, 276, 312 Hopkins v. Grazebrook 622, 527 INDEX TO CASES CITED. XXVll Hopkins i;. Lee 524 1. V. M'Laren 417 Page V. Yowell 624 Icely V. Grew 537 Hopson V. Trevor 539 Ide I'. Stanton 111 Hord V. Bowman 145 Inge I'. Birmingham 230 Horford v. Wilson 28 I'. Lippinpwell 175 Horn V. Denton 581 Ingersoll v. Horton 505 Horniblow v. Shirley 273 Innis t'. ]\rCrummin 335 Hough I'. Hunt 375 Irions v. Cook 67 V. Richardson 343, 345, 346, 348, Irvin V. Gregory 458 355, 360, 362 V. Smith 420 Houghtailing v. Houghtaili ng 120, 134 Irwin V. Harris 403 House V. Dexter 468 Ishmael v. Parker 24 Howard v. Castle 77 Isler V. Egger 492 V. Hopkins 536 Ives V. Bank 320 V. Richeson 6 Ivory V. Murphy 111 112 V. Shaw 507 V. Witham 498 Howe V. Dewing 87 J. V. Palmer 98 Howell V. Baker 394 Jackson v. Catlin 87 Howes V. Barker 12 V. Curtwright 151 Howland v. Leach 475, 503 V. Delacroix 294 V. Norris 44,276 V. Given 408 Howorth V. Deem 410 V. Gray 149 Hubbard v. Gray 505 V. Keisselbrach 294 V. Smith 411 V. Ligon 183 Huddleston v. Briscoe 13, 15, 16 V. Moncrief 294 Hudson V. Bartram 199 V. Roe 577 V. Hudson 400 V. Warren 582 ,588 V. Swift 484 Jacobs V. Peterborough 148 , 156 Hughes 583 James v. Shore 76 V. Garth 576 Jamieson v. Millemann 130 V. Parke 295 Janaway 64 V. Wynne 562 Jane Hunter 296 Hull V. Cunningham 329, 333 January v. Martin 39 ,372 V. Peer 469 Jarmain v. Egelstone 562 V. Sturdivant 435, 448 Jarrett v. Johnson 170 V. Vaughan 510, 511 Jarvis v. Palmer 359 Hulme V. Heygate 9 Jenison v. Hapgood 395 Humber 214 Jenkes v. White 105 Hume V. Pocock 222, 255, 356 Jenkins v. Eldredge 391 ,409 Humphries v. Horn 48 V. Frink 83 Hundley v. Lyons 35, 336 V. Hogg 79 Hunt V. Coe 145 V. Parkinson 592 V. Frost 78 V. Spooner 65 V. Gregg 87 Jenness v. Parker 498 V. Livermore 488, 489 Jennings v. Broughton 348 V. Eobinson 6 V. Hopton 284 V. Rousmaniere 324 V. Moore 413 V. Rowland 398 V. Selleck 416 V. Silk 482 Jerrard v. Saunders 412 V. Thorn 53 Jervis v. Smith 29, 118 ,145 Hunter v. Geridy 350 Jervoise v. Clarke 582 V. O'Neil 214 V. Northumberland 224 Hutchings v. Moore 265 Jeudwine v. Alcock 287 Hutchins v. King 100 John V. Jenkins 293 Huntington v. Rogers 444 Johns V. Reardon 412 Hurst V. Means 257 Johnson v. Collins 32,53 ,215 Hussey v. Roquemore 174 V. Craig 99 Hutchings v. 5loore 336 V. Evans 481 Hutchinson v. Brown 347, 370 V. Jackson 28 V. Morley 352 V. Johnson 331 481 Hyde v. Wroughton 286 V. Jones 489 XXVIU INDEX TO CASES CITED. Johnson v. JI'Gruder^ V. Medlicott V. Nott I'. Roberts V. Ronald Johnston v. Beard V. Glancy V. Johnston Joliflfe V. Hite Jolland V. Stainbridge Jones V. Barkley V. Belt V. Caswell V. Edney V. Flint .V. Gardner V. Lewis V. Mudd V. Nanney V. Peterman V. Powles V. Price V. Robbins V. Shackleford V. Smith V. Taylor V. Thomas V. Wood Jonghaus v. McCormick Jordan v. Pollock V. Sawkins Judd V. Ensign Judge V. Wilkins Judson V. Wass Junction v. Harpold K. Kane v. Hood Kearney v. Taylor Keating v. Price Keats V. Rector Keegan v. Williams ] Keen v. Stuckely Kellogg V. Kellogg Kellums v. Richardson Kelly V. Bradford V. Dutch Church Kemeys v. Proctor Kempshall v. Stone Kennedy v. Kennedy V. Lee V. Panama Kester v. Rockel Ketchum v. Evertson Ketchum v. Stout Kilburn v. Ritchie Killick V. Flexney Kinard v. Hiers Kindley v. Gray Kine v. Balfe King V. Bardeau V. Hamilton Page 65, 67, 70, 458 368 380 90 109 473 153, 157 468 329 407 475 501 81, 84, 389 299 106 220, 249 561 37, 39 74, 87, 92 157 412 194 191 439 410 220, 351 392 5 221 408 303 24 372 25, 246, 268 98 243, 248 85 199 141 13 451 6 140 212, 456, 521 521 87 249 398 16 323 35,38 267 271 6 397 391 253 305 313 425 Pasb King V. Hamlet 383 V. Hanna 109 V. Horndon 131 V. King 258, 551 V. Morford 194, 407, 445 V. Smith 145 V. Turner 64 V. Wilson 208 Kingsley v. Young 219 Kingston v. Preston 262 lunney v. Osborne 605 V. Watts 521 Kinsman i\ Kinsman 419 Kirby ?•. Harrison 4, 184 Kirkman v. Kenyon 469 Kirtland v. Pounsett 510 Kitchen v. Herring 166, 449 Klyce V. Broyles 457 Knapp V. Lee 497 KnatchbuU v. Grueber 210, 280, 426 Knight V. Crockford 111 V. Knight 141 V. N.E. Worsted Co. 263 Knotts V. Geiger 408 Knowles v. Shapleigh 609 Koger V. Lane 255 343, Lacon v. Mertin Lacy V. Hall Latferty v. Whitesides Laight V. Pell Laird v. Pim Lakin v. Ames Lamas v. Bayly Lambert v. Bainton Lampman v. Cochran Landsdowne v. Landsdowne Lane i\ Ready V. Tidhall Lang V. Gale Langford v. Pitt Langstroth v. Toulmin Lanier v. Hill Lanyon v. Toogood Lathrop v. Hoyt Lau V. Mumma Laurens v. Lucas Laverty v. Hall V. Moore Lavery v. Turley Lawes v. Bennett V. Gibson Lawless v. Mansfield Lawrence v. Chase V. Dole 209, Lawrenson v. Butler Laythourp v. Bryant Leach v. MuUett Leak v. Morrice Lear v. Chouleau Leas V. Eidson 151 261 3 585 476, 518 123 104 405 534 323 457 255 206 9 485 345, 428 242 149 3 218 ISO- 407 140 8 294 393 618 243, 268 443 113, 228 312 161 444, 449 329, 341 INDEX TO CASES CITED. XXIX Page Lechmere r. Brasier 586 Ledford v. Ferrell 107 Lee & Hemingway 23 V. Dean 351, 5*26 V. Lee 7'J V. Mahoney 114 V. Munn 46, 93 Leggett V. Edwards 102 Leland's Appeal 402 Lenehan v. McCabe 413, 414 Le Neve v. Le Neve 407 Lennon v. Napper 432 Leonard ik Leonard 346, 367 V. Vredenburg 98 Le Koy f. Beard 68 Lesley's case 404 Leslie v. Tompson 276 Lessee v. Dekeyne 91 Lester v. Bartlett 107 V. Mahan 371 Lesturgeom v. Martin 284 Levi V. Levi 81 Levy V. Lindo 202 V. Merrill 99 V. Pendergrass 75 Lewers v. Shaftesbury 439 Lewin v. Guest 251, 274 Lewis V. Clifton 308 V. Herndon 291 V. Lechmere 186, 452 V. Loxhaui 553 V. INIcLemore 343, 344 V. McMillen 316 Liggins V. Inge 120, 123, 125, 126, 131 Lightfoot V. Heron 376 Lincoln v. Arcedeckne 240 Lindsay v. Lynch 304, 465 Lingle v. Clemens ' 151 Linscott V. Buck 7 V. M'Intire 139 Litchfield v. Cudworth 400 Little V. Paddleford 214, 268 V. Pearson 513 Livingston v. Peru 357, 566 Lloyd I). CoUett 95, 181, 200 V. Crispe 233 V. Farrell 266 V. Jewell 498 V. Johnes 587 V. Lloyd 27 Lock V. Furzee 523 Lockey v. Lockey 141 Logan V. M'Ginnis 449 V. Wienholt 435 London Bridge 237 V. Richmond 447 London v. Winter 442 Long V. Allen 495 V. Collier 221, 311, 561 V. Israel 555 Loomis V. Loomis 399 Lord V. Stephens 205, 449 V. Underdunck 62 Lorillard )•. Silver 166 Lovcring v. Buck, 341 Low V. Alarshall 243 Lowder i\ Nodiag 491 Lowe V. Manners 286 Lowell V. Mutual 430 Lowes V. Lush 236 Lowry r. DufFerin 112 Lowther v. Carlton 408 i". Carril 303 v. Lowther 70 Loyd r. Griffith 224 V. Malone 81 Lubiu V. Lightbody 285 Lucas V. Heaton 520 Luce V. Cooley 120 Luckett V. AVilliamson 144, 195, 456, 458 Ludlow V. Grayall 430 Lufkin V. Nunn 416 Lull V. Stone 29 Limipkin i>. Jolmson 141 Lumsden v. Fraser 10 Lutweller v. Lumell 203 Lj'man v. United Ins. Co. 11 V. United States Bank 31 Lyndsay v. Lynch 153 Lynn v. Lynn 16 Lyon 583 V. Annable 319 V. Jones 400 Lysney v. Selby 361 M. Maberly v. Eobins 220 Mackrell v. Hunt 581 Macubin v. Clarkson 160 Maddeford v. Austurick 372 Maddox v. Maddox 413 Madeira v. Hopkins 19, 581 Magennis v. Fallon 362 Magoffin I'. Holt 183 Mahaiwe v. Culver 218 Mahana v. Blunt 118 145 Main v. Melbourn 151 Majoribanks v. Hovenden 413 414 Malawn v. Ammon 525 Maling v. Hill 235 Malins v. Brown 149 V. Freeman 334 Mallory v. Mallory 440 Manley v. Crenionini 24 Mann v. Betterly 367 370 V. Pearson 330 Manning 42 V. Brown 494 Mannsell v. Wliite 3 Mapps V. Sharpe 82 Marcey v. Darling 137 Margravine v. Noel 258, 283 551 Markham v. Stevenson 28 Marlow v. Marlow 243 XXX INDEX TO CASES CITED. Page Marlow v. Smith 547 Marsh 405 Marsh v. Hyde 98 V. Wyckoff 193, 483 Marshall v. Ferguson 105 V. Haney 524 Marston v. Roe 7, 8, 65 Martin v. McCormick 481 V. Mitchell 57, 60, 376, 443 V. Pycroft 104 V. Kaulett 81 V. Smith ■ 474, 478 Maryland v. Schroeder 148 Mason v. Armitage 326, 446 V. Ciiambers 264 V. Crosby 68 V. Martin 399, 402 V. Wallace 191, 193 Massey v. M'lhvain 141 Massie v. Watts 435 Matthews v. Dana 284 V. Demeritt 412 Mattock V. Kinglake 476 Maure v. HefiTerman 71 Maxwell v. Wallace 107 Mayo V. Purcell 455 Mays V. Swope 256 M'Aninch v. Laughlin 324 M'Burney v. Wellman 144 M'Cann v. Janes 60 McCants v. Bee 395 McClane v. White 431 McClure v. McClure 139 McComb V. Wright 76, 87, 283, 485 McConnel v. Dunlap 526 M' Cotter v. New York 14 McCracken v. Sanders 48 McCraw v. Gwin 61 McCray v. McCray 463 McCrea v. Purmort 111 McCreight v. Aiken 367 M'Cue V. Smith 140 M'Culloch V. Dawson 486, 487 M'Cullougli V. M'CuUough 469 McDaniel v. Grace 325 M'Derraed (;. M'Cartland 64 McDonald v. Fithian 350 McDowell V. Simras 80 McElderry v. Shipley 339 McFadgan v. Eisensmidt 289 McFarland v. Matins 18 McFerrin v. Taylor 343 M'Garvey v. Hall 432 McGehee v. Gindrat 408 V. Jones 211 McKay v. Carrington 314 M'Kechine v. Sterhng 7 McKee v. Barley 569 V. Brandon 524 V. Phillips 151 McKibbin v. Brown 449 McKinney v. Pinchard 371, 370 McKnight v. Dunlop 520 Page M'Kowen v. McDonald 159 M'Koy V. Chiles 550 McLane v. Rush 264 McLaughlan v. Shepherd 409 M'Lelland v. Creswell 330 McMahan v. Davis 24 McMechan v. Griffing 408, 412 McMeekin v. Edmund 389 McMuUen v. Riley 103 M'Nally v. Shobe 47 McNamara v. Arthur 691 V. M'llhenny 625 V. Williams 668 McNeal v. Jones 152 McQueen v. Chouteau 6 V. Farquhar 218, 274 Mc Williams v. Long 447, 457 Mead v. Fox 247, 503 V. Orrery 412 V. Randolph 449 Meadows v. Meadows 87, 89, 116 Meclielen v. Wallace 104 Meehan v. Williams 411 Meek v. Waltlihall 467 Meredith v. Macoss 66 V. Naish 151 Merithew v. Andrews . 407 Merkle v. Wehrheim 604 Merry v. Abney 411 Mesnard v. Aldridge 92 Metcalfe v. Dallam 219 V. Fowler 676 V. Pulvertoft 417 Metropolitan v. Godfrey 162 Meux V. Maltby 419 Meynell v. Surtees 14, 15 Middleton v. Dubuque 413 V. Wilson 440 Midland v. Westcomb 651 Miles V. Langley 411 Mill V. Hill 411 Millar ;;. Campbell 78 Milldam v. Hovey 263 Miller v. Argyle 256 V. Auburn 131 V. Blandist 151 V. Collyer 14 V. Corey 7 V. Irvine 99 V. Pelletier 87 V. Sherry 417 Mllligan v. Cooke 298 Mills V. Heeney 583 V. Oddy 95, 228 V. Van Voorhies 465 Millspaugh v. McBride 686 Milner v. Mills 7, 8 M lines V. Grey 453 Milnor v. Willard 183, 189 Milward v. Thanet 182 Minchin v. Nance 42 Minet v. Emerick 505 Minor 287 INDEX TO CASES CITED. XXXI Minor v. Edwards Minton v. Kirkwood Minturn r. Allen V. Seymour Mitchell i*. Hayne V. Wilson Mix V. Ellsworth Moale V. Buchanan Mobley v. Keys Moggridge v. Jones Molineux Molony v. Kernan Monck r. Huskisson Moncrieff v. Goldsborough Money penny v. Bristow Montesquieu v. Sandys Montgomery v. Dorion Moore v. Anders V. Beasley V. Blake V. Burrows r. Edwards V. Marrable V. M'Allister V. Rawson V. Small V. Smith Morange v. Morris More V. Mayhew V. Sniedburgh Moreland v. Lemasters Morgan V. Herrick V. Holford V. Morgan V. Scott V. Shaw V. Smith Morley v. Cook Morphett v. Jones Morris v. Emmett V. Hogle V. Hoyt V. Kearsley V. McNeil V. Timmins V. Wliitcher Morrison v. N'Leod V. Peay Morse v. Copeland V. Merest Morss V. Elmendorf 249, Mortimer v. Bell V. Mortlock V. Orchard Mortlock V. BuUer 195, Morton v. Dean V. liidgeway Moseley v. Hide Moss V. Matthews Mountford v. Scott Moyl V. Home Page 200 217 75 442 92 188 487 116, 146 489 495 405 416 37 77 479 395 66 5 141 180 467, 468 306 302 139 123, 131 158 318 278 407 254, 257 147 405 458, 467, 468 167 63, 567 191 48, 284, 463 492 258 305 329, 335 418 448, 457 292 592 308 5 368 444 125 23 333, 334, 423, 424 78 465 148, 305, 465 277, 281, 323, 439, 444, 446 88 48 238 95, 196, 284 414 161 Mullin V. Bloomer 270, 318 456 Mumfbrd v. Whitney 120, 126, 131 134 Mundortri'. Howard 1 461 Mundy v. Culver 532 ^lundy V. Joliffe 148 Munson i'. Sears 53 Murdock's case 400 jMurphy i'. Lockwood 606 V. Mariand 3 I'. M'Vicker 266 V. Officer 360 Murray i'. Currie 6?.0 V. Lylburn 417 V. Palmer 47 Muskett V. Hill 129 Musselman i\ Eshleman 401 Myers 396 V. Aikman 489 V. Byerly 159 Mynn v. Jolifie 32 N. Nantz V. Lobar 40 Nason i'. Woodward 820 Natchez v. Miner 500 National Fire Ins. Co. v. Loomis 78, 584 Neatherly v. Ripley 463 Neelson v. Sanboroe 98 Nelson v. Aldridge 92 V. Carrington 329 V. Matthews 329 336 V. Nelson 102, 387 V. Worrall 150 Nesbit V. Moore 437 Nettleston v. Sikes 105, 132 Newall I'. Smith 554 Newby v. Hinshaw 56 V. Paynter 229 Newhara v. May 249, 354 423 Newman v. Chapman 417 V. Rogers 186 Newsome v. Graham 480 Newton v. Swazey 118, 141 Nicholl V. Chambers 259 Nichols V. Johnson 116 Nicliolson V. Mifflin 66 Nickerson v. Saunders 23 Nicloson V. Wordsworth 551 Nicol V. Carr 456 Nixon V. Hyserott 267 Nodine v. Greenfield 183 195 Noland v. Pope 562 Nolen V. Gwynn 412 Norfolk V. Worthy 336 Norton v. Hathaway 351 V. Herron 71 Notson ?;. Barrett 309 Nott V. Hill 380 Nuini V. Fabian 306 Nunnaliy r. White 53 Nurse v. Barns 522 Nutting V. Dickinson 108 XXXll INDEX TO CASES CITED. Page o. Oatman v. Walker 82, 519 O'Donghue i\ Jones 489 Ogilvie V. Foljambe 91, 111, 227 Ogle V. M'Dowell 525 Oldfield V. Stevenson 502 Oliver v. Court 85, 386 Olmstead v. Miles 100 O'Neill 397 O'Reilly i\ Thompson 144 153 Orme v. Broughton 46, 528 Ormond v. Anderson 14 O'Kourke v. Percival 299 Osbaldeston v. Askew 234 Osborne v. Bremar 330 Osgood V. Franklin 374 Osterman v. Baldwin 4 Otis V. Hall 125 Ovey V. Leighton 577 Owen V. Davies 442 ?'. Frink 23 469 V. Thomas 97 Owens V. Hall 469 wings V. Baldwin 209 214 Oxenham v. Esdaile 430 Packard v. Eichardson 99 Page V. Adam 225, 819 V. Becker 51 V. Cole 3 V. Hughes 183, 191 Paine v. Meller 201 Painter v. Henderson 395, 400 Palmer v. Temple 538 Parham v. Randolph 812, 500 Park V. Joliuson 21, 59, 248, 451, 469 Parker v. Frith 184 V. Grant 364 V. Parker 462 V. Parmelee 209, 245, 267, 268 V. Perkins 26, 246 V. Staniland 105 V. Wells 151 Parkhurst v. Van Cortlandt 2, 111, 157, 161 Parks V. Brooks 428 V. Jackson 420 Parret v. Shaubhut 364 Parrill v. M'ffinley 112 458 Parry v. Frame 298 Parsons v. Camp 121 Partridge i'. Usborne 585 Pasley v. Freeman 362 Patching v. Dubbins 592 V. Yeaton 468 Paterson v. Long 231 565 Paton V. Rogers 195 ,278 284 Patterson v. Martz 183 V. Stoddard 507 Fatten V. England 499 Patton V. M'Clure Paul V. Squibb V. Brown Pawle V. Gunn Payne v. Atterbury V. Cave Peacock v. Evans Pearce v. Pearce PearsoU v. Frazer Pearson ;;. Williams Redder Peers v. Barnett Pell V. Northliampton Pember v. Matliers Pendergast v. Meserve Penn v. Baltimore V. Hayward Pennock v. Ela V. Tilford Pcnnock's Appeal Penns^ivania v. Delaware Perkins v. Rice V. Wright Perring v. Brooke Perry v. Fitzhugh V. Rice V. Wheeler Peters v. McKeon V. Phillips Peterson v. Ay res V. Dickey V. Orr Pettus V. Smith Philadelphia v. Lehigh Phillips V. Bucks V. Feilding V. Hooker V. Hunnewell V. Longstreth V. Soule V. Thompson Phippen v. Stickney Phyfe V. Warden Piatt V. Oliver Pickering v. Pickering Pidcock i\ Bishop Pierce v. Harrington V. Nichols Pierrepont v. Barnard Pike V. Butler V. Morey Pile V. Shannon Pillage V. Armitage Pilmore v. Hood Pinckard v. Pinckard V. Woods Pincker v. Curteis Pinckney v. Hagadorn Pipkin V. James Pitcher v. Livingston Pitchers v. Edney Pitman v. Poor Pitt V. Petway Plummer v. Owens Page 157 409 474 141 430 75 380, 383 585 203 22 405 255 438, 589 301 28 484 485 448 353 80 431 48, 352 445 293 129 26, 486 187 521 436 520 23 6 429 469 356 245, 574 428 99 174 454 105, 145, 159 81,82 360 81 444 364 55 196, 254 100, 125, 129 300 148 343 363 361 462 356 182, 199 86,87 25, 257 521 96 126 400 166 INDEX TO CASES CITED. XXXIII Poag V. Sandifer Pollard V. Kinner Pomeroy v. Drury Pomroy v. Stevens Poole V. Hill V. Slieroai 7 58 Sites I . Keller 151 449 Slack V. Mc Lagan 499 457 Slater V. Maxwell 681 2154 Slatlci r. Meek 138 124 Slingl jir r. Eekel 84 120, 121, 124 Sloo V Law 199 120 Sloper I'. Fish 212 218, 548 2150, 28'J Slosson i\ Beadle 22 291 Small V. Attwood 46 320, 430, 569 404 Smart ?'. Harding 104 214,231- Smith V. Arnold 88, 111, 115 408 r. Babcock 343. 345, 354 182, 196, 205 ?'. Baker 410 77 V. Birmingham 125 472 V. Boston 454 239, 260, 368, V. Brailsford 119 444, 450, 451 V. Burnam 182 576 V. Burnham 194 343, 359, 441 V. Carney 422 197 V. Chaney 25 469 V. Clarke 77, 79 54, 63, 144 V. Death 212, 218 547 V. Dolman 194 214 V. Eldridge 611 222 V. Finch 463 435 V. Gas Co. 125 206 V. Greeley 339 27 V. Greenlee Si, 82 369 V. Henry 488 524 r. Hibbard m 341 V. Jackson 286 521 V. Lavin 438 223 i\ Lawrence 444, 447 407, 413 V. Lloyd 460 396 1-. Low 408 90 ?•. M'Cluskey 242, 481 412 i\ M'Veigli 440, 463 219 r. Patton 26, 4M 227 r. Phillips 416 40 289, 557 V. Richards 345 311 ?•. Robertson 219 327, 342 346, 358 V. Simons 120 177 V. Smith 34, 125, 146, 151, S36, 49 469 113, 303 V. Stewart 611,515 362 V. Surman loe , 111 430, 505 r. Tombs 302 141 V. Underdunck 142 143, 145 364, 446 V. Wooding 507, 515 288, 593 r. Wyley 97 309, 428 Smoot 1'. Rea 408 469, 476 456 Smiill r. Jones 82,84 185, 186 Snow len V. Wilas 129, 131 585 Society v. Butler 444 560 V. Young 66 151 Sohier v. Williams 210 144, 14() Soles ('. Hickman 462 107 Sollee r. Croft 403 86,87 Somerville v. Triieman 112 140, 191 109 Sorrel r. Carpenter 417 236 Soule r. Heerman 4313 483 Soute r r. Drake 227 426 Southby V. Ilutt 241 289, 2'Jl XXXVl INDEX TO CASES CITED. South-eastern, &c. v. Knott Southerim v. Mendum Sowards v. Pritcliett Spalding v. Couzelman Sparks r. Hess Sjieaknian v. rorepaugli Spear v. Hancock Sperling v. Trevor Spiller V. Westlake Spindler v. Atkinson Spoflbrd V. Hobbs Spratt V. Jeffery Spurrier v. Elderton r. Hancock v. Mayoss Squire v. Tod Staats V. Ten Eyck Staines v. Morris V. Shore Standifer r. Davis Standley i\ Hemmington Stanley v. Robinson Stansfield v. Johnson Stanton v. Tattersall Stapilton r. Stapilton Stapylton r. Scott Starin v. New comb Starnes v. Allison State V. Gaillard V. M'Cauley State of Illinois v. Delafield Stead r. Nelson Stearns v. Hall Stebbins v. Eddy Stedwell r. Anderson Steed I'. Whitaker SteJnhaur v. Witman Step V. Alkire Stephens v. Benson V. ]\Iedina r. Winn Stephenson v. Harrison Stevens r. Adamson V. Guppy V. Hunt V. Eyerson V. Stevens V. Wheeler Stevenson r. Buxton r. jMaxwell Stewart r. AUiston 2-. iJoughty V. Garviia ?'. Lang V. Stewart V. Stokes Stiles V. Sherman Stillman v. Young StillweU V. Wilkins Stingle V. Hawkins St. John V. Benc'lict V. Bishop St. Mary's i: Stockton Stockett V. Taylor Page 442 66 584, 588 153, 463 163 217, 221, 407 20U 224 493 358, 398, 400 67,68 228, 231 92, 96, 561 183, 186, 188, 401 47 485, 575 521 554 78,80 474 478 346 87 338 443 212, 326 99, 151 456 345 143 32 58 174 332, 337 48, 326, 338, 340 414 500 314 121, 129 471 99 524 301 291, 463 268 189 124, 134, 135 463 439 35, 36, 39, 44 279, 310 100 114 4 324 448 491 6 370, 372 486 446 8 454 408 Stokes V. Moore Stone V. Pratt V. Stevens V. The State Story I'. Windsor Stout r. Jackson Stoutenburgh v. Tompkins Stow ('. Robinson ?'. Russell Stowell i\ Robinson St. Paul r. Brown Strafltbrd i\ Bosworth Stranks v. St. John Streeter v. Henley Stuart V. The L. N. W. R.R. Co b6, 183, 270, Stubblefield i\ Beasely Sturdevant r. Pike Stutenberg v. Tompkins Sugg V. Stowe Sullivant r. Franklin Sutphen v. Fowler Suydam v. Jones Swan V. Cox V. Drury Swartwout v. Burr Sweeney v. Miller V. Sampson Sweetland v. Smith Sweetzer v. Hummell Swihart v. Cline Switzer r. Skiles Sykes v. Giles Symonds v. Ball Symondsou v. Tweed Taft V. Kessel Tallmade r. Wallis Tanner v. Elworthy V. Smith Tarwater v. Davis Tasker v. Small Tate V. Williamson Tajdor i\ Barker i\ Brown V. Fleet ?'. Green V. Longworth V. Martindale] V. Patrick V. Perry V. Ross V. Salmon r. Stibbert V. Waters Teall i\ Auty Tebbott V. Voules Tempest v. Fitzgerald Temple v. Brown Tenny v. Childs Terrell v. Kirksey Pagb 116 444, 451 268 85 407, 577 520 442 468 189, 197 202 433, 458 13, 162 297 499 290, 425 83 387 442 438, 469 128 552 500 490 245, 249 63 105 490 38 474 458 81, 474 85 88 148 269, 309 499 397 315 484 564, 568 371, 372 409 203, 283, 551 362 56 484 228, 310 367 488 99 387 301, 415, 416 120 106 10 98 230, 297 294 272 INDEX TO CASES CITED. XXXVll Paqe Terry r. Duntze 264 Tevis i: Richardson 422 Tewksbury r. Latilin 2(3'J Tharin v. Fickling 243, 244 Thayer r. l^)ck 103 V. Turner 673 V. Viles 108 Thellusson r. Wooflford 9 The Matteawan v. Beutley 350 Thomas v. Brown 438 V. Dering 278, 281 V. Powell 590 V. Sorell 132 Thompson v. Allen 469 V. Davis 84 r. Dulles 188, 215 r. Gould 156 V. Guthrie 522 V. Hallett 402 V. Norton 205 V. Richards 209 V. Scott 145 V. Tod 118, 142 Thomson v. Miles 319 Thorn v. Thorn 99 Thornton v. Henry 141 V. Kempster 111 ?». Wynian 573 Thorp V. M'Cullum 400 Thrasher r. Pinkard 268 Threlkeld r. Fitzhugh 520 Thresh v. Rake 202 Thurston v. Frankhu College 29 Thwaites 405 Tibbs V. Barker GO, 141 r. Morris 317 Tiernan v. Roland 29, 31, 32, 60, 181, 193 Tilley v. Thomas 448 Tillotson V. Grapes Tillman r. Fuller Tilton V. Tilton Tindal v. Cobham Tindall v. Conover Tinney v. Asliley Tison V. Smith Todd V. Caldwell V. Gee V. Hoggart V. Simmons Tohler v. Folsom Tomkins i\ White Tomlin v. M' Chord Tomlinson v. Savage Tompkins v. Hyatt Toppin V. Lomas Torr r. Torr Torrey v. Buck Toulmin v. Steere Tourville r. Naish Towle V. Leavitt Town }•. Need ham Towne v. D'Heinrick Towiiend r. Toker Townsund v. Champernowne 489 293 11, 141 400 269 266, 477, 485, 573 490 501 45, 273, 275 485 243 ■99 300 209, 454 79, 80, 274 316 107 469 444 413 407 77 147 511 566 549 Townsend r. Corning r. Lewis Townshend v. Champernowne V. Stangroom r. Townshend Trammell r. Tramiiiell Traphagen v. Traphagen Trask ?-. Vinson Traver ?'. Halstead Travers v. Crane Ti-efusis V. Clinton Tremaine v. Lining Trent r. Hanning Trevanian i\ Mosse Trevelyan v. White Trimble v. Boothby Tripp r. Cook Troughton ?-. Troughton Troup ?>. Wood Trower v. Newcome Trull V. Eastman Trustees v. Robinson Tucker r. Clarke V. Woods Tufts V. Tufts Tunno r. Flood Tunstall v. Trappes Turner v. Harvey r. Marriott Tuthill V. Babcock V. Rogers Twining i\ Morrice Twistleton v. Griffith Twogood i'. Stephens Tyler v. Beversham 1-. Young Tyree v. Williams u. 172, Page 69 448 196 173 41 124 140 494 268 468 42 215 212 576 419 420 421 243 389 310 382 21 422 281 404 5^0 417 372 437 349 237 77 393 318 311 490 75, 235, 277 402, 81, 13, 24, 110, 118, 413, 326, 364, 20, Underbill v. Horwood 372 Usher (•. Livermore 447 Valentine v. Central 165 Van i\ Corpe 172 Vanada's i'. Hopkins 215 Vancouver i: Bliss 286, 504, 547, 552 Vandenburgh v. Van Bergen 129 Vanderhewill v. Storrs 515 Van Eps v. Schenectady 30, 266, 268, 271 Vanhorn r. Frick 66 Van Schaick /•. Winne ■ 574 Van Waggoner v. M'Ewen 500 Van Zandt v. New York 189 Vaughn r. Cusliing 53 Vawser v. Jeftery 10 Veazie v. Williams 78, 79, 80, 85 Veeder v. Fonda 329 Verlander v. Codd 113 XXXVIU INDEX TO CASES CITED. Vennum v. Babcock 458 Watkins v. Stockett Vernon v. Stepliens 200 Watrous v. Chalker V. Vernon 7 Watson V. Inman Vickers v. Vickers 453 V. Mahan Vicksburgh v. Hamilton 13 V. Marston Viele V. Tbe Troy, (&c. 198, 450 V. Reid Vielee v. Osgood 104 Watts V. Kenney Vigers v. Pike 347, 349 V. Sheppard Violet V. Patton 99 V. Waddle Vol! V. Smith 151 Wear v. Parish Voorhees v. De Meyer I'Ji, 195, 272 277 Webb V. Austen Vowles I'. Craig 336 V. Bettel V. Sugar w. Wagner v. Cohen 581 Wain V. Warlters 98 Wainscott v. Silvers 3 Wainwright v. Read 91, 333 Wakeman v. Rutland 668 Walker v. Advocate-General 76 V. Barnes 591 V. Brungard 400 V. Constable 87, 93, 96, 267, 529 V. Emerson 448 V. Johnson 427 V. Moore 528 V. Smalwood 417 Wall V. Bright 10 V. Northumberland 665 V. Stubbs • 342 Waller v. Hendon 304 Walling V. Kinnard 30, 353, 528 Wallinger v. Hilbert 284 Wallis r. Harrison 130 V. Sarel 42 Wallwynn r. Lee 412, 420 Walter v. Maunde 231, 301 Walters v. Miller 317 V. Morgan 303 V. Pyman 286 Walworth v. Anderson 656 Ward V. Arredondo 435 V. Garnions 290 V. Moore 9 V. Packard 364 Warder r. Jeffery 206 Waring v. Hoggart 299 Warneford v. Thompson 224 Warner v. Bacon 528 V. Daniels 426 r. Hattield 488 Warren v. Richardson 232 Warrick v. Warrick 414 Warwick v. Bruce 105 Wason V. Waring 361 Wasson v. English 404 Waters v. Bailey 397 r. Groom 405 ;•. Mattingly 343, 361 r. Travis 191, 456, 465 Watkins v. Gilkerson 107 V. Rogers 269 Pags 359 66 447 452, 468 327 203 60 175 48, 208, 234, 237, 454 341 252 471 397 V. The Direct London 433 V. The L. & P. RaUway Co. 424 Weber v. Marshall 457, 463 Webster v. Doran 536 V. Ela 51 Weddall v. Nixon 223 Wedgewood v. Adams 328 Weeds v. Bristow Weelhers Weems v. Brewer Weisman v. Smith Welibrd v. Beazely Weller v. Weyand Wells V. Bannister V. Smith V. Wells Weutworth v. Goodwin V. Wentworth Wesley v. Thomas West V. Emmons Westall V. Austin AVesterman v. Means Western v. Perrin i\ Russell Westervelt v. Matheson Wetmore v. White Whaley v. Bagenal ?'. Eliot Wheatley v. Slade Wheaton v. Wheaton Wheeler v. Collier V. Rowell V. Smith V. Wright Whelpdale v. Cookson Whiclicote v. Lawrence Whipple V. Foot Whitbread v. Brockhurst V. Jordan . Whitchurch v. Bevis Whitcomb v. Foley White V. Bartlett V. Butcher V. Caddon V. Damon i\ Flora V. Foijambe V. Hooper V. Palmer V. Proctor 226 400 314 467 111 467 137 31, 185, 246 180, 191. 501 ■ 498 153, 155 359 475, 572 253 183, 187 554 113, 281,372 . 314 141, 147 144 332 277 325, 341 77,88 120 379 228 400 388, 404 104 140 408 144 284 137, 451 83 191, 432 274 374 372 227, 281, 555 468 367 87 INDEX TO CASES CITED. XXXIX White V. Tompkins V. AVi Ilia 111 s "Wliiteliurst r. 15oyd Whiteside v. Jennings 19, G4, Whitman ?■. Weston Whitmarsh ;•. Walker 105, Whitmel r. Fanel Whitney v. New Haven Whittemore r. Gibbs Whorwood ;•. Simpson Wible V. Wible Wigg V. Wigg Wiggins V. IjOtA 94, V. McGimpsey 489, Wigglesworth v. Steers Wilber r. Pain Wilbur r. How Wilcox r. Bcllners 286, V. Marshall Wildbahn v. Robidoux Wilde V. Foot 93, V. Torte 240, Wildgoose v. Wevland 414, Wiley V. Kobert ' 99, Wilkinson v. lowkes r. Scott Wilks v. Davis 22, Willan V. Willan William v. NeviU Williams v. Edwards 185, 261, V. First Presbyterian V. Glenton 87, V. Llewellyn V. Eogers 35, 36, 45, ■ V. Sliaw V. Williams V. Woodruff Williamson r. Seaber Willis V. Jernegan WiUiston i: Williston 20, 141, Wills V. Stradling 158, Wilmot t'. Wilkinson Wilsey r. Dennis 218, 238, Wilson V. Allen V. Clapham V. Fidler V. Getty V. Kearse V. "W^ilson Wilton V. Harwood Winch r. Winchester 91, 172, Winckham r. Hawker Winne v. Reynolds 215, 270, 271, Winter i: Brock well V. Proderick I'. Jones Winterbottom v. Ingham Winton v. Sherman V. Spring Wiswall V. McGown Witherspoon )•. Anderson Withy V. Cottle Witter V. liiscoe 288, 284, 202^ 184, Page 23 341 174 524 340 132 59 425 106 446 153 407 401 49G 369 141 83 555 294 171 208 251 415 114 386 139 458 323 151 552 401 548 403 321 464 179 583 405 373 197 305 213 267 550 554 363 641 63 229 156 271 129 550 137 131 31 512, 515 472 318 423 50 284 209 Witters r. Baird Wolf V. Willitts Woll'e r. Ilauver Wood V. Beriial V. Goodridgo V. Hewett V. Lake I'. Lanibirth V. Lcadbitter V. Manley V. Mann r. Midgeley V. Perry V. White Woodark v. Bennet Woodbury v. Parsliley Woodcock V. Bennet Woodman i'. Freeman Woodrofle v. Titterton Woods V. Hall V. Kirk Wood's Executor r. Hudson Woodward r. Clark V. Picket V. Seeley Woollam V. Hearn Worrall v. Munn Worseley v. De Mattos Worsley v. Scarborough Worthy v. Johnson Wright V. Begg i\ Bond J'. Dannah V. Howard V. Le. Claire V. Schneider V. Stavert V. Tinsley V. Wilson V. Young Wynn v. Morgan Wj'nne v. Griffith Wyville v. Bishop of Exeter 131, 132, 125, 425, 426, 428, 97, 414, 181, 448, 458, 456, 95, 563, Page 215 197 22 200 70 137 121 287 184 136 586 152 564 564 249 136 442 528 284 343 208 81 410 99 120 172 111 407 417 395 15 283 387 280 469 143 103 488 275 458 254 589 553 Yates V. Martin Yeates r. Prior Yeoman r. Ellison York V. Mackenzie Yost r. Devault Young V. Clerk r. Daniels V. Lillard V. McClung Younge v. Duncombe Younger i\ Welch Yourt V. Hopkins 107 843, 347, 348 294 405 437 444 444, 447, 448, 458 243 655 460 463, 476, 505 85 Zickafosse v. Hulick Zimmerman ??. Wcngert 106 155 THE LAW YENDOP.S AND PURCHASEllS. CHAPTER I. NATURE OF THE CONTRACT FOR A SALE AND PURCHASE OF LANDS. 1. Distinction between the executory con- tract, and a transfer in pursuance of it ; merger, &c. ; right of property and possession, at law. 3. Doctrine in equity ; ■whether a title passes. 4. Whether the purchaser has a descendible and devisable interest; application of funds; revocation and republication of will, iS:c. De- vise by a vendor, and the effect thereof. 12. Reforming a deed, for variance from the previous contract. 1. The law uniformly recognizes the obvious distinction between the contract of pwxhase and sale,(a?) which is a mere executory (a) An agreement, on good considera- tion, to devise real estate has been lield valid. Mundorff v. Howard, 4 Md. 459 ; Wright V. Tinsley, 30 Mis. 389. See Rad- nor V. Shafto, 11 Ves. 447. A., being in treaty for the purchase of land offered for sale by B., was informed by C. that he had a claim to it. C. also inserted in a newspaper an advertisement, cautioning all persons against purchasing ; and caused to be recorded a bond of B., binding him- self not to revoke a will, in which he had devised the land to the wife of C, which bond was also shown to A. before he had concluded the purchase. Held, these cir- cumstances were sufficient to constitute A. a purchaser with notice, notwithstand- ing, having seen the will, he had discov- ered a misrecital of it in the bond, and was advised that he might safely purchase. Argenbright v. Campbell, 3 lien. & M. 144. The parol contract of a decedent, to give a certain portion of his estate, in consideration of services rendered, even if capable of being enforced, can only be, when clearly proved by direct and posi- tive evidence, and when its terms are definite and certain. Graham v. Graham, 34 Penn. 475. A promise to give the plaintiff, in consideration of services, "as much as to any relation on earth," is too indefinite to be enforced. Remarks by an intestate, to the effect that one of his sons should have his farm, that it woukl pay him for the trouble he had taken for his father, and other things to the same effect, prove a recognition by the intestate of services rendered by the son, for which compensation was to be given, and are evidence of an intention to devise the farm to the son ; but tliey do not prove a contract upon tlie faith of which the ser- vices were performed, and by which the intestate was bound to devise the farm to the son. llaynor v. Robinson, 36 Barb. 128. The following late English case estab- LAW OF VENDORS AND PURCHASERS. [chap. I. agreement, giving to each party a valid claim against the other, but neither transferring nor vesting any present title ; and an actual lishes an important distinction as to the terms of conmiunication which are neces- sar}' and siifRcient to create this somewhat anomalous and unusual liability : — The guardians of a lady refused their assent to a proposed marriage, except on condition of a marriage settlement. The proposed husband thereupon applied to an uncle, of whom lie had expectations, who replied by letter, tliat lie luvd made his will, and given his nepliew a large estate. The guardians not being satisfied, they re- newed the application, to which the uncle replied by letter, that his will was made, and he was confident he should never alter it to his nephew's disadvantage, but that he would not put any part of his property out of his power. This answer was communicated by the intended hus- band to the guardians, and the marriage agreed to. The uncle afterwards altered his will, leaving nothing to the nephew ; and, after his death, this suit was brought against his estate. Held, the facts did not prove a contract to leave the estate mentioned in the letters to the nepliew. Lord Chancellor Cran worth says (in sub- stance) : " The appellant paid his addresses to his cousin ; he had an uncle, an old bachelor, with a large property ; he him- self had but little money ; the guardians of the young lady were opposed to the marriage, unless lie could make a good settlement in her tavor ; and under these circumstances, having received kindnesses from his uncle, and believing that his uncle was willing to befriend him, he ad- dresses a letter to tlie uncle, who says, in answer, that he is glad to see that his nephew, the appellant, is about to be well married, and that he has left his Tipperary property to the appellant. That was a very vague answer ; and the trustees and guardians wished for a more specific dec- laration. We have not the letter com- municating this wish, but we have the answer, — ' I shall never settle any part of my property out of my power so long as I exist.' Nothing can be clearer, or more strongly expressed, than this reso- lution. I think the attempt afterwards to spell out of this letter a representation which is to be construed into an engage- ment or a contract is altogether unsatis- factory. To say that in tliis same letter the party binds liimself to make a settle- ment of his property, when he merely says that the Tipperary estates will come into his nephew's possession after his death, ' unless some unforeseen occur- rence should tiike place,' does seem to me to be an attempt to put a construction on words which their natural meaning will by no means warrant. Tlien Mr. Eyre, the uncle, says, ' My will has been made for some time ; ' a fact which we must assume to be true, and which is itself an answer to the application to make at that time a settlement in the nephew's favor. Then the uncle goes on : ' I am confident I shall never alter it to j'our disadvantage ; and I repeat, that my Tip- perary estates will come to you at my death, unless some unforeseen occurrence should take place.' He says, in substance, ' I am now on good terms with you ; I will not bind myself to do what the trus- tees ask ; I have made my will, and that will remain as it is, unless some unfore- seen occurrence should happen.' The marriage, with the consent of the guar- dians, took place ; they thinking, as tiiey say, that the letter was equivalent to a contract. The trustees objected to the marriage ; they discussed the youth of the lady, and other circumstances ; and the marriage did not in fact take place till nearly twelve months after the letter. If they relied on this letter as a contract, I think that common honesty required that they should distinctly have brought that circumstance to the uncle's knowledge. They should have said : ' What is it that you mean ? Is this intended as a promise which is to be binding upon you, or is it merely an expression of kindness and good-will ? ' They do nothing of the sort ; but, after some time, they proceed to make a settlement. The young man covenants that he will settle this property, if he gets it ; and they accept that covenant. Of course, all tliat he could do was to under- take to settle whatever he might after- wards receive under this letter ; he did so covenant, and they took that covenant." The Lord Chancellor proceeds to dis- tinguish this case from that of Hammersley V. De Biel, 12 CI. & F. 45, upon the ground that there was a contract to leave a sum of money, whereas here was nothing more than a representation on which the parties were said to have acted. He remarks (p. 11): "Suppose that this gentleman had, on the eve of the marriage, said to the appellant, ' You may safely enter into this marriage ; for I have executed a deed by which I engage to leave you such and such estates.' If, on the faith of that rep- resentation, the nephew had married, the micle would then have made a represen- CHAP. I.] NATURE OF THE CONTRACT FOR A SALE, ETC. conveyance of the property between grantor and grantee.^(a) Pay- ment of the price, and a written agreement to convey, give to the ^ See Laii v. Mumma, 43 Penn. 2G7. tation on which he knew tliat tlie nephew would act ; and it would be a fraud on the nephew, or on those who dealt with him, and came after him, to set up as an answer that that was a mere intention which he had entertained at the time. The uncle would, in fact, have made a contract, and he would be compelled to make it good ; for he would have made a representation with a view to induce others to act upon it, and on the faith of it they had, at the moment, acted. There is no middle term, no tertium quid, between a representation so made to be etfective for such a purpose and being etfective for it, and a contract : they are identical." Mannsell v. White, 31 Eng. L. & Eq. 1, 9. (a) Bond to convey, on payment of a certain sum. The obligee built a house on the land, without any agreement for its removal, and paid part of the price ; and, to protect the property from his creditors, for an inadequate consideration assigned the bond to his son. In the mean time, some of the creditors had attached tlie house, and caused it to be sold as personal property ; and, with full notice of the facts, took a conveyance of the land from the obligor. Held, before the assignment of the bond, the obligee had no attachable interest in the land ; that tlie house was real estate ; and that the son, on tender of tlie balance due, and demanding per- formance of the bond, might maintain a bill in equity against the obligor and the creditors for specific performance. Mur- phy V. Marland, 8 Cusli. 575. An agreement stated the sale of certain lands ; and the vendor covenanted for himself, Iiis heirs, &c., to convey so mucli of them, as he held the legal title of, to the vendee, his heirs, &c., by a certain time, with general warranty, and to procure a third person to convey such parts as he was legally entitled to, to the vendee, his heirs, &c., by a certain subsequent time, with special warranty. Held, only an ordinary bond for a conveyance, which passed a mere equitable estate. Lafferty V. Whitesides, 1 Swan (Tenn.), 123. A. contracted with B., that, with the money of A., B. should purchase and sell lands in the name of A., and, as a com- pensation for his services in buying and selling the lands, should have half the profits to be derived from the operation. Held, B. had no title to or interest in the land, but only an interest in the profits. Porter v. Ewing, 24 111. 617. A vendor who parts with the posses- sion, but retains the legal title, is not obliged to i>ursue tlie remedy to obtain the money or the land, i)oiiite(l out by the (Iowa) Code, §§ 20',t4-o, 2tir.^i, which are probably but declaratory of tlie common law. lie can recover possession without tendering back money or notes, as the mere recovery of possession does not set- tle the parties' rights in other respects. Page V. Cole, 6 Clarke, 153. An occupant of land, which he has agreed to purchase, by a written contract which contains no stipulation that he may have possession until tiie price is paid, is a mere tenant at will, and cannot sustain an action for an injm-y to the reversion, although he subsequently becomes the owner in tee. Foley v. Wyeth, 2 Allen, 131. Where there is a parol purchase of real estate, and a portion of the purchase- money paid, but not such part perform- ance as will take the case out of the Statute of Frauds, a loss, as by burning, will fall upon the vendor ; and the purchaser nuiy recover back the purchase-mone}' ad- vanced. Blew V. INlcClelland, 2y Mis. 304. Where land and buildings are sold, the vendor to possess and use them till the vendee sell, and then to give them up in as good repair as when purciiased ; if damage to an amount equal to the pur- chase-money due occurs to the premises while so held by the vendor, through Ins negligence or misconduct, tiie vendee is entitled to an account with the vendor, and to have his title quieted, \\\w\\ an otler to pay what may be tbund dne, without alleging a tender of the purchase-money. Gibson v. EUer, 13 Ind. 124. And the vendor must rebuild, or the vendee may deduct from the jiurchase- money the cost of rebuilding. Ibid. But where, after an executed j)aro! sale, the vendor retains possession for a given time, so far as regards his liability for the destruction or injury of the property, he is a tenant, and not liable for an acci- dental fire. Wainscott v. Silvers, 13 Ind. 4'J7. An informal instrument, called by the parties an agreement, expressed to be in consideration of future covenants to be done and performed, and with no present sum in hand paid, containing no \vords of inheritance, and \vitliout the formal ac- knowledgment of a deed, was held to be 4 LAW OF VENDORS AND PURCHASERS. [CHAP. I. vendee an equitable title, which may be enforced in equity against the vendor or a purchaser from him with notice ; but at law such title cannot prevail against the legal title. ^(a) So a vendor and vendee are said not to stand in the relation of mortgagee and mort- gagor? (h) Though it has been held, that, where lands are sold by a bond or covenant, conditioned to make title upon payment of the 1 Brill V. Stiles, 35 111. 305. 2 Kirby v. Harrison, 2 Ohio, n.s. 32G. an executory contract only, and not a present conveyance, though it contained words of present assurance, " doth and hath by tliese presents granted, bargained, sold, and for ever quitclaim," &c. Stewart V. Lang, 37 Penn. 20L A mere declaration in writing by a vendor of a vendee's purchase of land, that the vendee had paid the money for it, and that the vendor intended to make deeds when prepared to do so, is not a document purporting to convey title ; and accordingly will constitute neither a link in " a consecutive chain of transfer," nor " color of title," within the meaning of the fifteenth section of the Statute of Limita- tions of Texas. Osterman r. Baldwin, Leg. LiteL (Pa.), U.S. S.C. Black. Action upon the following writing, signed by both parties : " This certifies that I have sold to " the plaintiif " about five acres of land, more or less, being the same which I bought of him, in considera- tion of the same sum which I paid him for tlie same, with interest from the time I purchased the same till I paid for it (supposed about six months), with the expense of the deed, also the taxes for one year." Held, an executory contract for the sale of the land. Atwood v. Cobb, 16 Pick. 23 L A widow joined with all but one of the heirs of her husband in a bond to sell their respective interests in her husband's real estate at public auction, she to receive for her life estate whatever might belong to her in accordance with the usual custom of calculating the value of life estates. On the 13th of May, a proposal to pur- chase was made at an auction, by the bid of a certain sum ; but no written agree- ment was executed, nor was there any memorandum made by the auctioneer suflicient to bind the parties under the Statute of Frauds ; and the other heir had not then agreed to sell. Four days after- wards, the widow committed suicide. On the 9th of June, all the heirs convej^ed to the auction purchaser, dating the deed May 13. The plaintifi", as administrator of the widow, brings tliis action for her share of the proceeds of sale against one of the heirs, who had received one portion of such proceeds for himself, and another as guardian of a minor heir. Held, the action could not be maintained. Dewey, J., says (in substance) : " She did not perform the act stipulated in the bond, as the consideration for her receiving her proper share of the proceeds of the sale. This claim cannot, therefore, be enforced by her administrator as a claim arising upon a specific performance of her con- tract. The only valid contract was that of the 9th of June. The antedating of the deed, as of 13th May, had no legal opera- tion to make it take effect on that day. The date written in a deed is of no eflect. It is the time of the actual execution that fixes the rights under it. On the 9th of June, a change of the interest of the heirs at law had occurred. Previous to the decease of Anna Carter, she held the land subject to her right of dower. After that event, they held in themselves an unin- cumbered title. ■ There was on 9th June no incumbrance of a widow's right of dower. During her lifetime, no money was paid or tendered to her. Upon her death, all her interest in the bond was gone. She had parted with nothing by any conveyance of hers ; and no i-emain- ing interest of hers could have been con- veyed by her administrator under any authority to carry into effect her contracts, inasmuch as her interest was personal, and terminated at her death." Fletcher V. Carter, 10 Cush. 81, 84. (o) So the title of the obligor in a bond for conveyance is not affected by a deed tendered by him, which was never accepted nor delivered. Cole v. Gill, 14 Iowa, .527. (b) A. conveyed an equity of redemp- tion to B. The attorney of B. gave A. a memorandum in writing, that he would procure from B. an agreement to sell A. the premises on payment of a specified sum, but no such agreement was executed. Held, not a mortgage, but, at most, an agreement to sell. Chapman v. Ogden, 30 111. 515. CHAP. I.] NATURE OF THE CONTRACT FOR A SALE, ETC. 6 purchase-money, and expressly reserving the title to the vendor, till such payment, the effect is the same as that of a conveyance and mortgage back, — the vendor retains a lien for the price, even as against subsequent purchasers or incumbrancers with notice.^ So it is held, in general, that, as agreements for the sale of lands are executory contracts, the acceptance of a deed, in pursuance of a contract, is primd facie an execution of the agreement, which thenceforth becomes void, and of no further effect ; ^ except, as is said, in case of a covenant, which does not look to, nor is con- nected with, the title, possession, quantity, or emblements of the land.^(a) Thus a covenant, in an agreement to sell and convey land, that it shall be " free and clear of all incumbrances," is merged in the subsequent deed ; and the grantee can claim only under the covenant in such deed, even though the agreement and the deed are made by different parties."^ So, upon an agreement for the sale of land, the price to be paid " as soon as it can be ascertained that the title to the premises is good and unincum- bered," the purchaser is bound to examine the title before taking his deed, and cannot afterwards claim under the agreement.^ So the purchaser of the interest of a party, under a mere executory contract, is presumed to buy with notice of, and subject to, the legal title.^ So, under a naked contract of purchase, which is silent on the subject of possession, the purchaser acquires no right to possession or entry ; and, if he enter in pursuance of a parol 1 Moore v. Anders, 14 Ark. G28. * Carr v. Roach, 2 Duer, 20. 2 Bull V. Willard, 9 Barb. 641 ; Jones 5 ibid. V. Wood, 16 Penn. 25. 6 Fosgate v. The Herkimer, &c., 12 3 Ibid. Barb. 352. • (a) Upon the same principle, a bond or lands is held not merged in the deeds of written agreement for conveyance is held conveyance ; and, if one of the parties to merge all prior parol agreements and agrees to satisfy and discharge a mortgage negotiations. Bullett v. Worthington, 3 on his land, in addition to the execution Md. Ch. 99 ; Parkhurst v. Van Cortlandt, and delivery of the deeil, tlie.-^e arc sepa- 1 Jolins. Ch. 273. But where a vendor rate and distinct acts, and performance as pointed out to the agent of the vendee two to one will neither extinguish nor dis- fractions, wlien showing him a tract of- charge his obligations as to tlie other, fered for sale, represented tliem as valu- Bennett v. Abrams, 41 Barb. 619. able, and gave a written description of A vendor agreed to convey land by a the improvements on the fractions to be deed to be given immediately ; tlie ven- submitted to the vendee, and the agent dee, that the vendor should remain in understood that the whole tract was of- possession some months. The deed was fered, and possession of the fractions, with given ; and the plaintiff bought the i)rem- the tract, was delivered to the vendee, but ises of tlie vendee, having notice of these they were omitted in the deed ; it was facts, and brought suit for jiossession. held, that the fractions were included in Held, the agreement remained in force, the sale. Barraque v. Siter, 4 Eng. 545. and the action could not be maintained. An oral contract for the exchange of Morris i'. Whitchcr, 20 N.Y. (6 Smith), 41. LAW OF VENDORS AND PURCHASERS. [chap. I. license from the vendor, the possession is an interest distinct from that acquired under the contract, and is subject to sale on exe- cution.^ 2. Possession under an executory contract will not render the contract valid, if otherwise void for illegality. Thus where a colonist, having a grant of land in Texas, contracted to sell it before the expiration of six years after receiving his grant, and to make a fidl conveyance as soon as the law would permit, and the purchaser went into possession at the time of the contract, and made valuable improvements, such contract being contrary to law ; held, it was void, and could not be enforced.2(a) 3. But whether an agreement for the sale of land is executed, a present conveyance passing title, or executory, contemplating a further assurance, depends upon the intention of the parties, as collected from the whole instrument.^ And, in equity, a contract of sale of land is not merely executory, but the vendee becomes the otvner, with reference to all benefits and losses, (J) and the vendor 1 Kellogg V. Kellogg, 6 Barb. 116. 2 Hunt V. Robinson, 1 Tex. 748. (a) The claim for improvements upon public lands often turns upon the distinc- tion in tlie text. A person cannot be called a settler or possessor in (jood faith, entitled to compen- sation for improvements, who, on being informed of the claim of another to land occupied by him, does not have his claim surveyed by a proper surveyor. Sartain V. Hamilton, 12 Tex. 219. Nor wlien, without showing any de- fect in the title of liis vendor, he elects to be dispossessed, rather than pay the pur- chase-money. Allen V. Mitchell, 13 Tex. 373. Where persons make improvements, with notice of a prior grant, they do it at their peril. Howard v. Richeson, 13 Tex. 553. One entering under a bond for a deed does not hold adversely, under color of title ; and ought not to be allowed the value of his improvements, as a set-ofF to damages. Kilburn v. Ritchie, 2 Cal. 145. A tenant, who disclaims tlie title of his landlord, cannot, if defeated, have improvements. McQueen v. Chouteau, 20 Mis. 222. A claim for permanent improvements, made under an adverse claim of title by a judgment, must follow tlie disposi- tion of that title. Stillman v. Young, 16 lU. 318. 3 Bortz V. Bortz, 48 Penn. 382. A purchase from the government, by lawful entry in the proper office, and a certificate of purchase, give to tiie buyer the same equitable title, as in case of sale by an individual owner in fee, and the same rules determine the validity of the purchase in both cases. Brill v. Stiles, 35 111. 305. (}>) So it has been held, that payment and entry vest even a legal title in the party who holds a bond for titles, which lie may enforce by an action at law. Hence, equity will not interpose by in- junction, though tlie obligor has threat- ened to sell the property, or entered and carried off the crops. Peterson v. Orr, 12 Geo. 464. The following case illus- trates the question of title growing out of the contract of sale and purchase, and the effect of part-performance upon such title : Action against a town under the Re- vised Statutes (of Massachusetts), c. 18, § 7, for the destruction of a house to prevent the spread of a fire ; brought by one who had no other title than a parol contract for a deed when he should have paid tlie purchase-money. The purchase-money not having been paid, held, the action did not lie, the plaintiff not being an owner within the terms of the act. Bigelow, J., says : " He then had neither a legal nor equitable title to the premises. He had CHAP. I.] NATURE OF THE CONTRACT FOR A SALE, ETC. 7 is seised in trust for him ; which trust attaches to the land, and binds all who claim under the vendor with notice.^ More cs})C- cially where a vendor gave a bond for a conveyance, clear of all incumbrances, u{)on payment of notes, payal)le at various dates, and the vendee took immediate possession ; held, the vendee was liable for taxes assessed upon the land since his possession, and could not require a deed with covenants against the lien of such taxes.^ So an article of agreement, under seal, for the purchase of land, is not a mere chose in action, but gives an interest in the land, wliich is within the provisions of the (Pa.) recording acts, and which may be bound by judgment. So, where the vendee, after paying part of the purchase-money, and being in possession, assigns all his right and interest in the contract to a creditor as collateral security; such assignment is but a mortgage, and, if not duly recorded, will be postponed to subsequent judgments,'^(a) 4. Upon the same principle, by a general devise, an estate passes, in which the devisor has acquired an equitable title by a contract of purchase ; ^ more especially where a written agree- ment for the purchase of an estate has been executed.^ So an 1 Reed v. Lukens, 44 Penn. 200 ; Gary v. Whitney, 48 Maine, 516 ; Linscott V. Buck, 33 Maine, 530. 2 Miller v. Corey, .15 Iowa, 1G6. 3 Russell's Appeal, 15 Penn. 319. 4 Broome v. Mouck, 10 Ves. 597 ; Potter V. Potter, 1 Ves. 437; Davie v. Bcardsham, 1 Cha. Cas. 39 ; Milner v. Mills, Mose, 123 ; Capel v. Girdler, 9 Ves. 509. See Vernon v. Vernon, 7 E. 8. * Rose V. Cunj'ngharae, 11 Ves. 550. not such a right as would enable liim to claim and enforce a conveyance from the owner of the legal estate. Assuming the ground taken by the plaintiff to be cor- rect, upon which we express no opinion, that a full and clear equitable title would come within the provisions of the statute, so that a cestui que trust could be con- sidered an owner, and entitled to claim compensation, it is clear that the plaintiff did not hold even such a title to the estate at the time of the fire." Ruggles V. Nantucket, 11 Cush. 433, 436. An agreement to convey passes an equitable fee, though not expressing that the conveyance shall be made to the ven- dee and his heirs. Bodley v. Ferguson, 30 Cal. 511. (a) In regard to the equitable owner- ship of a purchaser before actually taking a conveyance, it has been recently held in Pennsylvania, that, although a purchaser has not paid the purchase-money, he is still the owner in equity, subject to the liability for such payment. The Court say : " When a part of tlie purcliase- money is paid, the interest of the pur- chaser in the land is not circumscribed by the extent of the money paid, but embraces the entire value of the land over and above the purchase-money due. He is treated as the owner of the whole estate, incumbered only by the purchase- money. If the land increase in value, it is his gain ; if it decrease, if improve- ments are destroyed by fire or otherwise, it is his loss." Siter's Appeal, 26 Penn. 178, 180. In a very late case it is held, that a purchaser of land, imder an agree- ment tliat he may take innnediate posses- sion, and tliat the price shall be paid on demand, acquires an immediate equitable title. The agreement is not a covenant or condition for immediate jiossession, the breach of wliich will avoid the con- tract. And an action lies for the price, though a i)ui!ding on the land has been burned ; the i)urchaser having an insur- able interest tlierein. M'Kecliine v. Ster- ling, 48 Barb.; Law Reg. Dec. '67, p. 128. LAW OF VENDORS AND PURCHASERS. [chap. I. equitable title, acquired after a general devise, passes by repub- lication of the will.^ In such cases, the vendor is regarded as a trustee for the vendee.2(a) 5. And the same general principle has been applied to the ques- tion of an implied revocation of a will, by subsequent marriage and birth of children.^ 6. The same rule of equity sometimes involves the question, as to the fund, making part of the estate of the testator, from which purchase-money shall be paid. Upon the principle above stated, the devisee or heir of a purchaser may call for application of the personal estate in payment for the land.^ The liability of real and personal representatives, in respect of such contract, is regu- lated by that of the party at his death. If he could not be com- pelled to take the estate, the heir cannot insist on having it, and that the personal estate shall pay for it.^ But administrators cannot assign the contract, or compel its performance, without consent of the heirs. ^(6) 7. The doctrine, that a party claiming under a will cannot dis- 1 Broome v. Monck, 10 Ves. 597. 2 Darris's case, 3 Salk. 85. , 3 Marston v. Roe, 8 Ad. & Ell. 14. (a) A third person articled to purchase lands in trust for the testator, who, before any conveyance, by will disposed of all his freehold estate. Held, the lands ar- ticled for passed by the will. Greenhill V. Greenhill, 2 Vern. 679. Before the making of a will, the an- cestor of the testator had contracted for the purchase of an estate, of which pos- session was given, but no conveyance executed. The purchaser then died in- testate, leaving the testator his heir at law and sole next of kin. The testator then made his will, and afterwards the es- tate was conveyed to him. Held, the estate was not after-acquired property, but included in the devise. Marston r. Roe, 8 Ad. & Ell. 14. One possessed of three species of estates in the county of H., viz : one by articles wholly executory, another exe- cutory in part, and a third (being an advowson) completely executed by a re- cent conveyance, devises to his wife as follows : " All the manors, messuages, advowsons, and hereditaments in the county of H., for the purchase whereof I have already contracted and agreed, or in lieu thereof the money arising by the sale of my real estate in the county of 4 Broome v. Monck, 10 Ves. 597 ; Milner v. Mills, Mose, 123. 5 Broome v. Monck, 10 Ves. 597. t> Champion v. Brown, 6 Johns. Ch. 898. L. ;" (with directions for completing the contracts.) Held, the advowson shall pass. St. John v. Bishop, &c. 2 Bl. 930 ; 1 Cowp. 94. (6) A devisee, claiming the benefit of a contract for the purchase of an estate, directed to go to tlie uses of the will, the title of which proves defective, has no claim upon the personal estate ; either to have the purchase-money, or another es- tate purchased, or the purchase completed notwithstanding the defect. Broome v. Monck, 10 Ves. 597. A. makes a lease to B. for seven years, and on tlie lease is indorsed an agreement, that, if B. shall within a limited time be minded to purchase the inheritance for .£3,000, A. would convey to him for that sum. B. assigns to C. the lease and the benefit of this agreement. A. dies, and by will gives all his real estate to D. and all his personal to E. and D. equally. Within the limited time, but after the death of A., C. claims the benefit of the agreement from D., who accordingly con- veys to C. for £3,000. Held, this sum, when paid, is part of the personal estate of A., and E. is entitled to one moiety of it as such. Lawes v. Bennett, 1 Cox, 167. CHAP. I.] NATURE OF THE CONTRACT FOR A SALE, ETC. 9 pute any of its provisions, but must elect to affirm or repudiate it m toto, has been applied to the devise of land merely contracted for. Thus, in case of a will, directing that, if the testator shall enter into contracts for the purchase of lands, and die before the conveyance, such contracts shall be carried into execution, the money paid out of his personal estate, and the conveyance be to his trustees, their heirs, (fcc, to the uses of his will ; the heir at law, having interests bequeathed to him, is put to an election. ^ 8. Where one devises land, and afterwards articles for valuable consideration to sell or settle them, this in equity is a revocation of the will ; as much so as a conveyance would be at law. Whether the abandonment of the contract would set up the will again, without republication, has been questioned. ^ On the other hand, if the owner of an equitable fee devises it, and afterwards the legal fee is conveyed to him, the will is not thereby revoked, because such conveyance was incident to the equitable fee devised. But, if he afterwards take a qualified conveyance of tlie legal fee, for the purpose of preventing dower, it is a revocation, being a change in the quality of the estate, and not incident to the equi- table fee.^ 9. If, after a devise of all one's real and personal estate, he articles to purchase lands, and then dies, they pass to the heir; although, if the articles had been made before the will, the estate would have passed by it.* So a testator entered into a contract for the purchase of an estate, and the vendor agreed to convey to the purchaser, his heirs, appointees, or assigns. Subsequently to the contract, the purchaser made a codicil, by which, after reciting the contract, he devised the estate to his executors and trustees, upon the trusts therein mentioned. He afterwards took a conveyance from the vendor, to the usual uses, to bar dower. Held, the conveyance operated as a revocation of the devise.^(a) 1 Thellusson v. Woodford, 13 Ves. 209. 3 Ward v. IVfoore, 4 Madd. 368. 2 Bennett v. Lord Tankerville, 19 Ves. * Langford v. Pitt, 2 P. Wnis. 629. 170. 5 Bullin V. Fletcher, 1 Kee. 369. (a) A testator devises all his freehold to purchase, devises them to the same and copyhold manors, &c., and real estate trustees, upon the trusts of his will,^ and whatever, upon certain trusts ; and gives to directs that tlie purciiase-nioneys shall be the same trustees a sum of £35,000 to lay taken as part of the £o"),000 ; confirming out in the purchase of lands, to be settled his will in all other resjiccts. Held, the upon the same trusts. He afterwards codicil amounts to a republication of the contracts for the purchase of several es- will, so as to pass, not only the estates tates ; and by a codicil, specifying some therein specified, but all the estates con- of the estates which he had so contracted traded for. Hulme v. Heygate, 1 Mer. 285. 10 LAW OP VENDORS AND PURCHASERS. [CHAP. I. 10. It has been held, that an estate which the testator had con- tracted to sell will pass by a devise of all his real and personal estate to trustees, in trust to sell.^(a) 11. The title of a purchaser passes by descent to his heirs.^ So, although a purchaser, before the conveyance, has neither a legal nor equitable right as against the seller, until he pay the purchase- money ; yet, upon the same principle of equitable oivnership, his equitable estate is subject to his control, and to the lien of judg- ments obtained against him. But Equity will enjoin the cutting of timber, by a person who has got possession under articles to purchase.^ 12. Although, as a general rule, a mere agreement of sale and purchase is merged in the actual conveyance, yet, by a well-estab- lished principle of Equity jurisprudence, the Court will correct a mistake(J) in a written contract, if clearly shown, even by parol evidence. So, a fortiori, the Court will reform a deed, entered into under a previous agreement, by ordering a fresh conveyance ; from which a covenant will be expunged which was not contained in that agreement, or contemplated by the covenantor, even though such covenant was introduced by the attorney of the covenantor (but without his express authority) .*(c) 1 Wall V. Bright, 1 Jac. & Walk. 494. 138 ; Baldwin v. Belcher, 1 Jo. & Lat. '^ Broome v. Monck, 10 Ves. 597. 18. 3 Crockford v. Alexander, 15 Ves. jun. ■* Rob v. Butterwick, 2 Price, 190. (a) A testator, having devised free- before they were completed. The pur- holds and copyholds to the same persons, chasers afterwards abandoned their con- afterwards executed a marriage settle- tracts, because they were unable to pro- ment, by which he bargained and sold the cure a conveyance from some of the freeholds to trustees and their heirs, to the devisees, who were infants. Held, though use of himself during his life, and, after the contracts were properly abandoned, his death, to the intent that the wife might the will was revoked. Tebbott v. Voules, receive annually a rent-charge, which 6 Sim. 40. was secured by powers of distress and Agreement for the sale of an estate at entry, and by a term of years ; and sub- a future time. Before that time, the ject to the rent-cliarge and the term, to vendor died intestate. Held, the rents the use of the settlor, his heirs and accrued between the vendor's death and assigns ; and covenanted to surrender the the time fixed belonged to his heirs, copyholds to the uses of the settlement. Lumsden v. Fraser, 12 Sim. 263. The testator died, leaving his wife sur- A testator devised his estates to trus- viving, without having surrendered the tees, in trust to sell, their receipts to be copyholds. Held, the covenant to sur- sufficient discharges ; and directed them render did not operate as an entire revo- to complete any contracts for sale remain- cation of the devise of the copyholds, but ing incomplete at his death. Held, his only so far as the particular purposes of executor was the proper party to give the settlement required. Vawser v. receipts for the purchase-moneys of such JefFery, 3 Russ. 479. estates. Eaton v. Sanxter, 6 Sim. 517. A testator devised all his real estates {b) See Mistake. to his children, equally, and afterwards (c) Tenants in common agreed to make entered into contracts for a sale, but died partition pursuant to an award, and exe- CHAP. I.] NATURE OF THE CONTRACT FOR A SALE, ETC. 11 13. But Equity will not interpose to amend a written instru- ment, without the clearest and most satisfactory proof of the mis- take, and of the real agreement, especially where the mistake is denied in the answer.i(a) So, where a contract is entered into for the sale of an estate, and, under general words, property passes which the vendor insists he did not intend to sell, but the purchaser, by his answer, denies, or does not admit, that it was not in his contemplation at the time of the purchase ; it seems the vendor cannot sustain a bill against the purchaser, to have the contract rectified on the ground of mistake, and carried into execution. And it is even doubted, whether, consistently with the Statute of Frauds, the Court can entertain such bill, even where the mistake ^ Lyman v. United Ins. Co. 2 Jolins. Ch. 030. cuted deeds for that purpose. In the deed to the plaintiif, a tract assigned to him was omitted by mistake. The parties took possession according to tlieir deeds. Held, the mistake should he rectified, and a specific performance of the contract de- creed as to the tract omitted. Tilton v. Tilton, 9 N. Hamp. 385. E. (carrying on business under the name of W. Factory), being indebted, proposed to his creditors in a writing, signed by his agent, as follows : " A deed of trust of all tlie property to be executed for the p.ayment of such notes already given by said Factory," &c., as may be renewed for twelve months, payable after- wards in monthly payments. This pro- posal was accompanied by another paper, headed, State of Warren Factory, and in- cluded in its recitals^ among other prop- erty, " Factory Pratt Street." It was accepted by some of his creditors, and a deed of trust executed. It appeared that the " Factory Pratt Street" was situated on tico lots of ground, which belonged as well to E. as his brothers and sisters ; but the deed of trust, in which the brothers and sisters united, by mistake of all par- ties, omitted one of those lots. Before tlie discovery of this mistake, two credi- tors obtained judgments at law, one before and one after the trustees took possession. Bill to reform the deed, add tlie omitted lot, and enjoin the creditors from proceed- ing at law against that lot. Held, that the former creditor, not having notice of the original contract, might proceed at law ; but the other, having received a dividend from the trvistees, thereby be- came an equitable party to the deed, and could not enforce his judgment, in opposi- tion to the agreement on which the deed was founded. Upon these principles, the deed was decreed to be reformed in con- formity with the original contract. Moale V. Buchanan, 11 Gill & J. 314. ((() The defendant, in writing, agreed to convey to the plaintiff, on payment of a certain sum, " a lot of land situated in the town of Windham." The plaintitt', alleg- ing that there was a mistake in tlie con- tract, and that the whole of a particular lot was intended to be embraced by it, though a jiart of the lot lay in the town of Wcnthrook, brought his bill to have the mistake corrected, and specific perform- ance decreed of the contract as amended. Held, parol evidence was inadmissible to vary the written contract. Elder v. El- der, 1 Fairf. 80. So a bill to rectify a conveyance, alleged to have passed by mistake more than was included in a pre- vious agreement, was dismissed ; the con- veyance reciting a more extended agree- ment, the parties being dead, the agent of the grantor having acknowledged the extended agreement, and the agent of the grantee, who could have given a personal account of the transaction, not having been examined by the plaintiff. Beau- mont V. Bramley, Turn. & Russ. 41. A marriage settlement recited an agree- ment to convey a certain estate, save and except the lands of Ball^iienry and its subdenominations ; but the operative part of the deed purported to convey by name, as a sejiarate denomination, tlie lands of Killahan, which, it was proved, were reputed a subdenoinination of Ballylieiiry. Held, that there was not siitticient evi- dence of mistake to justify the Court in striking Killahan out of the settlement. Alexander v. Crosbie, 1 Lloy. & Goo. 145. 12 LAW OF VENDORS AND PURCHASERS. [CHAP. I. is admitted by the answer.^ So a purchaser cannot claim premises which, though answering the general description in the advertise- ment of sale, were not in the contemplation of either party at the time of the purchase or conveyance ; the purchaser being referred to a more particular description, which did not include them ; and the surrender having been made according to that, and from his own instructions. If one party thought he had purchased ho7id fide part of an estate, which the other thought he had not sold, it is a ground to set aside the contract. If both understood the whole was to be conveyed, it must be : otherwise, if neither under- stood S0.2 14. It has been doubted, whether the Court would entertain a suit to reform a mistake, for the discovery of matter constituting a new case, after the subject had been adjudicated upon and disposed of by a foreign tribunal of competent jurisdiction, when it did not appear that the new matter might not still be made available before such tribunal.^ And parol evidence is not admissible, at law, to show a mistake in the conveyance of land sold, as compared with the agreement of sale. Thus an agreement was made, in writing, to sell and convey land, at X9 per acre. A deed was accordingly executed, expressing the number of acres, and the purchase-money paid at that rate. Held, no parol evidence was admissible, of a mistake in the quantity ; and that an action did not lie for money had and received, to recover back the amount alleged to be over- paid. ^ 1 Attorney-General and Commission- ^ Marquis of Breadalbane v. Marquis ers, &c. V. Sitwell, 1 You. & Coll. 559. of Ciiandos, 2 Myl. & Cra. 711. 2 Calverley v. Williams, 1 Ves. 211. * Howes v. Barker, 3 Johns. 506. CHAP. II.] WHAT CONSTITUTES AN AGREEMENT. 13 CHAPTER II. "WHAT CONSTITUTES AN AGREEMENT FOR THE SALE AND PURCHASE OP LANDS. DISTINCTION BETWEEN A CONTRACT AND A MERE PROPOSAL, OFFER, ETC. 1. An offer does not bind, till accepted. 7. Contract by several connected papers. 2. Contract bj' corresjjondence. 1. Haying considered the distinction between an executory sale, and an executed conveyance, of land, and the well-settled qualifications of that distinction in Courts of Equity, another somewhat analogous difference requires to be noticed, applicable as well to a sale of land as of other property ; to wit, that between a completed bargain, assented to by both parties, and a mere pro- posal, negotiation, or treaty. Upon this point it is held, that, if the vendee accepts the vendor's proposition, and pays money to bind the bargain ; the vendor cannot make new terms, but specific per- formance will be enforced against him and a purchaser with notice.^ But a contract will not be specifically executed, unless upon a fair interpretation importing a concluded agreement, and not leaving it doubtful whether the transaction was more than a treaty.^ An offer of a bargain imposes no obligation, unless accepted according to its terras, without qualification, or unless such qualification be agreed to.^ Thus where A. signs a writing, by which he declares he will sell to B. his house, &c., at a certain price, &c., this is a mere proposition, and not a contract.* So, where a material ingredient in the terms of a contract has been omitted. Equity, considering it as only resting in treaty, will not decree a specific execution. Thus, where a tenant in possession, under an article impeached by his landlord, proposed to pay an increased rent, a bill by the landlord for specific execution of the 1 Keegan v. Williams, 22 Iowa, 378. 194 ; Vicksburg, &c. v. Hamilton, 15 La. 2 Strafford v. Bosworth, 2 Ves. & B. An. 521. See Boyd v. Cox, 15 La. An. 341 ; Huddleston v. Briscoe, 11 Ves. 583. 609. 3 Eliason v. Ilenshaw, 4 Wheaton, < Tucker v. "Woods, 12 Johns. 190. 225, 228 ; Holland v. Eyre, 2 Sim. & St. 14 LAW OF VENDORS AND PUECHASERS. [CHAP. II. proposal was dismissed ; the period, when the increased rent should commence, not being agreed on.^ So, where A. sold land to B., and, on measurement after the sale, it was found that B. owned a part of the land sold, and A. offered, if B. would not sue him, to pay him back a part of the purchase-money, and there was no evidence of B.'s accepting the offer ; held, B. could not recover on A.'s promise.^ So a proposition in writing, to sell land, at a certain price, if taken within thirty days, is a continuing offer, wliich may be retracted at any time ; but if, not being retracted, it is accepted within the time, such offer and acceptance constitute a valid contract, the specific performance of which may be enforced by a bill in equity. ^(a). 1 Lord Orraond v. Anderson, 2 Ball & ^ Bost. & M. Railroad v. Bartlett, 3 Beat. 363. Cush. 224 ; Cheney v. Cook, 7 Wis. 413. '^ Burns v. Allen, 11 Ired. 25. (a) In an action to recover damages for land taken by a railroad company, evidence is not admissible, that the plain- tiff had offered to claim no damages, if the company would locate the road where he wished it, and that, when called on, he declined to designate the location he de- sired ; as it was only a proposition, not accepted by the company at the time, and not binding upon the plaintiff after- wards. East, &c. V. Hiester, 40 Penn. 53. The plaintiff, A., offered to sell land to the city of New York at a price named, and then formally withdrew his offer ; subse- quently the city council authorized the comptroller to purchase the land and pay in city bonds ; then A. tendered a deed and demanded payment according to the price named in his offer. Held, the city had not bought nor agreed to bu}', and were not liable for the price. Mc- Cotter V. New York, 35 Barb. 609. A memorandum, signed by a purchaser at a sheriff's sale of land under judgment in a foreclosure suit, to the effect that he agrees to abide by the conditions of the sale, is not a contract with the sheriff, his assignee, or any other party to the foreclosure suit; if a contract at all, it is with the court : but it wants the essential elements of a contract, as parties, mutu- ality, and consideration ; and it will be properly construed as in reality a submis- sion to the jurisdiction of the court in the foreclosure suit, as a purchaser under the judgment. Miller v. Collyer, 36 Barb. 250. Parties wishing to construct a railroad, on the way-leave principle, entered into negotiations with a land-owner, and pro- posed terms, which were discussed but not agreed to ; but the company proceeded to make the road. Held, the land-owner's acquiescence did not amount to an accept- ance of tlie terms proposed. Meynell v. Surtees, 31 Eng. Law & Eq. 475. In the same case, an iron company, the owners of a railway, wishing to make, on the principle of way-leave, a branch of their road to connect it with other roads, applied to the several land-owners, includ- ing one A., for the necessary way-leaves, and received a proposal from them that, as they wished to procure Stanhope lime for agricultural purposes, and believed the railroad would be of great advantage to the district, &c., they offered the iron company way-leaves over their property on lease for sixty years, by payment of • triple damages yearly. This proposal was signed by A. and accepted by the company, who thereupon agreed with the plaintiffs, directors of another railway, who were to make the line. The railway company took possession according to the offer, and the railway was made at great expense, with the knowledge and without any objection of the land-owners. Held, there had been a variation in the parties and subject-matter of the offer, by chan- ging a railway made for mineral traffic into one for general public conveyance. Also, that the instrument signed by A. contained no such acceptance of the offer as bound the land-owners to grant a lease at a rent on the principle of triple damages. Lord Cranworth, Lord Ciiancellor, re- marked : " It does not purport to be a contract upon the face of it. It is a mere offer that they will give way-leaves upon certain specified terms; and if the par- CHAP. II.] WHAT CONSTITUTES AN AGREEMENT. 15 2. But ail agreement for the sale of an estate, the result of a correspondence by letters, may be good ^vithin the Statute of Frauds. ^(rt) Thus the defendant authorized one A. to projiosc a sale of land to the plaintiff, to be accepted within a week. Within the time, the plaintiff by letter to A. accepted the offer, but for some time A. did not inform the defendant. Held, there was a binding contract.^ So the defendant, by letters, stated certain terms on which the plaintiff might make a road across his land, and he (the defendant) would convey the land to him. The plain- tiff, with the knowledge of the defendant, began the work. Held, he thereby became bound ; that this was a valid consideration for the defendant's agreement ; that the defendant could not shut up the road, after the plaintiff had performed his part of the contract; and that he should be restrained by perpetual in- junction from obstructing it ; but without prejudice to any claim for damages against the plaintiff.^(5) 1 Huddleston v. Briscoe, 11 Ves. 583. 2 AVright V. Bigg, 21 Eng. Law & Eq. 591. 3 N.Y. &c. V. Pixley, 19 Barb. 428. ties to wliom that offer was made had accepted it, and said, ' We agree to that,' or if they had either done so by writing, or had, witliout writing, by word of montli said, ' We will act upon it,' and had taken it, no doubt tliis Court might have treated tliat as a contract ; but an ofi'er is a very different tiling. When I offer any thing to a person, what I mean is, I will do that if you choose to assent to it ; meaning, although it is not so expressed, if you choose to assent to it in a reason- able time. Whether that is expressed or not, such an offer, I should say, undoubtedly, even at any time, if it is not promptly accepted, is evidently, frohi the nature of things, revocable." Meynell v. Surtees, 31 Eng. Law & Eq. 475, 479. An offer to sell land at a certain price is an offer to sell for cash. Cammeyer v. United &c., 2 Sandf. Ch. 186. The acceptance of such offer must be absolute. Ibid. («) See Statute of Frauds. (b) On the 18tli of April, 1834, A., in writing, offered to sell B. certain land, upon certain terms, and allowed three months to decide upon the proposition. On tlie 26th of June, B. wrote to A., stating tliat C, the father of B., accepted tlie propo- sition, and signed the letter, "B.,.for his father, C." On the back of a copy of this letter, on the 19th of July, A. wrote and executed a covenant to convey the land to B., " in consideration of the within," and " when he shall have fulfilled on his part the conditions of the said agreement, a copy whereof is hereto annexed." This agreement was'delivered to B., who made payments with money advanced by C, and took receipts as for money paid by C. B. took possession of and cultivated the land, C. residing with him till his death. C. died, and B. paid the balance of the purchase-money. The other heirs of C. tlien filed their bill against A. and B., alleging that the name of B. had been inserted by mistake in tlie contract of July 19, instead of that of C, and praying for a partition among the heirs of C, an account of rents and profits against B., &c. B., in his answer, under oath, de- nied the mistake, and averred that the money advanced for the land had been loaned to him by C, to secure the pay- ment of which, C. was to have a lien upon the land. Held, the averment in the answer, as to the loan, was now mat- ter, and, being unsupjiorted by proof, was not evidence ; that the letter of June 26 sliowed a purchase by C, and could not be explained by parol, no mistake being pretended ; that the written instru- ments above named, as well as the ])arol testimony, showed that the name of B. was inserted by mistake, in the agree- ment of July 19, instead of that of C ; 16 LAW OF VENDORS AND PURCHASERS. [CHAP. II. 3. Where letters are stated as the agreement, no testimony aliunde is admissible : otherwise, where they are stated as evidence of the agreement only.^ 4. A contract, by letter, may arise, and be specifically enforced, if the amount and nature of the consideration, to be paid on one side and received on the other, may be ascertained, and a reason- able description is given of the subject-matter. The Court need not be satisfied, that the parties actually meant the same thing, provided a clear assent be given to a certain proposition, arising de facto out of the terms of the correspondence.^ 5. But the Court will not decree specific performance of an agreement for a lease by letters, where there is no definite term expressed, nor any reference, aliunde, by which it might be ascer- tained.^ 6. The letters, from which a contract arises, may be written by the agents of the respective parties. Thus an agent, ordered to buy a lease of a house for a certain sum, and sign an agreement, wrote to the agent of the owner, offering that sum. The owner wrote across this letter, " I agree to sell my house upon these terms ; " and thereupon his agent wrote to the other agent, " My employer will take your offer," " make an appointment to meet to draw the agreements." The next day, the agent of the pur- chaser said, that his principal had bargained for another house. Held, the letters constituted a contract to buy, and specific per- formance was decreed, with costs.* 7. Although mere proposals or negotiations are always to be distinguished from a binding contract ; for the purpose of deter- mining the existence and terms of a contract of sale and purchase, various writings, connected with and referring to each other, may be taken into consideration, though neither by itself would con- stitute a contract. (a) 1 Birce v. Bletchley, G Madd. 17. See ^ Gordon v. Trevelyan, 1 Price, 64. Huddleston v. Briscoe, 11 Ves. 583. * Cowley v. Watts, 17 Eng. Law & 2 Kennedy v. Lee, 3 iMef. 441. Eq. 147. and that a decree was proper, ordering (a) The defendant, by articles, con- a partition among the lieirs of C, and tracted to sell the piaintifif 400 acres directing that B. sliould account for the of land, and allowance out of two tracts rents and profits, be paid for the lasting claimed by the defendant, on two surveys improvements made by him, and refunded in the names of A. and B., being the the purchase-money paid by him since 400 acres surveyed on a warrant in the the death of C, with interest, and that name of C, for $1,000. Subsequently, A. should convey to the heirs, according the defendant conveyed the latter tract, to their respective interests. Lynn v, containing 430 acres and ten perches Lynn, 5 Gilman, 602. and allowance, and, on the same day, the CHAP. II.] WHAT CONSTITUTES AN AGREEMENT. 17 plaintiff covenanted, that if this survey should include over 400 acres and allow- ance, he would pay 813 per acre for tlie excess, and the defendant sjave tlie jilain- tiff a bond for S-B per acre for every acre included in the C. survey, which nii^ht be recovered in two pending actions. In these actions, 5"2 acres and 55 perches and allowance were recovered from the defendant ; leaving, liowever, of this sur- vey, 400 acres and 72 perches. In an action on the bond, lield, the bond, cove- nant, and deed were to he construed together, and, as the jilaintiff" held under his deed over 400 acres and allowance, the action did not lie. Cumniings i;. Antes, 19 Penn. 287. 18 LAW OF VENDORS AND PURCHASERS. [CHAP. III. CHAPTER III. CONSIDERATION OF A CONTRACT OF SALE. — PRICE. 1. Necessity of a consideration. 11. Mutual rights and duties of the par- 3. Nature of consideration; need not be ties in connection with the price. Offer to expressed. perform, tender of deed, &c. 4. Price; construction of the agreement 24. To whom the price shall be paid; for. parties jointly interested. 10. Sufficiency of security for. 1. Contracts for the sale and . purchase of lands must in general, like others, be founded upon some valuable consideration. This will be briefly noticed at present, as one of the elements of the contract. We shall have occasion, hereafter, in another connection, to refer more at length to the want, inadequacy, or failure of con- sideration, as one of the circumstances which render such contract void.(^a') 2. Thus, upon a bill in equity for specific performance against a vendee of land ; it appeared that a part only of the vendors, the plaintiffs, had become bound to convey a good title. Held, the contract should not be enforced, for want of mutuality. ^ So an agreement, whereby the purchaser of a plantation binds himself to transfer one-half thereof to his son-in-law, as soon as the latter shall pay for one-half of the cost, either with his own private means, or with one-half of the profits of the plantation, is void for want of mutuality, and will not be enforced by a Court of Equity ; especially when the son-in-law, fifteen years after the agreement, expresses his abandonment of all his rights by a written release, and does not bring his bill in equity until twenty-seven years have elapsed from the date of the agreement, without any performance or offer of performance on his part.^ So a promise, made by one who enters public lands, to pay a prior occupant for improvements made thereon by him, is without consideration and void.^ So there is neither a legal nor moral obligation, on the owner of land, 1 Bronson v. Caliill, 4 McL. 19. 2 Dorsey v. Pack wood, 12 How. U.S. 126. 3 McFarland v. Mathis, 5 Eng. 560. (a) See Fraud, Rescinding. CHAP. III.] CONSIDERATION. PRICE. 19 to pay for the work and labor done upon it, by one who has entered without his consent, or any color of right, and held possession against him. Hence a promise thus to pay is without consider- ation and void.i So a contract for the sale of land will not be enforced, where it has been lost, without proof of the identity of the land claimed and "that referred to, and of the amount and pay- ment of the consideration.^ So a promise to let, void because made by a married woman, is no consideration for a promise to hire.^ So where two parties to an instrument enter into mutual covenants, which are interchangeably considerations for each other; if either party neglects or refuses to bind himself, the instrument is void for want of mutuality, and the party cannot avail himself of it as obligatory upon the other, and cannot by any subsequent act of his own, without the assent of the other, render it obligatory upon him. Where such an instrument is executed by one pro- fessing to be, but not in fact being, authorized to act as an agent for one of the principal parties ; no subsequent act of this principal, in the nature of ratification, can render the contract binding upon the other party. And where part of the purchase-money for land, agreed in such an instrument to be sold, was paid to the supposed agent, and afterward received from him by his principal ; tliis does not render the instrument binding upon the seller without his assent.^ So where the obligor and obligee in a bond, condi- tioned for the conveyance of land, agreed to rescind the contract, and, in pursuance of such agreement, the obligee gave up the bond, and the obligor the notes taken for the price ; held, a promise afterwards made by the obligor, to pay back a sum of money which had been paid towards the land, was nudum pactum.^ 3. The consideration need not be a cash payment. Thus a note for the purchase-money is sufficient consideration for a bond to convey.^ So, if a vendee of land covenant to erect a brick building thereon within a certain time, this is a valid consideration for the covenant to sell." So where the consideration of an oldigation was the sale of improvements on public lands, and the vendor, at the time of the sale, was in a situation to avail himself of the pre-emp- tion acts of Congress ; held, the consideration was good and valid.^ * Frear v. Hardenbergh, 5 Johns. 272. ^ Fulke v. Fulke, 7 Jones, 497. 2 Madeira v. Hopkins, 12 B. Mon. 595. ^ Wliiteside v. Jennin^^s, 19 Ala. 784. 3 Andriot v. Lawrence, 33 Barl). 142. "^ Brewer v. Bessinf^er, 25 Miss. 8G. * Dodge V. Hopkins, 14 Wis. 630. 8 Dean v. Wade, 15 La. An. 230. 20 LAW OF VENDORS AND PURCHASERS. [CHAP. III. So, if the only condition of a bond for title is, that titles shall be made as soon as a patent from the government is pro- cured ; the presumption from its face is, that the purchase-money has been paid ; and it is no notice to an assignee to the con- trary.^(a) And it is not necessary, to constitute a valid consid- eration for a contract to sell land, that the purchaser should expressly stipulate to buy or pay for it.(S) 1 Burns v. Taylor, 23 Ala. 255. (o) 111 a suit on a note, given for part of the purchase-nioncy of land, and indorsed over to the plaintiff' by the grantor, the judgment was for the defendant, on the ground that the grantor's vvite had not signed the conveyance. The grantor, and maker of the note, then agreed, that the latter should pay this and one other of three notes given by him in part payment. Held, the imperfect convej'ance was yet a sufficient consideration to support this agreement. Friermood v. Pierce, 17.1nd. 461. The plaintiff" agreed with the defend- ant, to sell to him by the 22d of January then next the lease of a tarni for £500, and the defendant agreed to purchase the same, subject to his being approved of as a tenant by Lord S., and also to pay down to the plaintiff'£500 as a deposit, and to com- plete the purchase by the time named. The defendant, being unable to pay the £500 at the making of the agreement, in consid- eration that the plaintiff, at the request of the defendant, dispensed with the payment, and would take the defendant's I.O.U. therefor, agreed to pay the £500 as soon as he could write to his banker at Berwick, and procure a remittance. Held, the agree- ment was founded on a sufficient consider- ation. Davis V. Nisbett, 10 C. B. n.s. 752. The defendant A., owning a mortgaged estate, proposed to the defendant B., her nephew, tiiat she should live with him, in a larger house than he then occupied, slie contributing an annual sum to the house- keeping; to which he assented, on con- dition she would settle the estate, limiting it to him after her deatli. By a settlement, made accordingly, he covenanted to in- demnify her from the mortgages, except the interest, during her life. At consid- erable expense he removed to a larger house, which for some time they occupied together, but afterwards separated. Tlie plaintiff, having agreed to purchase of her the estate, files a bill against the defend- ants for specific performance. Held, there was a sufficient consideration to sustain the settlement upon B., and the biU was dismissed. Townend v. Toker, Law Rep. (p:ng.) Kq. Aug. 1866, p. 445. Where A., the owner of a house, and about an acre of land, worth not more than $75, agreed to convey them to his brother, B., on condition that he would move from another county, and live with him, and thereupon obtained from him an undertaking, b}^ which the division fences between such land and A.'s farm, sur- rounding it on three sides, were to be per- petually maintained, which agreement was scrupulously maintained for more than twenty years ; and, upon the strength of this promise, B. made valuable im- provements on the premises : held, the consideration was sufficient to support a bill for specific performance. Williston v, Williston, 41 Barb. 685. [h] With regard to the consideration of a contract connected with the sale and purchase of land, it has been lately held, in Pennsylvania, that the promise of a vendor to indemnify the vendee for his improvements, if the title warranted fails, is founded on sufficient consideration, and assumpsit lies upon it. The Court say : "As things turned out, neither of the par- ties received any benefit from the im- provements ; but that was not the plain- tiff's fault. To make a promise binding in law, it is not necessary that the prom- isor should derive any advantage from it. It is enough that the promisee has en- countered trouble, assumed a burden, or suffered a loss. Here was a person mak- ing a purchase of land. He had so little liiitli in the title that he would neither pay the purchase-money nor make im- provements which were necessary to its profitable use without some guaranty against tlie ultimate loss of his whole out- lay. But he had confidence in his ven- dor, and was willing to accept his personal warranty in place of a good title. It does not seem to us that it makes any differ- ence whether the contract concerning the improvements was made before or after the date of the deed. The deed did not alter the situation of the parties, or make CHAP. III.] CONSIDERATION. PRICE. 21 4. In this connection may be considered the subject of a pur- any change in the title, lor the grantor had no title to convey. The conditions or terms of a . Wells v. Smith, 2 Edw. 78. How. 225. 32 LAW OF VENDORS AND PURCHASERS. [CHAP. III. the money, but demand a conveyance ; and, after waiting a rea- sonable time to have it made out, must present himself to receive it.i(a) But a purchaser is not bound to prepare and tender a deed, if the vendor is unable to give a title as agreed. ^ Nor to tender the purchase-money and demand a title.^ And any obligation on the part of one party, to tender a sufficient instrument for execu- cution by the other, may be waived by a general refusal of the latter to complete the contract. Thus, the vendors of real estate, under articles of agreement with one who claimed under one of the vendors, in due time executed a deed to the vendee and her heirs, and endeavored to have it tendered to her, but the tender was prevented by her sickness and death. The deed was after- wards offered to her executors, accompanied, however, with a mortgage, and bonds for execution. The deed was insufficiently acknowledged by the wives of the grantors, and the bonds were not conformable to the contract, as to the time of payment ; but the executors or devisees did not object to receiving them on this ground, but refused generally to perform the contract. There was no evidence of a refusal by the vendors to amend the acknowl- edgment, or to accept of other securities, in accordance with the contract. Held, such tender was evidence of the willingness and desire of the vendors to comply with their agreement.^ 23. With regard to the party to whom payment for land pur- chased is to be made, it has been doubted, whether a power to sell, unrestricted, authorizes the agent to receive payment.^ 24. Questions sometimes arise from the joint or distinct inter- ests of different parties in the purchase-money of land, or in the land itself, as connected with the price paid, or to be paid, for it. 25. Where several parties agree to pay a certain sum upon another party's tendering a deed, it is sufficient to offer the deed to one of them.^ 26. Two persons united to purchase a tract of land, for which they gave $3,000 ; and entered into a contract under seal, by which one was to pay $2,000, and the other $1,000, of the pur- 1 Fuller V. Hubbard, 6 Cow. 13. 9 Leigh, 387 ; Mynn v. Joliffe, 1 Moo. 2 Johnson v. Collins, 17 Ala. 318. & R. 326 ; State of Illinois v. Delafield, 8 3 Griggs V. Woodruff, 14 Ala. 9. Paige, 527. 4 Tiernan v. Roland, 15 Penn. 429. « Oatman v. Walker, 83 Maine, 67. 5 Hackney v. Jones, 3 Humph. 612 ; (a) See, for a fuller account of the divisions upon this subject, chapters 12 and seq. Also, Demand, Tender. CHAP. III.] CONSIDERATION. — PRICE. 33 chase-money, and the land to be equally divided between them. Held, each was to have a moiety of the land.^ 27. A. and six others entered into articles of agreement with B., respecting the purchase of Western lands, on the joint account of all. The seven were to provide funds, to meet the drafts which B. should make on A., and the money was to be expended by B. in making the purchases. Conveyances were to be taken to A., in trust for all the associates. B. was to draw the drafts at not less than ten days' sight, and to make to A. monthly statements of his purchases. B. accordingly purchased lands of C. in Michi- gan, took a conveyance to A., and placed it on record. For a portion of the purchase-money, not paid down, he gave the notes of A. at one and two years, signing them as the agent of A. ; and, when the notes became due, he substituted for them drafts on A. Soon after the purchase, B. communicated it personally to six of the associates, and stated to them the price and time of payment, and they approved thereof. He also transmitted the conveyance to A. ; and it did not appear that A. or any of the associates had done any act repudiating the purchase ; but the drafts were neither accepted nor paid. Held, the associates were liable to C. for the price of the lands agreed upon, in an action for lands sold and conveyed to A. at their request ; and that, after the lapse of a considerable time, they should be deemed to have waived any objection to the purchase on the ground of B.'s having exceeded his authority.^ 28. A. contracted to purchase lands of B., and then to sell a part of them to C. Afterwards, A. assigned his original contract to D., by way of mortgage ; D. having notice of the contract be- tween A. and C. For the purpose of extinguishing the interest of A., B. exacted a forfeiture of the original contract, on account of the non-payment of the purchase-money, subject, however, to the rights of C. and D. ; and D. subsequently took a conveyance from B. of the whole of the land. Held, the portion of the land not contracted by A. to C. was the primary fund for the payment of the original purchase-money ; and, such portion being sufficient for that purpose, that D. was bound to convey to C. his portion of the land, on being paid by C. such a sum only as remained unpaid, on the contract between A. and C.^ 1 Stubblefield v. Beazely, 5 Gratt. 51. ^ drafts v. Aspinwall, 2 Comst. 289. '^ Sage V. Sherman, 2 Comst. 417. 34 LAW OF VENDORS AND PURCHASERS. [CHAP. III. 29. Land of A. was sold on an execution in favor of B., and C. paid to B. a part of the amount of the judgment, with an under- standing that, upon the payment of an additional sum, B. should convey the land to C. in trust for the wife and children of A. 0. died, without having paid said additional sum, and B. paid over to C.'s administrator the amount which C. had paid. Held, the administrator, by receiving said sum, had rescinded the contract for a conveyance made between B. and C.^ 1 Smith V. Smith, 1 Greene, 307. CHAP. IV.] INTEREST. 35 CHAPTER IV. INTEREST. 1. Claim of a vendor for interest. 11. Claim of a vendee for interest 8. Rate of interest. 17. Interest on nionej' paid into Court. 9. Interest in case of reversions, 23. Claim for improccments. 1. Having in the last chapter considered the subject o^ consider- ation or price, we proceed, in the natural order of topics, to treat of the liability of the respective parties to a contract of sale to pay interest; the one upon the purchase-money unpaid, the other upon the purchase-money paid, but for any cause subject to be recovered back by the purchaser. Upon this subject, the decisions cannot be regarded as wholly reconcilable, nor the law as very definitely settled. The distinctions certainly are extremely nice. 2. In general, a purchaser, being entitled to the profits from the execution of the agreement, is bound to pay interest from that time, more especially if in possession.^(a) Interest begins when 1 See Stevenson r. Maxwell, 2 Comst. Birch v. Joy, 18 Eng. Law & Eq. 16 ; 408 ; Hood v. Huff, 2 Const. 163 ; Kester v. Hundley v. Lyons, 5 Munf. 342 ; Dyer v. Rockel, 2 W. & S. 365 ; Ramsay v. Brails- Hargrave, 10 Ves. 505 ; Baxter v. Brand, ford, 2 Desaus. 592 ; Burnell v. Brown, 1 2 Dana, 298 ; Buchanan v. Lorman, 3 Gill, Jac. & W. 168; Child r. Abingdon, 1 Ves. 82; Brockenbrough v. Blythe, 3 Leigh, 94 ; Mayo v. Purcell, 3 Munf. 243 ; 2 Sandf. 647 ; WiUiams v. Rogers, 2 Dana, 375. Ch. 273 ; Fashott v. Reed, 16 S. & R. 266 ; («)" The fair terms," it is said, "would have both. Where the purchaser is let be to put the parties in the same situation into the possession and the perception of as if the contract had been performed at the rents and profits of the purchased the day ; and therefore rents should be ac- estates, he must pay interest for his pur- coimted for on one side, and interest on the chase-money ; and, if the rule be not uni- other; but then that would be on the versal, the party who claims an exemption ground that the purcliaser ought to have from its operation must bring himself with- taken the estate without a title, for none in some established exception. That rents was ready at the day ; therefore the only and profits ordinarily bear but a small fair mode is to give the purchaser his in- proportion to the interest of purchase- terest on the deposit down to the time money, cannot be denied. This is very when the title was cleared by the King's- strikingly the case in Virginia. Hence, Bench judgment, the i)urchaser not being where there has been a sale and delivery bound to take the estate till then." Pincke of possession, and the contract has been V. Curteis, 4 Bro. C. C. 333, n. disaffirmed, tliere can be no propriety in " As to interest and profits, the vendor the application of the rule. Accordingly, is to be considered the owner of the money, it never has been so applied. But where and entitled to the interest ; while the ven- a man purchases land, he has made up his dee is regarded as the owner of the land, mind to give liis money, which wt>uld and entitled to the profits. But he cannot produce a good interest, for land which 36 LAW OF VENDORS AND PURCHASERS. [CHAP. IV. the money is due ; the right to rents and profits, when the vendee is entitled to possession.^ So if the contract specifies no time for a conveyance, but the price is made payable upon receiving a deed, the law implies immediate execution. Hence the vendor becomes immediately liable for rents and profits, and the vendee for inter- est.^ Thus where delay is caused by the vendor's death.^ So where a leasehold farm was sold, and three years had expired pending a suit by the vendor who was in possession, interest was allowed, and he was charged with a rent.'^ So where parties already in possession agreed to purchase, and pay the price on a certain day, " on a good and valid title being made and executed," and a title was not made for many years, but they remained in 1 Baxter v. Brand, 2 Dana, 298. See Buchanan v. Lorman, 3 Gill, 82 ; Brocken- broiigh V. Blytlie, 3 Leigh, 647 ; Williams V. Rogers, 2 Dana, 375. '^ Hundley v. Lyons, 5 Munf. 342. 3 M'Kay v. Melvin, 1 Ired. 73. 4 Dyer v. Hargrave, 10 Ves. 505. will produce much less. Thus, in the present case, had the title been made, and the money paid, the purchaser must have been content with the scanty rents, while the seller would have been receiving full interest. Now, since a Court of Equity looks upon the sale as complete so soon as the parties have contracted, it is quoad this matter, the same thing as if the con- veyance had been actually made ; provided the vendee has had actual possession and uninterrupted enjoyment, and there are no particular circumstances to take the case out of the general rule. From the moment of the contract, the buyer is the owner of the land, and must rest satisfied with his rents ; and the seller is the owner of the money, and is entitled to his inter- est." Per Tucker, Pres , Brockenbrough V. Blythe, 3 Leigh, 619. So, where the execution of a deed and payment of the price are to be simul- taneous acts, the mere omission of the vendor to give the deed, before demand or offer of payment, is not such a default as will exempt the vendee in possession from payment of interest. Stevenson v. Maxwell, 2 Comst. 408. Thus the plain- tiff and defendant were jointly interested in a lease of vacant and unimproved city property. They also had an equitable title to the reversion, under a covenant of the lessor, contained in the lease, to con- vey the property in fee. The plaintiff contracted to sell to the defendant all his interest in the property, the conveyance to be given, and the price paid or secured, on a certain day. The day passed, noth- ing having been done in execution of the agi'eeinent by either party ; but the de- fendant proceeded to erect stores, &c., upon the land, and received large rents and profits ; and, in an account afterwards stated, he was charged with the purchase- money and interest, but not with any part of the rents. Held, his possession, &c., were under the contract of sale, not the lease, and he was bound to pay interest on the price. The Court remark (ibid. 415) : " The most that can be said is, that the complainant did not put the defendant in default, not that he was in default himself. This is not sufficient to excuse the pay- ment of interest. Here the defendant had the benefit of the purchase-money. His situation is the same as if he had re- ceived a conveyance and given security according to the contract, when he must have paid interest. He was compelled to borrow to make improvements ; the money was therefore of importance to him. In addition to which lie received all the rents and profits. A weaker case for exemption from the jiayment of interest can scarcely be imagined. The fact, that the lot was unimproved when sold, does not vary the equity of the case. It was vacant when purchased by these parties ; but we cannot suppose that, after pacing $6,000 for open- ing a street, they intended it should remain so. They designed to improve it. The contract deprived the complainant of the right to do this on his own accoimt or in conjunction with the defendant, and trans- ferred that privilege to the latter exclu- sively." CHAP. IV.] INTEREST. 37 possession, and did not appropriate the purchase-money ; they were held liable for interest from the day mentioned. ^ So, upon the sale of a leasehold farm, three years having expired i)ending a suit in relation to the property ; interest was given to the vendor, and a rent charged upon him, on account of his possession. ^ And a tender of the price does not stop interest, where the money and land have been used by the purchascr.^(rt) 3. The general rule, however, by which a vendee is required to pay interest, is subject to exceptions depending on the circum- stances of the case.(^)) Where the express agreement between 1 Atty .-General v. Christ Church, 13 v. Fitzgerald, 2 Dw. & W. 43 ; Oliver v. Sim. 214 ; Fludyer v. Cocker, 12 Ves. 25. Hallam, 1 Gratt. 298. See Portman v. Mill, 3 Jur. 356 ; Enraght '^ Dyer v. Ilargrave, 10 Ves. 605. , 3 Nantz V. Lober, 1 Duv. 304. (a) In a late English case, being a bill for specific performance brought by a ven- dor, the defendant not objecting to a decree therefor ; it appeared that the property had yielded a comparatively small rent, and the state of the vendor's title was such that several years elapsed before the title could be completed. The contract provided, that; if from any cause whatever the purchase should not be completed on the day appointed, interest should run upon the purchase-money. The purcliaser neither invested the purchase-money nor repudiated the contract, but went on ob- jecting to the title, and saying once or twice that he objected to paying interest. The general rule was applied, that the mere existence of difficulties as to the title, which justify the purchaser in refus- ing to complete until they are removed, does not exempt him from tlie clause relating to interest. To justify such ex- emption, there must be some serious mis- conduct on the part of the vendor. Wil- liams V. Glenton, Law Rep. (Eng.) Eq. Mar. 1866, p. 205. (6) In Blount v. Blount, 3 Atk. 636, Lord Hardwicke declared, that as no pos- session was delivered to the purchaser by virtue of his purchase, and it was not his default at all that the conveyances had not been made, there was no pretence for making him pay interest. The purchaser was in possession before making the pur- chase. Lord Hardwicke also says, that it cannot be laid down in certain, tiiat from the time of possession a purchaser shall always pay interest, whetlier the estates are in possession or in reversion, whether purchased under a private agreement or under a decree for a sale. As to estates in possession upon a private purchase, the Court never regards execution of articles for purchase, but the time of the execii- tion of conveyances ; and even there, if the vendor has made default in letting the vendee into possession, he shall not pay interest for the purchase-mone}^ ; but, if he has taken possession, the Court will give such interest as is agreeable to the nature of the land purchased. In bid- dings before masters, they are made gen- eral ; and tlie Court discourages any particular terms to bo put upon those biddings. If the purchaser has not had possession upon execution of conveyances, he shall not pay interest at all ; from the time of delivery of possession, he shall. Lord Hardwicke further remarks, "As to what has been said of the advantage a purchaser receives from wearing out of lives, I never knew the Court take this into their consideration as a reason for the purchaser's paviiiL;- interest." So in Taton V. Rogers, 6 i\ladd. 256, the Vice-Clian- cellor said, tiiat a decree for interest from the time when the money was to be paid was generally made, but not wliere the vendor lias improperly delayed execution of the contract. So in Esdaile v. Ste- phenson, 1 S. & S. 122, (see also ISIonck V. lluskisson, 4 Russ. 122, n. a ; Jones v. Mudd, 4 Russ. 118 ; Bird.sall v. Waldron, 2 Edw. Ch. 315; January v. Martin, 1 Bibb, 586 ; Hart v. Brand, 1 A. K. .Mar. 159), Sir John I^ach, V.C, hehl, tiiat, where tiiere was no express stipulation to pay interest, and the delay in cdinpleting the contract was occasioned by the vendor, if the interest much exceeds the rents and profits, the Court gives the vendor no interest, but leaves him in possession of the intermediate rents and profits. 38 LAW OF VENDORS AND PURCHASERS. [CHAP. IV. the parties seems to negative tlie allowance of interest, it will not be allowed. (a) And where the vendor has unjustifiably caused delay, and the interest will exceed the rents, on a bill for perform- ance, he will be refused the former, retaining the latter.^ And although a vendee, who enters and continues in possession, must pay interest, yet, where he has been harassed or disturbed in his possession, or there has been wilful and vexatious delay, or gross or criminal laches, on the part of the vendor, or where there are well-founded doubts of the title, or, from neglect or otherwise for a length of time, no administrator of the deceased vendor has been appointed to receive payment ; it is for the jury to determine whether the vendee is to pay interest. The interest is said to be given by way of damages ; and all the facts should be considered by the jury, under the direction of the Court.^ And, on the other hand, it being a general rule of equity, that a purchaser in posses- sion, receiving the rents, is liable to pay the purchase-money and interest ; an agreement which appears to oppose this rule will be examined in a Court of Equity by its aid, and will or will not be enforced, according to circumstances. (5) So where payment 1 Dias V. Glover, 1 Hoffm. Ch. 72. -^ Kester v. Rockel, 2. W. & S. 365. (a) It was agreed, that A. advance B. £4,000 on a mortgage, and, within one week from the agreement, B. dehver to A. or his solicitor a complete abstract of the title, produce the title-deeds, and deduce and show a good marketable title within one month after delivery of the abstract ; otherwise it was to be at A.'s option to consider the agreement void. It was fur- ther provided, that B. should forthwith pay to A. all costs and charges of investi- gating the title, &c. Abstracts of title were delivered soon after the agreement, but found defective. From the day when the title ought to have been completed, for about eight months, negotiations were going on, A. objecting to the title, and informing B. that his money had, during the whole interval, been lying idle, and B. endeavoring to amend his title, when he finally failed to do so, and the negotia- tion ended. A. was to recover the amount of costs and charges incurred by him in investigating the title, and interest on the £4,000, which had been thus lying idle. Held, he could not recover the interest. Bayley, B., saj^s : " The words, 'all costs and charges incurred by hira in investi- gating the title,' mean only what are incurred in so doing ; and it is impossible to say that those words are sufficiently extensive to cover the interest of money lying by during the time the parties were in treaty. In what situation was the plaintiff? His money was lying at his banker's ; and he might have made a bargain, that, unless the agreement was carried into effect, then the loss of intei'est should be paid and borne by the other party." Sweetland v. Smith, 1 Cr. & M. 585 (b) The plaintiff, in March, 1812, con- tracted for the purchase of an estate from the defendant for £90,000. The estate was very much incumbered ; and the de- fendant was to make a title free from all incumbrances, except one mortgage of £12,000. The plaintiff, on being put into possession of part of the estates, was to pay £16,000 on the 24th of June, 1812, " and a further sum of £4,000 at Michael- mas next, on the defendant putting the plaintiff into the actual possession of the remainder, free from all incumbrances, except the mortgage for £12,000 ; the further sum of £25";000 in March, 1813 ; £16,500 in March, 1816 ; and £16,500 in March, 1818." The plaintiff was to grant the defendant a mortgage of all the es- tates for securing these three sums at the CHAP. IV.] INTEREST. 39 is to be made upon conveyance of the land at a certain time, and it is not thus conveyed, the purchaser is not in default by neglect- ing to pay the price, and is not liable for interest till after tender of a deed, even though he has taken possession, if the land is vacant and unproductive,^ or if such possession is in virtue of an express agreement therefor,^ or, on the other hand, if the party was previously in possession.^ So a purchaser not in possession is bound to pay interest, and take the rents and profits, only from the time when a good title is first shown, not from the time fixed for completion of the purchase.'* Nor is the purchaser liable for interest, when, upon finding a difficulty in the title, he immediately offers to rescind the contract, redeliver possession, and receive back the money advanced, which the vendor refuses ; ^ or deposits the price, with notice to the vendor : nor where the purchaser tenders the purchase-money, and the vendor refuses it.^ Thus where there was a stipulation, that if, by reason of any unforeseen or unavoidable obstacles, the conveyance could not be perfected for execution before the day fixed, the purchaser should from that day pay interest, and be entitled to the rents and profits, and the vendor did not show a good title till long after the specified day ; held, he was entitled to interest only from the time when a good title was first shown." The distinction is made, that, where the conditions of sale provide that interest shall be paid from a certain oay, if the purchase be not then completed ; the purchaser is liable 1 Stevenson v. Maxwell, 2 Sandf. Cli. 5 Rutledge v. Smith, 1 M'C. Ch. 403 ; 273. Blount v. Blount, 3 Atk. 630. 2 McKennan v. Sternett, 6 Watts, 162. *^ January v. Martin, 1 Bibb, 586. 3 2 Sandf. Ch. 273. ^ Monk v. Huskisson, 4 Russ. 121, n. 4 Jones V. Mudd, 4 Russ. 118 ; 4 Bro. C. 329. respective times aforesaid, " with legal next, in case the title shall be perfected, interest from Michaelmas next." Tlie and the conveyances and other assurances £20,000 not having been paid, nor any executed at that time, and, if not, then of the incumbrances cleared oif, a new to commence on the execution of such agreement was entered into in October, assurances." Tlic jilaintitf was let into 1812. Tlie plaintiff was forthwith to possession, but the business was not com- advance £10,000, to pay off certain in- pleted. In a suit by tlie plaintifl" for cumbrances ; to be let into immediate specific performance, an account was di- possession ; to be entitled to the rents rected ; and it was held, that under the and profits "from Michaelmas last;" and clause in the second agreement, exempt- to be at liberty to cut timber, &c. The ing " the remainder of the purchase- conveyances were to be executed as soon money " from the i)ayment of interest, as existing difhculties could be removed, the sum remaining unpaid of the £20,000, and every possible exertion made to that and the three sums constituting the .£58,- end. It was further agreed, that " the 000, must be taken to come imder tiiat interest of the remainder of the purchase- description. Birch v. Joy, 18 Eng. Law & money shall not commence till Lady-day Eq. 16. 40 LAW OF VENDORS AND PURCHASERS. [CHAP. IV. for interest, though the delay was caused by the vendor ; otherwise, where is no express stipulation. ^ Thus a purchase was to be completed on a certain day, when the purchaser was to have pos- session ; and, "if from any cause whatever" the purchase-money were not then paid, he was to pay interest. The transaction was delayed six months, for want of proper abstracts. Held, unless he gave up the rent, the purchaser must pay interest during that time .2 Where similar terms of purchase were used, and the vendor furnished an abstract, the terms of which required to be verified aliunde; held, he was not entitled to interest, though the purchaser had not demanded such verification.^ But he is thus entitled from the time at which all questions of title and convey- ance are settled by the counsel of the parties ; accounting for rent received, or which might have been received with due diligence.^ In a late case, where a vendee, apprehending no danger as to the title, made a formal tender, not in good faith, but for an unreason- able advantage, and subsequently used the money, as well as the land for which he owed it ; he was held liable for interest.^ 4. Where specific performance was prayed both by original and cross bill, after considerable delay upon the title, the rents were ordered to be received, and interest paid, from the time stipulated.* So a purchaser under a decree for sale, having accepted and (on report of an objection to the title, for which compensation was ordered) returned possession, must pay interest on the purchase- money from the time at which he took, or at which a title was shown under which he might have safely taken, possession, and is entitled to an allowance for prior, not for subsequent, deterioration of the estate.'^ 5. The general rule, however, that the vendee is liable for inter- est, even though the vendor be in default, is to be qualified by the exception, that he is not thus liable, provided he has not only kept the purchase-money idle, but notified the vendor of the fact.^ Thus a purchaser, upon entering into possession, paid the amount of his purchase-money to his banker, and gave notice that he was ready 1 Esdale v. Stephenson, 1 Sim. & St. 5 Nantz v. Lober, 1 Duv. 304. 122 ; 3 Munf. 243. '^ Fenton v. Brown, 14 Ves. 143. 2'Cowper y. Bakewell, 17 Eng. Law & ■? Binks v. Lord Rokeby, 2 Swanst. Eq. 508. 222. s Sherwin v. Shakspeare, 23 Eng. Law 8 Brockenbrough v. Blythe, 3 Leigh, & Eq. 199. 619 ; Selden v. James, 6 Rand. 465. 4 Ibid. CHAP. IV.] INTEREST. 41 to invest it in such manner as the vendor shoukl require ; but no answer was returned to that notice, and the purchaser, during the investigation of the title, kept in the hands of his banker a balance equal to the amount of the purchase-money, except for four days, when it was a little less. Held, the purchaser was not liable for interest on the difference between his average balance during the period in question, and during the three preceding years. ^ 6. The purchaser is liable for interest, although he have actually advanced money in connection with the purchase, if by agreement such advance is to be applied for another purpose than payment of the price. Thus, by conditions of sale, the purchase-money was to carry interest, a deposit of 20 per cent to be paid, and the auction-duty borne equally by the purchaser and the ven- dor. The purchaser paid only the amount of the deposit, and out of it the auctioneer paid the whole of the auction-duty. Held, tlie portion of the deposit, applied in discharge of the purchaser's moiety of the auction-duty, was to be considered as an unpaid part of the purchase-money, and that the vendor was entitled to interest on it.^ 7. A purchaser thoroughly informed of defects in the title, but agreeing to pay interest from a certain day, shall not be relieved on the ground that he could not get possession of part of the land, which he knew at the time to be held by another person.^ So a vendee on credit, to whom a deed is made and possession given, is not excused from paying interest, though payment has been de- layed by an adverse claim, and a protracted suit thereon, but which terminated in his favor, he having continued all that time in pos- session, and enjoyed the issues and profits. (a) 1 Ibid. 2 Townshend v. Townshend, 2 Kuss. 303. 3 Mayo V. Purcell, 3 Munf. 243. (a.) The Court remarked, that the ven- ductive by him, and that he gave the ven- dor, having only covenanted to sell and dor notice that it was so unproductive, convey a perfect title, which was so con- Although the adverse claim was b}' the veyed, as proved by the result of the trial, Commonwealth, who proceeded to escheat — not that there should be no adverse the land by inquisition (which was opposed claimants, — committed no breach of his by tlie vendee by a Monstmns de droit, who covenant which excuses the vendee from defeated the claim), the sujiposed seisin in paying interest ; nor can the vendee's law into the hands of the Commonwealth costs be set off against the interest. To by the office found, and the suj^poscd excuse the vendee from paying interest liability of the vendee to the Cumnion- during the time that the adverse claim is wealth for tlie rents and jirofits, did not pre- in suit, it is not sufficient that he should vail over the actual seisin of the vendee ; be ready and willing to pay the principal ; and, as he actually enjoyed the issues and it ought also to appear clearly, that lie did profits during tlie whole time, and by the in fact keep the money useless and unpro- result became exempted from all liability 42 LAW OF VENDOES AND PURCHASERS. [CHAP. IV. 8. With regard to the rate of interest to be paid by a purchaser, it has been sometimes held in England, that he shall be charged with 5 per cent interest on the purchase-money unpaid.^ But, on the other hand, on the bill of a vendor, the purchase-money was decreed to be paid, with 4 per cent from the time it ought to be paid.2 And this is said to be the general rate allowed in the Eng- lish Courts of Equity.^(a) 9. It has been held, that the purchaser of' a reversion^ or of any estate the value of which is increased by the wearing of lives,(b') must pay interest from the time of purchase.*(c) But, on the other hand, it has been held, that the purchaser of a future interest, after 1 See Sugd. on V. & P. 2 Calcraft v. Roebuck, 1 Ves. 221. 3 Cliild V. Lord Abingdon, 1 Ves. 94. * Trefusis v. Lord Clinton, 2 Sim. 359 ; Bailey v. Collett, 23 Eng. Law & Eq. 263 ; Champernowne v. Brooke, 3 Cla. & F. 4 ; 3 Y. & Coll. 510. for them to the Commonwealth, that sup- posed legal seisin of the Commonwealth forms no excuse to the vendee for not paying interest to the vendor. Selden v. James, 6 Rand. 465. (a) When purchase-money is to be paid, and a conveyance made, at a given time, but disputes arise as to the title, and the purchaser proposes to the vendor to lay out the purchase-money in exchequer bills till it is wanted, but the vendor returns no answer, and the money is so laid out ; the vendee is at the risk, and is entitled to the benefit, of such purchase-money, with 4 per cent interest. Acland v. Gaisford, 2 Mad. 28. So where the completion of a contract was delayed for thirteen years, and the property became deteriorated by dilapidations ; held, the loss must fall on the purchaser, as the state of the title was sucli that lie ought to have completed his purchase and taken possession ; and he should pay interest at 4 per cent only fi'om the time of filing tlie bill. Minchin V. Nance, 4 Beav. 332. So, in a late case, real estate, in possession and reversion, was offered for sale at auction in lots, under condition tliat on or before Decem- ber 25, 1849, tlie vendors should confirm the master's report of purchases, and each purchaser pay the purchase-money into Court, and be entitled to rents from that day ; and if, from any cause whatever, tlie money should not be so paid, it sliould bear interest from that day, at 5 per cent. Through fault of the vendors, the mas- ter's report was not confirmed till August 1851. On motion, that a purchaser of a reversion in fee, being one of the lots, should pay the purchase-money into Court, with interest from December 25, 1849 ; lield, interest should be paid from that time at 4 per cent. Wallis v. Sarel, 13 Eng. Law & Eq. 138. The purchase-money of an estate was to be paid by six instalments, with inter- est at 5 per cent, until the day of payment. It was subsequently agreed, that the last instalment, instead of being paid at the appointed day, should remain on mort- gage, at 4i per cent, for fourteen years, but that the stipulations of the first con- tract, as to the previous instalments, should continue in force. Held, the re- duction from 5 to 4.^ per cent was depend- ent upon the fulfilment of the terms of the first contract with respect to the prior instalments. Attwood v. Taylor, 1 Mann. & Grang. 279. {h) As to interest in case of the sale of timber or ^fixtures, with reference to the increasing value hy natural growth in the one case, and the deterioration arising from wear and tear in the other ; see Dart on V. & P. 295-6 ; Dyer v. Hargrave, 10 Ves. 510; Dakin v. Cope, 2 Russ. 176. (c) Tlius where a reversion expectant on an estate for life was decreed to be sold, B. was confirmed the best pur- chaser, and the order made absolute on the 1st of January, 1724; and in Jan- uary, 1726, B. was ordered to bring his money into the bank. The life having dropped, held, if the life had dropped the next day after the report of B.'s being the best purchaser was made absolute, the purchase must have stood ; and as from that time the life was wearing, so from that time the purchaser ought to pay interest. Manning, 2 P. Wms. 410. CHAP. IV.] INTEREST. 43 a term, shall not pay interest, or an increased price, for a part of the terra elapsing before the purchase is completed, unless the delay be through his fault.^ 10. It is remarked by the court in New York, that the general rule in England is, that, from the time fixed for completion of a sale and conveyance, the purchaser is entitled to the profits, and will be compelled to pay interest. The latter is implied from the former. This rule is modified here, by the difference in the situa- tion and productiveness of real estate, and the higher rate of interest ; and, in the case of vacant or unproductive property, a contract to pay interest will not be implied, when the purchaser is prevented from obtaining his title through the default or negli- gence of the vendor, notwithstanding possession by the vendee. So where he does not go into possession under or in pursuance of the contract, and the delay in its completion is imputable to the seller. Thus the plaintiff and defendant, being joint owners in possession of several lots, under a lease which contained a cove- nant for a sale and conveyance to the lessees at their option, at a fixed price, tendered the price to the lessor's heirs and repre- sentatives, and demanded the title ; but the latter, by reason of infancy and other causes, were long unable to convey. The plain- tiff then signed an agreement, by which he covenanted to execute a perfect conveyance to the defendant of all his right and interest in one of the lots (which was vacant), on the 1st of May, 1830, in consideration of a large price to be then paid or secured by the defendant, and, when the legal title was obtained, he would give any further assurance, &c. The plaintiff made no effort to com- plete, or to convey his own interest to the defendant, at or before the day fixed ; and, early in 1831, he repudiated the agreement, denied its obligation, and disclaimed the defendant as being the purchaser. The defendant nevertheless proceeded and erected a valuable store on the lot, the income from which exceeded the whole cost of both store and lot ; and at the same time he made similar erections on the joint account on the other lots of himself and the plaintiff. In 183(3, the plaintiff filed a bill, amongst other things, calling on the defendant to complete the purchase of the lot ; and a conveyance was finally in readiness for the defendant in 1841. Held, that the defendant did not take possession under 1 Growsock v. Smith, 3 Anstr. 877. 44 LAW OF VENDORS AND PURCHASERS. [CHAP. IV. his contract with the plaintiff, and the character of his previous possessiQn was not changed ; that the plaintiff was not entitled to interest on the stipulated price from May 1, 1830, nor until he made or offered a full conveyance of his right and title in the lot ; but he was entitled to the value of the rents in the intervening period, as the same would have been derived from the lot, in the condition in which it was when he contracted to sell to the defend- ant. The Court say : " In the case of a vacant city lot, or of wild land, not bought for immediate improvement or cultivation, and where there is no express contract for interest, it would be repugnant to the moral sense to compel the purchaser to pay in- terest on the price, when, through the default or negligence of the vendor, he had not received a conveyance, and thus had been pre- vented for years from disposing of the property. Nor would the fact that the former had taken all the possession that he could of such property, and had not kept the money by him all the time in order to pay it on receiving the title, affect the natural equity of the case. Yet by the modern English rule he would be charged with interest under such circumstances." ^ 11. The purchaser may under some circumstances make a claim for interest. Upon this point, the distinctions are nice, and the cases not wholly reconcilable. 12. Thus, where the sale is made in payment of a debt, the vendor must pay interest from the time the debt is liquidated until he makes a good title ; and the vendee is accountable for the rents and profits from the time the title is perfected until the contract is specifically performed.^ So, the agreement not being completed within the time specified, the purchaser shall be allowed interest for such time as the purchase-money has been kept dead for this special purpose.^ But, on the other hand, it has been held, that a purchaser out of possession cannot claim interest on the purchase-money, though he has laid it aside till the vendor should show a good title, and it has thereby become unproductive.* So, also, that a party recovering back a deposit paid on the pur- chase of real property is not entitled to interest.^ So if the con- tract is rescinded, but not for fraud, the purchaser having paid the 1 Stevenson v. Maxwell, 2 Sandf. Ch. * De Vesme v. De Vesme, 13 Jur. 273, 278. 1037. But see Dart on V. & P. 294. 2 Hepburn v. Dunlap, 1 Wheat. 179. 5 Bradshaw v. Bennett, 5 Carr. & P. 3 Howland v. Norris, 1 Cox, 59. 48. CHAP. IV.] INTEREST. 45 price, and taken possession ; the use of the money and that of the land are held to balance each other; and the decree should in general restore the money without interest, and the land without rents and profits. But, either in case of valuable and permanent improvements by the purchaser, or deterioration of the property through his default, a valuation, account, and settlement shall be made accordingly .^ 13. Upon a bill by a purchaser, for specific performance ; the vendor, for fifteen years, having retained possession of the whole estate, and of one-third of the purchase-money ; held, he should be charged with interest on one-third of the rents and profits. ^ 14. In a late American case, it is said,^ with reference to a case of fraud ; the taking of the money being wrong and fraudulent in law, the law will grant interest upon it from the time it is so taken. It seems to me more just and equal for the parties, that in all cases of rescinded contracts, interest must be allowed on the money paid, from the time of payment till the judgment ; and, on the other hand, the party occupying the land be charged with rents and profits during the possession, deducting taxes and the cost of any permanent improvements made. Because in some cases the rents are little or nothing, and in others more than the interest. A purchaser out of possession is entitled to interest on his deposit, and to costs at law and in equity, until the vendor has made his title good ; though the vendor is entitled to subsequent costs, and may enforce the contract, if his title be good when the report is made. 15. Where an auctioneer, as agent for the vendor, agrees to sell according to the conditions, by which the purchaser is to pay down immediately a deposit, and the auction-duty, and the residue of the purchase-money upon a day certain, on having a good title, and the vendor is to prepare and deliver an abstract ; the auc- tioneer is not, upon a failure of the contract, in consequence of a defective title, personally responsible for interest upon the deposit and auction-duty, unless the money be demanded, or notice given to him that the contract has been rescinded.'* So an auctioneer, who receives a deposit from the purchaser, is a mere stakeholder, liable to pay the money at any time ; and therefore, although he 1 Williams v. Rogers,"2 Dana, 375. •* Per Woodbury, J., Doggett v. Em- 2 Burton v. Todd ; Todd v. Gee, 1 erson, 1 Woodb. & M. 195. Swanst. 255. ■* Gaby v. Driver, 2 You. & Jerv. 549. 46 LAW OF VENDORS AND PURCHASERS. [CHAP. IV. place the money in the funds at interest, he is not liable to pay such interest to the vendor when the purchase is completed ; though the vendor (without the concurrence of the vendee) gave him notice to invest the money in government securities.^ So where a purchaser of an estate by auction deposited a sum with the auctioneer, as part of the purchase-money, until he should receive a good title, according to the conditions of sale ; and no good title was made out ; but the treaty was kept open with the auctioneer for four years, and no demand made on him for the deposit: held, the auctioneer was not liable for interest.^ But where a vendor filed a bill for specific performance, but, not being able to make a good title, his bill was dismissed ; held, he should return the deposit with interest.^ So where a vendor omits to make out a good title within the stipulated time, and the vendee dies ; his executor may sue for loss of interest on the deposit- money, and the expense of investigating the title.*(a) 15 a. "Where payments have been made by a vendee, at different times, all exceeding the interest then due, and the decree, in a suit by the vendor for a specific performance, directs an account 1 Harrington v. Hoggart, 1 Barn. & Adolph. 577. 2 Lee V. Mumi, 8 Taunt. 45; 1 Moore, 481. (a) The plaintiffs, purchasers of mines, having paid part of tlie purchase-money, and been let into possession, agreed to pay the residue by instalments, and in the mean time half-yearly interest on what should remain due. Having paid one- half year's interest, but no portion of the remaining purchase-money, they filed their bill to set aside the contract. The vendor then recovered the next four half- yearly portions of interest by several suc- cessive actions, but, upon bringing his action for the fifth, was restrained by an order for an injunction in this suit. The terms of that order, dated the 28th of February, 1829, were, that, upon the plaintiffs' paying into Court the sum which was the subject of that action, the defendant should be restrained, &c., and that, upon their continuing from time to time to pay in the like sums half-yearly, the injunction should be continued to the liearing. Under that order, several half- yearly instalments of interest were paid in, and invested, and made to accumulate in the funds ; but under two subsequent orders, made at the instance of tlie de- fendant, for the purpose of enlarging 3 Anson v. Hodges, 5 Sim. 227. * Orme v. Broughton, 10 Bing. 533. publication, all further payments into Court were suspended until the hearing. The cause was heard in November, 1881 ; and, in the following November, judgment was given in favor of the plaintiffs ; under which the accumulated stock was sold out, and paid to them, and the defendant was compelled to pay ^9,766 for costs. In Marcli, 1838, the House of Lords re- versed this decree, and remitted the cause to the Court below, to do therein as should be just, and consistent with their reversal. Held, 1st, that the defendant was entitled to be repaid the sum of .£9,766, but without interest. 2d. That as to the instalments of in- terest, which became due on the unpaid purchase-money, after the decree in the Court below, the defendant had no reme- dy in this suit, but must be left to his remedy at law. 3d. That the defendant was entitled to be repaid in this suit the instalments of interest, which became due between the orders for suspension and the decree of the Court below, but that he was not entitled to interest on those instalments. SmaU V. Attwood, 3 Y. & Coll. 105. CHAP. IV.] INTEREST. 47 of what is due for principal and interest, rests shall be made.^ So where a sale is avoided, the purchase-money for which was secured by an instrument bearing interest, and interest had been paid thereon ; such payments are to be considered as principal, and are to be refunded with interest.^ So, a purchase being set aside for fraud, and the purchaser decreed to pay an occupation rent, receiving back his purchase-money with interest ; there being a considerable excess of the rent above the interest ; annual rents were directed to be made in the accounts, until the excess should liquidate the principal.^ 15 h. In case of a suit for the price, interest being allowed from the time of purchase by the jury, it is presumed that they gave interest on a counter-claim for fraudulent representation as to quality and location.^ 16. The question of usury sometimes arises, in connection with the price of lands sold. Thus an agreement to purchase houses for i431 10s., possession to be given and £200 paid immediately, the rest, with interest, at Michaelmas, but, if not then paid, the purchaser to pay " in lieu of interest upon the same a clear rent of X42 per annum," out of which was to be deducted interest for the X200 paid; was held not usurious.^ So where there was a sale of an estate at a certain price, to be paid by instalments, with interest, at 6 per cent ; and notes were given for these sums, compounded of the instalments, and that which was called interest ; held, the whole must be considered as purchase-money, and the bargain was not usurious.^ 17. Questions sometimes arise, as to an order for, and the effect of, a payment of the purchase-money of lands iyito Court, and a claim of interest thereupon. 18. It is said, purchase-money paid into Court is tlie property of the vendor.'^ 19. Generally, a purchaser shall not retain possession and also keep his purchase-money. But where he was willing to give up possession, and it was a question, whether there was or not a sub- 1 Griffith V. Heaton, 1 Sim. & Stu. 5 Spurrier v. Mayoss, 1 Ves. 527; 4 271. Bro. C C. 28. 2 Murray v. Palmer, 2 Sch. & Lef. ^ Beete v. Bidcrood, 7 Barn. & Cress. 488. 453 ; 1 Mann. & Gran. 8'J4. 3 Donovan v. Fricker, Jac. 165. ^ Gell v. Watson, 2 Sim. & Stu. 402. 4 M'NaUy v. Shobe, 22 Iowa, 49. 48 LAW OF VENDORS AND PUECHASERS. [CHAP. IV. sistiiig contract, the Lord Chancellor refused to order payment of the purchase-money into Court. ^ 20. Payment to the solicitor for all parties in the suit is equiv- alent to payment into Court,^ 21. Where a contract is cancelled by decree in Chancery for fraud of a party, a decree that he shall repay what he has received under it, with interest until paid, is proper.^ 22. A purchaser, complaining that his conveyance did not com- prise the whole of the property which he had contracted for, filed his hill for a conveyance of the remainder, and obtained an injunc- tion against any suit for the purchase-money, part of which was afterwards ordered to be paid into Court, to abide the event of the suit. The bill being dismissed ; held, the vendor was entitled to the residue of the purchase-money, and the interest upon it, to the time of payment, although the purchase-money in Court had not been laid out, and no interest accrued thereon.* 23. The amount of damages to be awarded between vendor and vendee may be affected by the value of improvements made by the party in possession under the contract ; which amount shall be deducted from the rents and profits.^ Thus a vendee in possession under a title-bond, obtaining judgment on the bond against the vendor for failure to convey, is liable for rents and profits, and entitled to payment for lasting and valuable improvements.'^ So, where a sale is within the Statute of Frauds, the improvements by the purchaser must be paid for before possession is given, deduct- ing rent, k.^."' 24. If a vendee receive payment for improvements on eviction, and afterwards the vendor establish his title to be paramount, the vendee may be compelled to refund to the evictor. On the other hand, if the vendor, on the eviction of the vendee, has refunded the consideration and interest, the vendee is responsible for rents, but must be paid for permanent and valuable improvements.^ So one who is permitted to enjoy an estate, and makes improvements during his occupancy, is in equity entitled to remuneration for the 1 Morgan v. Shaw, 2 Mer. 138. 170 ; Ace. Stedwell v. Anderson, 21 Conn. '^ Price V. North, 2 Y. & Coll. 620. 139. 3 Perkins v. Rice, Litt. Sel. 218. 7 M'Cracken v. Sanders, 4 Bibb, 511. 4 Humphries v. Horn, 8 Hare, 276. 8 Morton v. Ridgeway, 3 J. J. Marsh. 5 See Watts v. Waddle, 6 Pet. 389. 257. ^ Funk V. M'Keoun, 4 J. J. Marsh. CHAP. IV.] INTEREST. 49 improvements. And a purchaser from him is also entitled to have his improvements sot off against the rents.^ So on setting aside a sheriff's sale of lands, and ordering possession to l)e restored, the purchaser should account for rents from the time he took pos- session, to be reduced from improvements.^ So where a title is fraudulent, equity, in giving relief, will re-imburse the party in pos- session, for permanent improvements.^ 25. It has been held, that a purchaser, evicted or released by the vendor for defective title, shall be re-imbursed for actual im- provements, although he purchased with notice of a doubtful title. The Court remark : " The objections made were, that the purchaser knew, at the time of the purchase, there was a doubt about the title, and therefore ought not to have made any improvements ; and that the improvements were chiefly ornamental, and not sub- stantial and permanent. The first objection goes rather to any re-imbursement at all, even for the price paid. That objection turns upon the ground, that if the purchaser, before executing the articles, knew that there was a defect of title, or incumbrances, he shall be considered as having entered into the contract with his eyes open, and has chosen his remedy at law, and equity will not assist him, but leave him to his remedy at law. But that point cannot now be made here, for it is agreed that the purchase ought to be and shall be rescinded, and that the purchase-money shall be restored, but without interest, as tlie occupancy was equivalent to the interest ; and this agreement seems best to comport with jus- tice ; for there are very few cases in which the Court will not, upon a defect of title, assist the purchaser to recover the purchase-money, and also money laid out in lasting improvements. Where, indeed, the defect was notorious, and the purchaser bought on a specu- lation, and obtained the property at a price far below the value, on account of the known defect, it seems reasonable that he shall not afterwards claim a re-imbursement even of the purchase-money. But nothing of that kind appears to have existed here. It is not pretended that the defect was notorious, and that the property was obtained below the value on account of that defect, and on account of his running the risk of the title." It being objected that the improvements were merely ornamental, the Court further ordered, that it be " referred to the Master to examine and report what were 1 Thompson v. Mason, 4 Bibb. 195. 3 ghine v. Gough, 1 Ball & B. 444. 2 Searcy v. Eeardon, 1 A. K. Marsh. 2. 4 50 LAW OP VENDORS AND PURCHASERS. [CHAP. IV. the expenditures for the usual improvements in question, making deductions for the deterioration of the buildings during the occu- pancy of the party who made the improvements, and down to the time of the rescission of the contract." The Master afterwards made a report in favor of the complainants, which was con- firmed.i 1 Witherspoon v. Anderson, 3 Desaus. 245, 246, CHAP, v.] PARTIES TO CONTRACTS. 51 CHAPTER V. PARTIES TO CONTRACTS. 1. Necessity of parties ; uncertainty, &:c. 5. Joint parties. 6. Particular tenants ; in tail, for life, &c. 13. Husband and wife. 19. Representatives of a party deceased; heirs; infants. 34. Trustees and cestuis que trust. 35. Aliens. 36. Agents; their authority, — it may be verbal; construction of written powers, &c.; form of the contract ; whether it binds the agent or the principal. 1. To render valid a contract for the sale and pnrchase of lands, as in other contracts, there must be legally existing parties. It is not necessary that the parties should be expressly named. But, if there is nothing in the instrument itself, nor in the nature of the transaction, which shows who are the parties, the contract is void for uncertainty.^ 2. In some cases, however, the party, to whom final conveyance is to be made, need not be at the time distinctly ascertained. Thus,, a bond to convey lands to a board not in esse, for public purposes, in consideration of the location of a county seat of jus- tice, is not void by reason of the want of a grantee. (a) 3. It is not always necessary that the party binding himself by a contract should himself receive the consideration of such contract. (6) ■ 1 Webster v. Ela, 5 N.H. 540. (a) A statute, creating a county, ap- pointed commissioners to locate the seat of justice, in May, 182G, to receive dona- tions in land, and to take bonds of persons proposing to give lands, payable to a board of justices (vvliose appointment was not to take effect until June), and tlieir succes- sors in office, which bonds the commis- sioners were required, by law, to deliver to the board of justices. A party, propos- ing to give lands, delivered to tlie com- missioners a bond from himself to the board of justices to be thereafter organized, and their successors in office, for the con- veyance of the lands, which bond was delivered bj'^ the commissioners to the justices. Held, the bond was not void, for want of obligees in existence at the time of its delivery to the commissioners, but was evidence in defence of an action of ejectment, brought by the heirs of the obligor, against a party who occupied the land twenty years under a title derived from the board of justices. Sargeant's, &c., V. State Bank, &c., 12 How. 371. (b) A. purchased land of B., and agreed to pay off the note which B. had given, and secured by a mortgage upon the land. C. paid and took up the note, and sued A. upon his promise made to B. Held, he could not recover, for want of privity and consideration. Page v. Becker, 31 Mis. 466. As an inducement to the sale, by a son, of land charged with the support of the father, the latter agreed in writing to ac- cept a specific sum, which the i)urchaser agreed, in writing, with the son to pay. 52 LAW OF VENDORS AND PURCHASERS. [CHAP. V. But, in general, a party is not bound by an agreement relating to lands, where the consideration is past, more especially if another person had the benefit of such consideration, or if the contract is an uneqiial and unreasonable one. Thus, a declaration alleged, that a surveyor, in consideration of a sum paid him by the plaintiff, promised to furnish a land-warrant, and enter and survey for the plaintiff a piece of vacant land, in order that the plaintiff might obtain a grant thereof ; that he wholly failed to make the entry ; and that the defendant, his successor, in consideration of the prom- ises of his predecessor, and the payment made to him by the plaintiff, and being required by the plaintiff to enter the land for him, agreed to furnish the necessary warrant, and enter it in the plaintiff's name in his office, and seasonably survey it, so that the plaintiff might obtain a grant ; and that the plaintiff agreed to pay the defendant his fees for the survey. That the defendant failed to furnish a warrant and enter the land for and in the name of the plaintiff, but entered and surveyed it for another person, who had received a patent therefor. Held, as a count in assumpsit upon a special contract, the declaration set forth no sufficient consideration between the parties ; and, as a count in case, it set forth no such official misbehavior or neglect as furnished a ground of action.^ 4. Where a vendee assigns the contract, and the assignee takes possession, the vendor, though he cannot compel the assignee to pay the purchase-money, may, by virtue of his lien on the land, call on him to pay the money, or to surrender the land, or to have it sold for the benefit of the vendor. And where the administrators of the vendee assigned a contract for the purchase of land to the defendants, who covenanted and agreed to take up and cancel the contract, and to indemnify and save harmless the administrators from all damages, &c., which they might sustain by reason of the contract, &c. ; held, that the administrators were entitled to specific performance of the covenants, and a want of assets could not be objected, in limine, to the relief sought.2(a) 1 Hale V. Crow, 9 Gratt. 263. ^ Champion v. Brown, 6 Johns. Ch. 398. Held, although this last agreement was (a) On the other hand, where a ven- not in terms a contract with the fatlier, dor, by bond, assigns a note, received in yet it was for his benefit, and could have payment, and agrees that the assignee been enforced by him, and constituted a sliall be substituted to the benefit of all good consideration for the release of the security held by him ; the assignee suc- contract for maintenance. Woodberry v. ceeds to his rights, and may file a bill in Duvall, 15 lud. 164. ' his own name, against the vendee, and all CHAP, v.] PARTIES TO CONTRACTS. 53 5. Contracts for the sale of lands may involve the rights and obligations of parties jointly interested. (a) Thus all the parties, bound by an executory contract to make titles, must join in the deed, in order to a complete performance. But all will be dis- charged by the acceptance, on the part of the vendee, of something in satisfaction of the obligation, and in place of strict performance, from one alone.^ (5) 1 Johnson v. Collins, 20 Ala. 435. But see Coe v. Harralian, Mass. S.J.C. Suffolk, March, 1857. persons claiming under him, with notice, for a foreclosure and sale. The vendee is to be regarded as a mortgagor ; and lie and those claiming under him, with notice, cannot object that the complainant is a mere assignee, and that the relation of vendor and vendee does not exist between them. Blair v. Marsh, 8 Clarke, 144. (a) In a suit to subject to sale a contract for the sale and purchase of land, held as collateral security for promissory notes ; the owner of the legal title is not a neces- sary party -defendant. Vaughn v. Cushing, 23 Ind. 184. [h] Two parties, each claiming title to the same land, derived from distinct sources, but neither of which could be perfected without a confirmation from the government, entered into a written and sealed agreement, fully reciting their re- spective claims, and providing that they should share equalh' if the title were con- firmed ; if not, in the money awarded by government, in lieu thereof. The title was confirmed, and a title granted to the defendant, one of the parties, in his own name. Tlie other having in the mean time died, his heirs tile a bill for specific performance. Held, as the agreement fully recited the respective interests of the parties, the defendant could not set up in defence an inequality of interest at that time. Hunt v. Thorn, 2 Mich. 213. Where one holding an agreement for a conveyance sells his right to part of the premises, the purchaser cannot, at law, divide the contract, and compel a convey- ance in separate parcels ; nor in equity, except in special cases, where it is neces- sary to protect an innocent purcliaser from an intended fraud. Stone v. Pratt, 25 111. 25. Bill for specific performance. By a written contract, the defendant agreed to repair the plaintiff's mill, building fences, &c., and tlie plaintiff to sell to the defend- ant, on completion of such repairs, one undivided moiety of tlie premises. It was further agreed, that the parties sliould then form a partnership, to work the mill for a year, when, if the plaintiff shoidd elect to withdraw, the defendant should pay him a certain sum for tlie premises ; otherwise, the partnership to continue for five years. Held, not to be a case for specific performance. Reed v. Vidal, 5 llich. Eq. 289. A. left property to his children, and, at the death of any of them without issue, the share of that one was to be divided among the rest. In consideration of love and affection, a contract was signed,' by which the interests of all the others under this clause were agreed to be released so far as regarded the shares of two of the devisees. Held, the execution of tliis con- tract by one of the covenantors, by filing a disclaimer, would bind tlie rest, even if they would not be otherwise bound. Nun- nally v. White, 3 Met. (Ky.), 584. A. bound lumself to convey to B. and C. one undivided half of certain lands, as soon as payment shall have been made as agreed on, or so soon thereafter as D. and E., parties of the second part, may request it to be done. D. and E. agreed to pay to A. one undivided lialf of the amount paid for the property, and expended in improvements made or to be made there- on. The title to part of the property to remain in A. so long as the parties might agree, and the lot to be sold for the benefit of all the parties ; the profits to be divided, one-half to A. and one-quarter each to B. and C. In case a division should be required, then A. agrees to make a deed to each party of his pro])ortion of tlie lots remaining unsold ; the division to be made in an equitable manner as might be agreed on. Held, under this contract the parties were joint owners, and not partners. Munson v. Sears, 12 Iowa, 172. Agreement under seal, between the plaintiffs, husband and wife, and the de- fendant and five other persons, interested in certain real projicrty, tliat " tlie said parties, namely [tlie plaintiffs |, on the one side, and [tlie defendant and the other five 54 LAW OF VENDORS AND PURCHASERS. [chap. V. 6. In this connection may be considered some miscellaneous points, connected with the respective rights and duties oi particular tenants^ as growing out of the sale and purchase of lands. 7. A tenant in tail is bound by his agreement to convey. But the issue in tail is not bound.^ So though a decree be made against tenant in tail, who had agreed to sell his estate, and he stands out all process of contempt for not obeying it, yet his issue are not bound by it.^ The ground of these decisions is said to be, that the issue in tail claim joer formam doni, from the creator or author of the estate tail, not from the tenant in tail, who under- takes to bind them.-^ 8. If a tenant for life, with a leasing power, agrees to make a lease pursuant to the power ; this agreement shall bind the remainder-man.* 9. Where, by the terms of a devise or settlement, the consent of the tenant for life is necessary to a sale by the trustees, upon a bill filed by them to enforce a sale, they must prove the requisite consent before the filing of the bill, not merely before the hearing, in order to obtain an immediate decree at the hearing.^ 1 Ross V. Ross, 1 Cha. Ca. 171. 2 Powell V. Powell, Prec. Cha. 278. 3 1 Sugd. 264. * Shannon v. Bradstreet, 1 Scho. Lef. 52. 5 Adams v. Broke, 1 Y. & Coll. 627. persons] on the other, shall," at a time and place to be appointed, "bid against each otlier for the right to take said estate, and thereupon said party obtaining the right to take the same shall receive a convey- ance of the interest of the other party therein, and shall pay tlierefor to the other party the appraised value of the interest so conveyed, together with the sums bid for the right of taking said estate, in cash, upon the delivery of the deed." The plaintiffs bring an action upon this agree- ment against the defendant alone, alleging that, at the time and place appointed, " the parties to said agreement bid against each other as aforesaid, and [the defendant] did bid for said right" a certain simi, " being the highest sum bid therefor, and there- upon became entitled to take the interest of the plaintiffs therein, and became bound to take the same and to pay thei'efor the amount of said appraisal and of said bid ; and afterwards the plaintiffs executed a deed of the interest of said female plain- tiff therein, and tendered the same to the other parties to said agreement ; yet the defendant wholly refused to accept the same or pay the consideration thereof." Held, on demurrer, the action could not be maintained. Shaw, C.J., says : " The result " of the terms of the agreement is, " that the party owning four-fifths of the estate should give the other party, for his one-fifth, more than the appraised value of the whole. It may be so, and the party may be bound ; but if so, it must be by force of strict law, and cannot be aided by equitable considerations. The agreement exactly defines the parties who are to bid against each other — the plaintiffs on the one side, and the defendant and five others on the other. The declaration does not aver that the parties bid, but that the de- fendant bid. This is not conformable to the contract. If the defendant bid for his party, then the whole were purchasers, and the suit should have been against them all. But the averment is, not only tliat the defendant made the bid, but that he became bound, and the plaintiffs exe- cuted and tendered a deed to him. The thing to be bid for and conveyed was the interest of Pierce and wife in the real estate ; whereas the deed was of tlie in- terest of the female plaintiff." Pierce v. Harrington, 1 Gray, 595. CHAP, v.] PARTIES TO CONTRACTS. 55 10. Specific performance of a sale of an estate in fee was decreed, in favor of a vendor who at the time of the contract was tenant for life only ; the purchaser not having rejected the purchase as soon as he had ascertained the real interest of the vendor, and the ven- dor being able, by means of the consent of the remainder-man, to make a good 'primd facie title to the fee-simple at the hearing.^ 11. A sale under a decree, all necessary parties being before the Court, will not be set aside after a lapse of time, though the sur- plus of the purchase-money was directed to be paid to a tenant for life ; there being no surplus, and the sale appearing to be prop- erly conducted. 2 12. Where a landlord, or lessor, in 1781, by an ejectment for non-payment of rent, entered upon the possession of a widow, tenant for life of a lease for lives renewable for ever, remainder to her children, infants ; and the children, in 1806, long after they came of age, and after the lessor had been in undisputed pos- session for upwards of twenty-five years, filed their bill for relief: held by the House of Lords, reversing a decree of the Irish Court of Exchequer, that there was no ground whatever in this case for interference in equity.^ 13. The question of parties sometimes arises, in connection with the respective rights and obligations of husband and wife. 13 a. Upon this subject the general rule is, that femes covert cannot bind their interest in lands, except in the precise form pre- scribed by law.^ Therefore an agreement by a feme covert, even with the assent of her husband, for the sale of her real estate, is void, and cannot be enforced in Chancery against her.^ But the husband has such an interest in lands owned in fee by the wife, that he can give a lease thereof for a term of years, which will be valid during the coverture, at least ; and an agreement to give such a lease, if not otherwise objectionable, may be enforced in a Court of Chancery.*^ And where one agrees to sell land, and to execute and deliver a warranty deed thereof, his wife must join in such deed.^(a) 1 Salisbury v. Hatcher, 2 Y. & Coll. 54. 5 Butler v. Buckingham, 5 Day, 492. 2 Lightburne v. Swift, 2 Ball & B. 207. 6 Eaton v. Wliitaker, 18 Conn. 222. 3 Baker v. Morgan, 2 Dow, 526. ' Pomeroy v. Drury, 14 Barb. 418. 4 Dunlap V. Mitchell, 10 Ohio, 117. (a) Where the wife was not party to performance. Richmond v. Robinson, 12 a sale of land, she cannot be required to Mich. 193. join m the conveyance, nor properly be Where a widow, as the heir of her hus- joined in a bill of the purchaser for specific band, becomes owner in fee, under §§ 17 56 LAW OF VENDORS AND PURCHASERS. [chap. V. 14. Where an agreement does not designate the person to whom the consideration is to be paid, the law raises an assumpsit in favor of tliose who are the meritorious cause of action, or from whom the consideration moves. Thus, the consideration being the sale of the wife's inheritance, in the absence of an express promise, the law raises one to the husband and wife, on which the husband may sue, either in his own name, or in their joint names. Even if there was an express promise to the husband, the wife might be joined as plaintiff. But a feme covert cannot be joined, in an action to recover the price of property sold by her, and which be- longed to her before coverture, or unless there be an express promise of payment to her.^(a) 1 Higdon V. Thomas, 1 Har. & Gill, 139. & 18 of the (Ind.) act regulating descents, whilst she remains his widow, she has the legal right to alienate such estate, and convey a perfect and absolute title ; and if she sell by title-bond, and put the pur- chaser in possession, and tlien marry again, she may after such marriage be compelled to specifically perform such contract, by conveying the legal estate. Newby v. Hinshaw, 22 Ind. 334. A., and B. his wife, conveyed her land to C, the daughter of B., and wife of D., by a deed of gift; after which A. was im- prisoned on an execution in favor of E., and held in close confinement. With a view to obtain his liberation, C. agreed with D., that, if he would assume the debt to E., by giving his note for the amount, she would pay it from the avails of the land so conveyed to her. D. gave his note accordingly, and A. was liberated. Immediately afterwards C. died ; and D., having paid the note, exhibited to the Court of Probate his claim for the pay- ment, against her estate. Held, 1, that the agreement between C. and D., having been executed on one part, was not within the Statute of Frauds, and might be proved by parol ; 2, that even if D. had an equi- table claim, whicli a Court of Chancery, on suitable process, with the parties in inter- est before it, could enforce, it was not competent to a Court of Probate to allow it ; but, 3, that the agreement, having been made by a feme covert with her husband, without benefit to her, was void, and could not be enforced anywhere. Watrous v. Clialker, 7 Conn. 224. (a) A baker was desirous of disposing of his shop and the good-will of his busi- ness, and in consequence an advertisement was inserted in a newspaper, stating that the house was doing twelve sacks a week. The advertisement was inserted by the broker, in consequence of a conversation with the baker's wife, who managed the business for him, in which conversation she told the broker that they did between nine and ten sacks a week; upon M'hich he said, " We must make it twelve for the paper." In consequence of the advertise- ment, a person desirous of purchasing went to the wife and said to her, " Are you really doing any thing like this busi- ness?" to which she replied, " Yes, we are doing eleven sacks," and appealed to the man in the shop, who confirmed her statement. The baker himself did not appear at all in any part in the trans- action, except that he received the pur- chase-money, and paid the broker his commission. In an action brought by the purchaser on the representation contained in the advertisement, it was held, that the baker was personally and individually answerable in damages, inasmuch as, though he did not make any representa- tion himself, yet he made the wife his agent, and was bound by her statements. Taylor v. Green, 8 Carr. & P. 316. A., the wife of a bankrupt, who was abroad, without his consent, or a legal ratification by herself, conveyed her own lands to trustees under his sequestration. Upon a sale of these lands by public roup, the vendor, by the articles of roup, under- takes to execute to the purchaser a valid, irredeemable disposition of the subjects, as described in his own or constituent's title thereto ; also to deliver certain speci- fied deeds, &c., described as " all the title- deeds of the property in his custody." Upon a suit by the vendor for the pur- chase-money, and a proceeding for suspen- CHAP, v.] PARTIES TO CONTRACTS. 57 15. Ill reference to the sale or purchase of lands in which hus- band and wife are interested, the points upon which there has been most difference of opinion are, whether a husl)and or wife, or both, shall be compelled in equity to execute a contract for the sale and conveyance of the wife's estate. (a) 16. Where a husband and wife, having a joint power of ajtpoiiit- ment by deed over the wife's estate, agreed in writing to sell it, Sir Thomas Plummer doubted whether specific performance can be compelled against them ; or whether the Court will decree him to procure her to join.^ So though a person may agree to sell at a price to be fixed by arbitration, and the award can be impeached only upon the grounds affecting all awards, as fraud or gross mis- take ; yet, upon such an agreement, where some of the persons to be bound were married women, one of whom also had not executed, the Court refused a specific performance, and dismissed the bill, leaving the plaintiff to law.^ Lord Eldon remarked, — upon the alarming doctrine apparently sustained by some earlier cases, that specific performance of the wife's contract will be enforced specifi- cally against the husband, — that, if a man contracts for the estate of a married woman, he knows the property is hers. The purchaser is bound to regard the policy of the law ; and what right has he to 1 Martin v. Mitchell, 2 Jac. & Walk. 2 Emery v. Wase, 5 Ves. 846. 425. sion by the vendee ; held, it is not such a bind the husband, as to the interests in title as a purchaser is bound to accept, the property which he had at the date of and that the title is not limited by the the agreement, or which he afterwards terms of the articles. Dick v. Donald, 1 acquired. Aylett v. Ashton, 1 j\Ivl. & Bligh, N.S. 655. Cra. 105. A married woman, with the concur- (o) Mr. Sugden (1 Vend. &P. 268) cites rence and in the presence of her husband, the following ancient case from tlie Year signed an agreement in writing to grant a Books, 7 Edw. IV. 14 b. : A woman rtstui lease; all parties believing tliat she was que use and her husband joined in the sale entided to two-thirds of the property for of her estate; the wife received the money, her separate use, and that the remaining and she and her husband begged her one-third belonged to her brother in India, feoffee to convey the estate to the pur- whose concurrence it was represented that chaser, which he accordingly did. The she could procure. It was soon after- husband died, and then tlie wife filed a wards discovered, that the wife was en- bill against the feof!(?e for a lireach of titled to one-fourth only for her separate trust. The cause was heard in tliu Ex- use, to another fourth absolutely ; that chequer Chamber, before the Clianccllor another fourth had belonged to her de- and the Judges of both benches, who ceased sister; and that the remaining held, that the sale was in fact the sale of fourth belonged to the brother. The the husband ; that the receipt of the money fourth which had belonged to the sister by the wife was immaterial, and the sale was purchased by the husband soon after was void ; that the trustee was answerable this discovery. Upon a bill for specific for the breach of trust ; and, as the jiur- performance against husband and wife ; chaser knew he was buying a married held, there could be no decree against her woman's estate, that the wife might re- in personam ; and her agreement did not cover the estate from him. 58 LAW OF VENDORS AND PURCHASERS. [CHAP. V. complain, if she, who, according to law, cannot part with her prop- erty but by her own free will, takes advantage of the locus peni- tentice ; and why is he not to take liis chance of damages against the husband ? So where baron and feme, having joint power to sell her estate, gave authority to an agent to sell by auction, but he sold by private contract for more than the price they required ; held, the buyer should not compel specific performance.^ So in Outran! v. Round, 4 Yin. Abr., Baron, &c., H. b, pi. 4, Lord Cowper said : " It is a tender point, to compel the husband by a decree to compel his wife to levy a fine, though there have been some prece- dents in the Court for it. And it is a great breach upon the wis- dom of the law, which secures the wife's lands from being aliened by the husband, witliout her free and voluntary consent, to lay a necessity upon the wife to part with her lands, or otherwise to be the cause of her husband's lying in prison all his days." But on the other hand, in Hall v. Hardy, 3 P. Wms. 189, Sir Joseph Jekyll, M.R., said: "There have been a hundred precedents, where, if the husband for a valuable consideration covenants that the wife shall join with him in a fine, the Court has decreed the husband to do it ; for that he has undertaken it, and must lie by it, if he does not perform it." And the reason is said to be,^ that in all such cases it is to be presumed, that the husband, when he enters into such a covenant, has first gained the wife's consent. So a husband was decreed to join, and to procure his wife to join, in a conveyance of her estate pursuant to agreement, or to refund a sum received by the husband ; where the Court would not make a personal decree on her.^ So freeholds were conveyed by lease and release to trustees, to the use of a feme covert, for her separate use for life, or to the use of such person as she should by writing sealed, &c., appoint ; and, in default of appointment, in trust to pay the rents to her for her separate use. The husband and wife, by writing not under seal, for valuable consideration, undertook to execute a mortgage of the property, when required. The husband died, and no mortgage had been executed. Held, the agreement was binding upon the wife."^ So it has been lately held in Massa- chusetts, that, if a husband agrees to convey land with release of the wife's dower and homestead, the contract may be specifically 1 Daniel v. Adams, Ambl. 495. ^ Sedgwick v. Hargrave, 2 Ves. 67. 2 Winter v. D'Evneux, 3 P. "Wms. * Stead v. Nelson, 2 Beav. 245. 189, n. CHAP, v.] PARTIES TO CONTRACTS. 59 enforced against him, so fiir as lie has power to execute it, with compensation in damages if the wife refuse to join. ^ 17. As between the husband and wife alone, where a husband covenanted in marriage articles, in six mouths after the death of his mother, and his coming in possession of the estate in jointure, to settle, &c., and he died in the mother's life, leaving no issue, ajid the estate came to his heir ; held, the heir should not be com- pelled by the wife to a specific performance.^ 18. A conveyance to a ho7id fide purchaser, under a decree against a feme covert for a sale of part of her separate estate, cannot, after an acquiescence of twenty-two years, be set aside ; notwithstanding the purchase-money may have been misapplied. So an order, disposing of the real estate of a feme covert, made on her consent, and acquiesced in during her life, will not be set aside on a doubtful case, made many years afterwards, by her represen- tatives.^(a) 1 Park V. Johnson, Mass. S.J.C. Law Reg. Jan. 1863, p. 180. (a) By deed of separation, the hus- band (a trader liable to tlie bankrupt laws) covenants with a trustee for the wife, in consideration of being indemnified from all debts and engagements which miglit be contracted by her during the separation, to release his remainder in fee to certain estates (of wliich lie was tenant for life, remainder to the wife for life, re- mainder to the issue of tlie marriage, remainder to himself in fee), to such uses, &c., as the wife shall by deed or will appoint, with power to the wife to revoke them. The wife executes the power by deed, which she retains in her possession, and afterwards alters and re-executes. Held, first, that the covenant, although entered into on occasion of a separation between husband and wife, was 3'et bind- ing in equity, being made to a tliird party ; secondly, that it might be supported against creditors, under the Statute of James, by the consideration of indemnity against the wife's debts and engagements ; tliinllij, that, the deed of appointment containing no power of revocation, although it was contained in the instrument creating the original power, the re-execution was void ; and the original appointment therelbre was decreed to be carried into execution. Worrall v. Jacob, 3 Meriv. 268. An attendant term having become vested in the wife of the owner of the inheritance, as administratrix of .tiie trus- tee, and her husband becoming bankrupt. 2 Whitmel v. Farrel, 1 Ves. 256. 3 Burke v. Crosbie, 1 Ball & B. 489. his assignees agree to sell the estate, and file a bill for specific performance of the agreement, pending which suit tlie hus- band dies. Held, the widow was not en- titled to dower, that she was bound to assign the term to the purcliaser, and that he was bound to accept the title. Mole v. Smith, Jac. -190. In a late case in Virginia (Clarke v. Reins, 12 Gratt. 98), it was held, that equity will not decree specific perform- ance of a contract by husband and wife to sell her land, as against her. Nor will it compel him to convey his life estate, with compensation for tlie loss of her estate. Daniel, J. (ibid. 105), gives tiie following view of the decisions upon these points: "The question whether a Court of Equity will, under any circumstances, decree against a hiishaiid the specific per- formance of a contract on his j)art to procure the conveyance by his wife of her real estate, is one which cannot he regarded as yet definitively settled in England. In the reports of the earlier cases, numerous precedents may be found in which the power of the Chancellor to make such decrees has been asserted and enforced. Thus the case of Hall v. Hardy, 3 P. Wms. 187, in which, ujion a submis- sion of a dispute touching the fee-simple of a parcel of land, the arbitrators awarded that the defendant should procure his wife to join with liim in a fine and deed of uses, and thereby convey the premises to 60 LAW OF VENDORS AND PURCHASERS. [CHAP. V. 19. Contracts for the sale and purchase of lands are sometimes brought in question after the death of the contracting parties. Thus such a contract may be enforced, though, by reason of the vendee's death, the execution of bonds and a mortgage required by the contract is impossible ; as the heirs or residuary legatees may carry it out. But, it is said, in case of the death or bank- ruptcy of the purchaser, it perhaps may be optional with the seller to rescind the contract, or to demand specific performance ; and, if the defendants are unable or unwilling to perform, perhaps the estate may be sold, and the defendants ordered to pay any differ- ence in the amount of the purchase-money. ^ So it is held, that, to enforce specific performance of a parol sale of land by one deceased, the precise terms must be proved. The vendee must also have taken exclusive possession in pursuance of the contract, and in the lifetime of the vendor.^ 20. If the obligee has fulfilled his part of the contract, his ad- ministrator may sue for a breach, though the purchase-money has not been paid.^ 21. An averment in a declaration, that a vendor has power to sell, as executor, is sufficient, without an allegation that the title of his testator is good.'* 1 Tiernan v. Roland, 15 Penn. 429. 3 Allen v. Greene, 19 Ala. 34. 2 Sage V. M'Guire, 4 Watts & Serg. ^ Adams v. M'Millan; 7 Port. 73. 228, 229. the plaintiff and his heirs, the Master of her to do directly. , In the case of Emery the Rolls, Sir Joseph Jekyll, decreed a v. Wase, Lord Eldon said that the argu- specific performance of the award ; prefa- ment showed ' the point was not so well cing the decree with the remark that settled as it was understood to be. The there had been a hundred precedents, policy of the law is, that a wife is not to where if the husband, for a valuable con- part with her property but by her own sideratiou, covenants that the wife shall spontaneous and free will. If this was join with him in a fine, the Court has perfectly res wtegra, I should hesitate long decreed the husband to do it. In some before I should say the husband is to be of the cases of a later date, however, the understood to have gained her consent ; propriety of making such decrees has and the presumption is to be made that been seriously questioned, and, in others, he obtained it before the bargain, to avoid positively denied ; as in Emery v. Wase, all the fraud that may afterwards be prac- 8 Ves. R. 505 ; Davis v. Jones, 4 Bos. & tised to procure it. The jjurchaser is Pull. 267; and Martin v. Mitchell, 2 Jac. bound to regard the policy of the law; & Walk. 413. And whilst it cannot, per- and what riglit has he to complain, if she, haps, be said that the English Chancery who according to law cannot part with has fully disclaimed the power, it may, I her property but by her own free will, think, be safely affirmed, that the current expressed at the time of that act of record, of professional feeling and sentiment in takes advantage of the locus penitentice? England is rapidly tending to a conviction and why is he not to take his chance of of the impolicy, cruelty, and unfairness damages against the husband ? ' " See of a rule which constrains the wife indi- also 1 Rop. H. & W. 547-8 ; 1 Bright, rectly, through the sufferings of the bus- 191 ; M'Cann v. Janes, 1 Rob. 256 ; Evans band, to do that which the Courts have v. Kingsberry, 2 Rand. 120 ; Watts v. long since repudiated their right to coerce Kenney, 3 Leigh, 272. CHAP, v.] PARTIES TO CONTRACTS. 61 22. A. made a writing, in these words, signed by himself: " This is to certify that I engage to my son B. the farm on whicli he now lives, and, should Providence determine otherwise, he is to receive of my estate $1,000, — $500 for the improvements made on the farm on which my son C. lives, and $500 for money to be paid to D., widow of my deceased son." After the death of A., B. brought assumpsit against A.'s executor, alleging that A., by the contract, promised to give to B. the farm, and, should Providence determine otherwise, that B. should receive from A.'s estate $1,000 ; and that A. did not give the farm to B,, but that he gave and devised it to C. Held, the writing was an intelligible and valid contract, and the action could be maintained.^ 23. Where a bond for conveyance has been given, and, after the death of the obligor, his administrator executes a deed, by virtue of the statute of North Carolina, any equitable defence against the bond may be set up against the deed.^ 24. The decree of a court of competent jurisdiction, ordering an administrator to convey title to land, which decree purports to be founded on a title-bond executed by the intestate, is evidence that he did execute it.^ 25. In a suit for title, on such bond, it is not essential to the validity of the decree, or the title executed under it, that the heirs of the intestate should have been made parties.'* 26. The owner of land declared in writing, that he held the same in trust for A., his heirs and assigns, subject to his own lien for advances thereon, and that he was to convey, and would con- vey, to A., or his representatives, upon re-imbursement of his ad- vances. A. having died, one of his creditors took out letters of administration, inventoried his interest in the land, and, under a license from the Probate Court, sold and conveyed the same for payment of debts. The administrator subsequently purchased the interest so sold of such purchaser, received a conveyance there- of, and then brought his bill in equity against the trustee, for a conveyance upon paying the advances thereon. Held, the plaintiff might maintain his bill as the representative of A., if not in his own individual right.^ 1 Rue V. Eue, 1 New Jersey, 369. * Ibid. '•2 McCraw v. Gwin, 7 Ired. Eq. 55. 5 Dumphe v. Hayward, 2 Gush. 429. 3 Holt V. Clemmons, 3 Tex. 423. See Holt V. Payne, 3 Tex. 478. 62 LAW OF VENDORS AND PURCHASERS. [CHAP. V. 27. The heirs of a vendor, though not named in the contract, and whether adult or infant, are bound, and may be compelled, to execute it to the extent of their assets.^ But in New York, gen- erally, the heir will not be compelled to enter into personal cove- nants, in fulfilment of the ancestor's contract.^ And a suit for specific performance is properly brought by the administrator alone. The heirs are not proper parties.^ 28. Bill for specific performance of a contract to convey, against the heirs of the vendor, one of whom was an infant. The contract stipulated for a good and sufficient deed, free of all incumbrances, but did not name the heirs. The vendor left a widow. Held, the infant was bound to convey, without covenants, and the other heirs with covenants against their own acts, on payment of the stipulated price, deducting from each payment a proportionate share of the value of the dower.* 29. A parol agreement for the sale of land will not be enforced specifically against the heir of the vendor, though he had given in- structions in writing, stating the terms, to an attorney, to draw the deeds.^ 30. The heirs of a vendee, who had a parol contract for 800 acres of land, and had paid the whole price, sold and conveyed 100 acres to the complainant. Held, he could not compel the heirs of the vendor to convey to him the 100 acres.^ 31. When a bond for title shows that the title is in a stranger, from whom the obligor does not procure a conveyance to the obli- gee, nor himself obtain it ; the obligee's heir does not inherit the land, nor can he maintain a suit upon the bond in his own name, whether a breach of it occurred before or after the obligee's death.'^ 32. If a vendor leaves several heirs, one of whom is a minor, the purchaser is not bound to accept a deed from the adult heirs, and a bond of the guardian of the minor with surety, conditioned for the minor's conveyance when he shall come of age.^ So in a suit demanding specific performance of a contract, by conveying lands in Ohio, stipulated to be conveyed as the consideration for other lands sold in Kentucky, or, in lieu thereof, requiring indemnifica- tion by the payment of money ; held, all the co-heirs of the vendor, 1 Hill V. Eessegien, 17 Barb. 162. 6 Lord v. Underdunck, 1 Sandf. 46, 2 Ibid. 48. 3 Schoeppel v. Hopper, 40 Barb. 425. ^ Allen v. Greene, 19 Ala. 34. * Hill V. Eessegien, 17 Barb. 162. ^ Barickman v. Kuykendall, 6 Blackf. 5 Givens v. Calder, 2 Desaus. 171. 21. CHAP. V,] PARTIES TO CONTRACTS. 63 deceased, ought to be made parties to the bill, or the death of one of them not a party ought to be proved.^ But, where a vendor dies before performance of the contract, leaving an only child as his heir, who is a lunatic ; equity may decree a specific perform- ance, and direct the committee of the lunatic to execute all neces- sary conveyances. ^(a) 1 Morgan v. Morgan, 2 Wheat. 290. (a) It has been lielJ, that an Infant can- not sustain a suit for specilic performance, because tlie remedy is not mutual. Fligiit V. BoUand, 4 Kuss. 298 ; 2 Story, Eq. § 751, n. Inasmuch as both the rule and the reason of it are a departure from the general principle, which liolds infancy to be a strictly personal privilege, and from other analogies of the law, it is desirable to state at length the case upon which the doctrine chiefly rests. In this case, tlie bill was filed b\' the plaintifl', as an adult. Upon discovering that he was an intant, the defendant moved that the bill be dis- missed with costs against the plaintiff's solicitor ; and the plaintiff" was then al- lowed to amend by inserting a next friend. Upon the opening of the case, a preliminary objection was taken, that a bill by an infant could not be sustained. It was argued, in support of the objection, that specific performance cannot be de- creed a<)ainst an infant, and, if a decree were made as prayed for, the Court could not compel the plaintiff^ to execute it ; that he could not be forced to pay the pur- chase-money, and, on attaining full age, might repudiate the contract and the suit. On the other side, it was argued, that the want of mutuality is not in all eases an objection to specific performance ; as in case of a contract by a husband for sale of the wife's land, which the husband and wife may enforce, but which cannot be enforced against either of them. So also a party who has signed an agreement, though himself bound, cannot enforce it against one who has not signed it. Sir John Leach, Masterof the Rolls, says : " No case of a bill filed by an intant for the specific performance of a contract made by him has been found in the books. It is not disputed, that it is a general princi- ple of Courts of Equity to interpose only where the remedy is mutual. The plain- titTs counsel principally rely upon a sup- posed analogy afforded by cases under the Statute of Frauds, wliere the plaintiff' may obtain a decree for specific performance of a contract signed by the defendant, although not signed by the plaintiff'. It must be admitted that such now is the 2 Swartwout v. Burr, 1 Barb. 495. settled rule of the Court, although seri- ously questioned by Lord l^edcsdaie U])(>n the ground of want of mutuality. IJut these cases are supjjorted, first, because the Statute of Frauds only requires the agreement to be signed l)y tlie party to be charged ; and next, it is saiil that the plaintiff, by tlie act of filing the bill, has made the remedy mutual. Neither of these reasons ajiply to the case of an infant. The act of filing the bill by his next friend cannot bind him ; and my opinion therefore is, that the bill must be dismissed with costs, to be paid by the next friend." But see Clayton v. Ash- down, 9 Vin. 393, pi. 1 ; Shannon v. Brad- street, 1 Sch. & L. 52, 58; 1 Sugd. 282. Though an infant who has entered into a contract cannot be compelled to com- plete it, yet he cannot maintain an action to recover back a deposit. Wilson v. Kearse, Peake's Add. Cas. 196. (English statutes, not generally in force in this country, have provided for the conveyance of estates purchased by injutit trustees. A vendor dying before the sale was completed, his heir-at-law, an infant, was declared to be a trustee, within the Stat- ute of the 7th of Queen Anne; and di- rected to convey. Smith v. Hibbard, 2 Dick. 780. So an infant trustee has been held bound to join in a conveyance within the above statute. Otherwise, where the in- fant has an interest, or there is a doubt thereof, unless on proper suit. Hawkins V. Obeen, 2 Ves. 5^59. The Court will not on motion or peti- tion order an infant trustee to convey, unless the trust appear in writing, but will leave the cestui to get a decree by bill. Vernon, 2 P. Wms. 549. The statute, enabling infant trustees to convey, extends only to plain and exjjress, not to implied or constructive, trusts. Goodwyn r. Lister, 3 P. Wms. 387. The Lord Chancellor says : " There can be no doubt with regard to exjjrcss trusts by deed, but that an infant, being a mere trustee, may be ordered to convey ; and there is no inconvenience in tlirectinii an 64 LAW OF VENDORS AND PURCHASERS. [chap. V. 33. A bond by an administrator to convey real estate of his intes- tate, in contemplation of a sale under a surrogate's order, is void.^ So, if commissioners for selling the real estate of one deceased give a bond, conditioned to make or cause to be made a title in fee-sim- ple, which exceeds their authority, and fail to bind the estate of the deceased ; they are bound personally .'-^(a) 34. Questions have sometimes arisen, in reference to the lia- bility of trustees and cestuis que trust. Thus, the owner of an estate having agreed with the cestui que trust of an adjoining estate, to build a new partition wall between them, in place of the wall then standing, for the benefit of both, and having built the same accordingly, on a promise by the latter that he would pay for one 1 Herrick v. Grow, 5 Wend. 579 ; M'Dermed v. M'Cartland, Hardin, 18. 2 Whiteside v. Jennings, 19 Ala. 784. infant to part with an estate, which is of no benefit to liim. But tlie present ques- tion is, whether this, beinji; a trust only bij construction of equity, be within tlie act; and here I incline strongly to the negative. I cannot think constructive trusts to have been witliin the view of this Act of Parlia- ment, which does not make provision for infants to convey in pursuance of the de- crees of this Court, but only gives power to make orders in a summary way, in cases that are originally plain and uncon- troverted by the parties." A tenant of frank tenement, descendi- ble, agrees to sell, receiving part of the purchase-money. The vendor dies ; his lieir enters ; and the vendee exliibits this bill against liim, to have his contract exe- cuted. Bill dismissed, upon the ground that the heir is but a special occupant, and does not claim under his father. Anon. 2 Freera. 155. Bill for specific performance. A copy- holder covenants with the plaintiffs to surrender to trustees, in trust to sell, and dies before surrender, leaving an infant heir the defendant. The plaintiffs, having agreed to sell the estate, file this bill. Held, the heir was not an infant trustee within 6 Geo. IV. ch. 74, and therefore could not be ordered to surrender imme- diately. Bill dismissed, with costs. King V. Turner, 2 Sim. 550. " The Vice-Chan- cellor said, that he always considered that the Statute of Anne did not apply to con- structive trustees ; that the late act, 6 Geo. IV. ch. 74, did not, as he conceived, apply ; that the only distinction was, that the late statute extended to infant trustees having an interest, and to cases where there were executory trusts to be per- formed ; that the circumstance of there being a decree did not make any differ- ence, because a decree, declaring an infant to be a trustee, must give him a day to show cause, when he came of age, and could only direct him to convey when he should come of age, unless he should show cause against it ; a decree, therefore, could not enable the Court to direct him to con- vey before he came of age, and, therefore, could not make him a trustee within the statute. Tlie consequence was, that the plaintiffs could not now procure a convey- ance, and, therefore, the bill must be dis- missed with costs." Ibid. 551. The Court refused to declare an infant customary heir of copyhold premises to be a trustee within the Statute of Anne, and to direct him to surrender to one who had purchased from the ancestor for valu- able consideration, which was actually paid. So held, on a motion made to con- firm a report, which found those facts, and that the infant was a trustee within the 7th of Anne ; on the ground that it was an ex parte proceeding, and non constat that the ancestor was competent to sell. Janaway, 7 Price, 679. Where a father and minor son cove- nant to convey lands on valuable consid- eration, after the son comes of age the father may be decreed to procure his son to convey. Anon. 2 Cha. Ca. 53.) (a) In New York, in a suit by the devisees of the land and the contract for the price of land sold by the testator, the executor must be joined as a plaintiff. Adams v. Green, 34 Barb. 176. CHAP, v.] PARTIES TO CONTRACTS. 65 half of the wall, if at any future time he should have occasion to use it for any other purpose than that for which the old one was then used ; the trustees of the last-mentioned estate suhsequently sold and conveyed the same, witliout making any mention of the partition wall, but with the consent of the cestui que trust, signified by his signing and sealing the deed ; and the purchaser subse- quently made use of the wall for a different purpose from that for which the old one was used. Held, the agreement on the part of the cestui que trust was merely personal, and his assent to the deed was not a use of the wall by him, within the meaning of his agTeement.i(a) 35. Questions have also arisen from the alienage of a purchaser of real estate, and his consequent inability to acquire an inde- feasible title. Upon this point it has been held, that alienage of the vendee will not entitle the vendor to a decree for rescinding the sale, though it may afford a reason for refusing specific per- formance, as against the vendee.^ But, if the parties have not an adequate remedy at law, the vendor may be considered as a trustee, for purchasers under a sale by order of Court for the benefit of the vendee.^ 36. But, with regard to the parties to a contract for the sale and purchase of lands, the questions most frequently arising are those which grow out of the relation of 'principal and agent. Of course the most important inquiry under this head, is the existence and source of authority to act for one person, which is claimed and exercised by another. And the weight of authority seems to be, that, although contracts for the sale and purchase of lands must themselves be in writing, yet verbal authority to an agent to sell lands, or a verbal ratification of such sale, made in the name of the principal, is sufficient.* And it is said, a parol sale by an agent is as valid as a parol sale by a principal. ^ The distinction, how- ever, has been made, that a sale of land by an agent, under a parol authority, is void ; but, if the sale be subsequently affirmed by the principal, he, and those who claim under him, are estopped from 1 Jenkins v. Spooner, 5 Cush. 419. Coleman v. Garsigues, 18 Barb. 60 ; Mars- 2 Hepburn v. Dunlap, 1 AVheat. 179. ton v. Roe, 8 Ad. & Ell. 14 ; Newton v. 3 Ibid. Bronson, 3 Kern. 587. See § 56. 4 Johnson v. M'Gruder, 15 Mis. 305; 5 6 S. & R. 90. (a) When the trustee, in a deed of trust money. Gardner u. Armstrong, 31 Mis. to secure a debt, sells real estate, he is 535. the proper party to sue for the purchase- 5 66 LAW OF VENDORS AND PURCHASERS. [CHAP. V. recovering the land in ejectment, even though a deed to the agent himself, under which he undertook to sell, was forged.\a^ Ver- bal directions to an agent, who has a power of attorney to convey 1 Vanhorn v. Frick, 6 Serg. & K. 90. («) The signing, sealing, and delivery of a deed by an agent will not be valid, unless authorized by an instrument under seal, or done in the actual presence of tlie principal. Kime v. Brooks, 9 Ired. 218. And it has been held, that the power of an agent to rent lands must be proved by other testimony than his own. If there is a written power, it should be produced ; if it is burnt or lost, the con- tents should be proved. Neither shall the agent's leasing for some years and collecting the rents, and the acquiescence of the owner, be presumptive proof of the power. Meredith v. Macoss, 1 Yea. 200. A question arose, whether the defend- ant had given a written authority to one A. to dispose of certain premises which the plaintiff alleged he had bought under that authority. To prove that a written authority was given, but had been mis- laid, the plaintiff offered A. as a witness. Held, he was not competent, unless the contents of the writing were proved by other witnesses; and then he might be allowed to show how he had executed his instructions. Nicholson v. Mifflin, 2 Dall. 246. Although an executor or other trustee cannot authorize an agent to sell, the trust being a personal one ; still the prin- cipal may subsequently ratify such sale. But, where the principal could not dele- gate authority to make the contract, the ratification must be in writing, and in such form as would have been valid if he had made the contract. Newton v. Bron- son, 3 Kern. 587. With regard to the validity of a deed of land made by an agent ; in the case of Gage V. Gage, 10 Fost. 420, it was held, that a power of attorney to convey, in order to make the deed effectual, ought to be as certain as the deed itself is re- quired to be ; as, for instance, to be attested by two witnesses, the deed being required by statute to be thus attested. Eastman, J., gives the following view of previous decisions upon this subject (p. 423) : " In Lumbard v. Aldrich, 8 N.H. 31, it was held, in general terms, that a power of attorney ought to be as certain as it is necessary for the deed to be which is to be executed under it. But the particular formalities required in the execution of a power of attorney were not specially considered. In Montgomery v. Dorion, 6 N.H. Eep. 2-52, it was said by Parker, J., that the statute indicates that powers of attorney were intended by the Legislature to be placed on the same ground as the deeds which might be made under them. And the remarks of the Court in Southerin v. Mendum, 5 N.H. Eep. 428, are of a like import. In Society for Propagating the Gospel v. Young, 2 N.H. Rep. 312, Woodbury, J., appears to express the opinion, that a power of attorney should be as formal as the deed. Story, in his work on Agency, after laying down the rule that an agent or attorney may ordinarily be appointed by parol, says, that one exception is, that wherever any act of agency is required to be done in the name of the principal, undei- seal, the authority to do the act must be conferred by an instrument under seal. Thus, for example, if the princii^al would authorize an agent to make a deed in his name, he must confer the authority on the agent by a deed. A mere unsealed writing will not be suffi- cient to make the execution of the deed valid at law, though the Court of Equity might, in such case, compel the principal to confirm and give validity to the deed. Story on Agency, ch. 5, pp. 48, 50. These authorities, it will be perceived, do not come precisely to the point raised in this case, although they have a general bear- ing upon it. " The y it. The point has never before been directly ruled in this Court, but we have often declared the general principle that all judicial sales must be open to fi-ee and fair competition. In more than one case we have decided that any device by which the purchaser at sheriff's sale gets land at an under-price is a fraud, which will make his title totally void. It certainly follows from this that a contract to do that which must necessarily result in lowering the price and so defrauding the debtor or his creditors, must be void also. In several of the other States there have been cases so nearly like this that they are not to be distinguished. It is sufficient to mention Jones v. Caswell, 2 Johns. Cas. 29, and Thompson v. Davis, 13 Johns. Rep. 112. It is not now proper to decide how far several p.ersons, who would otherwise bid against each other at sheriff's sale, may associate themselves together, unite their interests, and allow one to bid for all. What we do decree is, that one bidder cannot legally buy off another with money or the promise of money." In a recent case in Pennsylvania, it is held, that a declaration made by a pur- chaser at sheriff's sale, that he is buying for the benefit of the debtor, intending to give him the property, if true, is not fraud- ulent, although it reduces the price of the property. Dick i\ Cooper, 24 Penn. 217. Black, J., says (p. 221): "To avoid the title of a purchaser at sheriff's sale, it is necessary to show that he was guilty of some deception. Where one is buying for himself, but falsely declares that his pur- chase shall enure to the benefit of the debtor or his family, and this is done as a mere trick to prevent competition, and thus get the property at an under-price, he ac- quires no title. But to say that he intends to give it to the debtor or let him redeem it, when such is really his intention, is no fraud. It is generous, — perhaps it is im- prudent ; but imprudent generosity is not a crime. One who chooses to run the risk may lawfully buy in property for a debtor and leave it with him on any sort of contract he chooses to make. If it be lawful to do a thing, it cannot be wrong for a man to say openly and candidly that he intends to do it. We have decided lately, in several cases not yet reported, that to make the purchase void it must be l^roved that the property was obtained at an undervalue, and by means of a false representation." But in a late case in Illinois, at a commissioner's sale under a decree for partition, the purchaser publicly asserted a claim to the property, and threatened to litigate it, and thereby pre- vented parties from bidding as much as they otherwise would. Held, a fraud, for which the sale should be set aside. Scates, J., says : " If he desired to become a bid- der, it was essential to fairness towards the petitioner that he should conceal or forbear to assert his adverse claim, whatever con- sequence might result therefrom to his interest. It is not competent for him to assert his claim to the premises by a public announcement at the Vnddings, with a threat to litigate it with any purchaser, and then enter into competition in the biddings, and purchase at an undervalue occasioned by the depreciation his own conduct had produced. If it were essential for the protection of his claim to give no- tice and make it known at the sale, he thereby disqualified himself to bid or be- come a purchaser of this adverse title at such sale. He shall not be allowed to depreciate or destroy the value of the land by denying the title, then buy it at a de- preciation thus produced, and claim to be a fair purchaser." Cofley v. Coffey, 16 111. 141. CHAP. VI.] SALES BY AUCTION. 85 22. It is not per »e fraudulent for the owner to act as auctioneer.^ But an auctioneer, who is himself the vendor and party in interest, is not authorized to sign a memorandum to take the sale out of the Statute of Frauds.^ And it has boon sugg-ostcd, that an auction sale to an association, of which the auctioneer is a m(3mbcr, is invalid.'^ And it has been exjnessly decided, that an auctioneer cannot purcliase property himself. So, if he has also been in other respects connected with the vendor, as by valuing the property ; and purchases the estate the next day by private contract, it not being sold at auction, for want of a bid ; and fails to give a satis- factory account of the proceedings in his answer to a bill filed against him ; the purchase will be set aside. In such case, the duties of an agent do not cease with the auction.'^ But a purchase by an auctioneer for himself is not void, but voidable by the prin- cipal. Third persons cannot question the sale.^ 23. As in the case of other agents (a), an auctioneer's authority to sell land need not appear in • writing.*^ A verbal authority authorizes an agent to act as auctioneer and to sell lands, though not to make a deed of them.'(i) 24. An auctioneer cannot delegate his authority.^ But he may employ another person to use the hammer and make the outcry, under his immediate supervision and direction ; and, though he is occasionally absent during the sale, the agent will not incur the penalty of selling without license.^ Whether the transaction was a sale by the auctioneer, made through the defendant, or by the defendant, under pretence of a permission from the auctioneer, in order to evade the statute, is a question for the jury.^o 25. Questions sometimes arise, as to the authority of the auc- tioneer to receive payment for the property sold. 1 Flint V. Woodin, 13 Eng. Law & Eq. e Doty v. Wilder, 15 111. 407. 278. 7 Yourt v. Hopkins, 24 111. 826. 'i Bent V. Cobb, 9 Gray, 397. 8 Stone r. The State, 12 Mis. 400. 3 Kearney v. Taylor, 15 How. 494. •' Com. v. Harnden, 19 I'ick. 482. 4 Oliver v. Court, 8 Price, 127. W Ibid. 5 Veazie i'. Williams, 3 Story, 611. (n) See chap. 5. closed princijial, if they do so without [h) Where auctioneers, who were not authority, they are i)rimarily responsible authorized to sell a house and lot for less as contracting parties, and are liable to than $2,800, struck them off for .$2,250 ; refund to the purcliaser the amount of iiis held, the contract was not binding upon deposit and auctioneer's fees with interest, the owner, but the auctioneers were per- And if they knew tliey were not autlior- sonally bound byit. Bush v. Cole, 28N.Y. ized to sell for less than .'^2,s(i(), winn tliev (1 Tiffa.) 261. sold to the ])hnntifrat si!,-j.',(i, he may also Where auctioneers sell real estate, and recover wiuitthe premises were worth over sign the contract as agents of an undis- and above tiie price he was to pay. Ibid. 86 LAW OF VENDORS AND PURCHASERS. [CHAP. VI. 26. An auctioneer's authority to receive a portion of the pur- chase-money, which, by the terms of sale, is to be paid within a certain time, does not, ijjso facto, expire immediately at the end of that time.^ 27. Under some circumstances, payment to the auctioneer will be invalid. Thus, the plaintiff having employed an auctioneer to sell timber growing, the following, amongst other conditions, were read at the sale, in presence of the defendant : " That each pur- chaser should pay down a deposit of <£10 per cent in part of the purchase-money, and pay the remainder on or before the ITtli of August ; but in case any purchaser should prefer to pay the whole amount of his purchase-money at an earlier period, discount after the rate of .£5 per cent will be allowed." Also, " that each purchaser shall enter into a proper agreement and bond, if required, with such one, two, or more sureties as shall be approved by the vendor, or his agent, for the performance of his agreement, pursuant to the above conditions." The defendant purchased one lot, and paid the deposit. Some days after the sale, which was on the 14th of Feb- ruary, the defendant, at the auctioneer's request, drew a bill of exchange for the residue of the purchase-money, dated on the day of the sale, and payable, in six months, to his own order, and indorsed it to the auctioneer, who indorsed it to a creditor of his own. When the bill became due, it was paid, but never trans- ferred to the plaintiff. Held, the delivery and payment of the bill was not a valid payment of the purchase-money, the auctioneer having no authority to receive payment, or, if he had such author- ity, only in cash.^ 28. The auctioneer is in general responsible for the purcliase- money paid him, only to his employer. Thus the defendant, an auctioneer, was employed by a person in embarrassed circum- stances, known to the defendant, to sell his property ; sold it, and paid the proceeds to his order. The owner was soon afterwards declared insolvent. Held, the defendant was not liable to tlie assignees.^ 29. It has been questioned, whether sales by auction, except those made under a decree, are within the Statute of Frauds.^ But the weight of authority is that they are.^ Thus where a contract 1 Pinckney ?'. Hasadorn, 1 Duer, 89. * Simon v. Motives, 1 Bl. 599 ; Brook 2 Sykes v. Giles, 5 M. & VV. 645. v. Jones, 8 Tex. 78. 3 White V. Barllett, 9 Bing. 378. 5 Blagden v. Bradbcar, 12 Ves. 466 ; Higginson v. Clowes, 15 Ves. 516. CHAP. VI.] SALES BY AUCTION. 87 for the sale of land has been abandoned, and an action brought for the deposit, and the plaintiff declares on the special circumstances, and states the contract ; he must prove it to have been a valid one, by a note in writing, even though the sale was by auction.^ (a) 30. But, if auction sales are within the statute, the weight of authority also is, that an auctioneer is hy implication an agent, duly authorized to sign a contract for the purchase of real estate, on behalf of the highest bidder. Writing the name of the highest bidder in his book or memorandum of sale is a sufficient signa- ture, more especially if done immediately on receiving the bid and knocking down the hammer. And if the highest bidder is agent for another, and if the terms and conditions are stated, the writing of the bidder's name will bind the principal ; at least if the principal is present, and consulting with the agent during tlie sale, and makes no objection before the entry made in the book.^ The auctioneer's authority is given by the buyer's bidding aloud, or giv- ing in his name.^(5) And specific performance will be decreed against the purchaser, upon the note made by the auctioneer.'* 31. On the other hand, it has been held, that the auctioneer is not an agent for both parties, and therefore such entry in his book is not a sufficient note in writing.^(c) More especially, that fact 1 Walker v. Constable, 2 Esp. Ca. 659. 3 Emmerson v. Heelis, 2 Taunt. 38 ; 2 White V. Proctor, 4 Taunt. 209 ; Simon v. Motives, 1 Black. 599. M'Comb V. Wriglvt. 4 Johns. Ch. 659 ; * Kemeys v. Proctor, 3 Ves. & B. 57 ; Pinckney v. Hagadorn, 1 Duer, 89 ; Doty 1 Jac. & Walk. 350. V. Wilder, 15 111. 407 ; Hunt v. Gregg, 8 5 Stansfield v. Johnson, 1 Esp. Ca. 101 ; Blackf. 105 ; Meadows v. Meadows, 3 M'C. Buckniaster v. Harrop, 13 Ves. 456. See 458. See Bartlett v. Purnell, 4 Ad. & Ell. Simon v. Motives, 1 Black. 599. 792 ; Howe v. Dewing, 2 Gray, 476. (a) A sheriff's sale is within the stat- press a decided opinion upon either side ute, but his return, stating fully the terms of the question. The plaintiff, an auc- of the contract, if made immediately upon tioneer, brings special assumpsit against the sale, is a sufficient signing. If other- the highest bidder, at a sale of land, to wise, not. Jackson v. Catlin, 2 Johns, recover money paid by the plaintiff for 248 ; Hunt v. Gregg, 8 Blackf. 105. the auction duty ; which, by the conditions, (6) In this case, Lord Mansfield re- the purchaser was to pay. It appeared that marked, that the solemnity of an auction the sale was invalid, in consequence of the sale precludes all perjury as to the fact plaintiff's having omitted to set down the of the sale; and expressed it as the in- name of the defendant. Held, neither clination of his opinion, that auctions, in this action, nor an action for inoni-y paid, general, are not within the Statute of would lie. Jones v. Nanney, 13 Price, 70. Frauds. Wilmot, J., was inclined to See Deven v. Davenell, 3 Camji. 451. think, that sales by auction, openly (c) By the Pevised Statutes of New transacted before five hundred people, York, a contract of sale is void, and not were not within the statute. But, in binding upon the vendor or vendee, un- Hinde v. Wliitehouse (7 E. 508), Lord less subscribed by the vendor or his agent Ellenborough remarked, that, with all thereto duly authorized ; and the entry due deference, it was no sufficient reason by the auctioneer on liis books is not a to dispense with the statute, nrerely that signing within the statute. Miller v. Pel- the quantum of parol evidence diminishes letier, 4 Edw. Ch. 102. the danger of perjury ; but failed to ex- 88 LAW OF VENDORS AND PURCHASERS. [CHAP. VI. not being proved to be contemporary, and the auctioneer being also vendor.^ So a plea, that " A., by his writing, sold the after-math of land to B.," is not proved by evidence, that, at an auction held for the purpose of selling it, B. was the purchaser, and gave his note for the price, and that his name was written by A.'s agent in the printed catalogue, as the buyer.^ So the rule above stated extends only to persons exercising the public business of an auc- tioneer, not to mere private agents of the vendor .^ 32, The mere signing of the auctioneer is not sufficient, unless the terms and conditions of the sale appear in the paper signed. His memorandum, or some writing connected therewith, must refer to the conditions of sale, and state the material terms of the agreement.^ Thus an auctioneer, after reading or exhibiting writ- ten conditions, made this memorandum : " Sale, on account of Messrs. Morton and Dean, assignees of the Taunton Iron Company, of the real estate, nail-works, water-privilege, buildings, and ma- chineiy, agreeable to the plans and schedule herewith. Sale to Silas Dean for $30,300. April 5th, 1843." Held, this memoran- dum was insufficient, not containing nor referring to the conditions of sale.^ So an auctioneer's receipt for the deposit, not containing expressly or by reference the terms, viz., the price, cannot bind the vendor as an agreement.^ So where, on the sale of an estate by auction, the name of the owner docs not appear in the particu- lars or conditions of sale, or in the agreement signed by the pur- chaser, and the agreement is not signed either by the vendor or the auctioneer ; it seems the vendor cannot maintain an action on the contract.'' 33. The agent, contemplated by the 17th section of the statute, who is to bind a defendant by his signature, must be a third person, and not the other contracting party. Therefore where an auc- tioneer wrote the defendant's name, by his authority, opposite to the lot purchased ; held, in an action brought in the name of the auctioneer, the entry was not sufficient.^ So where an adminis- trator, licensed to sell the real estate, acted as auctioneer ; held, a memorandum by him of the sale at the time was not binding on the purchaser, the auctioneer not being in law his agent? 1 Buckmaster v. Harrop, 13 Ves. 456. ^ Blagden v. Bradbear, 12 Ves. 466. 2 Symonds v. Ball, 8 Term Kep. 151. " Wheeler v. Collier, 1 M. & M. 123. 3 Anderson v. Chick, 1 Bai. Eq. 118. ^ Farebrother v. Simmons, 5 Barn. & 4 Morton v. Dean, 13 Met. 385 ; Doty Aid. 333. V. Wilder, 15 Ul. 407. 9 Smith r. Arnold, 5 Mas. 414. 5 Ibid. CHAP. VL] sales by AUCTION. 89 34. It has been held, that the highest bidder is l)ound by the entry in the sale-book by the auctioneer's clerk, made in his pres- ence, upon his name being called out as the purchaser, even in an action brought by the auctioneer.^ If an auctioneer has a clerk to make entries in the sale-book, authority of the purchaser to enter his name in such book must necessarily be implied, where, within view of all the bidders, he is employed to thus enter the names ; and such authority may be given before or at the time of entry, and a subsequent assent of the purchaser will confirm an entry made without authority.^ So an auctioneer's clerk, under a general authority to act in his master's absence, may sign a con- tract for sale, where the vendor knew that he was so to act. So where such clerk signs the contract as a witness for his master, who is authorized to sell, he may be considered as a contracting party according to the statute.^ 35. But, in the following case, lands of the defendant were put up by him at auction, and one condition of the sale was, that the purchaser should pay a deposit and half the auction duty. The plaintiff purchased and paid as above, and signed a written mem- orandum of the contract, which A. B., the auctioneer's clerk, also signed, as follows : " Witness, A. B." A. B. received the above sums, for C, the auctioneer, and signed the receipt (being author- ized by C. to do so), as follows : " For Mr. C, A. B." Money was afterwards paid over by the auctioneer on the purchase, to D., the defendant's attorney, as his agent. The defendant not being able to make out his title, D., as his agent, wrote a letter to tlie plaintiff's attorney, naming the plaintiff and defendant, saying that he could not make out the title to " this property as freehold," advising the plaintiff to relinquish his purchase, and referring to the " charges " to be made by the plaintiff's attorney. Held, that A. B. did not sign the memorandum as agent to the defendant ; that neither his agency nor the contract was recognized l)y the receipt of the money or D.'s letter; that there was, consequently, no proof of a contract to make a title, on which the defendant could be charged under section 4 of the Statute of Fraiuls ; and therefore, that, although the plaintiff might recover the deposit and 1 Bird V. Boulter, 1 Nev. & Man. ?,\" ; 2 Cathcart v. Keirnaglian, 5 Strobh. 4 Barn. & Adol. 447 ; Doty v. Wilder, 15 129. 111. 407. But See Meadows v. Meadows, ^ 1 Smith's Rep. 233. 3 M'C. 458. 90 LAW OF VENDORS AND PURCHASERS. [CHAP. VI. moiety of auction duty as money had and received, he could not recover interest thereon, nor his expenses of investigating the title.i 35 a. The object of special conditions of an auction sale is to pro- tect the vendor from inquiries which he himself may be unable to satisfy, and against objections which he cannot explain away. But a condition, in the sale of an estate made under a decree, that no requisition or objection shall be made in respect to a specified under-lease, or any other one prior to a certain time, does not pre- clude requisitions concerning a prior under-lease, not specified, and known to the vendor.^ 36. Questions have arisen as to the introduction of parol evi- dence in relation to auction sales of land, &c. Upon this subject, it is held, that the verbal declarations of an aiictioneer, at the time of sale, are not admissible, to contradict the printed conditions or particulars.'^ So though the question arises on a sub-sale by the purchaser.* So though a paper, as the particular upon a sale by auction, may by reference be engrafted into a contract within the Statute of Frauds, that will not authorize the introduction of parol evidence to show what part was read.^ So parol evidence is not competent, in aid of a specific performance, to explain by declara- tions of the auctioneer an ambiguity on the face of the particular, growing out of a general clause for a separate valuation of the tim- ber, and also special provisions as to the timber upon certain lots ; the agreement signed on the back of the particular binding the purchaser, the defendant, " to a strict fulfilment of the article, and to abide by the conditions and regulations made at the sale." ^ So in an action against a purchaser at auction, for not completing the sale, the printed conditions cannot be contradicted by the verbal declarations of the auctioneer at the time, in order to disprove the charge of misrepresentation. Thus where the conditions were, that the property was " free from all incumbrances," when in fact there was a charge upon it of £11 per annum, which the auc- tioneer declared, but not to the purchaser individually ; held, no action would lie against the latter for not completing his purchase." So where printed conditions of sale of timber, growing in a certain 1 Gosbell V. Archer, 2 Ad. & Ell. 500. 4 ghelton v. Livins, 2 Cromp. & Jerv. '■^ Edwards v. Hinckwar, Law Rep. 411. (Eng.), Eq. Jan. 1866, p. 67. ^ Higginson v. Clowes, 15 Ves. 515. 3 Gunnis v. Erhart, 1 H. BI. 289. 6 ibid. ' Gunnis v. Erhart, 1 H. Bl. 289. CHAP. VI.] SALES BY AUCTION. 91 close, do not state the quantity, parol evidence is not admissilde that the auctioneer warranted a certain quantit}'.^ 37. But parol evidence of declarations by the auctioneer at the sale, warranting the quantity, was received in opposition to a sj)e- cific performance, on the ground of fraud ; not to enforce the per- formance.^(a) So, though parol evidence of the declarations of an auctioneer, contrary to the written terms of sale, is not admissible, such evidence, as to the property intended to be sold by him, is proper.^ So a purchaser at auction is bound by verbal declara- tions of the vendor, made publicly, at the sale, and l)efore the biddings ; which declarations are not variant from the terms advertised, but are additional and explanatory thereto. And he shall be compelled to complete his purchase according to the terms so explained.* 38. It has been questioned, whether the rule against admitting verbal declarations of an auctioneer at the time of sale, in con- tradiction to the printed particulars, has the effect to exclude evidence of personal information as to a mistake in the particular.^ And the printed conditions of sale posted up under the auctioneer's 1 Powell V. Edmunds, 12 East, 6. Cir. C. 199. See Wiiinw right v. Read, 1 '^ Winch V. Winchester, 1 Ves. & Desaus. 573. Beam. 375. ■* Cannon v. Mitchell, 2 Desaus. 320. 3 Lessee of Wright v. Deklyne, Peters' ^ Ogilvie v. Foljarabe, 3 Meri. 53. (a) Assumpsit, upon a promise by tlie defendant to pay one A. the amount of a debt due from the plaintiff to A., secured by a mortgage of the plaintifTs real estate, in consideration of a deed of release given by the plaintitt' to the defendant of such estate. It appeared, that the plaintiff had an auction sale of his property, including the estate in question. When this was offered for sale, the auctioneer, after de- scribing the property, stated the precise amount of the mortgage, and called for bids by asking " Who will give more ^ " or, " How much more will you give 1 " and it was struck off to B. for $50. The defendant, being present at the sale, after- wards agreed with B. to buy his bid for §25 advance. The plaintiff thereupon gave a quitclaim deed to the defendant, with a covenant against the claims of all persons claiming by, from, or under him, except the mortgage, and the defendant paid to B. the sum agreed. Held, parol evidence was admissible, of an understanding b3'' the ])laintiff and B. at the sale, that the purchaser was to pay the mortgage debt, notwithstanding the memorandum of the auctioneer's clerk and the deed of the plaintiff; and that the agreement was not within the Statute of i'rauds. Fiske ?;. M'Gregory, Law Rep. Mar. 1857, p. 633 (N.H.). Assumpsit for the price of land sold at auction. The bid was $600, §200 to be paid down, which was done ; the balance to be secured on time, and the deed exe- cuted upon production of the requisite securities. Tlie plaintiff made a proper deed, and tendered it on condition of re- ceiving the securities. The defendant did not give them, but obtained the deed and placed it on record without the consent of the plaintiff, and took possession of the land. Held, the defendant having treated the deed as delivered, the plaiiitilfnught elect to do so, and thus vest the title in the defendant, notwithstanding the Statute of Frauds. Also, that a special action could be maintained against the defendant, for failing to furnish the securities liefore tlie time fixed for payment, and ilamages re- covered to the amount of the agreeil price. Also, that a general action for the price might be brought, after the time of pay- ment had passed. Ascutney, &c. v. Orms- by, Law Rep. Dec. 1, 1856, p. 469 (N.H.). 92 LAW OF VENDORS AND PURCHASERS. [CHAP. VI. box, lie declaring that the conditions are as usual, are sufficient notice to purchasers of such conditions.^ So the auctioneer's adver- tisement may be explained by his declarations at the time of sale.^ 39. It will be seen hereafter, that part-performance of a verbal contract takes it out of the operation of the Statute of Frauds, (^a) But it has been held, that payment of the auction duty is not such a part-performance as will have this effect,^ 40. In connection with the sulrject of sales hy auction, may properly be considered the rights and liabilities of vendor and purchaser, with reference to a deposit. A deposit is the payment of a part — usually a small part — of the price by the purchaser; made chiefly for the purpose of binding the bargain. Occurring for the most part in sales by auction, it naturally forms a part of that particular title in the law of vendors and purchasers. 41. An auctioneer receiving a deposit is said to be a stakeholder, not the ardent of the parties. He is held to be liable at all events, till the contract is completed. His knowledge of a defective title is equivalent to an express notice not to pay over. The deposit is a conditional payment, not to be parted with till the conditions are fulfilled. ^(6) Hence, if the vendor of an estate by auction 1 Mesnard v. Aldridge, 3 Esp. Rep. ^ Buckmaster v. Harrop, 7 Ves. 341. 271. * Edwards v. Hodding, 1 IMarsh. 377 ; 2 Rankin v. Matthews, 7 Ired. 286. Burrough v. Skinner, 5 Burr. 26o'J. (a) See chap. 8. If an auctioneer deviate from the strict (b) Sale of houses at auction, accord- terms of the conditions, lie must person- ing to certain particulars and conditions, ally sutler the consequences ; being liable one of which was, that an abstract of title for the duties, and not entitled to main- be delivered within ten days, and another, tain any action against the vendee. If that a deposit be paid the auctioneer. A the auctioneer has fuliilled his duty, he purchaser of two houses paid the deposits, may maintain assumpsit, as on an implied signed an agreement as purchaser, and promise, against the vendor ; who also took a receipt from the auctioneer, as for lias a claim upon the purchaser, on the payment of a deposit upon the auction express agreement arising from the con- sale of the premises named in the particu- ditions of sale. Jones v. Naniie^', 13 lars, &c. The abstract not being deliv- Price, 76. As to the general rights and ered, the vendee brings an action against liabilities of an auctioneer, see Rex v. the auctioneer for his deposit, and offers Cliristie, 2 Anst. 586 ; Hardacre v. Stew- in evidence the receipt and conditions of art, 5 Esp. 103 ; Nelson v. Aldridge, 2 sale, but not the agreement signed by Stark. 435; Brown v. Stadton, 2 Chit, himself. Held, the action was not sus- 353. tained. Curtis v. Created, 3 Nev. & M. The solicitor of a vendor, professing 449 ; 1 Ad. & Ell. 167. to receive a deposit as his agent, is not. The title of an estate sold at auction like an auctioneer, who acts as agent for being objected to, the auctioneer refused both parties, a stakeholder, but is bound to return the deposit, and was compelled to pay over the money on demand, and to pay the costs of a suit brought against liable for interest. Edgell v. Day, Law him. Held, he could not recover the Rep. (Eng.), Eeb. 1866, p. 79 (overruling amount from the vendor, in an action for a contrary opinion, expressed in Sug- money paid, but must declare specially, den on Vendors, 14th ed. p. 50). See Spurrier v. Elderton, 5 Esp. 1. See § 42. Mitchell u. Ilayne, 2 Sim. & St. 63. CHAP. VI.] SALES BY AUCTION. 93 does not show a clear title by the day specified, tlie purchaser uuiy recover back his deposit and rescind the contract.^ So wliere an auction purchaser rescinds the bargain, in consecpience of an objection to the title and concealment of material facts, he may recover a deposit from the auctioneer, no proof being offered that it has been paid over to the vendor. The auctioneer would have no right to pay it over, till completion of the sale.^ So an auc- tioneer received a deposit from the purchaser, in presence of the vendor, signed an agreement acknowledging the sale, and engaged to complete it ; but, by reason of a defect in the title, the sale was not completed. Held, the purchaser might recover the deposit from the auctioneer, though paid over to tlie vendor before dis- covery of the defective title, and though the purchaser had given him no notice against paying it over.^ 42. The net amount of a deposit only, without interest, can be recovered.^ Thus where an auction purchaser paid to the auc- tioneer a deposit as part of the price, until the title should be made out ; held, the auctioneer was not liable for interest, though four years had elapsed since the sale, no demand of payment having been made upon him.^ So an auctioneer, as agent for the vendor, agreed to sell according to printed conditions, by which the purchaser was to pay down a deposit and the duty, and the balance of the pi"ice at a certain day, upon" receiving a good title, and the vendor was to prepare and deliver to the vendee an abstract. The title being defective, and the sale consequently failing ; held, the auctioneer was a stakeholder, and not liable for interest, unless the money had. been demanded, or notice given him that the bargain was rescinded.^ 43. All matters of difference between two parties were referred by a Judge's order to arbitration, and an agreement of reference entered into, in which one of them was described as the adminis- trator of a deceased person, late owner of the leasehold premises, the right to wliich was in dispute. It was awarded, that the premises be sold by an auctioneer, whose appointment was assented to by both parties. The plaintiff, the attorney of one of tlie par- ties, who, at the time of the sale, was aware that the other had not 1 Wilde V. Foote, 4 Taun. 334. 306 ; Bradshaw v. Beiinet, 5 Car. & P. 48. 2 Burrough v. Skinner, 5 Burr. 2639. See § 41, n. 3 Gray v. Gutterid,i>e, 3 C. & P. 40. ^ Lee v. Munn, 1 Moore, 481. 4 Walker v. Constable, 1 Bos. & Pul. « Gaby v. Driver, 2 You. & J. 549. 94 LAW OF VENDORS AND PURCHASERS. [CHAP. VI. taken out administration, became the purchaser, and paid a deposit to the auctioneer, it being understood, at the time of tlie sale, that administration would be taken out. The proposed administrator, however, afterwards refused to do so, and a good title was not made out. Held, the plaintiff might recover his deposit from the auctioneer, without notice of the contract having been rescinded.^ 44. A., as the agent of the defendant, the owner of land, enters into an agreement, with penalty, for the sale of it, with B., who appears to act on his own account, but in fact is the agent of the plaintiff; and B. pays part of the purchase-money as a deposit. Held, upon a breach of the conditions of sale, on the part of the vendor, an action for money had and received lies to recover back the deposit, without proof of the money being paid over by A. to the defendant.^ 45. On a cojitract for purchase, a part of the purchase-money was paid as a deposit to the vendor's solicitor, who paid it away at the desire of the vendor, without the concurrence of the purchaser. This created a difficulty in completing the purchase, as a mort- gagee of the estate would not join in the conveyance without pay- ment to him of the deposit. In a suit by the purchaser for specific performance, the solicitors were declared liable to make good the money .^ 46. An attorney, who was also an auctioneer, received a deposit on property, which he had sold by auction, and, after queries raised on the title, and before they were cleared, paid over the deposit to his principal. On a demand of the deposit by the buyer, he answered, that his principals would not consent to return, and would enforce the contract. Held, the buyer might recover the deposit from the auctioneer as money had and received to the plaintiff's use : 1, because the defendant, as attorney, had notice that the title had not been completed before he paid over the money ; 2, because he misled the plaintiff to sue him, by not saying he had paid it over.^ 47. Where an auctioneer, against whom an action was brought to recover the deposit upon the ground that the vendor's title was defective, applied for an interpleader rule, and it appeared that the vendor had no other property, the Court refused the applica- 1 Duncan v. Cafe, 2 Mees. & Wels. 244. » Wiggins v. Lord, 4 Beav. 30. 2 The Duke of Norfolk v. Worthy, 1 * Edwards v. Hodding, 5 Taunt. 815. Campb. 337. CHAP. VI.] SALES BY AUCTION. 95 tion, unless the defendant gave security for costs ; and refused to allow the defendant his costs of the application out of the dejjosit.^ 48. Where the vendor of an estate at auction is unable to make a good title, the purchaser cannot recover the deposit from him, as money had and received, though paid over to him. The remedy is against the auctioneer, who is the agent for both parties, to appropriate the deposit to the party entitled to it.^ 49. If the purchaser demands his deposit at the day for com- pleting the contract, and the vendor has not delivered liis abstract before that time, and also neglects to deliver it until after an action brought for the deposit ; it is evidence of an abandonment of the contract by the vendor, wlio shall not be entitled afterwards to a specific performance.^ 50. If a party has given a bill of exchange or check for the amount of a deposit, on a sale by auction, any ground on which he could recover back his deposit, if paid in money, will be good ground of defence, in an action upon the bill or check.* 50 a. Where a party gave a check for the amount of a deposit on a sale by auction, which sale was void ; in an action on the check, he pleaded that there was no consideration for the check ; and the plaintiff replied, that there was consideration. Held, on this issue, the defendant must begin.^ 51. Relief may be granted against forfeiture of the deposit, upon putting the other party in the same situation as if the con- tract had been performed at the time agreed.^ 52. A purchaser before a master, submitting to forfeit his deposit, is not bound to proceed in the purchase.'^ 53. The Court will not compel a vendor to pay the deposit money into Court, though he retains possession of the estate, if the delay in the completion of the contract is occasioned by the purchaser.^ 54. A vendor, resisting an application by the purchaser for pay- ment into Court of the deposit, in the hands of the vendor's agent, was charged with a loss by the agent's failure.^ 55. Where a contract for the sale of land has been abandoned, 1 Deller v. Prickett, 2 Eng. Law & * Mills v. Odtly, 6 Car. & P. 728. Eq. 232. 5 Ibid. ■' Johnson v. Roberts, 30 Eng. Law & 6 Moss v. Matthews, 3 Ves. 279. Eq. 234. 1 Savile v. Savile, 1 P. Wms. 745. 3 Lloyd V. Collett, 4 Ves. -690, n. ; » Wynne v. (iritlith, 1 Sim. & St. 147. Radclitfe v. Warrington, 12 Ves. 376. ^ Fenton v. Browne, 14 Ves. 143. 96 LAW OF VENDORS AND PURCHASERS. [CHAP. VI. and an action is brought for the deposit, and the plaintiff declares specially on the contract, he must prove it to have been a valid one, by a note in writing, even though the sale was by auction. ^ 56. Where an auctioneer has sold an estate, the title of which being objected to, he refuses to return the deposit, and an action is brought, in which he afterwards pays the costs ; he cannot recover these costs against the principal in an action for money paid to his use, but must declare specially.^ 57. An auctioneer, who is sued for a deposit, and pays it into Court, under an order for the vendor and purchaser to interplead, is entitled, upon the termination of proceedings between the vendor and purchaser, to receive his costs out of the deposit-money.^ 58. In assumpsit by vendee against vendor to recover back a deposit paid on the purchase of real property, the defendant at the trial produced (under a notice to produce) the agreement, which had been signed at the foot of the conditions of sale. Held, that it was not necessary to call the subscribing witness to prove the execution of this agreement.* 1 Walker v. Constable, 2 Esp. 659 ; 3 Pitchers v. Edney, 4 Bing. N. 721. 1 Bos. & Pull. 806. * Bradshaw v. Bennet, 5 Car. & P. 2 Spurrier v, Elderton, 5 Esp. 1. 48. CHAP, vn.] STATUTE OP PRAUDS. 97 CHAPTER YII. STATUTE OP PRAUDS. 1. Foi-m of contracts for tlie sale and purchase of lands. Statute of Frauds. 1 a. 'I'o what parties and contracts the statute applies. 2. What property is within the statute; products of the soil ; growing wood, &c. 4. Other property connected with the realty. 7. Property not within the statute; pro- ducts of the soil, &c. 9. Paper securities relating to land. 10. Agreement as to houndnnj. 11. Whether the statute applies to a claim for the /)?t"ce. 14. Construction of the statute as to the form of executing a written memorandum; what is a signing; reference of different papers to each other, &c. 20. Form of pleading or relying upon the statute. 1. In the natural order of subjects, we proceed to consider the forms in which contracts for the sale and purchase of lands must be made.(rt) By the common law, contracts may be either written or unwritten ; and a contract for the sale of land does not differ, ill this respect, from others. But by an English statute, 29 Car. II. ch. 3, commonly called the Statute of Frauds., which has proba- bly been adopted, copied, or closely imitated, in every State of the Union, (J) contracts for the sale of lands are required to be in (a) Such contract is held good without a seal. Worrall v. Munn, 1 Seld. 22'.J. In case of an execution sale, no writing is necessary, except the statutory certifi- cate. Armstrong v. Vroman, 11 IMin. 220. In England, f|uestions have frequently arisen with regard to the necessity and eflf'ect of a stump, in contracts of this na- ture. An instrument, purporting to be a re- ceipt for purchase-money, but insufficient, as such, tor want of a stamp, is still admis- sible, it seems, as evidence of an agreement for sale, if it contain the requisite terms. Evans v. Protliero, 13 Eng. Law & Eq. 1(33. See Smith v. Wyley, 17 Eng. Law & Eq. 49. A receipt for purchase-money has been allowed to be stamped as an agreement during the hearing. Coles v. Trecothick, 9 Ves. 234. But the Court cannot sanction an agree- ment, that an ol^jection for want of a stamj) shall be waived ; if, therefore, the olyection comes to the knowledge of the Court, no decree will be made, until the instrument, duly stamped, is produced to the registrar. Owen V. Tliomas,3 Myl. & Kee. 3')8. Where the same paper contains two diflerent con- tracts, for tlie piurchase of different lots, by difTerent persons ; one stamp aHixed to that part of the paper which contains tlie contract with the defendant, and to which the stamp officer's receipt for one penalty refers, is sufficient for such contract. Powell V. Edmunds, 12 E. (5. Where in a contract for tlie sale of land it was provided, that " the vendee should cause the title to be examined, and, upon receiving a deed, properly executed " by the parties of the first part, " should pay the purchase-money," &c., it was held, that the vendor was liable to pay for the stamp required by the act of 1802. Cal- laghan v. M'Credy, 48 Penn. 403. {b) See Brandeis v. Neustadtl, 13 Wis. 142; Halsmith v. Castay, 17 La. An. 140. It is said, in Kentucky, the decisions of the courts of Great J5ritain, upon their statute against frauds and iierjuries, are to be respected, only so fiir as they enlighten the understanding or convince the judg- 98 LAW OF VENDORS AND PURCHASERS. [CHA:^. VII. writing. (rt) The words of the English statute are as follows: " No action shall be broiight, whereby to charge any person upon ment ; not as evidences of tlie proper con- struction of a similar statute of Kentucky. Grant v. Craigmilcs, 1 Bibb, 203. Witli regard to tlie general purpose and policy of the statute, it is said in a recent case : " The great purpose of the enact- ments commonly known as the Statute of Frauds, is to guard against the commission of perjury in the proof of certain contracts. This is effected by providing that mere parol proof of such contracts shall be in- sufficient to establish them in a court of justice, in regard to contracts for sales of goods, one mode of proof which the statute adopts to secure this object, is the delivery of part of the goods sold. But this provision does not effectually prevent the commission of perjury ; it only renders it less probablC; by rendering proof in support of the contract more difficult. So in regard to other provisions of the same statute; perjury is not entirely prevented by them ; the handwriting of a party to be charged, or the agency of the person acting in his behalf, may still be proved by the testimony of witnesses who swear falsely. Absolute prevention of perjury is not possible." Per Bigelow, J., Marsh V. Hyde, 3 Gray, 332. It is also said: " The statute dispenses witli no proof of consideration which was previously required, and gives no efficacy to written contracts which they did not previously possess. Its policy is to impose such requisites upon private transfers of property as, without being hindrances to fair transactions, may be either totally in- consistent with dishonest projects, or tend to multiply the chances of detection." 1 Greenl. Ev. § 262. As to the distinction between the Statute of Frauds, and the rule of common law, which excludes parol evidence concerning written contracts ; see Cuff";;. Penn, 1 M. & 8. 26. As to the utility and proper construction of the Statute of Frauds, eminent Judges have expressed themselves as follows : Chief-Justice Best says (Proctor v. Jones, 2 C. & P. 534) : " The Statute of Frauds and the Statute of Limitations were both so much objected to when they were passed, that the Judges appeared anxious to get them off' the statute-book. But in later times, they have become desirous to give them their full effect. I think the Statute of Frauds is a good and wholesome statute. In other countries, contracts are made in writing." Bayley, J., says ( Carter V. Toussaint, 5 B. & A. 85y), that the Stat- ute of Frauds is a remedial law, and the Court ought not to endeavor to .strain words to take a case out of it. Chief- Justice Abbott says ( Howe v. Palmer, Tem- pest V. Fitzgerald, 3 B. & A. 323, 683) : " The Statute of Frauds was made for wise and beneficial purposes, and ouglit to be construed according to the plain meaning of the legislature. It is a highly benefi- cial and remedial statute." Best, J., says (Howe V. Palmer, 3 B. & A. 326) : " So far from being disposed to restrain the provi- sions of this statute, I should be inclined to extend them." — " It is better to adhere to the words of the statute, unless we plainly see that the words used do not express the meaning of the legislature." Lord Kenyon says (Chaplin r. Rogers, 1 E. 194) : " It is of great consequence to preserve unimpaired the several provisions of the Statute of Frauds, which is one of the wisest laws in our statute-book." Wes- ton, J., says (Phillips v. Hunnewell, 4 Greenl. 380) : " The Statute of Frauds is a very beneficial act ; and its objects are best secured by adhering strictly to its provisions, unless in cases which clearly do not fall within the meaning." In In- diana, an agreement for the purchase and sale of real estate, not being in writing, is inoperative under the Statute of Frauds, unless some facts in the case, making a contrary equity, remove it out of the stat- ute. Junction, &c. v. Harpold, 19 Ind. 347. Whether tlie Statute of Frauds, in re- quiring that in certain cases the " agree- ment" be proved by writing, requires that the consideration should be expressed in the writing as part of the agreement, is a point which has been much discussed, and upon which the English, and some American, cases are in direct op])osition. The English Courts hold the affirmative. See Wain i\ Warlters, 5 E. 10 ; reviewed and confirmed in Saunders r. Wakefield, 4 B. & Aid. -595. And their construction has been followed in New York : Sears v. Brink, 3 Johns. 210 ; Leonard v. Vreden- burg, 8 Johns. 29. In New Hampshire, in Neelson v. Sanborne, 2 N.H. 414, the same construction seems to be recog- nized and approved. But, in Massachu- (a) Where the verbal evidence of an Frauds ought especially to apply against agreement is contradictory, the Statute of it. Rowton v. Rowton, 1 Hen. & Munf 92. CHAP. VII.] STATUTE OF FRAUDS. 99 any agreement made upon any contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, unless the agreement, upon which such action shall lie brought, or some memorandum or note thereof, shall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." 1 a. The question often arises, to what j^n-rf/g-s this provision of the statute is applicable. It is held, that a tenant in common, in posses- sion, cannot validly sell by parol to his cotenant in possession.' So where a purchaser at a partition sale agreed with one of the parties to the partition suit, who was entitled to the largest share of the proceeds of the sale, and who was in possession at the time, that " he should keep the place upon a price to be afterwards aoreed upon ; " the agreement was held to be within the statute.^ So an agreement of copartnership between plaintiff and defendant, and that they should hold as tenants in common all real estate acquired by them.3 So verbal sales by administrators,* or an agreement by a cestui que trust for the conveyance of his interest ; ^ or a parol agreement for the conveyance by mortgagor to mortgagee of a part of the mortgaged premises, and for a lease of the right to maintain a hydraulic ram at a certain spring, and to pay a certain sum of money, and give a note, and deliver a specified number of cords of wood ; the whole in satisfaction of the mortgage debt.*^ So an agreement for the sale of land, by an agent whose authority is lim- ited in time, is not binding upon his principal, unless a written memorandum of the sale is delivered to the purchaser before the expiration of the agency.'^ 1 Hill V. Meyers, 43 Penn. 170. ^ Ridiards v. Richards, 9 Gray, 313. 2 Wiley V. Robert, 31 Mis. 212. « Starin r. Newcomb, 13 Wis. 519. ^ Thorn v. Thorn, 11 Iowa, 146. "' Johnson v. Craig, 21 Ark. 533. 4 Bozza V. Rowe, 30 111. 198. setts, it was rejected by the whole Court, It has been held, in California, that a upon great consideration, in Packard v. parol agreement for the sale of land, made Richardson, 17 Mass. 122. So in Maine, before the adoption of the common law, or Levy V. Merrill, 4 Greenl. 180; in Con- tlie re-enactment of the Statute of Frauds, necticut, Sage v. Wilcox, 6 Conn. 81 ; in is void, unless possession be taken, or part New Jersey, Buckley v. Beardsiey, 2 j)ayment made. Harris v. Brown, 1 Cal. South. 570 ; and in North Carolina, Miller 98; Hoen v. Simmons, ib. 119. V. Irvine, 1 Dev. & Bat. 103 ; and now in But performance will be decreed, if the South Carolina, Fyler v. Givens, Riley's sale is in pnfscnti, the title-deed delivered, Law Cas. 56, 02, overruling Stephens v. possession taken, and vahiable improve- Winn, 2 N. & M'C. 372, n. ; Woodward ments made, to such an extent as to work V. Picket, Dudley, 30. See also Violet v. a fraud upon the vendee if his title should Patton, 5 Cranch, 142 ; Taylor v. Ross, 3 fail. Tohler v. Folsom, 1 Cal. 207. See Yerg. 3.30 ; 3 Kent's Comm. 122 ; 2 Stark. Albert v. Ross, 5 Md. GO. Ev. 350, tjth Am. ed. ; 1 Greenl. Ev. § 268, n. 3. 100 LAW OF VENDORS AND PURCHASERS. [cHAP. VII. 1 h. It has been licld, that an agreement to procure a conveyance of lands is not within the statute.^ But, on the other hand, that, althougli the statute speaks only of the sale of lands, yet it also includes contracts to buy land for another.^' 2, The statute contemplates a transfer of lands, or some interest in them •,^ and one of the questions most frequently arising in its construction is, to what property it applies ; or, in other words, what are lands within the meaning of the statute. This question has for the most part occurred with reference to growing and movable products of the land, which are attached to, though not strictly making part of, the soil. 3. It has been held, that growing trees (or timber) are real estate, and cannot pass, except by an instrument in writing.* As where they are to be taken by the purchaser within a certain time,^ or where the right is given him at any future time to take and cut as he may want them.^ Thus the sale of growing timber, with an agreement that the purchaser should have twenty-five years to remove it, was held within the statute, upon the ground that it purported to transfer an interest in land, as the vendee was to have the timber remain and grow, if he pleased, and remove it whenever he might see fit, during the period prescribed.'' No action lies upon such an agreement ; nor, while executory, can it in any way be made available as a contract. If made for valuable consid- eration, the vendee has a valid title to any trees which he may cut ; but not such a title to those which remain, he not having taken exclusive possession of the land, as will sustain an action against one who enters and cuts and carries away trees ; although tlie vendee have paid the full consideration. And an exception, in a subsequent conveyance of the land, of the trees previously sold, is not a sufficient memorandum within the statute. (a) So it is held, 1 Bannon v. Bean, 9 Iowa, 395. " Buck v. Pickwell, 1 Wms. (Vt.), 157. ••i Hocker v. Gentry, 3 Met. ( Ky.), 463. ^ Olrastead v. Miles, 7 N.H. 5-22 ; Green 3 Bostwick V. Leach, 3 Day, 476. v. Armstrong, 1 Denio, 550. See Austin ■* Hutchins v. King, 1 Wall, 53 ; Pierre- v. Sawyer, 9 Conn. 39 ; Whipple v. Foot, pont I'. Barnard, 5 Barb. 364. See Bur- 2 Johns. 422; Stewart v. Doughty, 9 gett V. Bissell, 14 Barb. 638. Johns. 112. 5 Putney w. Day, 6 N.H. 430. (a) 1 Wms. 157. " It may, perhaps, the sale of land, or "any interest in it, or with some degree of certainty be said, that, concerning it, and that it is not material at the present day, a contract for the sale of wliether they have come to maturity or growing crops, produced annually by labor not at the time of the sale; or whether and the cultivation of the earth, and which they are to be cut and taken off of the are included within the meaning of the ground by the vendor or the vendee, term ' emlilements,' is not a contract for There would seem to be some reason for CHAP. VII.] STATUTE OF FRAUDS. 101 that an agreement for the sale oi groiving pears is an agreement for the sale of an interest in land, because they would pass to the heirs, not to the executor.^ So it is held, that growing croi)S are not goods or chattels within the meaning of § 15 of the (Cal.) Statute of Frauds, and will pass by deed or conveyance.^ So in case of a verbal purchase of a growing crop o^ c/rass, with liberty to go on the close, for the purpose of cutting and carrying it away ; held, the purchaser could not maintain trespass against the seller for taking away his horse and cart from the close, whicli he had brought there for the purpose of carrying away the grass ; the action, in substance, charging the defendant on the co7itract, within the statute.^ So although one who has contracted witli the owner of a close, for the purchase of a growing crop of grass there, to be mown and made into hay, has such an exclusive possession, though for a limited purpose, that lie may maintain trespass qu. d. against any person entering the close and taking the grass, even with the assent of the owner ; still, this being a contract or sale of an interest in or concerning land, it may be discharged by parol notice from the owner, before any part-execution.^ So a sale of growing turnips. 1 Rodwell V. Pliillips, 9 M. & W. 501. 2 Bernal v. Hovious, 17 Cal. 541. 3 Carrington v. Roots, 1 Mees. & W. 248. making a distinction between a growing crop of grass or growing trees, and a field of wlieat or corn or other emblements. Emblements seem to be distinct from the real estate, and subject to many of the incidents attending personal chattels. But the word kuid is comprehensive in its meaning, and comprehends growing grass and standing trees. Standing trees must be regarded as part and parcel of the land in which they are rooted. The case of Dunn i\ Ferguson, cited in 2 Stcph. N. P., from Hayes (Irish), 542, marks well the distinction, and the grounds upon which the sale of a growing crop is not a contract for an interest in land. The case was, the defendant sold, by verbal contract, to the plaintiff, a crop of turnijjs, which he had previously sown ; and some time after, and while the turnips were in tlie ground, the defendant dug them and carried them away. Chief-Baron Joj' says : ' Whether there has been a contract concerning an interest in land, or whether it merely con- cerns goods and chattels, must depend upon the question, whether a growing croji is goods and chattels ; ' and ujjon this, he says, ' the decisions have been very 4 Crosby v. Wadsworth, 6 East. 610 (a leading case). See Frear v. Ilarden- t)urgh, 5 Johns. 272. contradictory ; a result always to be ex- pected when the Judges give tliemselves up to fine distinctions.' The Court, in that case, base their decision upon the ground, that, at connnon law, growing crops were uniformly held to be goods, and subject to all the leading consequences of being goods ; and that the Statute of Frauds took things as it found them, and provided for lands and goods according as they were esteemed at tlie time of its enactment. This seems to put the case on some tangible ground. If, before the statute, a growing crop had been held to be an interest in lands, under the statute, a contract respecting it must have been to give it vitality, in writing. We think the whole current of modern law is in con- formity to the distinctions marked out in the case of Dunn v. Ferguson, and it is thus put upon some rational ground. It would seem to follow as a necessary corol- lary, that a contract for the sale of stand- ing trees, with a right, at a future time, to enter upon the land to remove them, did concern an interest in land." Per Bennett, J., 1 Wms. 1G3. 102 LAW OF VENDORS AND PURCHASERS. [CHAP. VII. 110 time being stipulated for their removal, and the degree of their maturity not being positively found, is a sale of an interest in land, and must be in writing.^ So the sale of growing underwood, to be cut by the purchaser, confers an interest in land, under the statute .2(a) 4. The same question has arisen, and the same rule been adopted, in reference to other kinds of property, not being strictly real estate, but partaking, more or less, of the character of chat- tels. Thus a declaration in assumpsit alleged, that the plaintiff 1 Emmerson v. Heelis, 2 Taunt. 38. 2 Scorell V. Boxall, 1 You. & Jerv. 396. (a) See Andrew v. Newcomb, 32 N.Y. 417. Verbal sale of growing wood, by the defendant, with a right to cut it within a certain time, but without any express authority to assign the contract. The purchaser cut part of the wood, left it on the land, and sold it, with all his rights under the contract, to the plaintitf, whom the defendant autliorized to remove the remaining wood, but afterwards revoked the authority, and burned the wood. Held, he was liable to an action for so doing. Nelson v. Nelson, (Mass.) Law Eep. Nov. 1856, p. 411. Declaration, tliat the plaintiff was pos- sessed of a farm upon which were growing crops, and on which tlie plaintiff had done work and labor, and expended materials, in making the lauds ready for tillage, of which work the plaintiff had not derived the benefit ; and that, in c(jnsideration that the plaintiff would let the farm to the de- fendant for fourteen years, the defendant undertook to take tlie crops and pay for them, and for the work, according to a valuation; that the plaintiff let the farm accordingly, and left the crops upon it, and the defendant took possession and had the benefit of the work, &c., and the valu- ation was made, but the defendant did not pay. Plea, that the crops, and the benefit of the work, &c., were not excepted or reserved out of the letting or agreement to let, and there was no agreement in writing, in respect of those causes of action, or any memorandum or note thereof, signed by the defendant or any person by him lawfully authorized. Held, on demur- rer, that the contract was for an interest in land, and the right to the crops, and the benefit of the work and labor, were both of them an interest in land, within the 4th section of the Statute of Frauds. Falmouth V. Thomas, 1 Cromp. & Mees. 89. Indebitatus count, for crops bargained and sold, accepted and taken, had and received, and cut down by the defendant. Plea, that the crops, at the time of the bargain and sale, were growing upon and afiixed to certain lands ; and, before the bargain and sale, there was a treaty on foot between the plaintiff and the defend- ant, proposing that the plaintifi" should let the lands to the defendant, and the defend- ant take therewith the crops ; that the defendant assented to the treaty ; and, in order to carry it into effect, the supposed bargain and sale was verbally contracted ; and there was no agreement in writing, or any memorandum or note thereof. Held, the crops were, at the time of the bargain and sale, an interest in the land, and the case was within the statute. And the same point was held, on a similar plea, to a count for work, labor, and materials. Ibid. Indebitatus assumpsit upon an account stated. Plea, that, before the taking of the account, there was a verbal agreement for the sale of crops growing upon the plaintiff's land, and for woi'k, labor, and materials, done and used in preparing the land for tillage ; and a treaty for the plain- tift''s letting, and the defendant's taking, the land for fourteen years, to which the defendant assented ; and that the money to be paid for the crops, and the work, &c., was the money concerning which tlie account was stated ; and there was no agreement in writing, nor any note thereof. Replication, that, before the account was stated, the defendant had mown the crops, and taken them to his own use, and had and received the amount of the work and labor and materials. Rejoinder, travers- ing that defendant had cut down the crops, and received the amount of the work and labor, &c., before the stating^ of the ac- count. General demurrer. Held, the con- tract, as appearing on the pleadings, was within the statute, and the plaintiff could not recover. Ibid. CHAP. VII.] STATUTE OF FRAUDS. 103 was desirous of taking a funiislicd house as a scliool ; that the defeudant was possessed of a house in part furnished, and all other furniture necessary for the completely furnishing the same ; and tliereupon, in consideration that the plaintiff, at the request of the defendant, would take possession of said house, and would, if the furniture necessary for the completely furnishing said house for the purpose aforesaid should be sent into said house by the defendant within a reasonable time, become the tenant of the house, with the furniture, at the rent aforesaid, and pay the rent quarterly, commencing, etc., the defendant promised the plaintiff, that ho would, within a reasonable time after the plaintiff should have so taken possession, send into the house all the furniture necessary for furnishing the house with furniture of good quality ; that the plaintiff took possession of the house, but the articles of furniture sent were not of good quality, and all the furniture necessary for the furnishing was not sent in. Plea, that there was no note or memorandum in writing of the promise stated. Held, on demurrer, that the promise related to land, and no action could be maintained upon it.^(6«) 5. A parol contract for the sale of both real and personal prop- erty, if entire, and founded on one consideration, being void as to the former, is void for the whole. So held in case of the sale of wood or timber composing a broken-do.wn mill in connection witli the mill-site, &c.^ So a contract to hire a shop at a certain rent, and pay the landlord the expense of fitting it up, was held an entire contract, and within the Statute of Frauds, as it concerned an interest in lands. ^ 6. The statute is held applicable to a contract for the sale of a " right to dig and carry away ore " from the mine of another per- son ; "^ though a verbal contract for such right is valid as a license, 1 Mechelen v. "Wallace, 2 Nev. & Perr. ^ M'Mullen v. Riley, (Mass.) Law Rep. 224 ; 7 Ad. & Ell. 49. Dec. 18.56, p. 439. 2 Thayer v. Rock, 1-3 Wend. 53. * Riddle v. Brown, 20 Ala. 412. See Copper, &c. V. Spencer, 25 Cal. 18. (a) By a parol agreement between the either side. The plaintiff having sued plaintiff, a boarding-house keeper, and the the defendant for retu-sing to become an defendant, tlie defendant agreed to pay inmate of the boarding-house, held, the the plaintiff, for the board and lodging action was maintainable, as the contract of himself and man, and accommodation was not one for any interest in or con- fer his horse, at the boarding-house, £200 cerning land. Wright v. Stavert, 2 Ellis a year from a fi.xed day ; the agreement & E. 721. to be terminable by a quarter's notice on 104 LAW OF VENDORS AND PURCHASERS. [CHAP. VII. and a protection to the party acting under it, and vests in liim a title to the ore actually taken .^ But the license is revocable, personal, and not assignable.^(a) So a right of permanently over- flowing the land of another, by a mill-dam to be constructed below his line, is an hereditament ; and a contract for the sale of it must therefore be in writing.^ So a contract made by an owner of land with the commissioners, under the act relative to draining the drowned lands in Orange County, (5) by which they were allowed to use each bank of the River Wallkill, &c., which they might find necessary in removing all obstructions, and in deepening and widening the river, &c., and to use, occupy, and enjoy the same, and for which they were to pay a compensation for the damages to the owner, who agreed to allow them to cut a canal through his lands, was held to be a contract concerning an interest in lands, within the statute.^ So, in New York, the statute applies to the sale of a ipeiv^ So the statute has been held to apply to the sale of a leasehold interest ; as in case of an agreement by a tenant for a sale and delivery of the premises, the purchaser agree- ing to pay the rent, rates, and taxes.*^ So a claim for specific performance cannot be maintained, upon the allegation that the defendant had agreed in writing to demise a house to the plaintiff for a certain term and rent, and that the plaintiff at the same time agreed by parol to pay the defendant a premium of £200 ; praying that a lease be granted, and offering to pay the premium.'^ So A, and B., severally negotiating to purchase a house and land, agreed by parol, that A. should withdraw, and B. purchase, giving to A. a part of the ground at a proportionable price. B. pur- chased, but refused to perform the agreement. Held, within the statute.^ 7. With reference, however, to the sale of things growing upon the land, decisions have been made, somewhat conflicting with 1 Ibid. 5 Vielie v. Osgood, 8 Barb. 130. 2 Ibid. ^ Smart v. Harding, 29 Eng. Law & 3 Bridges v. Purcell, 1 Dev. & Bat. Eq. 252. 192 ; Harris v. Miller, 1 Meigs, 158. "^ Martin v. Pycroft, 11 Eng. Law & 4 Phillips V. Thompson, 1 Johns. Ch. Eq. 110. 131. 8 Lamas v. Bayly, 2 Vern. 627. (o) No writing is required, to vest or subsidiary thereto, which is sufficiently divest title upon taking up a mining claim, acquired and fixed by following the min- The Statute of Frauds does not apply, ing rules. Gore v. McBrayer, 18 Cal. 582. The paramount title being in government, See ch. 8. the locator has only a permissive claim (6) Sess. 30, ch. 25. CHAP. VII.] STATUTE OF FRAUDS. 105 those already cited.^(rt) In general terms, it is said, a contract for the sale of things annexed to the freehold, bnt which are capa- ble of separation without violence, and Ijy the terms of the contract are to be separated, is not within the statute.'-^ So, it is said, a contract for the sale of a growhig crop, the product of periodical planting and cultivation, — for example, a crop of potatoes, — is essentially the same, whether they arc covered with earth in a field, or stored in a box : in either case, tlie thing sold is but a personal chattel, and so not within the statute.'^ So hops ui)on the vine are personal chattels within the Statute of Frauds, and may be sold as such.'^ So it has been held, that a contract for the sale of growing wood and timber, to be cut and removed by the pur- chaser, or in contemplation of their immediate removal from the soil by either party, is a constructive severance, and not within the statute, the effect of it being to pass an interest in the trees when severed, but not any interest in the land.^ So an agreement for the sale of mulberry-trees growing in a nursery, and raised to be sold and transplanted, and to be delivered on the ground where they are growing, on payment being made ; ^ or an agreement that a person not the owner of the land may cut down the trees, peel them, and take the bark ; " or a sale of grass already grown, and in a condition to be cut.^(ft) So the plaintiff and defendant orally agreed, in August, that defendant should give £45 for the crop of corn on plaintiff's land, and the profit of the stubble after- 1 Jenkes v. White, 14 Eng. Law & Eq. 5 Claflin v. Carpenter, 4 Met. 580 ; 350; Sweeny v. Miller, 34 Maine, 388; Cain v. M'Guire, 13 B. jMon. 340; Ers- Preble v. Baldwin, 6 Cush. 549 ; Parker kine v. riummer, 7 Greenl. 447 ; Byassee V. Staniland, 11 E. 362. v. Reese, 4 Met. (Ky.), 372. 2 Bostwick V. Leach, 3 Day, 476. 6 Whitmarsh v. Walker, 1 Met. 318. 3 Warwick v. Bruce, 2 M. & S. 205 ; ^ Nettleton v. Sikes, 8 Met. 34. Marshall v. Ferguson, 23 Cal. 65. 8 Cutler v. Pope, 13 Maine, 380. 4 Frank v. Harrington, 36 Barb. 415. (17) It is said, "No general rule is laid (/oods. Long on Sales (Rand), 80, 81. But down in any one of tlieni, that is not it is said the later English ami the Ameri- contradicted by some others." Per Ld. can autliorities do not seem to recognize Abinger, Rodwell v. Phillips, 9 M. & W. sucli distinction. 505. The distinction upon this point lias {h) Agreement for the purchase of the been supposed to depend on the question, herbage of a close for five months, for whether the subject of contract, being part £45; £10 to be paid down, and a joint of the inheritance, is to be severed and promissory note given for the residue, delivered by the vendor as a chattel, or payable within the five months ; the les- whether a right of entry is given to the see to yield up possession at the end of purchaser to cut and take the property ; that time, and, if he failed to give a satis- the 4th section of the statute being appli- factory note, the vendor to be at liberty cable to the latter case, but not to the to relet the premises. Ilelil, sufficiently former, which, however, would tidl within stiimped with a £1 stamp. Cattle v. Gam- the 17th section, relating to the sale of ble, 5 Bing. N.R. 40. 106 LAW OF VENDORS AND PURCHASERS. [CHAP. VII. wards ; that plaintiff's cattle might run with defendant's ; that defendant should have some potatoes growing on the land, and whatever lay grass was in the fields ; should harvest the corn, and dig up the potatoes ; and plaintiff pay the tithe. Held, not a contract for any interest in land, but a sale of goods and chattels, as to all but the lay grass ; and, as to that, a contract for the agistment of defendant's cattle.^ So where the defendant, in June, agreed to sell to the plaintiff the potatoes then growing on land of the defendant at 2s. per sack, the plaintiff to have them at the digging-up time (October), and to find diggers ; held, not a con- tract for the sale of an interest in land.^ So a verbal agreement, made on the 25tli of September, for the sale of a then growing crop of potatoes, is not a contract or sale of any lands, tenements, or hereditaments, or any interest in or concerning them.^ So tlie plaintiff verbally agreed with the defendant to sell him the timber growing on his land at so much per foot. Defendant afterwards offered to sell the buts of the trees to a third person, and said he would convert the tops into building-stuff. Plaintiff afterwards, by letter, required defendant to pay for the timber which he had bought of him. Defendant wrote a letter in answer, stating that he had bought the timber, but that he had bought it to be sound and good, and it was not so. Held, not within the statute.*(a) 8. A parol contract for the sale of improvements on the public lands is valid.^ So a contract for the sale of improvements on land, consisting of houses, is not within tlie statute ; ^ nor an agreement by a tenant at will to transfer his title, as he has no assignable interest ; " nor an agreement not to exercise a right regarding the freehold, as to use a mill, or to carry on a trade in a particular shop.^ 1 Jones V. Flint, 10 Ad. & Ell. 753. * Smith v. Surman, 9 Barn. & Cress. 566. 2 Sainsbury v. Matthews, 4 Mees. & ^ Zickafosse v. Hulick, 1 Morr. 175. Wels. 343. 6 Cassell v. CoUins, 23 Ala. 676. 3 Evans v. Roberts, 5 Barn. & Cress. '' Whittemore v. Gibbs, 4 Fost. 484. 829. 8 Bostwick v. Leach, 3 Day, 476. (a) Assumpsit for goods sold, and on fendants had not admitted a precise and an account stated, to recover the value definite sum to be due to the plaintiff, of growing poles, purchased from the and therefore he could not recover on the plaintiff by the defendants, and afterwards account stated, without reference to the carried away by them. At the time of memorandums, wliich were not admissi- the bargain, some memorandums in writ- ble in evidence ; but, as the contract had ing had been made, but neither stamped been executed by the defendants, they nor signed. The defendants, after the having carried away the poles, the Court poles were carried away, admitted that a granted the plaintiff a new trial, on pay- balance was due to the plaintiff Held, ment of costs. Teall v. Auty, 4 Moo. 542. a nonsuit was rightly ordered, as the de- CHAP. YII.] STATUTE OF FRAUDS. 107 9. The question has arisen, whether the statute aj)jtlies to the transfer of paper securities, relating to tlie title to lands. It has been held, that a contract for the sale of a bond secured by mort- gage of lands is within the statute.^ So a parol agreement to execute a covenant to convey is within the statute,- more especially at law.^ So where the defendant contracted in writing to sell land at a certain price, and the plaintiff, by parol, agreed with the purchaser to purchase his interest in the contract, and the latter, by an indorsement on the contract, ordered the veudor to convey to the plaintiff; lield, the plaintiff could not maintain an action against the defendant.^ But an agreement to locate land certifi- cates and procure patents, in consideration of a good title to half the land, is not within the statute.^ 10. The statute api)lies to a parol agreement to straighten a crooked line, up to which the party has occupied long enough to give him a possessory title. ^ 11. The question, whether a contract is within the statute, has more commonly arisen with reference to the liability of the vendor ; but sometimes, in connection with a claim for the price, against the vendee. Upon this subject, the cases seem not entirely rec- oncilable, although the distinctions turn chiefly upon tlie })oint, whether the purpose of a suit by the vendor is to enforce the execution of the contract, or, after it has been executed by him, to recover the stipulated compensation. 12. It is held, that, in order to recover the price of land sold, there must be a contract, subscribed by the vendor, and assented to or accepted by the purchaser.' And the mode of payment is held immaterial. Thus a contract for land, to be paid for, one-half in printing and one-half in cash, is within the statute, where there has been no part-payment or possession taken.^ So no action lies, for the price of land sold by parol contract, no part of it having been paid, nor possession taken, though a deed has been tendered by the seller, but not accepted.^ So the plaintiff verbally sold to the defendant his interest in a farm, the defendant agreeing to 1 Toppin V. Lomas, 30 Eng. Law & •> Davis v. Townsend, 10 Barb. 333. Eq. 4'26. 7 Reynolds v. Dunkirk, &c. 17 Barb. •^ Ledford v. Ferrell, 12 Ired. 285. 613. 3 Yates V. Martin, 1 Chandl. 118. ** Morgan v. McLaren, 4 Greene, 536. 4 Sinims v. Killian, 12 Ired. 252. 9 Lester v. Bartlett, 2 Cart. 628. 5 Watkins v. Gilkerson, 10 .Te.x. 340. See Maxwell v. Wallace, 1 Busb. Eq. 251. 108 LAW OF VENDORS AND PURCHASERS. [CHAP. VII. " step into liis shoes," and clear him of certain mortgage notes, and of a note for -$50, made to the mortgagee, with surety, and indorsed upon the mortgage note as part-payment. The defendant entered, and, six years after the sale, the plaintiff paid half the -$50 note and costs, and brings this action therefor. Held, as the defendant was not legally bound, the action did not lie.^ So a purchaser of land under incumbrance, who receives a conveyance without covenants, cannot set up a concurrent parol agreement on the part of the grantor to pay off the incumbrances ; for such agreement is parcel of an entire agreement for the sale of lands.2 So where A. sold land to B., and gave his bond to make title, on B.'s verbal promise to pay a debt which A. owed to C. ; held, this was not void by the statute as a promise to pay the debt of a third person, but was void as a contract for the sale of real estate.^ So it has been held, that a note or memorandum is insufficient, unless it furnish evidence of ])rice, and the amount thereof, this being an essential part of the contract.* Therefore a letter written by the purchaser, subsequent to a sale by auction, and addressed to the vendor, will not take the case out of the stat- ute, if it only contain a statement of the contract for the purchase, but exhibit no particular of the price, nor refer to any other writ- ing which does so. So though the letter refer to certain notes, tendered in payment, which notes are not before the Court,^ 13. But the Statute of Frauds does not, in general, preclude an action for the price of land.^ Thus, after delivery and acceptance of a deed, the vendor of land may maintain an action for the price by the acre which the purchaser verbally agreed to pay." So an executor sells under a power. In a suit on a note for the price, the defence was made that there was no writing. The vendee had possession nearly seven years, and paid part of the price, and re- newed notes for the rest with security ; and, pending the suit, a good title was tendered. The answer does not claim rescission. Held, no defence.^ So a promise by the purchaser of land, at the time of the conveyance, to pay the taxes that are or may be as- sessed thereon, for the current year, is not " a contract for the sale of lands, &c., or of any interest in or concerning the same." ^ 1 Davis V. Farr, 26 Verm. 592. « Thayer v. Viles, 23 Verm. 494 ; 2 Duncan v. Blair, 5 Denio, 196. Holland v. Hoyt, 14 Mich. 238. 3 Rice V. Carter, 11 Ired. 298. ' Nutting i'. Dickinson, 8 AUen, 540. 4 Ide V. Stanton, 15 Verm. 685. « Hill v. Spalding, 1 Duv. 216. 5 Adams v. M'Millan, 7 Port. 73. 9 Brackett v. Evans, 1 Cush. 79. CHAP. VII.] STATUTE OF FRAUDS. 109 So where A., who had mortgaged land to B., sold the land to C, on the parol agreement that C. should pay the mortgage debt, and that B. should release his mortgage ; held, the promise of C. was not within the statute.^ So A. promised B. to pay him -$1,000 at his death, if he would sell his estate, and purchase his own farm at a stipulated price, and come and reside there. B. did sell his farm, and bought A.'s farm, and removed there with his family. Held, the promise was not within the statute.^ So A. entered on B.'s land, and, without his knowledge or authority, cleared it, made improvements, erected buildings, &c. B. afterwards agreed by parol with A. (against whom he had brought an ejectment for possession), that he would sell the land to A. as wild land, or pay him for the improvements. Held, though the promise to sell was void, the promise to pay for the improvements was not within the statute, though void for want of consideration. ^ So where one in possession of land, on which he had made improvements, agreed to transfer it, and the purchaser verbally promised to pay for the improvements ; held, the promise was not within the statute."* So the plaintiff conveyed to the defendant a tract of land, as contain- ing 110 acres, at $S per acre ; with a verbal agreement for a sur- vey, and, if there proved to be less than 110 acres, the plaintiff should refund ; if more, the defendant should pay at the same rate for the surplus. Held, not within the statute, and that there was a sufficient consideration for the promise of the defendant.^ So extrinsic evidence may be offered of the price paid, where the in- strument or memorandum is certain and unambiguous.^ So a let- ter, promising to make a deed of land " according to contract," is sufficient, though the terms are not mentioned, if the party claim- ing the conveyance can prove the price by one witness." So a receipt for the purchase-money may constitute a sufficient agree- ment, provided it show on its face, or by reference to some other instrument, every material part of a valid contract.^ So a receipt, acknowledging payment of money in these words : " In part-pay- ment of the tract of land that 1 was interested in, and sold by the sheriff, and purchased by Colonel C. L. Goodwin, and which land was sold by C. L. Goodwin to Benj. Hatcher ; this is in part- 1 Simonton v. Gandolfo, 2 Fla. 392. « Hatcher v. Hatcher, 1 McM. Kq. 311, 2 Kins V. Haiina, 9 B. Mon. 369. 318. 3 Frear v. llanlenbiirgh, 5 Johns. 272. ^ Jolmson v. Ronald, 4 Munf. 77. 4 Benedict v. Beebee, 11 Johns. 145. « Barickman v. Ivuykendall, (3 Blackf. 5 Garret v. Malone, 8 Rich. 335. 21. 110 LAW OP VENDORS AND PURCHASERS. [CHAP. VII. payment, to redeem the said land from Benj. Hatcher," was held a sufficient memorandum of the agreement.^ So where there was a parol agreement, that one party should hold an estate, and recon- vey to the other on payment of the purchase-money and interest ; held, that credits and charges on tlie books of tlie former in regard to the estate, and conformable to the agreement, were sufficient to take the case out of the statute.^ So where A. sold to B. land and took his notes in part - payment ; and, in consideration of the refusal of the grantor's wife to sign the deed, it was verbally agreed by A. that only two of the notes should be paid : held, this agree- ment was valid.'^ So a parol contract for labor, to be paid for by a conveyance of whichever of two town lots the party doing the labor shall select, is not within the Statute of Frauds.* So the plaintiff and defendant enter into an indenture, in which, after a recital that they are " in possession and improvement, and are principal owners of a certain water-privilege, with the buildings thereon, machinery, fixtures, &c.," the plaintiff agrees to convey, and the defendant to receive and pay for, " all the plaintiff's right, &c., of the above-described premises, consisting of, &c. ; also the saw-mill, with every privilege, Fowle v. Freeman, 9 Ves. 851. M'Hen. 252. ^ Ivory v. Murphy, 36 Mis. 534. 3 Pan-ill V. M'Kinley, 9 Gratt. 1. » Dobell v. Hutchinson, 3 Ad. & Ell. i Higdon V. Thomas, 1 Harr. & G. 130. 855. the advertiser for sale at auction, upon the (a) Contract for the sale of land. The terms therein stated ; one of whicli was, deeds were drawn, the vendor took them that one-third of the price should be paid home, and wrote to the vendee that they down. The sale took place, but no fur- wore ready, and requested her to attend ther writing was made, nor the money and settle the business, but he died before paid. Held, insufficient to pass an interest the parties met. Held, not a sufficient in the land, and that no action would lie agreement in writing. Givens v. Calder, for the price. Kurtz v. Cummings, 24 2 Desaus. 171. I'enn. 35. CHAP. VII.] STATUTE OF FRAUDS. 113 particulars and conditions of sale, and referring to them. After- wards he wrote to the vendor, complaining of a defect in the title, referring to tlie contract expressly, and renouncing it. The vendor wrote and signed several letters, mentioning the property sold, the names of the parties, and some of the conditions of sale, insisting on one of them as curing the defect, and demanding the execution of the contract. Held, these letters, as connected with the partic- ulars and conditions, constituted a memorandum in writing, bind- ing upon the vendor under the statute (§ 4), although neither tlie original conditions and particulars, nor the memorandum signed by the purchaser, mentioned or were signed by the vendor.^ So where a letter signed by the vendor is combined with his proposal, by a note in the third person, specifying the price, the contract is binding.^ So where the defendant purchased leasehold premises at auction, and signed a memorandum of the purchase, on the back of a paper, containing the particulars of the premises, the name of the owner, and the conditions of sale ; held, the defendant was bound, though no contract was signed by the vendor.^ So if a party has entered into a parol agreement for a lease, and a draft of it is prepared ; though the agreement is void under the statute, yet an indorsement by him, referring to the case on the draft admitting the agreement, is sufficient to bind him.'* So where the reversioner in fee of a liouse, expectant upon a term, a portion of which has been underlet, agrees by one letter to grant the sub- lessee an extension of the lease, at a certain yearly rent, and in another letter fixes the time when the term is to expire ; this is a valid agreement, and the sub-lessee has a right to a lease, which shall commence from the expiration of the existing term.^ So in assumpsit for the price of a pew in the Bulfinch-street Church, Boston, sold, as the plaintiff alleged, by her to the defendant, the defendant, among other grounds of defence, relied upon the Statute of Frauds. The pew was sold at auction, and in the record of sales kept by the auctioneer was this entry : " Sale of pew in Bulfinch- street Church, for ace. Selinda Fessenden. Monday, March 24, 1845. Pew No. 18. Benj. Mussey, 1112.50. Charges, advertising, and 1 Dobell V. Hutchinson, 3 Ad. & Ell. 3 Laythourp v. Bryant, 2 Bing. N.C. 355. 735. 2 Western v. Russell, 3 Ves. & Bea. * Shii)i)ey v. Derrison, 5 Esp. Ca. 190. 187. . 5 Verlander o. Codd, Turn. & Russ. 352. 8 114 LAW OF VENDORS AND PURCHASERS. [CHAP. VII. commission, $5."^ Thomas, J., says: " If this memorandum was made at the time and place of sale, by the auctioneer, or his clerk then acting under his direction, we think it is sufficient.^ It desig- nates clearly what was sold, by whom, to whom, the time when, and the price. The middle name of the purchaser is omitted, but it was competent to show by parol that defendant was intended, or that defendant was well known by the name, or that he subse- quently recognized the signature. As to terms of payment, the presumption of law, in the absence of an express stipulation, is, that it was for cash, payable on a tender of a deed." So a sale at auc- tion of real estate was evidenced by an advertisement, containing time, description, &c. ; by a plot used at the auction, upon which the clerk noted the name of the purchaser, the price, the surety, &c., only writing the word " ditto " under the purchaser's name in the cases of other lots purchased by him ; and by a letter of the purchaser concerning the purchase. Held, that this was admissible evidence under the Statute of Frauds, and the clerk might give parol testimony to explain and connect the various parts.^ So in making sales of real estate under orders of sale in partition, the sheriff is the agent of both parties. Any appropriate entry or memorandum, made by the sheriff in his sale-book, should be taken in connection with the papers in the partition case, and they should be regarded as a part thereof, when the sufficiency of the memo- randum is called in question.^ So a memorandum made by a deputy sheriff, and signed by him, of a sale of one of several lots in a partition proceeding, in which Louis Robert and others were plaintiffs, and one B. T. Adams, defendant, was as follows: " Par- tition, lands — Louis Robert v. B. T. Adams — lot No. 11 — 274. 80-100 a. — Louis Robert, 110.50 per a. —12,885.40." Held, sufficient.^ 15. But the note or memorandum must state expressly, or by reference, the subject of sale, the terms and the parties, with such certainty as to furnish evidence of a complete agreement. Thus, where the subject of sale was described as " B.'s right in C.'s estate," this was held sufficiently certain. But where the memo- randum was a book, on the cover of which was written, " A.'s 1 Fessenden v. Mussey, 11 Cush. 127. ^ Lee v. Malioney, 9 Iowa, 344. - Gill V. Bicknell, 2 Cush. 355 ; Morton ^ Stewart v. Garvin, 31 I\lis. 86. V. Dean, 13 Met. 385. ^ Wiley v. Robert, 31 Mis. 212. CHAP, VII.] STATUTE OP FRAUDS. 115 memorandum of B/s property received by assignment," and, on a leaf of the book, under the caption, " Sales at auction, 6th March, 1826," was this entry : " B.'s right in C.'s estate, sold to D., 860 ; " in an action brought by A., tlie auctioneer, against D., for the purcliase-money ; it was held, that the memorandum was fatally defective, because it did not show, with the requisite certainty, that A. was the vendor.^ Nor can an imperfect memorandum of a sale by an auctioneer, and a letter addressed by the vendee to the ven- dor, be so united, as to take such sale out of tlic statute ; there being no direct reference in the one to the other, so as, in effect, to render them one, witliout the aid of parol proof.^ Nor can an agreement be partly in writing and partly in parol, though it may be shown by parol evidence that separate papers ]>oth related to, and formed parts of, one contract.^ So a paper signed by a party, and proposing to convey all the property, cannot be connected by parol with another paper not signed, for the purpose of designating the property meant to be conveyed.'* So a letter to a solicitor, with directions for preparing the conveyance of land purchased, described generally as the land bought of [a person named] , but not specify- ing the terms, is not sufficient evidence of a contract within the statute, and the estate will not pass by a will made previous to the conveyance.^ So a newspaper advertisement offered land of the advertiser for sale at auction, upon the terms therein stated; one of which was, that one-third of the price should be paid down. The sale took place, but no further writing was made, nor the money paid. Held, insufficient to pass an interest in the land, and that no action would lie for the price. •" 16. With more particular reference to the point, what shall con- stitute a signing under the Statute of Frauds ; there is a class of cases which give the statute a strict interpretation, and require a somewhat exact conformity to its provisions. (a) Thus where one altered a draft with his own hand, for the purchasing an estate ; held, not a sufficient signing, though the seller afterwards executed the conveyance, and caused it to be registered.'^ So the writing of 1 Nichols V. Johnson, 10 Conn. 192; * Ibid. Smith V. Arnold, .5 Mas. 414. ^ Kose v. Cunyni,dianie, 11 Yes.- 50. ■^ Adams v. M'Millan, 7 Port. 73. "^ Kurtz v. Cumminjrs, 24 Penn. 3.5. 3 Moale V. Buchanan, II Gill & J. 314. "* Hawkins v. Holmes, 1 P. Wnis. 770. [ii] The refusal, by a vendor, to sign a so as to take the case out of tlie statute, memorandum in writing is not a fraud, Bozza v. Kome, 30 111. 198. 116 LAW OF VEKDORS AND PURCHASERS. [CHAP. VII. a party's name by himself, in the body of a memorandum of agree- ment for a lease, is held not a signature} 17. So it is held, that an entry, to be valid, must contain a memo- randum of the contract, and state distinctly the article sold, the price, and the purchaser's name. Thus the following memorandum, found in the books of one deceased : " 1841, W. P. to H. C. 0., Dr. To four loads of rock, one lot, at one year's credit, 1125 ; " is too vague and uncertain to sustain a bill for specific performance of a contract for the purchase of land, against the administrator.^ So an entry in these words, " The tract of land to Wm. Meadows, at $5.48." ^ So where Oliver and Pipkin bought of James some groceries, an ice-house and lot ; and a memorandum of the sale was headed, " Invoice of articles purchased by Pipkin and Oliver of James, 29th August, 1836 ; " and one of the items of sale was stated thus : " One ice-house and lot, -1140 ; " held, that the con- tract as to the ice-house and lot was void for uncertainty.* So the bare entry of a steward, in his lord's contract book with his tenants, is not an evidence of itself, that there is an agreement for a lease between the lord and a tenant.^(a) 18. It has been questioned whether a receipt, not containing the terms of the agreement, nor referring to any other paper contain- ing it, can have effect as an agreement, within the Statute of Frauds.'' So a particular, in writing, for the purchase of an estate, is not sufficient within the statute, unless the party purchased l3y it, or it was shown him at the time of purchase. Hence, if it contain more than the words of the conveyance will in strictness carry, the purchaser cannot compel a specific execution of the residue, on the 1 Stokes V. Moore, 1 Cox, 219. * Pipkin v. James, 1 Humph. 825. " Plummer v. Owens, 1 Busb. Eq. 5 Charlevvood v. The Duke of Bedford, 254. 1 Atk. 497. 3 Meadows v. Meadows, 3 M'C. 458. ^ Coles v. Trecothick, 9 Ves. 234. [a] Lease of lands by auction. A writ- lands to be let for three lives, or thirty -one ing deUvered by the auctioneer to the years. Proposals having been made by highest bidder, and containing a descrip- B. and accepted, an agreement was exe- tion of the lands, the term for which they cuted between B. and the agent of A., were let, and the rent, but not signed by duly authorized, in which the term was the auctioneer or any of the parties, was not mentioned. Held, A. was not bound, held not to be such a minute of the agree- Also, there being no reference in the agree- ment as was required to be stamped, pur- ment to the advertisement, that parol evi- suant to Stat. 48 Geo. III. ch. 149, nor such deuce could not be received, to connect a writing as would exclude parol evidence, the one with the other, so as to ascertain Eamsbottom v. Tunbridge, 2 Mau. & Selw. the term. Chnan v. Cooke, 1 Sell. & Lef. 434. 22. A., by public advertisement, offered CHAP. Vll.] STATUTE OF FRAUDS. 117 particular.^ So to a bill for specific performance of an agreement for the sale of lands and chattels, there was a plea of the Statute of Frauds. The defendant, during the negotiation, delivered a particular of the whole, signed by him. The agreement was after- wards made at a less price. Both parties gave instructions to an attorney to prepare the conveyance ; and the defendant delivered to him the particular, as instructions for the deed, which was pre- pared. Held, not sufficient under the statute.^ 18 a. A recital in a deed, that the grantor had previously con- veyed a larger tract (including that granted by the deed) to his sons, by "articles of agreement dated April 1, 1849," is not such a memorandum in writing of the agreement, as, in an action of ejectment for the land, between the grantor and alleged parol ven- dees of the sons, will take the case out of the statute."'^ So, the defendant having proposed to take a lease for seven years, a draft was prepared, to which he objected, but ultimately took it away, to be settled by his solicitors. They returned the draft to the plain- tiff's solicitors, with the following letter : " We have seen our client, and have altered the draft lease in accordance with his instructions. We trust there will be no impediment, to prevent an early completion, and shall be glad to receive the draft as soon as you can, that we may engross the counterpart." The plaintiff's solicitors replied, returning the draft and- engrossment of lease, and counterpart, stating that, according to the practice, where there is no stipulation on the subject, the lessor's solicitor invaria- bly prepares both lease and counterpart. Held, there was no evidence of any contract binding the defendant to take the lease, and no memorandum of any contract sufficient for that purpose within the 4th section of the Statute of Frauds.'^ 19. Where a letter contains the entire terms of an agreement, it is not necessary for the plaintiff to prove that he accepted the terms. If it require the plaintiff to supply a term, there must be a special acceptance in writing, supplying that term, in order to take the case out of the statute.^ 20. With regard to the mode of relying upon the Statute of Frauds, as a defence to a suit upon a parol contract relating to lands ; or the rules of pleading connected with such defence ; it is 1 Cass V. "VVaterhouse, Free. Clia. 29. * Forster v. Kowland, 7 Hurl. & Nor. 2 Cooke V. Tombs, 2 Anst. 430. 103. 3 Allen V. Allen, 45 Penn. 4G8. 5 Boys v. Ayerst, 6 Madd. 31G. 118 LAW OF VENDOES AND PURCHASERS. [CHAP. VII. held, ill general, that a parol contract for the sale of lands is only voidable} Hence, although in a suit for specific perform- ance of such agreement, if the defendant, in his answer, admit the agreement, he may still set up the statute as a defence ; ^ yet if the defendant in his answer admits the contract, without insisting on the statute, the court will decree a specific per- formance.^ 21. The statute need not be pleaded ; more especially where the answer denies the agreement.'* So, if a defendant denies any agreement, the complainant must prove a valid one, except in case of part-perfo7'mance.^ So if a bill be brought for specific perform- ance of a parol contract for the conveyance of land ; although the defendant does not rely upon the plea of the statute, yet, if he denies the contract as stated in the bill, and insists that the real contract was a different one ; the court will not receive parol evi- dence in support of the plaintiff's claim. *5 But the bill having charged, that the defendant had written letters to the attorney who was to prepare the conveyance, in which the agreement was admit- ted ; he must answer to that fact.'' 22. Where a bill seeks specific performance of a contract, which appears from the bill itself to be within the statute, this is ground of demurrer.^ So, when fraud is charged in the bill, it need not be answered, if the bill, admitting the fraud, presents no ground for relief. Hence, a bill to enforce a parol sale of land, charging the defendant with fraudulently refusing to reduce the agreement to writing, though it was part of the contract that it should be so reduced, may be demurred to, without an answer to the charge of fraud. 9 23. Bill for specific performance of a parol agreement respecting lands. The defendant pleaded the Statute of Frauds, and also answered. In his answer he admitted the parol agreement, as stated in the bill ; and that he had taken possession of and held 1 Gillespie v. Battle, 15 Ala. 276. See v. Rowton, 1 Hen. & M. 92 ; Givens v. Mahana v. Blunt, 20 Iowa, 142. Calder, 2 Desaus. 171. 2 Brandeis v. Neustadtl, 13 Wis. 142 ; 5 Jervis v. Smith, 1 Hoffm. Ch. 470 ; Thompson v. Tod, 1 Pet. C. C. 388. Reynolds v. Dunkirk, &c., 17 Barb. 613 ; 3 HoUingshead v. McKenzie, 8 Geo. Hall v. Hall, 1 Gill, 888. 457 ; Newton ;;. Swazey, 8 N.H. 9 ; Jervis ^ Allen v. Cliambers, 4 Ired. 125. V. Smith, 1 Hoflm. Ch. 470. 7 Cooke r. Tombs, 2 Anstr. 420. 4 Hocker v. Gentry, 3 Met. (Ky.), 463 ; ^ Chambers v. Lecompte, 9 Mis. 566. Poag V. Sandifer, 5 Rich. Eq. 170. See 9 Box v Stanford, 13 Sm. & M. 93. Tufts V. Tufts, 3 W. & M. 456 ; Rowton CHAP. VII.] STATUTE OF FRAUDS. 119 the land under the agreement. Held, the answer took the case out of the statute.^ 24. Bill for specific performance of a verbal agreement relating to the purchase of land. The defendant relied on the Statute of Frauds, and also denied any such agreement. Upon this denial he was indicted for perjury. Held, the denial of an agreement not binding on the parties was immaterial and irrelevant, and the defendant was entitled to his acquittal.^ 25. A parol contract for lands, alleged to have been made by the ancestor, will not bo specifically enforced against infant heirs, although their guardians do not insist upon the statute.^ 1 Smith V. Brailsford, 1 Desaus. 350. 3 Grant v. Craigmiles, 1 Bibb. 203. 2 Bex V. Dunston, By. & Mood. 109. 120 LAW OF VENDORS AND PURCHASERS. [CHAP. VIII. CHAPTER VIII. PAROL LICENSE. 1. Part- performance and license. 8. A license creates a /lersona^ right; by 2. Nature of a license. whom, and at what time, it is to be executed; 3. Implied license. who are bound by it. 4. Distinction between a Uctnse and a 11. Whether and how far a license is lease or an easement. revocable. 1. In the next chapter, we shall have occasion to consider the effect, upon a verbal contract for the sale and purchase of lands, of a part-performance of such contract, as operating to take it out of the Statute of Frauds. Somewhat analogous to this part of the general subject is a verbal licerise to enter upon land, for particular specified purposes, not constituting or accompanied by a transfer of title to the land itself. Inasmuch as a license derives much of its legal effect and validity from the execution of it, the two topics referred to may naturally be considered in immediate connection with each other. 2. A license, as has been already remarked, does not pass an estate, but merely confers a certain r/^7i^ or pj-ivileffe, to be used upon the land of another. It is a mere authority to enter upon the land of another, and do an act, or series of acts, without having any interest in the land ; founded in personal confidence, not assignable, and valid, though not in writing.^ Thus the grant of a license to flow passes no property, but is a mere remitter of damages.^ So a license will not sustain an action of trespass qu. el.^ So a plea of license does not raise the question of title.'* So a license not only does not create any title to the land, but also disproves any claim arising from adverse possession.^ Thus a parol agreement for liberty to stack coals upon land, for seven 1 Selden v. Delaware, &c., 29 N.Y. See Smith v. Simons, 1 Eoot, 318; (2 Titfa.), 634; Mmnford v. Whitney, 15 Woodward v. Seeley, 11 III. 1-57. Wend. 380 ; Folsom v. Moore, 1 Appl. 3 Houghtailing v. Houglitailing, 5 252 ; Taylor v. Waters, 7 Taunt. 374 ; Barb. 379 ; Den v. Baldwin, 1 Zabr. 390. Liggins V. Inge, 5 Moo. & P. 712 ; Hazel- * Wheeler v. Eowell, 7 N.H. 515. ton V. Putnam, 3 Chand. 117. 5 Luce v. Cooley, 24 Wend. 451. 2 Clinton v. M'Kenzie, 5 Strobh. 36. CHAP. VIII.] PAROL LICENSE. 121 years, has been held valid. ^ So a parol license to build and main- tain a bridge on another's land is valid,^ or to enlarge a canal,-^ or the grant of a mere right to float logs on a stream.'* So ])arol authority may be given to a grantor to enter upon the land and remove property, being a mere license.^ So a parol license is valid, to enter on land, and lay down aqueduct logs for the pur- pose of conveying water from a spring to adjoining land, with liberty to enter from time to time for examination and repairs.'^ So in an action for building and continuing a railroad on a street in front of the plaintiff's house, so as to obstruct his right of in- gress and egress ; the company may set up a parol license from the plaintiff to build the road, as a bar to all damages sustained while the license remained unrevoked." So where the owner of wild laud agreed with another person to go and clear a part of it, fence, and help the latter to build a house, reserving to the former the use of the timber, except what was needed for " house, rails, and firewood ; " held, a mere license to occupy the land, giving no right to dispose of any timber cut in clearing it.^ So in case of a license from the lord of a manor to erect a cottage, ren- dering an annual rent of lO.s*. Qd. as a quit-rent ; also to inclose a piece of ground for a garden to the cottage ; both being parts of the waste : the licensee having built a cottage, and resided in it a year and a half; held, not to confer a settlement, not being a grant of any interest in land.^ So where a tenant for life agreed to sell, and gave possession ; held, though the contract could not operate as a sale, it did operate as a license to enter and occupy until revoked.^*^ So in a suit for overflowing land, the defendant may set up an agreement, whereby the plaintiffs, in consideration of the erection of the dam in question, and certain mills thereon, agreed that they would waive and release all damages that might ensue from the erec- tion of such dam, and that, on their faith in such agreement, they had erected the dam, incurred large expenses, &c.^^ So an agree- ment, to take a certain annual compensation for damages occasioned by flowing, is not an agreement for the sale of an interest in lands. ^^ 1 Wood V. Lake, Say. 3. T Miller v. Auburn, &c., G Hill, 6. 2 Ameriscoggin, &c. v. Bragg, UN. » Caller r. Hilty, 2 Ilarr. (reiin.), 286. II. 102. 9 Kox V. Iiiliabitants of Horntlon, 4 3 Selden v. Delaware, &c., 29 N.Y. Mau. & Selw. 502. (2Tiflfa.), G34. w Van Deusen v. Young, 29 N.Y. 4 Rhodes V. Otis, 33 Ala. 578. (2 'J'ifiii.), 9. ■^ Parsons v. Camp, 11 Conn. 25. n Stepliens v. Benson, 19 Ind. 367. 6 Sampson v. Burnside, 13 N.H. 264. 12 Short v. Woodward, 13 Gray, 86. 122 LAW OF VENDORS AND PURCHASERS. [CHAP. VIII. So a son, having agreed to purchase a piece of land for £65, applied to his father, who consented to advance <£20 left to his wife, on condition that a house should ho built by the son on the land, which the father and mother were to have for their lives, and the life of the survivor, and which was afterwards to go to the son, but the father and mother were not to sell or dispose of it, nor to take any other family into the house. This agreement was only by parol. Afterwards the father advanced the £20, the son com- pleted the purchase, the land was conveyed to him in fee, and he built a house, of which the father and mother took possession, with his consent, and lived in it for three years, without paying any rent, when the father died, and the mother continued in pos- session. Held, the father did not gain a settlement by the resi- dence on tlie land, nor was the mother entitled to reside on it irremovably.^ 3. A license, or a right equivalent to that created by a license, may, under some circumstances, be implied from the necessities of individuals and from the usages of the community .^ Thus it is held that the right to fioiv^ in order to raise water sufficient to carry a mill, subject to the claim for damages, is given, by neces- sary implication, in the statute regulating mills, and therefore needs not to be proved by writing, under the Statute of rrauds.'^(a) So there is an implied license to enter a shop for the purpose of making a purchase, or the house of a friend, to pay a visit.* So the construction of a wharf, or dock, on the margin of a navigable stream, is an implied license to all persons engaged in the naviga- tion of its waters, to use the wharf, when otherwise unoccupied, for the purpose of mooring or making fast their vessels ; and, when once acted on, this license cannot be recalled without giving the owner of the vessel sufficient time to provide for her safety in some other manner. Held, therefore, that one by whom a vessel was cut loose from her fastenings, and suffered to drift down the stream, was answerable for the whole amount of injury thus occa- sioned ; and could not justify by showing that the title to the wharf was vested in himself, and that the vessel had been moored 1 Eex V. Inhabitants of Standon, 2 3 Clement v. Durgin, 5 Greenl. 9. Mau. & Selw. 4G1. 4 Adams v. Freeman, 12 John. 486. 2 10 Cush. 219. (a) So the damages occasioned by sucli flowing may be waived or relinquished by parol. CHAP. VIII.] PAROL LICENSE. 123 there without his knowledge or consent.^ So building a i)hink wall near the boundary line of land, which the plaintiff was en- titled to have left open with a view to the enjoyment of light and air, Avas held a waiver of that right, and debarred him from object- ing to the building erected by the defendant, although so placed as to obstruct the view from a window subsequently opened in the wall.-(«) But where, by an indenture between tlic town of Boston and a mill-dam corporation, tlie latter granted to the former a certain proportion of a tract of land covered with water, "■ except- ing the mill-creek, and such other canals as may be agreed to be kept open for the passage of boats ; " and by a subsequent inden- ture between the same parties it was agreed that the town might put a covering over part of the creek or canal, " provided only, that no interruption or impediment shall be made or permitted below said covering to boats on passing through or into said canal ; " held, these provisions did not constitute a license to the abutters to navigate the creek.^ So, also, the creek being kept open for boats, held, although there was an implied public license 1 Heeny z'. Heeny, 2 Denio, 625. 2 Moore v. Rawson, 3 B. & C. 332. See Liggins v. Inge, 7 Bingh. G82. 3 Baker v. Boston, 12 Pick. 184. (a) The case of Lakin v. Ames, 10 Cush. 190, was an action of trespass for tearing down a horse-shed ; and one of the de- fences was, tliat the. shed was so erected in front of a tomb, lawfully on a burying- ground, as to obstruct the entrance there- to, and that the defendant, having the legal right to open the tomb, and deposit a corpse therein, peaceably removed the shed for that purpose, doing no unneces- sary damage. The facts of the case, and the judgment of the Court thereupon, suflBciently appear from the following remarks of Bigelow, J. (p. 219): "The vote by which Jonas S. Varnimi and others had liberty to build two or more tombs in the graveyard, under the direc- tion of the selectmen, and the erection of said tombs, in pursuance of such direc- tions, operated as a valid grant by vote, to erect and use a tomb by said Varnum, with a right of access thereto, as the same was then constructed and subse- quently used. Damon v. Granby, 2 Pick. 345, 351. It would be absurd and con- trary to all rules of construction, to hold that this was a grant of a mere right to build a tomb, without the necessary right appurtenant thereto, of access to it over the common, and of entering it in the mode provided under the authority and direction of the agents of the town. There can be no doubt, therefore, of the right of the mother of the defendant, or of any person acting under a license or authority from her, to enter the tomb for the purpose of placing there the body of her deceased son, to remove all obstruc- tions which would prevent or hinder the right of sepultui'e from being there per- formed in a decent and becoming maimer. The learned coimsel for the plaintiff have put this case mainly upon the want of authority on the part of the defendants to act in the mother's behalf But the law will imply a license from the necessities of individuals and from the usages of the community. Thus it has been held, that the entry upon another's close, or into his liouse, at usual and reasonable hours, and in a customary maimer, for any of the common purjtoses of life, cannot be regarded as a trespass. It cannot be that it is necessary to produce formal proof of authority from a mother to a son to do all that was necessary and ])roj)er for the burial of lier deceased son in the family tomb. The law will imply a license from the nature and exigencies of the case, the relation of the parties, and the well-established usages of a civilized and Christian community." 124 LAW OF VENDORS AND PURCHASERS. [CHAP. VIII. to navigate it, this was not such a perpetual license as could be pleaded as a grant, or a dedication to the public ; and that no individual could acquire a prescriptive right, by the use of it while thus open.i So though the defendants, who were in the mining business, permitted the plaintiffs, in the same business, to operate through their gangway ; it was held, that this permission would not justify the defendants in wilfully filling up the plaintiffs' shaft with water.2 4. It is obvious, from the general nature of the title above referred to, as well as from the cases cited to illustrate it, that, although purporting to involve no interest in tlie land, and there- fore not falling within the provisions of the Statute of Frauds ; it is still a species of ownership, and, if extended to the length which the principle of it would seem legitimately to allow, might well go far to defeat the purposes of that statute. Hence the following distinction has been adopted, and seems to be as well established as the general rule itself: — 5. A license is a mere authority to do a particular act, or series of acts, upon another's land, as, e.g. to hunt, or cut a certain num- ber of trees. Such licenses merely excuse acts which would otherwise be trespasses. But a license, which grants an estate, however short, is a lease, and requires a deed. So a permanent right to hold another's land for a particular purpose, and enter at all times without his consent, is an easement, and requires an agreement in writing.^ Thus the right to erect a mill on the land of another.^ So a parol contract between A. and B., that A. shall erect a steam saw-mill on B.'s land and manage it at his own cost, and that B. shall deliver at the mill, at his cost, certain timber from his land, and that the profits of the sawing shall be equally divided between them, is void under the Statute of Frauds.^ So it is held, that although an easement, arising either from grant or prescription, may be extinguished, renounced, or modified by a parol license from the owner of tlie dominant tenement, executed by the owner of the servient teneme.\t; yet, as an easement cannot be created but by deed or prescription, a parol license, which 1 Ibid. V. Whitney, 15 Wend. 380; Seiden- 2 McKniglit V. RatclifF, 44 Penn. 156. sparger v. Spear, 17 Maine, 123 ; Stevens 3 Selden v. Delaware, &c., 29 N.Y. v. Stevens, 11 Met. 251; 3 Kent, 452; (2 Tilth. ), G34 ; Cooli v. Stearns, 11 Mass. Claflin v. Carpenter, 4 Met. 583. 537 ; Folsom v. Moore, 1 Appl. 252 ; •* Trammell v. Tramniell, 11 Eich. 471. Prince v. Case, 10 Conn. 375; Mumford 5 Joues v. McMicliael, 12 Rich. 176. CHAP. VIII.] PAROL LICENSE. 125 would create an easement, if given by deed, may be revoked, even after execution.^ (a) So an agreement that a party may abut and 1 Morse v. Coiioland, 2 Gray, 302. (rt) " Generally, if not always, a license whicli, when executed, extininiislies or modifies an easement, is, from llie nature of the case, a license to do acts on the servient tenement, the tenement of the licensee." Per IMetcalf, J. Morse v. Copeland, 2 Gray, 305. Coals, and the right to dig them, are an interest in lands. Lear v. Chouteau, 23 111. 3y. Dower before assignment is an "in- terest in lands " within the Statute of Frauds. Finch v. Finch, 10 Ohio (n.s.), 501. A promise, that in consideration that the plaintiff would erect certain buildings upon tiie land he should have it, is void within the Statute of Frauds. Smith v. Smith, 4 Dutch. 208. The owner of a mill privilege, under whom tlie plaintiffs claimed, gave the owner of lands flowed therebj-, imder whom the defendants claimed, an oral license to erect a dam on his land, and also to dig a ditch across the land of the licensor to drain the water from part of the licensee's land ; which was aecord- ingh' done. Held, the license to dig the ditch might be revoked, even after twenty years, but not the license to build the dam ; and, the licensor having assumed to revoke the whole license, and, after notice, made an incision in the dam, the licensee was justified in making a ditch on his own land, to draw off the water thus thrown upon it, though he thereby diverted the water from the licensor's mill-pond. Morse v. Copeland, 2 Gray, 302. It has been recently helil in New York, that a parol license to divert water from a watercourse, so as to prevent it from passing over another's land, is valid. Rathbone v. M'Connell, 20 Barb. 311. Strong, J., thus refers to the course of decisions upon this sulyect : " In Pierre- pont V. Barnard, 2 Seld. 270, it was held, that a parol license by the owner of land to cut and carry away standing timber, fully executed before revocation, was a complete protection for what was done under it. The principle of that case is directly in point. The trees were as much a part of the freehold as the right to the use of the water. Green v. Arm- strong, 1 Denio, 550. The diversion of the latter might be justified under a license, as well as the cutting of the former. Liggins ?•. Inge, (7 Bingham, 082; 20 Eng. Com. L. Hep. 287.) also goes directly in suj)port of the validit}' of the license. It was an action on the case for wrongfully continuing the diversiun of water from the plaintiti's mill, and the facts and question to l)e decided, as briefly stated in the opinion of Tindall, (-..I., were these : ' It appeared in evidence before the arbitrator, that the bank of the river which had been cut down was the soil of the defendants, and that the same had been cut down and low- ered, and the weir erected, and the water thereby diverted by them, the de- fendants, and at their expense, in the year 1822, under a parol license to them given for that purpose by the plaintiff's father, the then owner of the null, and that, in the year 1827, the plaintiti's father represented to the defendants that the lowering and cutting down the banks was injurious to him in the enjoj'inent Of his mill, and had called upon tliem to restore the land to its former state and condition ; with which requisition the de- fendants had refused to comply. The question therefore is, whether such non- compliance, and the kee])ing of the weir in the same state after, and notwithstand- ing the countermand of tlie license, is such a wrong done on the jiart of the defendants as to make them liable in this action. The operation and effect of the license, after it has been completely exe- cuted by the defendants is sufficient, with- out holding it to convey an}' interest in the water, to relieve them from the bur- den of restoring to its former state what has been done under the license, although such license is countermanded, and con- sequently they are not liable as wrong- doers for persisting in such refusal.' The views of the Court are given by the Chief Justice at considerable length, and it is also held that the license, after it was executed, was notcountermandable. Tiiat was much fnrther than it is necessary to go in this case. That case is referred to with approbation in Smith t\ The Bir- mingham and Stafibrdshire Gas-Light Co. (1 Adol. & El. 52(;), and in Wood w. Man- ley (11 Adol. & Ell. 34). " The case of Otis v. Ilall (3 Johns. 450) decides that such a license is valid, and also that setting it up does not raise a question of title. The action was a special action on the case, for overflowing 126 LAW OF VENDOES AND PURCHASERS. [CHAP. VIII. erect a dam upon the lands of another, and maintain it so long as there shall be employment for the water-power, is void ; for the power, being not a mere license, but a transfer of an interest in lands, in order to be valid, must be in writing.^(a) So the attorney 1 Mumford f. Whitney, 15 Wend. 380. the pUiintitTs land, by means of a mill- dam erected by the defendant on his own land. The defendant proved that he had permission to erect the dam, and over- flow the plaintitf's land if necessary for the use of the mill. On a motion by the plaintifl' for full costs, on the ground that the title to lands came in question, the Court, after stating the question, and expressing the opinion that the freehold or title did not come in question, say : ' The case bears no analogy to that of Heaton v. Ferris (1 Johns. 146). There was no claim of a right of entry into tlie plaintifl's land, nor of any direct use or enjoyment of it. The defendant merely sets up a right to use his own land in the manner he has done, by erecting the dam ; that any consequential injury to the plaintiff was waived by his express license for that purpose. The statute only apphes to cases where a claim or question to the direct use by entry on another's land comes in controversy. This and many other cases of consequen- tial injuries, as for nuisances erected on the defendant's own land, do not in any manner bring the title in question. Nor does the setting up a lease or license by tiie plaintiff raise a question as to the title, or give any right or interest in the plaintiff's land.' If a license to flow land with water is valid, it would seem that a license justifying the alleged wrongful diversion of water from it must be, at least, until revoked. The case of Chand- ler V. Duane (10 Wend. 563) was a motion for costs to the defendants, and similar to that last cited. Sutherland, J., says, ' The action and the ground of defence, and all tlie circumstances in the case, were precisely the same as in this,' and the same principle was applied. (See also Clinton v. M'Kenzie, 5 Strobhart, 36.) " The case of Powell v. Rust (8 Barb. 567) is entirely milike the present. The decision in that case, that a claim of title arose on the pleadings, was placed on the ground that Kust claimed, by virtue of an agreement with the plaintifl', the property in, and the right to enter with teams and take away, certahi growing trees and shrubs, which were part of the land. Here, no transfer to the defendant of a right to the use of the water is asserted, but only a permission to do an act by which the diversion of the water was effected. If the license may not be re- voked, it is not because it conferred any interest in the use of the water upon the defendant, but because it operated as a yielding up and relinquishment of the water diverted. (Liggins v. Inge, above cited.) Mumford v. Whitney (15 Wend. 380) is the case of a claim by the defend- ant to a permanent interest in the plain- tiff's land. Davis v. Townsend (10 Barb. 333) contains only the same doctrine. For the foregoing reasons, I am of opinion that no claim of title to real property arises on the pleadings in this case." See Stancel v. Calvert, 1 Wins. K.C. No. 1, 104. (a) In a late case in Maine, it has been held, that a parol license tliat the plaintiff or his grantor may build a dam on the land of another, to raise a reservoir for the use of his mill, gives the plaintifl' no right to maintain the dam, or control the water raised by it. Pitman v. Foot, 38 Maine, 237. Tenney, J., says (p. 24 1; : "Tlie Court, in Munford v. Whitney, 15 Wend. 380, review many of the cases upon this subject, in which the doctrine of some is in conflict with that of others ; and it is said by Savage, C.J., who delivered the opinion of the Court, ' I shall not undertake to reconcile these various cases. It is evi- dent the subject has been understood very differently by different Judges. But in this all agree, that, according to the Stat- ute of Frauds, any permanent interest in the land itself cannot be transferred, except by writing. Much of the dis- crepancy may have arisen from the dif- ferent ideas attached to the word license. If we understand it as Chancellor Kent defines it, it seems to me, there can be no difficulty.' ' If A. agrees with B. that B. may build a dam upon the land of A., — if it is to be permanent, — such an agree- ment is not technically a license. The object of A. is to grant, and of B. to acquire, an interest which shall be per- manent ; a right not to occupy for a short time, but as long as thei'e shall be employ- ment lor the water-power to be created. Can such an interest, such a right, be thus created ^ The answer to this ques- CHAP. VIII.] PAROL LICENSE. 127 of a lessor wrote to the lessee, " Mr. [the lessor] has no objection to your leaving the fixtures on the premises, and making the best terms with the incoming tenant." Held, if such letter gave any license, it was one coupled with an interest in land, and required a sealed instrument ; and did not therefore give tlie lessee a right of action against the incoming tenant, for refusing either to inir- chase the fixtures or allow the lessee to enter and remove them.^ So the defendant gave a parol license to the plaintiff to construct a drain through the defendant's yard, and use it as a means of escape for foul and waste water from the defendant's premises. After the license had been acted upon and executed, and the drain constructed, he revoked the license and stopped up the drain. Held, he was not liable to an action for so doing, the right claimed by the plaintiff being an easement, which lay in grant, and could not be created by parol.^ So a sealed instrument of the following- tenor : " I hereby authorize E,. to open, and continue open, a road through my field, beginning at, &c., as also to build, keep in repair, and use a bridge over the branch in the field on which the said road will pass, said road and bridge being intended as well for the public use as the use of R. ; and to continue until R. and myself shall agree it shall be shut up or altered ; " is a grant of an incorporeal hereditament, a right of way de novo, wliich will endure until botli parties agree upon its discontinuance, and must be legally acknowledged and recorded.^ 6. The same distinction has been applied to public or legislative grants. Thus the proprietor of a wharf in a harbor was authorized by statute to extend it into the channel to the line of the harbor. Before any such extension, a company was incorporated, with I Ruffey V. Henderson, 8 Eng. Law & ^ Hewlins v. Shippam, 5 B. & C. 22L Eq. 305. 3 Hays v. Ricliardson, 1 Gill & J. 366. tion is given in the language of Mr. &c., 23 Conn. 214. The decision pro- Sugden, It appears to be in the very ceeds upon the ground, that, if such teeth of the statute.' " license is in reality the grant of an ease- Action for diverting upon land of the niont or incorporeal hereditament, it is plaintifl' the water of a canal, located on void under the Statute of Frauds ; and, if liis adjoining land by means of a culvert a mere authority, was revocable by the built by the defendants, a railroad cor- plaintitf's grantor during his ownership, poration, on the land last named. Held and, if it did not terminate by the trans- no defence, that the grantor of the plain- fer to the plaintiff, was revocable by the tiff consented by parol to the building of latter. It was further held, that the the culvert and the consequent diversion defendants could not set up a charter, of the water, verbally requested and emjiowering them, by taking certain assisted the defendants to build the cul- steps, to acquire the right of so diverting vert, and agreed to save them harmless the water of the canal ; such steps not from all damage. Foot v. New Haven, having been actually taken. 128 LAW OF VENDORS AND PURCHASERS. [CHAP. YIII. authority to locate and construct a railroad across and over the flats between the wharf and the line of the harbor. Held, the former act was a grant^ not a mere license, revocable, and revoked by the latter.^ So a legislative repealable grant to a corporation, of the right to lay gas-pipes in the highways, is not a mere revo- cable license, but an easement.^ So a license to ivork mines gives a right to commit waste, and carry off a part of the realty, and therefore requires a writing. It is an incorporeal hereditament, which cannot exist but by deed or prescription.^ 7. A license is also to be distinguished from a lease, as well as an easement, which latter is the chief point of distinction in the cases already cited. Thus A., under a license from B., the owner of land through which flowed a watercourse, erected a mill thereon, and ever afterward held and occupied such mill as owner ; but it did not appear that there was any consideration for the license, or that it was to continue for any certain time, or that there was any agreement as to the nature of the occupation, or any mutual stip- ulations. A. brings an action against C, the owner of a mill below, for setting back the water upon his mill, by means of a dam erected by C. Held, the license did not constitute a lease, nor create any privity of contract, between A. and B.^ So an unsealed lease, providing as follows, — " All the hedges, trees, thorn-bushes, fences, with lop and top, are reserved to the landlord," — may be shown under a plea of leave and license, in an action by the tenant against the landlord, for entering the close, and drawing the trees, when cut, over it.^ And an executory contract of pur- chase, with leave to the vendee to enter and occupy till default in payment, without any fixed period or compensation, is a license ; not a lease, easement, or permanent interest in land. Nor does it create the relation of landlord and tenant. Nor is the purchaser a wrong-doer till default or demand of possession.^ So a deed, invalid as a conveyance for want of a witness, may be good as a license.'' 8. It has already been stated, that a license is a personal au- thority. Hence the privilege which it creates is not transmissible by the act of the party or of law, by assignment, descent, or devise, 1 Fitchburg, &c. v. Boston, &c., 3 5 Hewitt v. Isham, 7 Eng. Law & Eq. Cush. 58. 595. 2 Providence, &c. v. Thurber, 2 R.I. 15. ^ Dolittle v. Eddy, 7 Barb. 74. 3 Desloge v. Pearce, 38 Mis. 588. "^ Sullivant v. Franklin, &c., 3 Ohio, 89. * Brancli v. Doane, 17 Conn. 402. CHAP. VIII.] PAROL LICENSE. 129 like a legal estate, but is restricted to tlie original party himself.(r/) Thus an agreement was made for sale of land, the purchaser not to cut or allow to be cut any timber, without written consent of the vendor. The defendant, claiming under tlic vendee, cut tim- ber ; and the vendor brings trover against him. Held, the defend- ant coukl not set up in defence a parol license to cut from the plaintiff to the purchaser.^ So a license (under seal) to build a mill and dam, at any point in the course of a stream which tlie grantee should think proper, can be executed only by the i)arty to whom it was given ; and, if not executed in his lifetime, confers no authority or interest upon his heirs, or those claiming under him.^ So in trespass against a commoner, for pulling down a house built on the common, he pleaded his right of common as a justification. Replication, a license to build the house, given by the party, from whom the estate to which the common was appur- tenant came, to the defendant. Held, the distinction between the abandonment and acquisition of the right in an easement, which was contended for in support of the replication, applied, if at all, only as between the original parties, and not as against the defend- ant, a subsequent grantee.^ So a parol license from A. to B., to take trees from A.'s land so long as B. pleases, expires with the death of A.^(J) But where the defendant gave a written license to A. and B. to take logs from the plaintiffls land, and, after the death of A., B., under his license, and without intimation from the defendant of a revocation, took the logs ; held, the license was not revoked by the death of A., but the defendant was liable in tres- pass.'^ 1 Pierrepont v. Bernard, 5 Barb. 364. 3 Perry v. Fitzhugh, 8 Qii. B. 757. 2 Vandenburgh v. Van Bergen, 13 * Putney v. Day, 6 N.H. 430. Jobns. 212. See Co. Lit. 145 a; Hey- ^ Cbandler r. Spear, 22 Verm. 388. ward's case, 2 Rep. 36 a, b. (ii) A distinction bas been made be- life." Held, A. did not take a life-estate, tween a license of profit, or profit a pren- but bis title was under a license ; and, of dre, and a personal license of pleasure; the A.'s children, only those took who were former of which may be exercised by an in esse at the testator's deatli. Calhoun v. agent. Winckham v. Hawker, 7 Mee. & Jester, 1 Jones, 474. W. 63. A license to search for, raise. That, in Courts of Equity, the future and carry away metals, and convert them enjoyment of an executed parol license, to the party's own use, has been held as- granted upon consideration, or upon tlie signable. Muskett v. Hill, 5 Bhig. N. 6'J4. faith of which monej^ has been expended, {b) DeTise to A.'s children of " a will be enforced ; at all events, where plantation to come into their possession, adequate compensation in diunages cannot or into tlie hands of the executors for be obtained; and that gnintees, jjurchas- their benefit, at the testator's deatli, i)ro- ing with notice, are bound, — see Snow- viding tiiat A. have the privilege of living den v. Wilas, 19 Ind. 10; Stephens v. on the place with his children during his Benson, ib. 367. 130 LAW OP VENDORS AND PURCHASERS. [CHAP. VIII. 9. Upon the same principle, the time of executing a license is not to be extended beyond its strict terms. Thus a general, parol license, to cut and carry away wood growing upon land, if avail- able at all, must be acted upon within reasonable time ; and applies only to the wood as it is substantially at the time of giving the license. What is a reasonable time, the facts being agreed, is for the Court. Such license does not continue fifteen years, not being acted upon.^ 10. Upon the same principle, a conveyance by the owner of the land puts an end to a license for an easement ; and the licensee, afterwards entering, though without notice of the deed, is liable in trespass to the purchaser.^ Thus a license to erect a house on one's land, for the use of the builder, does not affect the title of a purchaser of the land, without notice ; and notice is not to be in- ferred from occupation of the house.^(<«) As where A., the owner of land, gave B. liberty to erect a dwelling-house for his use thereon. B. erected it accordingly, and lived therein eleven years, when he died, having executed a deed of such house to the plain- tiff, his son. A. had previously conveyed the land to the defend- ant, by deeds containing no notice or exception of siich license. The defendant brought ejectment for the land and house against the party in possession, recovered judgment, and, by virtue of an execution, was put in possession, and so continued more tlian a year, when he took down the house, thereby destroying it as such, but did not take away the materials. The plaintiff then brings an action of trespass. Held, the defendant was not liable.^ 11. In regard to the revocation of licenses, (5) a very fruitful sub- ject of discussion has been, whether a license can be revoked after it has been executed ; and, if so, whether only upon the terms of a reasonable indemnity to the party, who may have acted and in- curred expense under and upon the faith of such license. (c) 1 Gilmore v. Wilbur, 12 Pick. 120. 3 Prince v. Case, 10 Conn. 375. 2 Wallis V. Harrison, 4 M. & W. 538. 4 ibid. (a) Such license is also a personal priv- (6) That a license is revocable, see Gil- ilege, not extending to heirs or assigns ; more v. Wilson, 53 Penn. ; Law Eeg. and, whether countermandable or not dur- Dec. 1867, p. 128. ing the life of the builder, expires at his (c) In Jamieson v. Millemann, 3 Duer, death. Whether any notice to remove 255, it was held, that the main distinction the building, after his deatli, be necessary between a grant and license to enter upon or not, a subsequent recovery in an action lands is, that the latter, whether made by of ejectment, by the grantee of the land, parol or in writing is, in all cases, revoca- with possession taken and lield for more ble at pleasure. The single exception is than a year, is sufficient notice. where the license is annexed as an inci- CHAP, viir.] PAROL LICENSE. 131 12. The weight of authority u])on tliis subject is, that, where title to real estate is not involved, a license is not revocable after it has been executed, or, rather, executed in part, to the injury of the party who has acted under it.^ This is more especially so in 1 Snowden v. Wilas, 19 Ind. 10. don, 4 M. & Gil. 562 ; Ilewlins r. Ship- man, 5 B. & C. 221 ; Wood v. Leadbilter, 13 M. & W. 838 ; Bryan v. Whistler, 8 B. & C. 288; Cocker v. Cooper, 1 Cr. Mees. & R. 418 ; Bird u. Ili}j;<4iiison, 4 Nev. & Man. 505; Cook v. Stearns, 11 IMa.ss. 536 ; Hayes v. Richardson, 1 Gill & John. 366 ; Price v. Case, 10 Conn. 375 ; ex parte Coburn, 1 Cow. 568 ; Munifbrd v. Whitney, 15 Wend. 880; Miller v. Au- burn, &c., 6 Plill, 61 ; Ilouglitailing v. Houghtailing, 5 Barb. 371) ; Brown v. Woodworth, ib. 551. It is added, that the case of Taylor v. Waters, 7 Taunt. 374, holding a contrary doctrine, has been conclusively overruled ; and the decisions in Pennsylvania proceed upon a doctrine peculiar to that State, where there is no Court having x'ower to administer what is usually termed equitdhk relief. Upon the point of mukini oiiuiuU before revoca- tion, it is said : " I am not aware that the assertion rests upon any other authority than the dictnni of Lorcl Ellenborotigli in Winton v. Brockwell ; and this, we have the authority of the same learned Judge for saying, must be understood in a strict I'eterence to the particidar circumstances of the case in which it was uttered ; that is, as applicable only where the license has been fully executed, and involves no more than the waiver or relinquishment of an easement or other privilege. In the case of The King v. The Inhabitants, &c., it was held by the Court of King's Bench, that a license affecting the use or enjoy- ment of the realty, alfhouc/h carried into execution, is revocable at pleasure, though it deprive the licensee of the fruits of his money or labor ; and this principle is dis- tinctly affirmed in the subsequent cases of Hewlins v. Shipman, and Wood v. Leadbitter. When a license is not sim- ply gratuitous, but is founded on a valu- able consideration, cases may doubtless arise in which the licensee would iiave a just claim to be re-imbursed for his ex- penses, and compensated for his labor ; but even in such cases, if the license affects the use or enjoyment of the realty by the licensor by creating an interest inconsistent with his own, I appreliend it has never been decided that the i)ayment or a tender of full amends is a cuiulilion precedent to a revocation of the license." dent to a valid grant, and its exercise necessary to a beneficial enjoyment of the grant. Also, that a parol license which, if held to be irrevocable, would operate as a transfer of an estate or interest in land, is wholly void, except as a justifica- tion for acts done under and prior to its revocation. And, in such cases, a tender of amends to the part}' who has incurred expenses in acting under the license is not a condition precedent to a revocation ; but sucli party is liable for all damages subsequent to the revocation. Duer, J., says (p. 259), " Here the permission to the defendant, to enter upon the lot of the plaintiff, was not given for a temporary purpose, but for that of erecting a perma- nent building, which he was to use and occupy during the residue of the plain- tiflPs term ; and it is plain, that, by hold- ing that this permission could not be revoked, we stiould give to a mere and verbal authority the effect and operation of a valid grant, and would in effect decide that an interest in lands may be trans- ferred by parol." The leai-ned Judge proceeds to remark, that the only author- ities for such a doctrine are certain cases in Pennsylvania, and the case of Winter V. Broderick, 8 E. 308 ; and that, in the latter case, the license did not transfer an interest in land, but merely suspended the enjoyment of an easement. The doc- trine of the case is, that where full effect may be given to a license by acts done on the lands of the licensee, although by tliese acts the enjoyment of an easement attached to the land of the licensor may be defi?ated, the usual objections to con- sidering a license irrevocable do not apply, and consequently that in such cases, if the license has been fully executed, it cannot be revoked. Moore v. Rawson, 3 B. & C. 332 ; Liggins v. Inge, 7 Bing. 082. But that this doctrine is wholly in- applicable when the acts which the license warrants are to be done by the licensee upon the lands of the licensor, and the effect of holding the license to be irrevo- cable, would be to give to the licensee a permanent interest or easement in these lands, has been determined in numerous cases in the English Courts, in those of our sister States, and emphatically in our own. Eentiman v. Smith, -4 i>ast, 109; The King v. Inhabitants of Horn- 132 LAW OF VENDORS AND PURCHASERS. [CHAP. VIII. equity, and where damages would be an inadequate compensation.^ Several cases have been already referred to in the present chapter, which illustrate this point. The following may be added, as turn- ing more directly upon the question of revocation. In an old case, it is held, that a license, coiipled with the grant of an interest, is irrevocable, so far as it is essentially necessary to the enjoyment of the grant. Thus if one permit another to cut down a tree on the land of the former, and to come on the land, at any subsequent period, for the purpose of removing it, this is said to amount to the grant of an absolute interest in the tree, as soon as the per- mission to cut it has been executed ; and the license is irrevocable, so far as essential to the possession and enjoyment of the grant.'-^ And, in another case, it is said, " A license under seal (provided it be a mere license) is as revocable as a license by parol ; and, on the other hand, a license by parol, coupled with a grant, is as irrevocable as a license by deed, provided only that the grant is of a nature capable of being made by parol." ^ So in case of an oral agreement of the plaintiff with the defendant, that the latter might cut trees on land of the former, peel them, and take the bark ; the defendant having cut and peeled the trees, the plaintiff forbids his entering to take the bark, and brings an action of tres- pass for such entry. Held, the action did not lie, because the bark, when peeled, became the property of the defendant, and was on the plaintiff's land by his consent, and the defendant therefore had a right to remove it. Had the plaintiff done so, he would have been liable in trover.^ So in case of a sale of mulberry-trees in a nursery, raised to be sold and transplanted, with a license to enter and remove them ; held, the sale passed no interest in the land, within the statute ; that the license was revocable, but, if revoked in violation of the agreement to sell the trees, and give liberty to enter and remove them, to the prejudice of the pur- chaser, the vendor would be liable for damages, the contract bind- ing him either to remove the trees himself, or permit the purchaser to do it.^ 13. But the class of cases, in connection with which these ques- tions have chiefly arisen, has been that of solid and permanent 1 19 Ind. 10 ; Stephens v. Benson, ib. ^ Per Alderson, B. Wood v. Lead- 367. bitter, 13 Mee. & W. 838. 2 Thomas v. Sorell, Vaughan, 35. * Nettleton v. Sikes, 8 Met. 34. 5 Whitmarsh v. Walker, 1 Met. 313. CHAP. VIII.] PAROL LICENSE. 133 erections, constructions, or excavations, — such as buildings, dams, sluiceways, &c., — by the party licensed, upon the land of the party licensing, necessarily involving time, labor, and ex])ense, and the chief value of which consists in the continuing right to hold and use them. It is difficult to deduce from the authorities any well-defined rule upon these points of discussion. (a) They involve, in its most practical application, the very nice and shadowy distinction already adverted to, between a license and an easement ; or rather, if the doctrine were adopted without qualification, that an executed license is irrevocable, it is quite obvious that the distinction in question would cease to exist ; because the class of works above referred to are, in the fullest sense of the word, easements, and, in a very large proportion of cases, no question arises in regard to them until after they have been completed, and put in actual operation. Accordingly, in a leading case upon this subject, already cited,i which was an action of trespass qu. clans. for entering the close of the plaintiffs, and digging up the soil ; the defendant having pleaded a license to erect and maintain a dam, and an entry for the purpose of repairing it, the plea was held bad on demurrer, as being in effect the claim of an easement. The case would of course have been still stronger for the plaintiffs, had they relied upon a revocation of the license by way of replication. But the remarks of the Court present in a strong light the general difficulties of giving to a verbal license the permanent effect con- tended for by the defendant. " Licenses to do a particular act," says Parker, C.J., " do not in any degree touch upon the policy of the law, which requires that bargains respecting the title or inter- est in real estate shall be by deed or in writing. But a permanent right to hold another's land for a particular purpose, and to enter upon it at all times without his consent, is an important interest, which ought not to pass without writing, and is the very object provided for by our statute. If the defendant had a license from the former owners of the plaintiff's close to make the bank, dam, and canal in their land, this extended only to the act done, so as to save him from their action of trespass for that particular act ; but it did not carry with it an authority at any future time to 1 Cook V. Stearns, 11 Mass. 533. (a) It has been remarked (per Tenney, arisen from the diiferent ideas attached J., Pitman v. Poor, 38 Maine, 237), that to the word license." " much of tlie discrepancy may liave 134 LAW OF VENDORS AND PURCHASERS. [CHAP. VIII. enter upon the land. As to so much of the license as was not executed, it was countermandable ; and transferring the land to another, or even leasing it without any reservation, would, of itself, be a countermand. If the defendant's plea were held to be a bar to the action, all the mischiefs and uncertainties which the legis- lature intended to avoid by requiring such bargains to be put in writing, would be revived ; and purchasers of estates would be without the means of knowing whether incumbrances existed or not on the land which they purchased." 14. The same doctrine has been affirmed by many other decisions. Thus, in a leading English case, where the defendant, after sanc- tioning, and actually aiding in, the construction of a sluice by the plaintiff, which traversed the defendant's land, stopped up the sluice ; held, he was not liable to an action. ^ So, in trespass for assault and false imprisonment, the plea was, that, at the time of the supposed trespass, the plaintiff was in a close of Lord E., and the defendant, as the servant of Lord E., and at his command, molliter manus imposuit on the plaintiff, to remove him from the said close, which was the trespass complained of. Replication, that the plaintiff was in the close by the leave and license of Lord E., wliich was traversed by the rejoinder. The evidence was, that Lord E. was the steward of the Doncaster races ; that tickets of admission to the grand stand were issued, with his sanction, and sold for a guinea each, entitling the holders to come into the stand and the inclosure round it during the races ; that the defendant, by order of Lord E., desired the plaintiff to leave it, and, on his refusing to do so, the defendant, after a reasonable time, put him out, using no unnecessary violence, but not returning the guinea. Held, the jury were properly directed to find for the defendant ; that a right to come and remain for a certain time on the land of another can be granted only by deed ; and a parol license to do so, though money be paid for it, is revocable at any time, and without paying back the money .^ So upon a bill in equity for the abatement of a nuisance, alleged to be a mill-dam on the plaintiff's land, it appeared that A. gave to the defendant a verbal license to erect and continue a mill-dam on A.'s land, and to dig a ditch tlirough 1 Fentimany. Smith,4E.107; Ruggles v. Richardson,! Gill & J. 366; Den v. V. Lesure, 4 Pick. 187 ; Stevens v. Stevens, Baldwin, 1 Zat)r. 390. 11 Met. 251 ; Coburn, 1 Cow. 568 ; Mum- 2 ^Vood v. Leadbitter, 13 Mees. & W. ford V. Whitney, 15 Wend. 380 ; Hough- 338. tailing v. Houghtailing, 5 Barb. 379 ; Hays CHAP. VIII.] PAROL LICENSE. 135 tlie land, for conveying water to a mill which the defendant was about to erect on his own land. The defendant made the dam, dug the ditch, and afterwards erected the mill, and continued them during A.'s life. After granting the license, A. conveyed his land to the plaintiff, without reservation. The defendant continued the dam and ditch after A.'s death, for the purj)ose of working the mill. The plaintiff, having requested him to remove the dam, and fill up the ditch, upon his refusal, attempted to remove the dam, and tore down part of it; whereupon the defendant interfered by force, prevented further proceedings, and repaired the dam. The plaintiff then brings tliis bill, and a jury, upon an issue submitted to them, found the dam to be a nuisance. Held, the plaintiff w^as entitled to a decree for abatement, and a perpetual injunction ; that the defendant was not liable for any thing done before revoca- tion of the license, and therefore not chargeable with the expenses of removing the old dam ; but that he was liable for building a new dam or repairing the old one, after such revocation, and for the expense of abating the new dam.i So, in 1769, a parish erected a meeting-house on land granted them by the town, and some of the parishioners erected sheds on the land. In 1801, other sheds were built by authority of the parish. In 1815, the sheds were blown down, and the parish, proposing to erect a new house of worship in another place, voted not to authorize the re-erection of the sheds in the former site, and appointed the defendants to be a committee to regulate the place and mode of erecting new sheds ; and the for- mer owners erected new sheds, under direction of the committee, on other parts of the land. The plaintiff', one of the old proprie- tors, was notified by the defendants to remove his shed, and, upon his failing to do so, the defendants removed it, and the plaintiff brings an action of trespass against them for so doing. Held, the plaintiff was not a tenant at sufferance, the relation of landlord and tenant never having existed between the parties ; but, the parish merely having permitted the parishioners to place their sheds on the ground as a matter of accommodation and favor, that no right or title to, or easement in, the land was thus acquired ; but that the parish might at pleasure revoke the license.^ 15. But, on the other hand, it has been held in New Hampshire, in case of a parol license to erect a dam, for the benefit of both 1 Stevens v. Stevens, 11 Met. 251. ^ Bacheldcr v. Wakefield, 8 Cush. 243. 136 LAW OF VENDORS AND PURCHASERS. [CHAP. VIII. parties, that, after execution, it could not be revoked, without a tender of the expense of erecting it.^ So it has been held, that a license to build and maintain a bridge on another's land was either irrevocable, or else could not be revoked except on payment of all expense and damage. The Court say, " A license to an individual, to do an act beneficial to him, but requiring an expenditure upon another's land, is held not to be revocable after it has been once acted upon. Such a license is a direct encouragement to expend money ; and it is said it would be against conscience to revoke it, as soon as the expenditure begins to be beneficial. A license to erect a bridge for the taking of toll is clearly distinguished from a mere easement of passing and repassing ; and we think when it is once executed, it is either irrevocable while the bridge continues, or, if revocable at all, can only be on full compensation for all expendi- tures made, and damage occasioned, by such revocation." ^ So it has been held in Maine, that, if there be a parol agreement for a right of way, or other interest in land, and any acts be done in pursuance thereof whicli are prejudicial to the party performing them, and are in part execution of the contract, the agreement is valid, notwithstanding the Statute of Frauds. Therefore, the owner of land having, for valuable consideration, given license to another by parol to build a bridge on his land, an action of trespass will lie against the former for taking away the bridge, without the consent of the latter.-^ So in a late English case, being an action of tres- pass qu. claus. goods upon the plaintiff's land were sold to the defendant, by the conditions of sale, to which the plaintiff was a party, the buyer being allowed to enter and take the goods. The defendant, having entered to take tliem, justifies under a plea of leave and license, to which the plaintiff replies de injuria. Held, the defendant was entitled to a verdict, though the plaintiff had, between the sale and entry, locked the gates, and forbidden the defendant to enter, and the defendant had broken down the gates, and entered to take the goods ; the plaintiff, after the sale, not having power to revoke the license.'^ So it is held, that a parol license to put a sky-light over the defendant's area (which impeded the light and air from coming to the plaintiff's dwelling-house through a window) cannot be recalled at pleasure, after it has been executed 1 Woodbury v. Parshley, 7 N.H. 237. 3 Ricker v. Kelly, 1 Greenl. 117. ^ Ameriscoggin, &c. v. Bragg, 11 N.H. 4 Wood v. Mauley, 11 Ad. & El. 34. CHAP. VIII.] PAROL LICENSE. 137 at the defendant's expense ; at least, not without tenderhig the expenses lie had been put to ; and therefore no action lies as for a private nuisance, in stopi)ing the light and air, &c., and eonnnuni- cating a stench from the defendant's premises to the i)laintil"f's house, by means of such sky-light. ^ 16. The remarks quoted above (§ lo), and similar ones in other cases, seem to pass beyond the technical doctrine of license, to the distinct though analogous title by estojjpel ; which, however, if indiscriminately applied to all cases of verbal acquiescence in the permanent use of real property, would at once do away with the strict rules relating to the mode of creating an easement. There is another class of cases, somewhat favoring this view of a license, according to which, one party erecting a building upon the land of another, by permission of the latter, owns the building as personal property.^ And, moreover, the general doctrine, to be considered in the next chapter, that, in equity, part-performance of a parol contract renders it valid ; if carried out in courts of law, would seem to favor the theory that a license becomes irrevocable by its execution. Still, however, as already stated, the weight of authority, and the only doctrine consistent with the security of title to real estate, is, that no permanent ownership can be thus created. 1 Winter v. Brockwell, 8 East, 308. 19 Conn. 154 ; Eogers v. Woodbury, 15 2 Russell V. Richards, 2 Fairf. 371 ; Pick. 156 ; Marcey v. Darling, 8 Pick. Ashmun v. Williams, 8 Pick. 402 ; Wells 283 ; Wood v. Hewett, 8 Q. B. 913 ; V. Bannister, 4 Mass. 514 ; Curtiss v. Hoyt, White's, &c., 10 Barr, 252. 138 LAW OF VENDOES AND PURCHASEES. [CHAP. IX. CHAPTER IX. PART-PERFORMANCE. 1. License and part-performance. 12. The effect of part-performance is 2. Part-performance, at law. founded on fraud. 5. Entire performance, in Equity. 12 a. Effect of pnymerit. 6. Part-performance in Equity. 15. Qualitications of the general rule. 7. Who may avail himself of part-per- 16. Subsequent purchasers; notice, formance. 17. Doctrine in the United States. 8-15. What acts are sutficient. 18. Compensation for expenditures, &c. 11. Proof of the terms of a parol agree- ment. 1. Having in the last chapter considered that important excep- tion or qualification to the Statute of Frauds, as applied to the sale and purchase of lands, which grows out of what is termed in law a license, we now proceed to speak of another equally important, arising from part-performance of a parol agreement. We have already adverted to the obvious analogy between these two topics (ch. 8). 2. It has been sometimes held, that the same construction of the Statute of Frauds is to prevail at law and in equity, and there- fore that part-performance of a parol agreement takes it out of the statute, alike in both tribunals. ^(a) 3. Thus in an action on the case, for breach of an agreement to sell and convey to the plaintiff, in fee-simple, a tract of land, the plaintiff offered parol evidence of the agreement, payment of the consideration, the defendant's subsequent acknowledgment of the sale and payment ; and of the defendant's refusal to execute a conveyance. Held, the agreement having been executed by one of the parties, the action could be maintained.^ So the statute does not avoid a note for the purchase-money of land sold by parol, but of which the purchaser has taken possession. ^ So a grantor 1 Slatter v. Meek, 35 Ala. 528 ; Brodie 2 Bell v. Andrews. 4 Dall. 152. V. St. Paul, 1 Ves. 326. 3 Gillespie v. Battle, 15 Ala. 276. (a) In a very recent case, Lord Cran- one of the contracting parties to escape worth, L.C., remarked : " It would be a from the consequences by simply shifting scandal to suppose, that, when the legis- his sphere of operations from a court of lature has said that no action shall be law to a court of equity." Caton v. Ca- brought on a parol contract of a par- ton. Law Rep. (Eng.) Eq. March, 1866, ticular description, it should be open to p. 146. CHAP. IX,] PART-PERFORMANCE. 139 may maintain an action for a ])art of the consideration expressed in the deed to have been paid, but which by mistake was not paid. Parker, C.J., says : " It is not a case within the Statute of Frauds, because it is not a contract for the sale of lands. That contract was executed and finished by the deed : this is only a demand for money arising out of that contract." ^(a) 4. But, in general, the doctrine of equity, by which payment of part of the purchase-money on a parol contract, and taking posses- sion of the premises under the contract, take the case out of tlie statute, is held not to prevail in courts of law.^ It seems, that, at law, nothing short of a full and complete performance, by one party, of an agreement within the statute, will take it out of the operation of the statute. As where nothing remains but to pay over the money received ; in which case the statute furnishes no defence.^ Thus, at law, a parol contract for the sale of land is void, notwith- standing possession and improvements by the purchaser ; and money paid thereon may be recovered back from the vendor or his heirs, they being unable or failing to perform the contract.^ So a promise by a father to give his son a tract of land by his will, fol- lowed by expenditure in improvements, not, however, in execution of the contract, or at the father's request, is without consideration, and cannot be enforced.^ So assumpsit does not lie, upon an agree- ment of the defendant with the plaintiff, to convey to him land on one side of a highway, in consideration of the plaintiff's consenting to the taking of his own land on the other side of the highway, without any claim for damages ; although the plaintiff has per- formed his part of the contract, Dewey, J., says: "Such a doctrine (that of part-performance) has, under proper limitations, often been recognized in the Courts of Equity, where it was re- quired in furtherance of justice, and to prevent manifest fraud; but it has obtained no permanent sanction as a principle of juris- prudence in the courts of law. Several of the cases above cited 1 Wilkinson v. Scott, 17 Mass. 249, 232; Eaton v. Whitaker, 18 Conn. 222; 258; Butler v. Lee, 11 Ala. 885. Linscott v. M'Intire, 15 Maine, 201. '^ Barickman ?;. Kuykendall, G Blackf. * Sailors v. Gambril, 1 Cart. 88; Bar- 21 ; Brandeis v. Neustadtl, 13 Wis. 142. ickman v. Kuykendall, (3 Blackf. 21. 3 Baldwin v. Palmer, 10 N.Y. (6 Seld.), 5 McClure v. McCIure, 1 Barr, 374, 379. (a) A parol variation in an executory the conveyance is not made until after written contract for a conveyance is bind- the action is commenced. Butler v. Lee, ing after it has been executed. Moore v. 11 Ala. 885. McAllister, 34 Miss. 500. Otherwise, if 140 LAW OF VENDORS AND PURCHASERS. [CHAP. IX. will be found to have presented strong equitable claims for the interposition of the Court, and to have been cases where the de- fendants had received benefit, to a very considerable extent, from the execution of the contract by the plaintiffs ; but the Court nev- ertheless maintained the doctrine that damages could not be given at law for the non-performance of a contract to convey lands, which was not in writing ; and that it would not avail, though a part- performance was shown, even if it appeared that the party was remediless, if he could not resort to his action." ^ 5. It will be presently seen, that a different rule prevails in equity, even with reference to jwar^-performance of a verbal contract. A fortiori, it is held, that, in equity, a full, substantial performance on both sides will, as to both parties, take the case out of the stat- ute, notwithstanding any legal defect or informality.^ Where there has been a full performance, together with a delivery and enjoyment of possession from the time when the contract was made, the vendee will be regarded as owner, and entitled to a decree for specific performance, by the vendor, if living, and his heirs or de- visees, if dead.^ So a suit in equity may be maintained, to enforce specific performance of an oral agreement for the exchange of real property, where possession was taken by both parties, and the plaintiff fully performed on his part, and the fairness of the agree- ment is not assailed by either party.* So, to an action for goods sold, the defendant pleaded, that he was possessed of a public house, and it was agreed that, in consideration that he would give up pos- session, the plaintiff would pay <£100, and discharge the debt ; that the plaintiff paid the ,£100, and the defendant quitted the house. The agreement was not in writing. Held, that, having been exe- cuted, it was evidence to prove the plea.^ So, on a parol agreement made sixty or seventy years ago, which had been fully performed on both sides, except only the complete execution of a deed, a spe- cific performance was decreed.^ So, as has been seen (ch. 1), where a written agreement for the purchase of an estate has been executed, the purchaser has the estate in equity, and it will pass by his will, notwithstanding a subsequent conveyance of the legal 1 Adams v. Townsend, 1 Met. 483, 485. * Bennett v. Abrams, 41 Barb. 619. '^ McCue V. Smith, 9 Min. 252; Kel- 5 Lavery v. Turley, 6 Hurl. & Nor. lums V. Richardson, 21 Ark. 137. 239. "* Traphagen v. Traphagen, 40 Barb. ^ Somerville v. Trueman, 4 Harr. & 537. McHen. 252. CHAP. IX.] PART-PERFORMANCE. 141 estate.^ In short, if a parol agreement lias been executed on one part, and an enjoyment had accordingly, eijuity will not destroy or avoid it.^ The Statute of Frauds in such case is no defence.^ 6. The same general principle has heen still further extended, so as to apply not merely to a complete thougli informal performance, but also to a mere part-performance ; and the prevailing rule in Courts of Equity is, that, although a contract for the sale and pur- chase of lands is void or voidable, under the Statute of Fraiids, or, as it is sometimes expressed, the statute allows no action to be brought upon it, for want of a writing signed by the party to be charged, yet, where the purchaser takes possession in pursuance of such agreement, and with the vendor's assent, the Court will decree an execution of the contract ; more especially wliere the land has been sold in part, and the money divided and invested ; or where he has made improvements on the land occupied without interruption, and where the vendor has often recognized the sale, and the purchase-money has been paid.'^(a) The distinction is made, that the vendee not in possession cannot recover possession by suit ; but the vendee in possession will not be ousted on the ground of a void contract ; the statute cannot be taken advantage of by the plaintiff to commit fraud upon a defendant.^ The Stat- ute of Frauds was designed to exclude oral evidence of the agree- ment of sale ; not oral evidence of the acts of part-performance, or 1 Rose V. Cunynghame, 11 Ves. 550. kin v. Johnson, 27 Geo. 485; Massey v. 2 Lockey V. Lockey, Free. Cha. 518. M'llwain, 2 Hill, Ch. 426; Moore v. 3 Aylesford's case, 2 Stra. 783; Pawle Beasley, 3 Ham. (Ohio), 294; Wilber v. V. Gunn, 4 Bing. N. 445. Pain, 1 Ibid. 251 ; Shirley v. Spencer, 4 4 Williston V. Williston, 41 Barb. 635 ; Gilra. 583 ; Keats v. Rector, 1 Ark. 391 ; 8 Met. (Ky.), 578; Clerk i'. Wright, lAtk. Thornton v. Henry, 2 Scam. 210; Wet- 12 ; Knight v. Knight, 28 Geo. 165 ; Gun- more v. White, 2 Caines' Gas. 87 ; Ellis ter V. Halsey, Ambl. 586 ; Newton v. v. Ellis, 1 Dev. Eq. 180 ; Tibbs v. Barker, Swazey, 8 N.H. 9, 13 ; Tilton v. Tilton, 1 Black. 58 ; Ashmore v. Evans, 3 Stockt. 9 N.H. 386, 390; Brock i-. Cook, 3 For- 151 ; Baldwin y. Thompson, 15 Iowa, 504 ; ter, 464 ; Scott v. Newsom, 27 Geo. 125 ; Daniels v. Lewis, 16 Wis. 140. Annan r. Merritt, 13 Conn. 479 ; Lump- & Hiirrow u. Johnson, 3 Met. (Ky.), 578. (a) While payment of the price may 13 Gray, 3. It is held, that, where a sale take a case out of the statute, the statute of real estate has been executed on one will not prevent a vendor from setting up side by a conveyance, the pr()])er action in defence to an action upon a debt, that for the price is upon an imi)lied promise it was agreed to be paid by a conveyance arising from the ])laintiff"s perforuiance, of the land. Thus no action lies to recover implied promises not being emliraced by the price of work which was performed in the statute ; but no action can be main- payment for land under a verbal contract ; tained on the special contract itself. Fish- the defendants being ready to comply er v. Wilson, 18 Ind. 133. with their agreement. Congdonr. Ferry, 142 LAW OF VENDORS AND PURCHASERS. [CHAP. IX. things done in execution of the agreement.^(a) Part-performance has no other effect, except that the plaintiff is thereby let in to prove the agreement alninde, where it is not confessed.^ When a fair, honest, verbal agreement, for the sale of land, is alleged in a bill and admitted in the answer, or when it appears clearly that such an agreement has been made, and has been performed on one part, or something has been done in pursuance of it, the Court of Chancery will decree a conveyance immediately, or on the proper terms. ^ And where there are several parcels sold by one parol contract, it suffices if the vendee pays the price and goes into pos- session of one parcel only.* So the complainant's bill alleged a contract for the whole of a square of ground, payment of the pur- chase-money, and possession under the contract. The answer denied the contract as to the whole square, but admitted it as to a part ; and also denied payment of the purchase-money, and possession of the whole square. Decreed, that, on payment of the whole purchase-money and interest, the defendant should convey the part of the square.^ So, that, for seven years before the trial, the land, with the plaintiff's consent, was assessed to the defendant, and that the plaintiff acknowledged that he had given possession to the defendant, is sufficient to justify the jury in finding that possession was delivered in pursuance of the contract, and to take the case out of the statute.*^ So a son, residing in the family of his father, who was the tenant of the premises, purchased, by parol, a portion of the lot, built thereon a house, and moved into it with his family, but erected no partition fence between himself and his father. Held sufficient, as against the vendor, to take the case out of the statute.^ So a purchaser under a verbal contract, who has made a partial payment and has entered into possession by consent of the vendor, may lawfully sever timber, or peel bark from the trees ; and such timber and bark, when so sev- ered, become the property of the purchaser, and subject to attach- 1 Hall V. Hall, 1 Gill, 383. 5 Graham v. Yeates, 6 Harr. & John. ■^ Thompson v. Tod, 1 Peters C.C. 388. 229. 3 Simmons v. Hill, 4 Harr. & M'Hen. •> Miranville v. Silyerthorn, 1 Grant, 252. 410. •* Smith V. Underdunck, 1 Sandf. 579. '' Zimmerman v. Wengert, 31 Penn. 581. ' 401. (rt) But the mere declarations of the essential attributes of part-performance, vendee that he had purchased the land, They are merely parol evidence of the and was the owner, unaccompanied by agreement. Anderson v. Chick, 1 Bailey, any act in pursuance of them, want all the Eq. 118, 124. CHAP. IX.] PART-PERFORMANCE. 143 ment and execution.^ So where a parol contract is made for the sale of two parcels of land for a gross price, and the vendor, at the time appointed, convcj^s one only, and agrees to convey the other presently ; and the vendee pays the whole price, and enters into possession of both on receiving the deed : the contract is not merged in such deed, nor varied by the vendee's assent to the delay, as to the other parcel. So the agreement to give a deed of the latter is not a new parol contract, or a substitute for the first agreement ; but the conveyance is a part-performance of the origi- nal contract.^(a) . 1 Pike V. Morey, 32 Vt. 37. Wright V. Schneider, 14 Ind. 527. See 2 Smith v. Underdunck, 1 Sandf. 579. (a) Tlie princii)le has been applied to leases. Where a contract under the (Cal.) act of March 21, 1856, authorizing a lease of prison grounds, &c., at a rate not exceeding -$15,000 per month, stipu- lated for .$10,000 per month, and for the release of claims held by the lessee against the state ; held, after three years and part- performance on both sides, this arrange- ment could not be set up to invalidate the contract. State v. INIcCauley, 15 Cal. 429. Where, under a parol agreement for the use of land for eight years, upon con- dition that the tenant should clear up and improve tlie same, such improvements were made at a cost exceeding the yearly rent ; held, there was such part-perform- ance of the contract as to take it out of the statute, and that the tenant was entitled in equity to a decree for specific performance of tlie lease for eight years. Morrison v. Peay, 21 Ark. 110. 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 the lots void under § 4 of the Statute of Frauds. Such a contract was completed by dehv- ery of the house, no memorandum in writ- ing being necessary. Whetmore v. Ilhett, 12 Rich. 565. In a complaint to foreclose a mortgage, the answer alleged, by way of cross-com- plaint, that, after delivery of the mortgage, A. apphed to the mortgagor to purchase a certain tract of land, ottering a satisfactory price, provided he would take a certain lot at -S-SOO in part-payment, which he refused to do, and declined the offer ; that the plaintiff thereupon agreed with the mortgagor, that, if he would accept the offer, and take the lot at 8300, he would purcliase and take a conveyance thereof from the defendant at §300, and credit that sum upon the mortgage note ; whereby the defendant was induced to sell his land at the price offered, and to take a conveyance of the lot, and he immediately tendered a conveyance thereof to the plaintiff, and asked that the credit be made upon his note, wliicli was refused. Held, the agree- ment was taken out of the statute by the defendant's part-performance. Eastburn V. Wheeler, 23 Ind. 305. W. had obtained a judgment of fore- closure and sale against A., the owner of the equity of redemption. A. was about to appeal from the judgment, and stay the sale, which he was induced not to do, by reason, and upon tlie faith, of a verbal agreement made by the attorney of \V., that the sale should take place, and the property be bid off by W., and that he would convey the same to B. upon certain conditions, including the payment of the judgment, with interest and costs, which agreement was to be reiluced to writing after the sale. W. acquired the property at such sale, but refused to sign or per- form such agreement, and denied the authority of his attorney to make it. Held, the relinquishment of further liti- gation, and omitting to staj' the sale, were such acts of part - performance as would take the agreement out of the statute ; and that W. could not adopt the act of his attorney so far as to hold the title acquireil at such sale, and repudiate as unauthorized the agreement bj^ which the sale was allowed to take place. I'aine V. Wilcox, 16 Wis. 202. A. entered into possession of land under a contract to purchase, and after- wards made a parol agreement with B., by which the latter was to advance the purchase-money, take an absolute deed of the premises, to be procured by A., and 144 LAW OF VENDORS AND PURCHASERS. [CHAP. IX. 7. With regard to the party who may avail liimself of part-per- formance, it is held, that after delivery of possession, in pursuance of a parol contract, the vendee as well as the vendor may insist on a specific execution of the contract.^ But, on the other hand, part-performance is not ground for holding a party who has done the acts to his own prejudice, unless they are also a prejudice to the plaintiff; because the doctrine of part-performance is founded on fraud.~(a) . 8. Acts merely introductory or ancillary will not constitute part- performance, though attended with expense. As, for example, delivery of an abstract, giving directions for conveyances, going to view the estate, fixing upon an appraiser, making valuations, &c.^ Thus where one who had verbally agreed for the purchase of an estate, in confidence thereof gave orders for conveyances to be drawn, and went several times to view the estate ; held, the Court would not carry such agreement into execution, but the Statute of Frauds might be pleaded to a bill brought for that purpose.^ So in case of a parol agreement, that, upon the plaintiff's procuring a release from a third person, the defendant would convey ; the plaintiff's procuring a release for valuable consideration is not a part-performance.^ Nor putting a deed into the hands of a solicitor, to prepare a conveyance.^ So where a bill was filed for specific performance of a sale of land, alleging that A. gave the land into B.'s possession in payment of a debt ; that B. sold it to C, and C. to D., and D. to the complainant; and the answer denied 1 Pug:h V. Good, 3 W. & S. 56. Whaley v. Bagenal, 6 Bro. P. C. 645 ; 2 Buckmaster v. Harrop, 7 Ves. 341 ; Whitbread v. Brockliurst, 1 Bro. 412. Popham V. Eyre, Lofll, 786 ; Hawkins v. * Clerk v. Wright, 1 Atk. 12. Hunt, 14 111. 42. 5 O'Reilly v. Thompson, 2 Cox, 271. 3 Whitchurch v. Bevis, 2 Bro. 559 ; ^ Eedding v. Wilkes, 3 Bro. C. C. 400. give the latter a written contract to con- resentatives in case of his death. 1 Sugd. vey the land to him, on his payment of 174. See Burkett v. llandall, 3 Mer. 466. the money advanced and interest. B., But a strong doubt has been suggested, after advancing the purchase-money, and whether a remainder - man would be receiving sucli absolute deed, refused to bound in consequence of part-performance give A. such written contract to convey, by the particular tenant, inasmuch as the Held, that he could not maintain an ac- doctrine proceeds upon the ground of tion of ejectment against A., to recover fraud, which is a personal matter. Shan- possession of the premises, and that the non v. Bradstreet, 1 Sch. & he^. 52. parol agreement to give a written con- In a very late case it is held, that a tract of conveyance was not void by the vendor cannot enforce the agreement, not- Statute of Frauds. McBurney v. Well- withstanding part - performance by the man, 42 Barb. 390. vendee, nor though the vendee confess (a) It is said that a parol agreement, the agreement. Luckett v. Williamson, which by reason of part-execution binds 37 Mis. 388. the party himself, will also bind his rep- CHAP. IX.] PART-PERFORMANCE. 145 the contract and sale, and pleaded tlie Statute of Frauds ; and the testimony showed a verbal agreement of A. to give the land to B. ; that he tokl liim to take possession ; that B. walked over the hind, and offered it for sale ; and that it was sold as alleged in the bill, and the land was unenclosed at the time : such contract was held wdthin the statute, and not to be enforced without evidence of some act done in part-performance of it.^ So a tender, by the vendor, of a sufficient deed to the vendee, who refuses to accept it, will not enable the vendor to recover in assumpsit for the })ricc.^ And possession, when set up as an act of part-performance, must be unequivocally, directly, and solely referable to tlie identical agreement alleged in the bill. It must be either delivered by, or taken with the express or implied consent of, the vendor. If otherwise obtained, it cannot avail. Where no other title to pos- session, and no other origin of it, is proved, it is primd facie to be referred to the agreement. But, if the vendor's assent to the pos- session is denied, merely suffering the party to occupy for a few months, without turning him out, when the property was of trifling value as to profits, and no improvements were put upon it, is not sufficient.^ So, if a tenant buys the estate and remains in posses- sion, this is no part-performance.^ So a contract for the transfer of a lease cannot be taken out of the statute by a partial performance of the lease.°(a) 1 Prostburg, &c., Co. v. Thistle, 20 Md. 1 M'C. Ch. 32 ; Carlisle v. Fleming, 1 186. Harr. 421 ; Eaton v. Wliitaker, 18 Conn. 2 King V. Smith, 33 Vt. 22. 222; Goodhue v. Barnwell, 1 Kice Eq. 3 Jervis v. Smith, 1 Hotfm. Ch. 470 ; I'JS ; Phillips v. Thompson, 1 Johns. Ch. Givens v. Calder, 2 Desaus. 171 ; Hord 131 ; Blakeney v. Ferguson, 3 Eng. 372. V. BowmaH, 1 Freem. Ch. 290; Smith * Mahana w. Blunt, 20 Iowa, 142. t'. Underdunck, 1 Sandf. 579 ; Lord v. 5 Hunt v. Coe, 15 Iowa, 197. Underdunck, ib. 46 ; Thompson v. Scott, [a] The plaintiff, the widow of A., and contract to make a will. Lord Cranworth, A., who afterwards intermarried, agreed L.C., remarked : " If I agree witli A. by in writing, that A. should have the plain- parol, witliout writing, tliat I will build a tiff's property for life, paying her .£80 per house on my land, aiul then will sell it to annum, pin-money ; after which he should him at a stipulated price, and in pursu- have it. A settlement was prepared ac- ance of that agreement 1 build a iiouse ; cordingly ; but, by agreement, rescinded; this may aflbrd me ground for compelling A. agreeing, as alleged by the plaintiff, A. to com{)iete the purchase; but it cer- to give her by will aU his property. Such tainly would afford no foundation for a a will was made; but, after his death, a claim by xV. . . . The nature of the alleged later and ditierent one was found. Upon agreement was such as hardly to admit, a bill in equity against A.'s executors, to even on part of the party to be charged, enforce the agreement ; held, that part- of any tiling like part-pertbrmance. As a performance by A. did not take tiie case will is necessarily, until the last moment out of the Statute of Frauds ; that the of life, revocable, a contract to make any marriage was not a part-performance ; and specified bequest, even when a will iiav- that under the statute there was no valid ing that etiect has been duly prepared and 10 146 LAW OF VENDORS AND PURCHASERS. [CHAP. IX. 9. If one authorized by the vendor to deliver possession to the vendee takes a lease from the vendee, and enters into actual pos- session ; there is an equitable estate in the lessor, which is bound by a judgment against him.^ So payment of the purchase-money, and continuance in possession by the complainant for several years, who, but for the agreement, was a trespasser, were held to take a parol agreement for the sale of lands out of the statute.^ So a bill in chancery stated, that M. had a life-estate in all the tract of land called Oliver's Neck, the remainder in fee being in C. ; that C. sold to M. all his interest in the land ; that tlie purchase-money was paid by M., who retained possession until his death ; and that his representatives, the complainants, afterwards retained possession. The testimony did not establish the claim as stated, but proved a contract between C. and M. for one-fourth part of the tract; that the purchase-money was paid by M., and possession of the land permitted to be retained by him under the contract. Held, the complainants were entitled to a conveyance of the one-fourth ; that permitting the possession to be retained was equivalent to an actual delivery, and, with the payment of the purchase-money, took the case out of the statute.^ So a mother desired certain persons to bear witness, that she had purchased a particular tract of land for her son, a minor ; and verbally agreed with her brother, acting for the son, to give him the land, in consideration of the son's relinquishing his claim to his father's personal estate. The mother gave him possession of the land, which the son used and improved as his own until his death, having released his claim to his father's personal estate. Held, the agreement should be specifically performed.* So where there was an agreement to convey to trustees for creditors, in considera- tion of an extension, the trustees took possession, and the ex- tension was granted. Held, the contract should be specifically performed.^ So upon a bill in equity to compel performance of an agreement to lease, it appeared that the defendant, having a free- hold estate in land of his wife, entered, in the fall of the year, 1 Pugh V. Good, 3 W. & S. 56. * Simmons v. Hills, 4 Harr. & McH. 2 Smith V. Smith, 1 Rich. Eq. 130. 252. 3 Drury v. Conner, 6 Harr. & John. 5 Moale v. Buchanan, 11 Gill & John. 288. 314. executed, is in truth a contract of a nega- not see how there can be part-performance tive nature, — a contract not to vary wliat of such a contract." Caton v. Caton, Law has been so prepared and executed. I do Rep. (Eng.) Eq., March, 1866, pp. 137, 147. CHAP. IX.] PART-PERFORMANCE. 147 into a parol agreement with tlie j)laiutitr, tliat ho would erect upon the land a substantial brick store, and have it completed by the first day of April then next ; and that he would let such store to the plaintiff for three years, for the yearly rent of -$500, to be paid quarterly. He erected such store, and the plaintiff im- mediately took possession, and occupied for one year, paying the rent quarterly. During the year, the defendant gave the plaintiff notice to quit, and brought a summary process to eject him. Held, 1. That the agreement was within that clause of the statute which relates to the sale of lands, &c. ; 2. That there was a part- performance, sufficient to take the case out of the statute, and au- thorize a decree for specific performance. The plaintiff, after the erection of the store, and before the commencement of" the suit, offered to the defendant a writing in the form of a lease, to be ex- ecuted by him, providing, that if the store should be destroyed by fire, or rendered unfit for use, the payment of rent should cease, until it should be put in good order by the defendant. The de- fendant refused to execute such lease, or even to read it, saying, " I have no lease to execute." Held, 1. He was not bound to execute the lease offered, or any lease containing such a provision ; but, 2. This did not excuse him from executing a lease with the usual provisions.^ So G. and W., brothers, being jointly in- terested in the real estate of their father, a-s tenants in comijion, G. agreed to relinquish his interest, in exchange for a quantity of medicines, and the good-will of his brother's business as a phy- sician ; in consequence of which agreement, W. took possession of the real estate, made improvements, and afterwards sold the same to T., who also made valuable improvements.' Held, this was sufficient, in equity, to take the case out of the statute, and T. was entitled to a conveyance of G.'s interest, and to a perpetual injunction against a suit which had been instituted by G. for the recovery of the premises.^ 10. But, upon a bill for specific performance, it appeared that the plaintifl", through whose land the defendants, a railroad corpo- ration, were authorized to make their road, gave them a bond to convey to them by a certain day, on payment of a certain price, so much of his land as should be taken by them by authority of 1 Eaton V. Whitaker, 18 Conn. 222. Moreland v. Lemasters, 4 Blackf. 383 ; 2 Town V. Needham, 3 Paige, 545; Byrd v. Odem, 9 Ala. 756; Finucane v. Wetmore v. White, 2 Caines' Cas. 87 ; Kearney, 1 Freera. 65, 69. 148 LAW OF VENDORS AND PURCHASERS. [CHAP. IX. law for their road. The defendants, within the time allowed by law, entered upon and took the land, hut, upon the plaintiff's tendering them a deed on the day appointed, refused to pay the price. Held, the bill could not be maintained, the defendants not having signed any written agreement. Bigelow, J., says: "It does not appear that the defendants took possession of the land under the contract. They had the right, under their acts of incorporation, and the general statutes of the Commonwealth, to enter upon the land of the plaintiff and construct their railroad over it, without any contract, and even against the consent of the owners. For aught that appears in this case, all the acts of the defendants, relied on as showing part-performance of the contract, were done under the rights and powers conferred on them by statute, and not in pursuance of the contract." ^ 11. With what degree of distinctness and certainty the terms of the contract itself are to be shown, in order to sustain a claim upon the ground of part-performance, has been matter of some- what conflicting decision. The prevailing rule, however, appears to be, that, to obtain specific performance of a parol contract for the sale of lands, it must be clearly, fully, and satisfactorily shown what the agreement was, and that the plaintiff has per- formed, or has been and is able and willing to perform, his part of the contract.^ 12. Equity decrees the specific execution of a parol agreement, after a parf>performance, and notwithstanding the express provis- ions of the Statute of Frauds, on the ground o^ fraud, in refusing to perform, after performance by the other party, and to prevent the statute from being an engine of that fraud which it was en- acted to prevent.^ This principle is perhaps best illustrated by that somewhat numerous class of cases, involving a breach of trust, where a legal title is conveyed to one person, by whom the consid- eration is paid, but for the benefit of another, to whom the nominal purchaser verbally agrees to transfer the estate, upon being 1 Jacobs V. Peterborough, &c., 8 Cush. 2 Ves. 243 ; 5 Vin. Abr. 523, pi. 40. See 223, 224. also Allen v. Bower, 3 Bro. 149 ; Clinan ''! Thompson v. Scott, 1 M'C. Ch. 32; v. Cooke, 1 Scho. & L. 22; Muudy v. Hall V. Hall, 1 Gill, 383; 6 Ves. 470; Jolitfe, 9 Sun. 413. Symondson v. Tweed, Prec. Ch. 374 ; 3 Maryland, &c. v. Schroeder, 8 Gill & Forster v. Hale, 3 Ves. 712; Savage v. John. 94; Caton y. Caton, LawRep. (Eng.) Carroll, 1 B. & Be. 2G5 ; Reynolds v. Eq., March, 18G6, p. 147. "Waring, You. 346 ; Mortimer v. Orchard, CHAP. IX.] PART-PERFORMANCE. 149 re-imbursed the sum paid out. (a) And in this instance, as well as others of the same general nature, it is held, that, where a party has paid money upon a contract within the statute, and a recovery of the money will not restore him to his former situa- tion, he is entitled to specific performance,^ Thus where lands of A. were sold under execution to B., and B. sold them to C, C. having agreed verbally with A. that he would purchase them of B., and retain them until the rents and profits should pay the redemption-money ; held, the agreement was not within the statute, being a mere extension of the time of redem})tion,^ So, where A. obtained the legal title to land, as security for the money advanced by him to B., the vendor, for C, the vendee, promising to reconvey the same to C, on repayment of the sum so advanced, with 20 per cent interest, but fraudulently sold the land to the defendant, who bought with notice ; held, the contract was not void under the statute, but equity would adjudge the defendants trustees for the party defrauded, and decree specific performance, or pecuniary compensation.^ So A.'s farm being about to be sold, on a decree of foreclosure, for a debt of $430, he applied to B. to advance that sum, to save the farm to A. ; and it was agreed between them, verbally, that B. should become the purchaser, and hold the premises as security for the advance. B. accordingly became the purchaser for $680, received a deed from the Master, and paid the $430 due the mortgagee, and no more. Held, the agreement was within the statute ; that B. was entitled to hold the land for his own benefit, but was bound to pay to A. the residue of the $680, after paying off the mortgage.'*(5) So, upon a bill for in- junction, it appeared that the defendant agreed, by parol, with his brother, who was infirm, and whose land was about to be sold on execution, to purchase the land for the brother's benefit, and as a home for his family, and to give him the benefit of the purchase, when he should refund the money. Tlie defendant announced the agreement at the sale, bid off the land for a nominal price, and * Malins v. Brown, 4 Comst. 403. '^ Jackson v. Gray, 9 Geo. 77. 2 Griffin v. Coflfey, 9 B. Mon. 452. i Bander v. Snyder, 5 Barb. 63. (a) See Trust. so, and afterwards, B. failing to redeem, {/)) But where A. agreed witli B. by A. sold the farm for a greater sum than parol, at B.'s request, to attend a sale of he paid for it : held, in an action by B. B.'s farm under a decree of foreclosure, against A. to recover tlie surplus, that tlie purchase the same in his own name, and agreement was void, being contrary to give B. two weeks to redeem ; and A. did the statute. Latluop v. Iloyt, 7 Barb. 59. 150 LAW OF VENDORS AND PURCHASERS. [CHAP. IX. paid it. The brother remained in possession till his death, when the plaintiff, his widow and heir, occupied the land. The defend- ant then took a deed from the sheriff, and brought an action at law to dispossess the plaintiff. Held, the defendant's conduct was fraudulent, and the Statute of Frauds was no defence against the plaintiff's claim to have the deed cancelled.i(a) So A. agreed to purchase land of B., on condition that a mortgage on the same land and other lands, held Ijy C, should be discharged from the land, and it was thereupon verbally agreed between A., B., and C, that a part of the consideration should be paid on the mortgage to C, who should, at the same time, execute a release of that part of the premises. The purchase was accordingly completed, A. paying the money, of which C. received the sum agreed on ; but C. excused himself from executing the release at that time, saying that he would give it at any time when called upon. Held, A., notwithstanding the statute, was entitled to a specific perform- ance of the agreement to execute the release.^ So A. and B. obtained the legal title to land for a small sum advanced to C, not being a fourth part of the value of the land ; promising verbally to reconvey to C, on repayment of the sum advanced, with interest ; and afterwards fraudulently reconveyed the land to a hond-fide purchaser. Held, a demurrer, insisting on the statute, should be overruled, the statute being made to prevent fraud, not to protect it ; and that A. and B. should be holden as trustees of C, for the value of the land, beyond the sum advanced, and in- terest.^ So where A. and B. agree to furnish money to enter land, each one-half; A. to enter in his own name and convey a part to B. ; and possession is taken : the Statute of Frauds does not apply.* 12 a. Upon the ground last stated, that the principle of part- performance rests on fraud; the payment of motiey, more especially of only part of the price, cannot, in general, be regarded as a sufficient part-performance. In such case non-performance would 1 Cox V. Cox, 5 Eich. Eq. 365. 3 Cameron v. Ward, 8 Geo. 245. 2 Malins v. Brown, 4 Comst. 403. * Nelson v. "Worrall, 20 Iowa, 470. (a) Upon a somewhat similar ground, the conveyances, the purchaser obtained a party cannot avoid the effect of part- an assignment of a mortgage upon the performance by buying in a prior title, estate, antedated it, and refused to go on Thus a public survey was held for sale with the purchase. Held, though the of an estate, an offer for it accepted, con- agreement was parol, yet it was binding, veyances ordered, and possession deliv- Pyke v. Williams, 2 Vern. 465. ered. But, disputes arising about settling CHAP. IX.] PART-PERFORMANCE. 151 not operate a fraud upon the party, because the money may be recovered back.^(rt) 13. And payment of the auction duty is not a part-i)erformance, taking an agreement out of the Statute of Frauds, because the revenue laws would thus be made to operate beyond their direct and immediate purpose.^ So part-performance cannot consist in payment, by a mortgagor, of incumbrances on the land agreed to be conveyed to the mortgagee.^ So the defendant paid to an auc- tioneer, an agent for the plaintiff, a vendor, £50 " as a deposit and part-payment of XI, 000," for the pnrchase of hereditaments, taking a receipt ; " the terms to be expressed in an agreement to be signed 1 Campbell v. Campbell, 3 Stockt. 268; Hatcher v. Hatcher, 1 McMul. Eq. 311 ; Jackson v. Curtwright, 5 Munf. 308 ; Sites v. Keller, 6 Ham. (Ohio), 207 ; Pollard V. Kinner, ib. 231 ; Allen ?'. Booker, 2 Stewart, 21 ; JMeredith v. Naish, 3 Stewart, 207 ; Barickman v. Kuyken- dall, 6 Blackf. 21 ; M'Kee v. PhilUps, 9 Watts, 85 ; Parker v. Wells, 6 Wharton, 15o ; Smith v. Smith, 1 Richardson, Eq. 130; Eaton v. Wliitaker, 18 Conn. 222; Finucane v. Kearney, 1 Freem. Ch. 05 ; Hood V. Bowman, ib. 290, 2'J4. '^ Buckmaster v. Harrop, 7 Ves. 341. 3 Starin i-. Newcomb, 13 Wis. 519. . (a) In an early case (Lord Fingal v. Ross, 2 Eq. Cas. Abr. 46, pi. 12), Lord- Chancellor Cowper remarked, that the clanse of the statute relating to the sale of goods expressly provides that payment of earnest shall bind the bargain ; while it declares that no agreement concerning lands shall be good, unless reduced to writing. Ace. Buckmaster v. Harrop, 7 Ves. 341. Mr. Sugden says (1 Sugd. 168), the payment of a small sum cannot be deemed a part-performance. The dicta are in favor of a considerable sum being a part-performance ; but this construction is not authorized by the statute. He re- fers to the judgment of Sir William Grant, in Butcher v. Butcher (9 Ves. 382), as showing the impossibility of drawing any such line of distinction between the amounts of purchase-money paid. So in Buckmas- ter V. Harrop, 7 Ves. 341, it is said, that, whether one guinea or fifty guineas be paid, it can make no difference. Ace. Cordage v. Cole, 1 Saun. 319. But in an earlier case it was held, that, thougli pay- ment of a substantial part of the purchase- money will take an agreement out of the statute, paj-ment of a small part — as five guineas, the purchase-money being one hundred — will not do. The plea of the statute was allowed, with an intimation from the Court, that, under the circum- stances of the case, the bill would be dis- missed with costs. Main r. Melbourn, 4 Ves. 720. A different doctrine from that stated in the text, has sometimes pre- vailed ; and several old cases have been relied upon to sustain it. Feme i\ Bul- lock, Toth. 206 ; Clark v. Hackwell, ib. 228; VoU v. Smith, 3 Cha. Rep. 16; Moyl V. Home, Toth. 67 ; Alsop v. Pat- ten, 1 Vern. 472 ; Lacon v. Mertin, 3 Atk. 1 ; Dickinson v. Adams, 4 Ves. 722. But see William r. Nevill, Toth. 135 ; Miller V. Blandist,- ib. 85; Simmons v. Cor- nelius, 1 Cha. Rep. 128; 2 Freem. 128; 1 Freem. 486, 664, b ; Seagood v. Meale, Prec. Cha. 560 ; Coles v. Trecothick, 9 Ves. 234. One of two joint lessees ver- bally agreed to sell his interest to the other, and accepted a pair of compasses in hand to bind the bargain. Whether this is within the Statute of Frauds, qu. ? Alsop V. Patten, 1 Vern. 472. A. agreed with B. for the purcliase of nine houses, mortgaged to C, and paid him a guinea in earnest. B. wrote a note to C, desir- ing him to deliver up the buildings, he having disposed of them, which C. re- fused, unless all the mortgage-money was paid, and afterwards purcliased them him- self. On a bill brought by A. for specific performance, held, tliat neither the ear- nest nor the note, which was only evi- dence of assent, but did not ascertain the terms of the agreement, was sufficient to take it out of the Statute of Frauds. Sea- good V. Meale, Prec. Cha. 560. In a late case it is held, that payment may be such j)art-performance a.s to take the case out of the statute. Lingle v. Clemens, 17 Lid. 124. 152 LAW OF VENDORS AND PURCHASERS. [CHAP. IX. as soon as prepared." The defendant liad })reviously approved of the draft of the contract, and, at the time of taking the receipt, agreed to sign the contract the next day ; but refused to do it, and demanded back the deposit. Held, the Statute of Frauds was a good defence to a bill for specific performance.^ So the pur- chaser's having deposited part of the purchase-money with her agent, to pay the vendor as soon as he should execute the deeds, and the agent's informing the vendor of it, are not such a part- performance as takes the case out of the statute.^ 14. But where the consideration of a verbal sale of land con- sists of services to be rendered, which are of so peculiar a charac- ter, that it is impossible to estimate their value to the vendor by a pecuniary standard, and the vendor did not intend so to measure them ; the performance of the services will entitle the vendee to a specific performance. Thus an agreement was made between two brothers, who had always lived together and owned their property in common, by which the one, having a family, agreed to provide for and take care of the other, who had none, and who was sub- ject to epileptic fits, during his life, in consideration that the for- mer should have all the real and personal estate of the latter. Held, after performance of the services, the contract should be enforced. 3 15. The principles above stated, with reference to part-perform- ance^ seem to be well established by the weight of English and American authorities. There are, however, some qualifications and exceptions, which equally require to be noticed. Thus, as has been already stated (§ 8), acts of part-i)erformance of a parol agreement will not take it out of the statute, unless they are solely applicable to the agreement. Part-performance must be such as to make the party seeking to enforce an execution a wrongdoer by reason of his acts, and complete performance a pro- tection against any liability.^ Possession must be connected with the sale, and in consequence and pursuance of it, and intended to be in execution of it.-^ It must have been taken and held, with the actual or implied assent of the vendor, and by virtue of the contract.'' And it must be exclusive in the vendee. The pur- 1 Wood V. Midgeley, 27 Eng. Law & * Ham v. Goodrich, (N.H.) Law Rep. Eq 206. Nov. 1856, p. 390. 2 Givens v. Calder, 2 Desaus. 171. ^ McNeill v. Jones, 21 Ark. 277 ; 35 3 Rhodes v. Rhodes, 3 Sandford, 279. Peiin. 305 ; 1 Grant, 406. '' CarroUs v. Cox, 15 Iowa, 455. CHAP. IX.] PART-PERFORMANCE. 153 chaser of an undivided interest is incapable of such possession.^ Moreover, as we have seen, there must be such part-performance as cannot be compensated in damages.^ Upon these grounds, repairs made by a tenant under his old lease, upon the expectation of getting a new one, form no consideration for a promise to give a new lease.^ So a mere continuance in possession, by a tenant, after his purchase, is not sufficient to take the case out of the statute.^ So where, upon the faith of a verbal promise of renewal, a tenant rebuilt a party wall ; the agreement was held to l^e within the statute ; the act being an equivocal one, which would lias^e been done equally without any agreement ; and, moreover, the landlord being liable to an action to recover back the cost, if it was to be borne by him.^ So the vendee's renting a part of the land, as agent of the vendor, will not entitle the vendor to specific perform- ance, as it does not pui'port to be in pursuance and execution of the agreement.^ So, to constitute a valid parol sale under the statute, the possession must be exclusive of the vendor, and the boundaries distinctly ascertained. Thus A. entered under a parol agreement with B. to receive one hundred acres, including the mansion-liouse, on one side of a larger tract ; lived with B., per- formed the consideration, and farmed the land in the manner it had been previously farmed, or with his own and B.'s cattle ; hav- ing also an agreement to farm the whole of the larger tract for one year, for payment of taxes, and making fences. Held, within the statute.'' 15 a. In a late case in Pennsylvania,^ the . following remarks are made upon a particular class of cases, held not to fall within the. general doctrine of part-performance : "We may notice still another principle of law that is applied very beneficially to restrain the exceptions of the statute, and which is of especial importance in this case, though its application is not peculiar to cases under this statute. We allude to the law of evidence that grows out of the family relation. It is so usual and natural for children to work for their parents, even after they arrive at age, that the law 1 Chadwick v. Felt, 35 Penn. 305 ; Wi- Wills v. Stradling, 3 Ves. 378 ; Savage v. ble V. Wible, 1 Grant, 406. Carroll, 1 B. & B. 265. 2 Postlethwait v. Frease, 31 Penn. 472. 5 Frame v. Dawson, 14 Ves. 386. See 3 Wentworth v. Wentworth, 2 INIin. Lyndsay v. Lyncli, 2 Sclio. & Lef. 1 ; 277; Byrne v. Romaine, 2 Edw. 445, 446. O'Reilly v. Thompson, 2 Cox, 271. See Lacon v. Mertins, 3 Atk. 1. 6 Anderson v. Chick, Bai. Eq. 118. •4 Spalding v. Couzehnan, 30 Mis. 177; 7 Frye v. Shepler, 7 Barr, 91. Johnston v. Glancy, 4 Blackf.' 94, 99 ; 8 Poorman v. Kilgorc, 26 Penn. 365. Hood V. Bowman 1 Freeman 290-294 ; See also Cox v. Cox, ib. 375. 154 LAW OF VENDORS AND PURCHASERS. [CHAP. IX. implies no contract in such cases. And it is so natural for parents to help their children by giving them the use of a farm or house, and then to call it theirs, that no gift or sale of the property can be inferred from such circumstances. The very nature of the rela- tion, therefore, requires the contracts between parents and children to be proved by a kind of evidence that is very different from that which may be sufficient between strangers. ^ The importance of this rule is very apparent ; for it requires but a glance over the cases of this class to discover how sad has been the experience of the courts in family disputes, growing out of the exceptions which have been allowed to this statute ; and how many and how dis- tressing must have been the ruptures of the closest ties of kindred that have been produced and perpetuated by the encouragement thus given to try the experiment of extracting legal obligations out of acts of parental kindness. The delivery of possession is per- fectly accounted for by the relation of the parties, and by the annual delivery of a share of the produce, as a tenancy from year to year, which is allowed by the statute. If a contract to farm land on the shares, and a delivery of possession under it, can be supplemented by another for an absolute grant, then certainly, as between parent and child, delivery of possession becomes a worth- less protection against violations of the statute. Both the terms of this arrangement, and the possession under it, may readily be accounted for as founded on other intentions than that of a gift of the land ; and therefore the law forbids us to infer that purpose .^ Some reliance is placed upon the improvements made by the de- fendant ; but having been made without an actual gift, and only on the expectation or promise of a gift, they do not avert the rule of the statute." ^ So upon a promise by a father to one of his sons, that, if the latter would continue with him, he would leave him the farm at his death, the son cannot maintain a bill for specific execution against the heirs-at-law of the father, on the ground of performance by the son.^ And more especially in case of an agreement between father and son, that if the son, with his family, would come and live with the father, and take care of him and his farm during his life, he would give the son his homestead farm; the father is not bound to give up possession during his 1 2 Penn. Rep. 365 ; 8 Barr, 213 ; 9 9 Watts, 42, 109 ; 7 Harris, 469 ; 1 Johns, ib. 262 ; 2 Harris, 201 ; 7 ib. 251-366 ; Ch. 149. 1 Casey, 808 ; 2 Jones, 175. 3 i Barr, 379 ; 3 Watts, 138, 255. 2 3 Ser. & 11. 546 ; 3 Penn. R. 365 ; * Carlisle v. Fleming, 1 Harr. 421, 430. CHAP. IX.] PART-PERFORMANCE. 155 life, sucli surrender not being necessary to a performance of the conditions. The agreement merely binds the father to give the son a title, either by devise or by a conveyance, to take effect at his death. Hence where a bill, brought by the son to enforce the agreement, set it forth as above stated, held, the plaintiff's posses- sion during the father's life was not a part-performance. (a) IG. A parol sale, upon which money has been })aid, and posses- sion delivered, is not good against a bond-fide purchaser, without clear evidence of notice to him, either actual or legal. Legal notice exists only where there is a violent presumption of actual notice. Undisturbed possession has generally been considered legal notice ; but it must be clear and unequivocal. Thus A. bought by parol from B. a corner of B.'s tract, paid for it, was put into possession, and had buildings erected ; but there was no survey of the part, or other admeasurement. On B.'s part there were a forge, dwelling-house, grist and saw mill, and buildings for the workmen, which, with A.'s buildings, might strike the eye as one establishment. Held, the possession of A. was not legal notice of his title, to a purchaser at sheriff's sale, under a judg- ment against B, ; particularly if A. gave no actual notice of his title, when he probably knew of tl>e judgment, execution, and sale.^ IT. It requires to be further stated, that, .although the general doctrine as to part-performance has been for the most part recog- nized, with other principles of the English law, in the United 1 Billington v. Welsh, 5 Binn. 131. (a) A party in possession under a parol improve the land was not a part-perforni- contract subsequently purchased a defect- ance, especially where it was not alleged ive outstanding title, and, on ejectment that the possession was, and was permit- brought by his vendor, neglected to set up ted, in pursuance of the contract, and his parol contract of sale, but defended un- where the Court below found that tliere der such title ; and, on a recovery against was no proof of part-performance. Went- him, took a lease. Held, he had aban- worth v. Wentworth, 2 jMin. 277. doned his rights under the contract ; and Having contracted to purchase a farm, a sheriffs sale, under a judgment against A. erected buildings thereon; and, after him, conferred no tide, legal or equitable, thirteen years' occupation, abandoned the upon the purchaser. Zimmerman v. Wen- farm, which the owner afterwards sold gert, 31 Penn. 401. and conveyed to B., against whom A. A party who had settled on govern- brought trover for conversion of the build- ment land, and improved it, allowed an- ings, B. liaving sold and conveyed the other to enter it ut the office, under an farm to anotlier person. Held, tlie build- agreement to convey it to the settler on ings passed to B. as a part of the real payment of the purcliase-prico by him. estate, notwitlistanding B.'s grantor may Held, the agreement was within tlie stat- have verbally agreed witii A. that they ute, and void, if parol ; also that .the set- were personal property. Fenlason v. tier's always continuing to occupy and Racklifii 50 Maine, 302. 156 LAW OF VENDORS AND PURCHASERS. [CHAP. IX. States, yet it has not been universally adopted. Thus in Massa- chusetts, where there is no court with full equity powers, there has been a series of cases, all tending to the conclusion, which seems now finally established, that part-performance does not take a parol contract, relating to lands, out of the Statute of Frauds. Any earlier decisions, which may have incidentally recognized the contrary doctrine, may be considered as now overruled. Thus it is held, that, although a defendant in equity may rely upon a verbal agreement for the purpose of showing that it would be inequitable to enforce specific performance of a written one, the Court have no power to decree specific performance of a contract, unless every part of it has been reduced to writing. ^ So in a case of assumpsit, to recover money alleged to have been paid on a consideration which has failed. The money was paid on a parol agreement to purchase of the defendant a certain house and estate, which were to be conveyed to the plaintiff free of incumbrance, the defendant undertaking to discharge a mortgage on the estate, which was subsequently done ; but, before the estate was con- veyed to the plaintiff, the house was consumed by fire. It was held, that the contract was void by the Statute of Frauds ; that the payment of the money did not take the case out of the statute ; that the loss must fall upon the defendant, no actual conveyance having been made, and neither party in fault ; and that the plain- tiff was entitled to recover.^ And in a still later case, where the general question was more distinctly presented than in any pre- ceding one,^ it is expressly decided, that part-performance does not, in Massachusetts, take a case out of the statute. Bigelow, J., says : ^ " This Court has no power to enforce in equity the specific performance of any but written contracts. The ground on which Courts having full chancery powers have interfered to enforce parol contracts concerning the sale of lands which have been partly performed, has been to furnish remedies against fraud, and not because the contracts, as such, were binding on the parties. Such cases are not within the equity power of this Court." The sa'me point has been settled upon similar grounds in Maine.^ So it is 1 Brooks V. Wheelock, 11 Pick. 438. * Jacobs v. The Peterborough, &c., 8 See Sailors v. Gambril, 1 Smitli, 82. Cush. 225. See Gen. Sts. '■i Thompson v. Gould, 20 Pick. 134. 5 Bubier v. Bubier, 24 Maine, 42; Wil- 3 Jacobs V. The Peterborough, &c., 8 ton v. Harwood, 23 Maine, 131. Cush. 223. See Buggies v. Nantucket, 11 Cush. 433, 436. CHAP. IX.] PART-PERFORMANCE. 157 said to be tlic settled doctrine in Mississi})|)i, tliat part-performance will not take a parol sale of lands out of the Statute of Frauds, and that no exceptions of that character will be ingrafted on the statute. 1 So it is held in Tennessee, that a Court of Equity has no power to relieve against the provisions of a statute in any case ; that parol proof is inadmissible to establish a contract required by statute to be in writing, or to show part-performance, from which the contract may be inferred. The rule is adopted, without quali- fication, tliat, to make a contract for the sale of land valid, it must be in writing, and signed by the party to be charged therewith.2(a) In New York it was early held, that a contract cannot rest partly in writing and partly in parol ; that, wjiere a part-performance is set up, the party cannot resort to parol evidence in aid of the written agreement ; but the terms must distinctly appear, or be made out to the satisfaction of the Court.^ So in New York it is held, that the rule of the Court of Chancery, by which parol con- tracts for the sale of real estate are taken out of the Statute of Frauds by a part-performance, ought not to be extended to new cases, which do not come clearly within the equitable principles of the previous decisions on that subject.* So in Pennsylvania it was early held, that possession alone will not take a case out of the act against frauds, &c., though it is a strong circumstance connected with others.^ Thus possession, begun before a parol agreement of lease for seven years, and continued afterwards, is of too doubt- ful a nature to be considered as part-performance.^ And in a much later case it has been decided, that the delivery of posses- sion of part of the property, in compliance with a parol contract for the sale of land, is not such an execution of it as will take it out of the Statute of Frauds and Perjuries.'' But the doctrines of the English Chancellors concerning part-performance have finally been adopted as the law of Pennsylvania, under the Act 1 Bearaan v. Buck, 9 Sm. & M. 207 ; & Bassler v. Nieslar, 2 S. & R. 355. Box V. Stanford, lo Sm. & M. '.t3. ^ Jones v. reterman, 3 S. & K. 543. '^ Patton V. M'Clure, M. & Y. 333. So in Indiana ; Johnston i'. Glancy, 4 3 Tarkhurst v. Van Cortlandt, 1 John. Blackf. 94 ; and in Hatelier v. Hatcher, Ch. 274. 1 McMul. Eq. 311. * German v. Machin, 6 Paige, 289, 293. ^ Allen's Estate, 1 Watts & S. 383, 385. («) A party making improvements on in chancery, it seems, the vaUie of such land, held by a contract of purchase void improvements as may have added to the by tlie Statute of Frauds, is not entitled permanent value of the estate, ^lathews to recover the value of such improvements v. Davis, 6 Humph. 324. in assumpsit. He can recover, however, 158 LAW OF VENDOES AND PURCHASERS. [CHAP. IX. of Assembly against frauds and perjuries, notwithstanding the omission, in the latter, of the 4th section of the English statute.^ And the rule elsewhere adopted seems to be finally established, that, to take a case out of the statute, there must be possession, and such part-performance as cannot be compensated in damages;^ and also exclusive possession.^ Thus the plaintiffs claimed under the will of their grandfather ; the defendants, under a parol gift or contract between their father and grandfather. Held, under the Statute of Frauds, the defendai^s had the burden of proof, that the contract was made ; the land clearly designated ; open, noto- rious, and exclusive possession taken and maintained under and in pursuance of the contract ; and that tliey had made improve- ments which did not admit of pecuniary compensation.^(a) So, 1 Pugh V. Good, 3 Watts & S. 56. 2 Moore v. Small, 19 Penn. 461. (a) In the later case of Poorman v. Kil- gore, 26 Penn. 305, it is held, that, in parol sales of land, it is the duty of the Courts, in the application of the practice and prin- ciples of equity, to reject ail the evidence of a verbal contract, if, being taken to- gether, it fails to make out such a case as is entitled to stand as an exception to the statute. The use and possession of the real estate of a father, by a child, is to be interpreted by the law of evidence that arises from the family relation, and, as between such persons, to receive a differ- ent construction from similar acts between strangers. As between such persons, the evidence of a gift or sale must be direct, positive, express, and unambiguous ; and its terms must be clearly defined ; and all the acts necessary to its validity must have special reference to it, and nothing else. Thus the plaintiff agreed with his son-in-law, the defendant, that the latter should go into possession of a farm of the plaintiflj and give him one-third of the grain raised tJiereon, and, at the death of the plaintifi', should have the farm. Under this agreement, the defendant took possession, and made permanent improve- ments. In this action of ejectment, held, the sale was within the statute ; the law presuming that the plaintiff was putting into experimental operation, for the bene- fit of his child, an arrangement which he expected to confirm at his death. Lowrie, J., says (p. 371), "A delivery of posses- sion in pursuance of a verbal contract is now regarded as essential to the enforce- ment of it ; but there is a plain reason why it ought not to be treated as securing that result, or as having as much force 3 Blakeslee v. Blakeslee, 22 Penn. 237. 4 Moore v. Small, 19 Penn. 461. now as it once had. When livery of sei- sin was at common law a sufficient form of transferring title to land, it was an open and notorious act, performed in tiie pres- ence of the neighbors, accompanied by the symbolical delivery of tlie turf or twig, and the declaration of the quantity of the estate granted. But even this sol- emn investiture was so open to frauds and perjuries, that it called for the correction of the statute, requiring the contract to be put into writing. Now that common-law form has worn out, and delivery takes place without any form at all, almost always by a mere entry on a permission, express or implied ; and thus the pub- licity and form of the delivery no longer avails as a check upon the mere invention of the sale." Tlie learned Judge further remarks, " In our first endeavor to administer these equitable exceptions through the instru- mentality of a common-law trial, we very often failed by reason of our want of skill in applying such remedies in a form so unusual. This experience has forced upon the courts a more careful study and appli- cation of equity practice, and a conse- quent rejection of all the evidence of a verbal contract, if, being taken as true, it does not make out such a case as is entitled to stand as an exception to the statute. 9 Watts & S. 49 ; 9 Watts, 109 ; 1 Harris, 21 ; 7 ib. 461, 471. This im- l^rovement in the practice tends to the security of written titles, even if the ex- ceptions to the principle of the statute remain. In the case of Brawdy v. Brawdy, 7 Barr, 157, the Judge who tried the cause heard the evidence of the verbal CHAP. IX.] PART-PERFORMANCE. 159 in North Carolina, part-performance, such as payment of the wliole purchase-money, and delivery of possession to the vendee, will not dispense with a writing, if the statute be insisted on, nor admit parol proof of a contract different from that stated in the answer.^ It is doubted whether it would be otherwise, if the contract partly performed were admitted by the answer.^ In Texas, in the late case of Hunt v. Turner,^ it is said, " A contract may be void under the Statute of Frauds ; yet if the conduct of the party setting up the invalidity of the contract has been such as to raise an equity outside of and independent of the contract, and nothing else will be adequate satisfaction of such equity, it will sustain the sale, though not valid under the Statute of Frauds.* Again, a party to an illegal contract will not be permitted to avail himself of its illegality, until lie restores to the other party all that has been received from him on such illegal contract. So long as he continues to hold or to enjoy the advantages of the contract, he shall not be allowed to set up to his advantage its nullity. Rol)in- son and his heirs were permitted to take possession of the land, and to make large improvements, and not a word said about en- 1 Allen i\ Chambers, 4 Ired. Eq. 125 ; Ellis V. Ellis, 1 Dev. Eq. 180, 341. •i Ellis V. Ellis, 1 Dev. Eq. 341. contract, and then withdrew it all from the jury, as being entirely insutficient to make out the case ; and this practice was expressly approved. To take a parol contract out of the statute, it is essential to prove distinctly the terms of the contract, and that it was binding on both parties. Notorious and exclusive possession must be taken and maintained in pursuance of the contract. Valuable improvements must have been made in pursuance of the contract, which have not been compensated by the profits, and cannot be compensated in money. Declarations of a father — sucli as, "I have given John the tarm," " The farm is John's," " I intend John to have the farm " — are insufficient. They are ref- erable to testamentary intentions rather than to a contract ; and the fact of a will having been made accordingly, negatives rather than supports a contract, even though the son may have acted on the expectations thus created. Toe v. Toe, 3 Grant, 74. In ejectment by heirs against a son, for land claimed by him under a parol contract, by which his father proihised to give liini the land in consideration of ser- 3 9 Tex. 389. 4 Dugan's Heirs v. Colwell's Heirs, 8 Tex. R.' vices, and his coming to live thereon ; after he had proved his tatlier's declara- tions and promises, and that, in conse- quence thereof, he had left his trade in town, and had gone on to the farm, where he remained in possession of the portion claimed as his until the father died, the plaintiffs demurred to the evidence. Held, the demurrer admitted tiie facts as stated, M'ith every conclusion a jury might tiiirly infer therefrom, and there was a sufficient designation of the land by metes and bounds. But the contract was within the statute, and could not be enforced where the labor and improvements could be compensated in damages ; such as clear- ing and fencing land, erecting tarm-build- ings, planting an orchard, &c. McKowen V. McDonald, 43 Penn. 441. A parol agreement by one person, to purchase land and convey it to another whenever advances are repaid, is void by the statute ; and an entry by the latter upon the land, before it was purchased by the former, would not be such possession, under and in part-execution of tiie con- tract, as would take it out of the statute. Myers v. Byerly, 45 Penn. 3G8. 160 LAW OF VENDORS AND PURCHASERS. [CHAP. IX. forcing the legal claim to the land by Hunt nor his heirs, until about nine years from the contract, and eight after the death of Hunt. Hunt went into possession of the land conveyed to him by Robinson immediately, and died upon it about a year after. His heirs continued to live on it as their own until 1850, and then sold it, and, in their deed to the purchaser, described it as the same land deeded to Hunt by Robinson in 1832. Will not these facts, under the principles laid down, raise an equity that will override the legal title to the plaintiffs to the land sued for ? We have no hesitation in saying that it does." So in Ottenliouse v. Burleson ^ it was held, that where the purchase-money has been paid, and the purchaser has entered, and made valuable improvements, specific performance of a verbal contract will be decreed in favor of the vendee ; and also that such a case falls witliin the operation of a statute giving jurisdiction to the Court to decree specific perform- ance of the written contract of a decedent for the sale of land. In Minnesota, a verbal contract to convey land is absolutely void, and may be objected to by either party to a suit upon it, although the plaintiff may have fully performed his part. The plantiff, having fully performed under such contract, cannot, by a demand or by tender of a deed for execution, fix any liability upon defendant.^ 18. It has been seen (§ 12), that part-performance is held to take a parol contract out of the statute, on the ground o^ fraud ; in the absence of which, actual or constructive, equity will not interfere to enforce the contract, though in part executed. It is further held, that specific execution of a parol contract for land will not be decreed where its operation would be harsh on any person concerned. But, if specific execution is refused for any cause, the Court will decree compensation to a party who may have expended his money on the property of another on the faith of such contract.^ Thus the defendant agreed to assign a term of years in his house and certain goods for 200 guineas, paying one in hand as earnest, and, three days after, nineteen more ; and it was also agreed, that the bargain should be put in writing by a certain time. Bill for specific performance. Plea, the Statute of Frauds, and that the money was only paid for the lease, but con- fessing the receipt of the twenty guineas, and offering to repay them. The plea was overruled ; but it was held to be clear that 1 11 Tex. 87. 3 Anthony v. Leftwich, 3 Rand. 238, 2 MacKubin v. Clarkson, 5 Min. 247. 216. CHAr. IX.] PART-PERFORMANCE. IGl the defendant ought to repay the money. ^ So the defendant agreed to give the plaintiff a lease, rendering rent, the plaintiff' i)aying ^150 fine. The plaintiff paid £100, but the defendant refused to perform the agreement. Upon a bill filed for s})ccific performance, held, the agreement was within the statute, but the XlOO was decreed to be refunded.- So in New York, where, as has been seen, the general doctrine of part-performance has not been fully adopted, if possession has been taken, and lasting improvements made, under an imperfect agreement ; though the Conrt will not grant relief on the ground of part-performance, yet the bill will be retained for the purpose of a reasonable compensation for such improvements.^ Thus commissioners, under an act of the Legis- lature, were held to have no right to use the lands of the plaintiff, or to remove or destroy his property, without a valid and legal contract with him for that purpose, or until compensation had been made and tendered to him according to the act. And though a bill filed against the commissioners, to enforce a parol contract for compensation, could not be sustained, as being within the statute, yet the Court retained the bill, and awarded an issue of quantum damnificatus, to assess the damages, as the plaintiff had no remedy, or at best a doubtful and inadequate one, at law.^ So it is held in North Carolina, that although payment of the purchase-money, taking possession, and making improvements, will not entitle the vendee to specific performance, yet he has in equity a right to an account of the purchase-money advanced, and the value of his improvements, deducting therefrom the annual value during his possessiori.° But a later case decides, that although in case of part-performance, if the defendant admits the contract, as stated by the plaintiff, and the part-performance, but relies on the statute, the Court will order an account, and decree compensation ; if the contract is denied, the Court can grant no relief, because it can go into no proof of a contract variant from tiiat stated in the answer.*^ 1 Leak v. Morrice, 2 Ch. Cas. 135. ^ Phillips v. Thompson, 1 John. Ch. '^ Lord Fingal v. Koss, 2 Eq. Cas. Abr. 131, 149. 46, pi. 12. 5 Albea v. Griffin, 2 Dev. & Batt. Eq. 3 Parkhurst v. Van Cortlancit, 1 John. 9 ; Baker v. Carson, 1 ib. 3H1. Ch. 274. e Dunn v. Moore, 3 Ired. Eq. 364; Allen V. Chambers, 4 Ired. Eq. 130. 11 162 LAW OF VENDORS AND PURCHASERS. [CHAP. X. CHAPTER X. CONSTRUCTION OP CONTRACTS. 1. General rules. 17. Parol evidence ; in general, excluded ; 8. Certainty. exceptions. 12. Reservation of right to change the 19. As to subsequent agreement; waiver; contract. variation, &c. 13. Separate instruments; map or plan. 22. Of collateral circumstances. 1. Having considered the elements and requisites of a contract for the sale and purchase of lands, we now proceed briefly to speak of the construction of such contract. (a) In this connection, the agreement itself is assumed to be, as the Statute of Frauds re- quires, in writing, and the present inquiry therefore involves the important subject of the admissibility of parol evidence, in reference to such written agreement. 2. It is a general rule, that words shall be so construed as to have some meaning, rather than rejected. Thus where a vendor proposes a price, clear of all expenses, the agreement is construed to mean that the purchaser shall bear the expense of making out the title ; the law imposing on him the expense of the conveyance.^ 3. The meaning of words may be determined by the nature of the subject to which they relate. Thus, in case of a purchase of a rectory for " the use of the parishioners and inlidbitants^'' the Court suggested various senses of the term " inhabitant," with reference to the nature of the subject.^ So where a contract, relating to both realty and personalty, provided that all property remaining in specie at a certain time should be delivered to, &c., held, " specie " referred to the personalty oiily.'^ 1 Stratford v. Bosworth, 2 Ves. & Bea. 341. 2 Attorney-General v. Foster, 10 Ves. 335. 3 Metropolitan, &c. v. Godfrey, 23 111. 579. [a] A contract does not require any in months from the date of this particular form or terms. A certificate certificate, and the W. Company is hereby was issued to A., as follows : " This cer- pledged to give a good and valid deed of tifies that A. is entitled to one share of the same when all the lots shall have ten lots (numbered as per records and been drawn and the above conditions indorsements) in the city of Wyandotte, complied with." Held, such certificate situated, &c., subject to the conditions of was upon its face an agreement, contract, improvement within the city limits, to or pledge to convey at a future time, the value of dollars per share, with- Bemis v. Becker, 1 Kans. 226. CHAP. X.] CONSTEUCTION OF CONTRACTS. 163 4, A. contracted to sell and plant a quantity of trees on B.'s land ; and also, tliat he would keep in order the trees aforesaid for two years, and replace such as should die during that period, " except from injury by sheep, game, or cattle." 4 a. In an action to recover the price, held, the words " keep in order" meant, not to prune only, but to weed and clear the ground, (a) A written agreement for the sale or conveyance of a " bridge, toll-house, stables, and out-houses, with all the privi- leges and appurtenances appertaining and in anywise belonging to said bridge," will pass the land upon which it stands, and, it seems, that which is necessary to its beneficial use and enjoyment.^ 6. A stipulation was made, in articles before marriage, that the intended settlement, which related to estates in Ireland, should contain all the covenants, provisions, and conditions, usually con- tained in marriage settlements made in England. Held, to author- ize the insertion of a power of sale and exchange, under which lands in England might be taken in exchange for lands in Ireland. A reference was made to the Master, to inquire whether certain proposed powers of leasing were usual in that part of Ireland where the estates were situated, and whether any circumstances connected with the property rendered such powers expedient, and for the interest of all parties, with liberty to state special circum- stances.^ 6. Lessees of a coal-mine covenanted with the lessors, that they would, by a certain time, get all the demised coal in the township of B., " not deeper than or below the level of" the bottom of the A. mine, under a certain point at the surface. In an action u])on the covenant, a question arose, whether " level " was used in tlie ordinary sense of a horizontal plane, or in a peculiar sense, having reference to the drainage. Held, that evidence was admissible, to show the understanding of the term " level," used as in the above lease among coal-miners. It was referred to an arbitrator to receive such evidence and state a case for the opinion of the Court. He found that the mine was situate within an extensive coal- mining district in the county of Lancaster, and that, " according 1 Sparks v. Hess, 15 Cal. 186. 2 Bedford v. Abecorn, 1 Myl. & Cra. 312. (a) Also, that evidence of non-per- tion of damages. Allen v. Cameron, 1 formance bj' A. of any part of the con- Crompt. & Mees. 832. tract on his part was admissible, in reduc- 164 LAW OP VENDORS AND PURCHASERS. [CHAP. X. • to the custom and understanding of miners throughout that dis- trict," the terms "level," "deeper than," and "below," signified, &c. ; stating the construction of the terms, which was in favor of the defendant. It did not appear, as to some of tlie parties to the lease, that they resided within the district, and they were named, in the lease, as of other places. Held, the existence of the custom in this district did not raise a conclusion of law, that the parties used the terms accordingly, but was only evidence for a jury ; and that the court could not give judgment for the defendant ; althougli, it seems, they might liave done so, if the arbitrator had found the custom of miners without limitation.^ 7. The defendant agreed to sell the plaintiffs, a railroad cor- poration, " the land they might take on the northerly side of the M. turnpike, adjoining T.'s land, at twenty cents per square foot, for each and every foot so taken by said company." Bill for spe- cific performance. Held, not a sale of the land generally, or of such part of it as the plaintiffs might elect, or of such as they should accept the offer of; but of such part as the plaintiffs might take in the exercise of the authority conferred on them by law.^ 7 a. An agreement between one holding land under a levy of execution, and a purchaser on good consideration from him of part of the land, that such purchaser shall not claim any part of the redemption-money in case the land shall be redeemed, extends only to a redemption in good faith by actual tender and payment of the whole money .^ 7 b. Under a contract for the sale of real estate, which reserved " twenty feet of stone coal, running east and west through the same," the vendor cannot reserve " a strip of stone coal twenty feet wide, and running through or across said tract in an easterly or north-easterly direction, conforming to the course of the coal- vein." ^ 7 c. The plaintiff conveyed lands to the defendants, reserving the right to maintain certain dams upon the land conveyed. He after- wards agreed with them, giving tliem the right to extend and strengthen their own embankment by the use of his lands, and relinquishing to them all claim for damages arising from the 1 Clayton v. Gregson, 5 Ad. & Ell. 302. 3 Elliott v. Balcora, 11 Gray, 286, '^ Boston & Maine Railroad v. Babcock, * Ferron v. Sturgeon, 10 Iowa, 586. 3 Gush. 228. CHAP. X.] CONSTRUCTION OF CONTRACTS. 165 exercise of the privileges thus granted, or wliich he had jirevioiisly sustained at their hands. Held, this agreement did not give the defendants the right to take down any part of the plaintilFs dara.^ 7 d. A. agreed, in consideration of the benefits arising from the erection of a mill on the premises, to convey them to B. as soon as the bnilding should be commenced and a portion of the machinery on the ground. This being done, the conveyance was executed. The mill was put in operation, but presently stopped, in conse- quence of the failure of the machinery, part of wiiich B. removed, abandoning the enterprise. A. brought a bill to cancel the con- veyance. Held, the building the mill, not the continuously run- ning it, was the only condition precedent, and the Court refused to cancel the deed.^ 1 e. S. agreed to pay L., for land then conveyed to him, over and above the amount of a note for $2,500 then given, foOO in case S. should realize 83,500 therefor, or any other sum between $3,000 and 13,500, that S. might sell the land for. Held, S. took the title, in trust to sell for not less than $3,000, to pay L. $2,500, keep $500, pay L. all realized between $3,000 and $3,500, and keep all realized in excess of $3,500. Tiiat he was not at liberty to refuse an offer from a responsible person, coming within the con- ditions, — as an offer of $3,500, — in the hope of obtaining more, except at his own risk, and that, upon proof that such an offer had been made and not accepted, S. was bound to pay L. $3,000.^ 8. With regard to the construction of contracts for the sale of land, the same reasonable ce7'tainty(ci) is required to render them valid, as in the case of other written agreements. And where a party has failed to prove the terms of the agreement relied on, equity will not assist him, by directing an issue to ascertain the terms. A plauitiff is bound to state in his bill the agreement relied on, and to prove it as stated.'^ 9. An SLgreement to sell land, generally, means the whole inter- est of the vendor.^ 9 a. An agreement to convey ten lots in a town is not bad for uncertainty.^ 1 Valentine v. Central, &c., 5 Dutch, * Savage v. Carroll, 2 Ball & Beatt. 60. 444. 2 Hone V. Woodruff, 1 Min. 418. ^ Bower v. Cooper, 2 Hare, 408. 3 Loriliard v. Silver, 35 Barb. 132. 6 Bemis v. Becker, 1 Kans. 226. (a) Whether the purchase of a yood-will falls within this requisition, see Coslake v. Till, 1 Russ. 376. 166 LAW OP VENDORS AND PURCHASERS. [CHAP. X. 10. An agreement in writing, for the sale of a house, did not, by description, ascertain the particular house, but referred to the deeds, as in possession of a person named. Held, the agreement was sufficiently certain, if it could be ascertained by an inquiry before the Master, that these deeds referred to the house. ^ So, in a contract for a conveyance, a description of the land as '' lying on the south-west side of Black River, adjoining the lands of William Hafifiand and Martial," was held sufficiently certain to entitle the vendee to a specific performance.^ So where a contract of sale described the land as lying in a certain town, county, and State, and the 240 acres owned by the vendor ; held, sufficiently certain. ^ And the certainty of a contract may in part depend upon some sub- sequent act of the vendee. Thus in case of a bond, conditioned to convey a certain quantity of land in one, two, or three surveys, at the election of the obligee ; the selection must be made, and the land surveyed, before any obligation arises to convey. And there being a latent ambiguity in the description, which could be ex- plained only by an actual survey, the contract cannot be rescinded before such survey, showing whether the bond could be complied with .4 11. But where A. and B. agreed in writing, that A. had sold to B. "all that part of a tract of land called C, lying adjoining the turnpike-road near where D. now lives, at, &c. ; " held, this agreement contained no sufficient description of the land, the bounds and quantity being both uncertain, and could not be en- forced any further than as admitted by B.° So a contract for a lease of " coals, &c.," or " minerals," is too ambiguous to be carried out by the Court.^ So upon the ambiguous terms of a contract, as including or excluding the timber, tlie purchaser's bill for specific performance was dismissed ; and, having throughout insisted upon his construction, held, he could not compel the vendor to convey upon the terms he originally offered.^ 12. In case of an agreement to convey a number of lots at a gross sum, giving an option to the vendee to select others instead, to be laid out on streets not then platted, the vendor cannot com- pel acceptance of undesignated lots, except those chosen by the 1 Owen V. Thomas, 3 My. & Kee. 353. « Price i\ Griffith, 8 Eng. Law & Eq. - Kitclien v. Herring, 7 Ired. Eq. 190. 72. 3 Richards v. i:dick, 17 Barb. 2tiO. ^ Clowes v. Higginson, 1 Ves. & B. 4 Purcell V. M'Cleary, 10 Gratt. 246. 526. 5 Dorsey v. Waymau, 6 GUI, 59. CHAP. X.] CONSTRUCTION OF CONTRACTS. 167 vendee, nor prevent a selection by making the new lots vary in size from those designated. ^ 13. It has already been seen (cli. 2), that a contract may consist of separate writings, as well as a single instrnmcnt, provided they mutually refer to each other. Of course, a contract thus made is also to be construed like one entire agreement. Thus it was agreed, that, for a sum to be fixed thereafter, a lessee would assign his lease, and the furniture and good-will of the property, reserving a certain part. Subsequently, on receipt of this sum, a bill of sale was made of all the above interests, without reservation. Held, the two instruments were to be construed together, and the reservation still took effect.2(a) So a vendor. A., wrote thus to his own solicitor : " B has agreed to purchase my estate in this county for X 60,000, including the timber. I have shown this to B., and given him a copy, not signed, as a memorandum." A month afterwards, in the course of correspondence concerning the terms of a formal agreement, B. wrote to the solicitor, " I beg to know when you will forward the agreement to be entered into with A., relative to the purchase I have concluded with him for his es- tate in this county." Held, the letters, agreement, and memoran- dum constituted a contract, binding on both parties, and vested a devisable interest in B.^ 14. But where terms of sale are stated in connection with one mode of transfer, and the sale afterwards takes place in another mode, such terms will not bind the purchaser. A. and his agent attended an auction for the sale of a house, and had notice of cer- tain conditions tliere exhibited. A., afterwards, through his agent, and the agent of the vendor, purchased the house. Held, he was not bound by the particulars.* So, in order to connect different instruments as constituent parts of one contract, the parties must be the same. Thus A., by an instrument under his hand and seal, acknowledged the receipt of -flOO from B., which he promised to pay out in the purchase of land in Michigan or Illinois, and to 1 Robinson v. Cromelein, 15 Mich. ^ Morgan v. Holford, 17 Eng. Law & 316. Eq. 174. 2 Beman v. Green, 1 Duer, 382. ■* Cowley v. Watts, 17 Eng. Law & Eq. 147. (a) So equity will enforce a written not convey ; the plaintiff showing perform- agreement to convey, though accompanied ance of the terms on which sucli convey- by another written agreement .that the ance was to be made. Dooley r. Watson, party will forfeit a certain sum, if he does 1 Gray, 414. 168 LAW OF VENDORS AND PURCHASERS. [CHAP. X. procure deeds of the same, pay three and a half per cent interest, and act for the mutual interest of both parties ; and C, on the same day, and on the same piece of paper, by an instrument under his hand and seal, covenanted and guaranteed the fulfilment by A. of the said agreement. Held, a joint action against A. and C, for breach of the original agreement, could not be sustained. Held, also, that the original agreement and the guaranty were different contracts, and could not be united in the same action at common law, nor under § 120 of the (N.Y.) Code of Procedure.^ (a) 15. In some cases, a writing may undoubtedly be controlled or explained, as well by a map or plan^ with reference to which the contract is made, as by anotlier accompanying iustrument. But it is held,2 that the mere exhibition of the plan of a new street, at the time of the sale of a piece of ground, on which to build a house in the line of the intended street, does not of itself amount to a war- ranty or engagement that all which is exhibited on the plan shall be done, more especially where the purchaser has a distinct con- tract put into the solemn form of a charter containing no such stipulation. Thus, where the governors of Heriot's hospital, and the magistrates of Edinburgh, in selling certain lots of ground for building, in the line of an intended new street (York Place), exhibited a plan of the street, and some of the surrounding objects, which represented, or was supposed to represent, certain old build- ings (not belonging to the vendors) as taken down, so as to make the street of equal breadth through its whole extent, though the fen charters granted to the purchasers contained no obligation on the grantors to purchase and remove these old houses ; held, that the magistrates were not bound to remove them, or to purchase them for that purpose, when an opportunity offered of doing so at a reasonable price ; and that the purchasers were not entitled to retain the fen duty till this was done. 16. A deed dated in 1827, and made between G. Pitt, of the one part, and the other persons, parties to the deed, of the other part, 1 De Ridder v. Schermerhorn, 10 2 Feoffees of Heriot's Hospital v. Gib- Barb. 638. son, 2 Dow. 301. (a) The question as to tlie singleness ment, and promising to make a good title of a contract sometimes arises in reference on payment of the balance, unless the to the distinct terms of one agreement, vendee prefer to resell ; if so, to pay Thus an agreement was made to sell land $50,000, or forfeit one-half the balance of at $30,000, one-third to be paid soon, the the price. Held, all one contract and rest in five years, and interest. The ven- valid. Hodges, 24 Ark. 197. dors give a covenant, reciting the agree- CHAP. X.] CONSTRUCTION OF CONTRACTS. 1G9 recited that Pitt, being seised in lee of the lands delineated in llie plan thereto annexed (being Pittville), and iiaving it in contempla- tion to establish a spa at or near the nortli end of the lands, and to erect a pum)>rooni at or near the spot marked on the plan, and to lay out the rest of the lands for buildings, pleasure-grounds, roads, &c., had caused the ])lan to be drawn, whereby the mode in which the lands were intended to be laid out, and the purposes for which they were intended to be converted and used, were described, in order that the beauty and regularity of the whole of the design might be for ever thereafter preserved, subject only to such altera- tions as shoiild be made or approved of by Pitt, his heirs or assigns, and as should not destroy the general beauty of the same design, and that each of the other parties to the deed had purchased or agreed to purchase one or more of the pieces of land described in the plan, as set out for building. The deed theu contained cove- nants by Pitt, his heirs and assigns, to complete the pleasure- grounds, roads, &c., and that they should be enjoyed and used by the occupiers of the houses to be erected on the building-ground, and that Pitt, his heirs or assigns, would, on every agreement which should be entered into by him or them, for the sale of any part of the building-ground, require the purchaser to covenant with him, his heirs and assigns, not to erect any messuage, on any part of the ground, which might lessen in value any other of the mes- suages erected, or to be erected, at Pittville. In 1833, Pitt agreed to sell lots 2, 3, 4, and 5 of the building-ground to Stokes ; and Stokes agreed with him to erect three houses on those lots, and that each house should stand bacl^25 feet from the western bound- ary of the lots, and that Stokes, his heirs or assigns, would not do, or suffer to be done, on the lots, or in any Ijuildingto be erected thereon, any act, deed, &c., which might be deemed a nuisance, injury, or annoyance, or which might lessen in value any adjoining or neighboring lands or property, or any houses to be erected thereon. Stokes built two houses on lots 2 and 3 ; and, in 1833, Pitt conveyed those lots to him ; and Stokes, for himself, his heirs and assigns, entered into a covenant with Pitt, his heirs and assigns, with respect to those lots and the houses thereon, similar to the last-mentioned stipulation in the agreement. Stokes subse- quently gave up lots 4 and 5 to Pitt, and abandoned his agreement as to them, and then sold his house on lot 3 to the plaintiff. Pitt afterwards agreed to sell lots 4 and o to Creed. The agreement 170 LAW OF VENDORS AND PURCHASERS. [CHAP. X. stipulated that the houses to be erected on those lots should stand back ten feet, at the least, from the western boundary thereof ; and it contained a stipulation for protecting the adjacent property from injury, &c., similar to that in Stokes's agreement. Both Stokes and Creed executed the deed of 1827. Creed began to build a house on his lots, thirteen feet distant from the west boundary, which was twelve feet in advance of the plaintiff's house, and which the plaintiff alleged would be a nuisance or annoyance to him, and would lessen the value of his house, and, consequently, would be a violation of the covenant in the deed of 1827, and of the agreement of 1833. Held, that the plan annexed to the deed of 1827 was merely a general plan, and was not intended to be strictly adhered to, but its details might be varied by Pitt, and, with his sanction, by the purchasers from him ; and that the plaintiff was not eiititled to avail himself, as against either Creed or Pitt, of the covenants of 1827, or of the agreement of 1833, for the purpose of preventing the completion of Creed's house in the manner intended, or the performance by Pitt of the agreement with Creed.^ 17. No question more frequently arises, in the construction of the class of contracts under consideration, than that relating to the admissibility of parol evidence^ to explain, qualify, or control them. Upon this subject it is held, that evidence in writing, not admitted, — as, e.g. an agreement unstamped, — does not prevent parol evidence, if otherwise admissible.^ But the general rule ap- plies to this class of written contracts as to others, that they cannot be explained, varied, or controlled by parol evidence. Thus an indefinite written agreement cannot be made sufficient by parol evidence.^ So parol evidence cannot be admitted, that a purchase of an estate, in a party's own name, was in fact made on behalf of another person.* So, in case of a joint purchase of land, parol evidence is not admissible of a previous agreement for an unequal division.'^ So where by a written agreement the plaintiff agreed to sell, and the defendant to purchase, upon the terms stated, the Leigh estate ; and the defendant agreed to sell, and the plaintiff to purchase, the Haresjield estate ; and it was not expressed that the two contracts were to be dependent on each other ; and the de- 1 Sclireiber v. Creed, 10 Simons, 9. ^ Bartlett v. Pickersgill, 1 Cox, 15. 2 Heirn v. Mill, 13 Ves. 114. & Jarrett v. Johnson, 11 Gratt. 327. 3 Church, &c. v. Farrow, 7 Rich. Eq. 378. CHAP. X.] CONSTRUCTION OF CONTRACTS. 171 fendant was unable to make a good title to the Haresfield estate : lield, the plaintiff was entitled to specific performance of the con- tract as to the Leigh estate ; and evidence aliunde was not ad- mitted, to show the intention of the parties, that the agreement should take effect as an exchange} So parol evidence is not ad- missible, to prove an additional rent payable by a tenant, beyond that expressed in the written agreement for a lease.^ So where < there was a written agreement for a lease, which was executed ac- cordingly, it was held, that parol evidence was not admissible, that the lease, though in strict conformity with the written agreement, was contrary to its spirit, as there was something dehorn the con- tract agreed upon between the parties, yet omitted in the lease ; though, if there had not been a written agreement, the evidence might have been admissible.^ So evidence is not admissible (in support of a bill for specific performance) to prove from conversa- tions before and at the time of signing an agreement for a lease, that the intent of the parties was different from the memorandum, though the same was written by the lessee, and the words " clear of all taxes " (which was the purport of the conversation) were omitted in the memorandum.* So specific performance of an agreement in writing, for a lease for sixty years, was refused, upon parol evidence of an alteration stipulated for at the same time, and upon the faith of which the party executed. A distinction was taken between the case of a defendant refusing, and a plaintiff seeking, the execution of an agreement under such circumstances.^ So an agreement in writing, to convey such lots as the grantor shall select, cannot be changed by parol, so as to require the grantor to convey such lot as the grantee may select.*^ So the defendant signed a memorandum, as follows : " I have sold to [the plaintiff] four building lots ; first two lots ninety feet front, depth about one hundred and fourteen and ninety-six and a half; next two lots one hundred feet front, depth about ninety-two and seventy-six feet ; all the above lots the same as laid down on the plan ; first two mentioned lots at five cents a foot ; next two lots at four and a quarter cents a foot." The plaintiff brouglit an action against the' defendant, alleging in his declaration, that he had tendered to the defendant twenty-five per cent of the price, 1 Croome v. Lediard, 2 My. & Kee. 201. ■* Rich v. Jackson, 4 Bro. C. C. 514. 2 Preston v. Merceau, 2 Jilack.- 124'.). ^ Clarke v. Grant, 14 Ves. 524. 3 Da vies v. Tilton, 2 Dru. & War. 232. *> WiUlbahn v. liobidoux, 11 Mis. 659. 172 LAW OF VENDORS AND PURCHASERS. [CHAP. X. and demanded a deed ; that lie was ready to execute mortgages for the balance, and that the defendant had refused to execute a deed. At the trial, the plaintiff offered parol evidence, that, when the memorandum was execvited, it was agreed between him and the defendant, that one-quarter of the purchase-money should be paid in cash, on delivery of the deed, and the other three- .quarters secured by notes and mortgages, and that the notes should be payable in one, two, and three years, with interest yearly. Held, this evidence was inadmissible, both because it would vary the written agreement, the legal effect of which was to pay cash on demand, within a reasonable time ; and because it was offered in proof of a contract for the sale of land, contrary to the Statute of Frauds. 1 18. The general rule above stated, however, is not without its exceptions, more especially in Courts of Equity. Thus, although parol evidence in relation to a written contract is excluded for the purpose of enforcing^ it is sometimes admitted for the purpose of resisting, specific performance.'^ Thus parol evidence of declarations made by an auctioneer at the sale, warranting the quantity, was received in opposition to a specific performance, on the ground of fraud.^ And where a parol agreement, varying the written agree- ment, is set up by the defendants in a suit for specific performance, and supported by evidence affording a presumption or suspicion of its existence, aw inquiry will be directed.* So parol evidence is admissible, in opposition to specific performance of a written agreement, upon the heads of mistake or surprise, as well as of fraud ; and upon such evidence a bill will be dismissed ; while another bill for specific performance, corrected, according to the same evidence, but contradicted by the answer, was also dis- missed .^(a) But the plaintiff, in a bill for specific performance, cannot show by parol evidence, that by fraud the written agree- ment does not express the real terms, and thus obtain specific performance with a variation.^ 19. The principle, which excludes parol evidence as to written contracts for the sale and purchase of lands, is sometimes brought 1 Eyan v. Hall, 13 Met. 520. * Van v. Corpe, 3 My. & Kee. 277. 2 Hittginson v. Clowes, 15 Ves. 515. ^ Townshend v. Stangroom, 6 Ves. 3 Winch V. Winchester, 1 Ves. & 328. Beam. 375. '' WooUam v. Hearn, 7 Ves. 211. (a) See Mistake, Fraud. CHAP. X.] CONSTRUCTION OF CONTRACTS. 173 ill question with reference to svhsequoit agreements, attcmi)tcd to be set up by way of alteration, waiver, or discharge of such con- tracts. And the general rule is, that a written agreement within the Statute of Frauds may be varied by a subsequent, parol, distinct, and collateral agreement.^ Thus the plaintiff gave a l)ond to sell land to the defendant, who gave him notes for the consider- ation, and took possession ; but afterwards, in pursuance of a parol agreement, the land was surrendered to the plaintiff, who finally sold it, though the bond was not cancelled or surrendered. Held, no action would lie on tlie notes, the whole contract l)eing discharged.^ So where a party voluntarily, though by parol, abandons an agreement in writing, for the sale or exchange of lands, with the assent of the other party, because he is not in a situation to perform the same, it seems, he cannot afterwards de- mand a specific performance.^ So where, in articles for the sale of land, no place is mentioned for delivery of the deed, the ven- dor is bound to seek the vendee, and tender a deed. But the parties may afterwards, by parol, agree on the place ; or the vendee may appoint it ; and a tender at that place will be suffi- cient.^ So the time of performance of a written contract relating to the sale of lands may be enlarged by a subsequent parol agree- ment. . Mr, Justice Fletcher remarks, that, in the case of Cuff v. Penn,^ the Court held, that, where an action was brought for non- acceptance of bacon sold by a written agreement, in answer to the defence of non-delivery at the appointed time, the plaintiff might show a subsequent verbal contract, enlarging the time, and that he delivered or offered to deliver it within the substituted time, and the plaintiff had a verdict and judgment. " The present case strongly illustrates the propriety and necessity of the rule thus established. From the evidence in the case, it must be assumed that the plaintiff" would have paid the money within the time limited in the written contract, if the defendant had not orally agreed to substitute another time, and the plaintiff, in fact, tendered the money within the substituted time. The defendant, therefore, by his own act, by orally agreeing to receive the payment at another substituted time, prevented the plaintiff from making the payment within the time limited in the original contract. 1 Townshend v. Stangroom, 6 Ves. ^ Baldwin v. Salter, 8 I'aige, 473. 328. 4 Franchot v. Leach, 5 Cowen, 506. 2 Dearborn v. Cross, 9 Cowen, 48. 5 1 M. & S. 21. 174 LAW OF VENDORS AND PURCHASERS. [CHAP. X. Though the plaintiff was ready, and offered to make the payment within the substituted time, yet the defendant, notwithstanding his oral agreement, refused to receive the money, and now sets up the non-performance by the plaintiff within the time originally limited, which the defendant himself has by his own act occa- sioned, as a defence to the plaintiff's claim in this action. This defence cannot be maintained." ^ So, in a late case in Alaba- ma,^ the following remarks were made by the Court : " The evidence proved that this note, which was for $300, was origi- nally given for land bought by the defendant from the plaintiff; tliat the latter, discovering he did not own a portion of the land sold, agreed with the vendee, on receiving from him $225 on the note, that he should be discharged from the payment of the balance, unless he executed to him a valid deed for such portion within a short time thereafter ; that no such deed was executed for nearly two years, and tliat thereupon the defendant abandoned the land to which the agreement referred. If by the terms of the original contract it had been provided that the defendant should not pay a certain amount of the purchase-money, until the vendor executed to him a valid title for the land in question, it would then fall directly within the principle of Whitehurst v. Boyd,^ and Phillips v. Longstreth.^ The general rule is, that verbal evidence is not admissible for the purpose of contradicting or altering a written instrument ; but this rule does not exclude such evidence, when it is adduced to prove that such instrument is totally discharged. If the defendant had paid the whole of the purchase-money, and taken possession under the contract, a Court of Equity would have enforced it, by decreeing a conveyance ; if this could not have been done, on account of a want of title in the vendor, he would have been compelled to refund. This being the law, it would be singular if the parties could not, with the view of avoiding any future difficulty which might result from the failure of the vendor to obtain titles, extend the time of payment of the note, and provide that it should not be enforced if valid titles were not made within a certain time. We cannot doubt as to the validity of such an arrangement. So long as the vendee retained possession under the contract, it might operate on his 1 Stearns v. Hall, 9 Cush. 31, 34. 3 8 Ala. 375. 2 Hussey v. Roquemore, 27 Ala. 287. * 14 Ala. 337. CHAP. X.] CONSTRUCTION OF CONTRACTS. 175 part as a waiver, or extension of the time ; but lie was not bound to wait always, since, by doing so, he was rendering himself liable to the actual owner, and might therefore abandon the possession in a reasonable time ; and if he did so, the note could not be enforced against him. The fact, that the defendant retained the possession of the other lands, does not affect the principle, as the subsequent agreement had no relation to them. It was the same as if no other land had been purchased than the piece, the failure to make titles to which it was agreed should discharge the note. It seems to have been supposed that the agreement as to the discharge of the note was in the nature of a penalty ; and that, conceding its validity, the only benefit the defendant could obtain from it was, to scale the note to the amount of the actual value of the land to which titles were not made, and the fence which was upon it. But this position is not tenable. We doubt whether the doctrine can in any sense apply to an agreement of this character ; but, if it does, the plaintiff can derive no advantage from it, as the damages resulting from the failure to make a good title were uncertain. There was but a single act to be done ; and the disproportion between the value of the land to be conveyed and the amount due upon the note, if there was any, was so slight, that it could not authorize the Court to declare it a penalty." ^ 20. But it has been held that a purchaser, who in his written contract stipulates for a good title, cannot be required to complete the purchase upon a defective title, on the ground of a verbal waiver of such stipulation. Thus an agreement was made in writ- ing, to sell several lots of land, and to make a good title to them, and a deposit was paid. It was afterwards discovered, that a good title could not be made to one of the lots. The vendor delivered possession of all the lots, which the vendee accepted. In an action to recover the remainder of the purchase-money, the declaration stated, that the plaintiff agreed to deduce a good title to all the lots except one, and that the vendee discharged and exonerated him from making out a good title to tliat lot, and waived his right to require the same. Held, oral testimony was not admissible of such waiver.^ And though a parol waiver of a written contract, amounting to a comjDlete abandonment, and clearly proved, would 1 Watts i\ Sheppanl, 2 Ala. 425. 58; 2 Nev. & Mann. 28. See Inge v. '^ Goss V. Lord Nugent, 5 Barn & Adol. Lippingwell, 2 Dick. 4G9. 176 LAW OP VENDORS AND PURCHASERS. [CHAP. X. bar a specific performance, or even parol variations, so acted upon, that the original agreement could no longer be enforced without injury to one party ; sucli variations verbally agreed upon are not sufficient, the situation of the parties in all other respects remain- ing the same, more especially where the variations are all for the advantage of the defendant, by gratuitous covenants of the plain- tiff.^ And upon a bill praying performance of an agreement duly signed, but offering to the defendant the benefit of certain varia- tions, contained in a subsequent unsigned memorandum, the Court will decree specific performance with those variations, if the de- fendant elects to take advantage of them ; if not, of the original agreement. A treaty and negotiations for a variation will not amount to a waiver, unless the circumstances show, that the par- ties intended an absolute abandonment and dissolution of the con- tract.2 21. Written agreement, on the sale of land, that the purchaser shall search for coal, under the direction of the vendor, for a limited time ; and that if, within that time, coal be found in a suffi- cient body to work, the purchaser shall pay an augmented price for the land. Held, a parol agreement, varying the time within which the search may be continued (and consequently obliging the purchaser to pay the augmented price), is within the Statute of Frauds, and will not be enforced by a Court of Equity.^ So it has been held in Massachusetts, where no court exists with full equity powers, that the Court lias no power to decree specific per- formance of a contract, unless every part of it has been reduced to writing. Thus where the defendant contracted in writing to exe- cute and deliver a deed of land, upon payment of certain notes given for the purchase-money, and made a subsequent verbal promise to deliver the deed upon payment of the notes before they should fall due ; held, a bill in equity against him, for specific per- formance of the contract as modified by the verbal agreement, could not be sustained.* 22. Though parol evidence cannot be admitted, for the purpose of varying a written agreement, it may be, for the purpose of rais- ing an equity, founded on the agreement, by proof of collateral 1 Price V. Dyer, 17 Ves. 356. 2 Robinson v. Page, 3 Itnss. 119. 3 Hetli V. Wooklridge, 6 Rand. 605, 607. * Brooks V. Wheelock, 11 Pick. 439. See Gen. Stats. CHAP. X.] CONSTRUCTION OF CONTRACTS. 177 cireumstances}(ja) " In such cases, parol evidence is not used to vary, contradict, or control the written contract of the parties, but to apply it to the subject-matter. For this reason, any evidence which tends to indicate the nature of the subject-matter included in a written contract, wliich would otherwise be uncertain or am- biguous, and to determine its application relatively to other oljects, is admissible. Thus, to show the position of land and its condi- tion, the mode of its use and occupation, that it had acquired a local designation or name, and whether it was parcel of a particnlar estate." ^ Thus where a memorandum was given to a tenant, agreeing to renew a lease ; held, parol evidence was admissible, that the cellar of the adjoining tenement had been occupied there- with, and was necessary to the tenant's business, for the purpose of showing that it was included in the lease.^ So where an act of Congress provided, that a confirmee, whose title was disputed, should prove " inhabitation, cultivation, or possession ; " held, they might be proved by parol evidence.^ So a written contract, to convey an undivided moiety of land, is not contradicted, varied, or added to by parol evidence, that the parties agreed to, and actually made, a certain division.^ So m. case of an agreement in writing, to convey to G. W. Gerrish " the wharf and flats occupied by Towne & Hardin, and owned by Francis Head," parol evidence was offered, that two lots of land, only one of which bounded on the sea, with a street between them, were both, at the time of the agreement, owned by Head and occupied by Towne & Co., for the purpose of landing and storing wood and lumber, and known as Towne e proper time had gone by, and afterwards ejected her by a suit. She then brought the present action, atler having on the 9th of October, 1852, tendered a deed for execution and the purchase-money. Held, that time was not of the essence of the contract. D'Arras v. Keyser, 20 Penn. 249. Wood- ward, J., says (p. 254), "Mere default in the payment of money at a stipulated time admits, in general, of compensation, and hence time of payment is seldom treated as of tlie essence of real contracts. Parties may make it so by express agree- ment, but there is nothing on the face of this contract, or in the attending circum- stances, to indicate the intention of these parties to make time essential. The cove- nant for title was part and parcel of the lease, and the term fixed was one year, yet the lessees were permitted to hold over, and rent was received without objection. From this the law would imply a renewal of the lease from year to year, and put the CHAP. XI.] TIME OP PERFORMING CONTRACTS. 191 agreed that it should be so regarded, (a) or unless it follows from the nature and purposes of the contract,^ and that relief against the lapse of time is in the discretion of tlie Court, upon the circum- stances.2 Thus where an agreement for the sale of land was suf- fered to remain unexecuted for fourteen years, the vendee having continued in possession, the Court, under the circumstances of the case, decreed a specific performance of the contract.^ So where an exchange of lands is made, and no money is to be paid, and pos- session of the several tracts is taken pursuant to the contract, a delay of ten years is no bar to specific performance.* So time is not of the essence of the following bond to make title : " If the said obligee shall pay off the said bonds as they fall due, then, when the last of said payments shall be made, the said obligor shall exe- cute " the deed.^ So where a contract for the sale of land is proved, and an uniform possession of part under it, length of time is no bar to a specific performance.^ So where the assignee of a lease for ten years, with the privilege of then taking the property at a stipulated price, makes considerable improvements thereon, indicating an intention to purchase ; the lessor dies, and the heirs are, some, infants, others non-residents, and the administrator re- fuses to receive the purcliase-money ; and no suit is brought for twenty-one days after the expiration of the lease : it violates no principle of equity or justice, to say there is uo forfeiture of the right to purchase and hold the premises.''' So upon a bill in equity, to enforce specific execution of a contract to convey lands, if the complainant has made large and valuable improvements, with the knowledge and acquiescence of the defendant, the Court will decree specific execution, upon payment of the agreed price with interest, although payment has been delayed for an unreason- able time, as for two years ; the vendor having suffered no damage which interest will not compensate.^(5). So the execution, by the 1 Jones V. Robbins, 29 Maine, 351. ^ Somerville v. Trueman, 4 Har. & 2 Wells V. Wells, 3 Ired. 596. McH. 43. 3 Waters v. Travis, 9 John. 450. ^ Page v. Hughes, 2 B. Mon. 441. 4 Stretch v. Schenck, 23 Ind. 77. « Mason v. Wallace, 3 McL. 148. See 5 White V. Butcher, 6 Jones, Eq. 231. Porter v. Wallace, 1 McL. 77. landlord to his notice when he meant to delay which the plaintiff could avoid, and determine it. It is impossible to regard the defendant acquiesced in what there the year mentioned in the instrument as was, and partially caused it himself. any more of the essence of the contract of (a) That even this is not conclusive, see sale than it was of the lease." Richmond v. Robinson, 12 Midi. 193. Ace. Morgan v. Scott, 26 Penn. 53, (h) The owner of land made a written more especially where no precise time is agreement to sell it for $300, one-third to fixed in the contract, where there was no be paid down and the residue in one and 192 LAW OF VENDORS AND PURCHASERS. [CHAP. XI. vendor, of a mortgage on the premises, after the agreement to sell, is not a ground to avoid the contract, provided it be removed two years, with interest ; possession to be delivered immediately ; and, if tlie pur- chaser should make default in either of the payments, the vendor to be dis- charged, and the purchaser to forfeit all previous payments, and deliver up pos- session. The vendee took possession, made valuable improvements, and paid the first two instalments at the times spe- cified. He then assigned his contract to the complainant, who took possession, but did not make the last payment at the day specified ; nor was he called on for payment, nor did he ofl^er a conveyance upon payment ; but, a few days after- wards, he tendered the money, and de- manded a conveyance. Held, time was not of the essence of the contract, and the complainant was entitled to specific per- formance. Edgarton v. Peckham, 11 Paige, 352. In 1796, in Connecticut, E. agreed to sell C. certain lots of land in New York, for which he duly executed and acknowl- edged a deed of conveyance. C. paid part of the consideration, and gave notes for tlie residue ; but, not having security for them at hand, the deed was left in the hands of H. as an escrow, until security should be furnished. E. died in 1800, the notes not having been paid or secm-ed. C, being indebted to the complainant, made to him a deed of these lots ; inform- ing him then or afterwards, that he had no title, and that the deed had been left with H. as security. After this informa- tion, the complainant made indirect over- tures to get the deed from H., and finally succeeded. E. or his representatives caused the true state of the case to be made known to the complainant, and the amount justly due on the notes to be de- manded of him, which he refused to pay, relying on his title. The complainant took possession, and sold the lands with warranty. In 1820, the heirs of E. com- menced ejectments for the lands, which the complainant defended. On trial, H. proved the delivery of the deed, as he had before explained the fact to the com- plainant ; and, the Judge being of opinion that the deed was an escrow, verdicts were found for the lessors of the plaintitf, the defendants in this suit, upon which the complainant filed this bill. Held, this was in substance the ordinary contract for a sale of lands, when the title remains in the vendor as security, aud really, though not in form, a morUjwje ; that time was not of the essence of the contract, but compensation might be made, being the amoimt of interest ; that, though the con- duct of the complainant was immoral and reprehensible, and though the delay of both parties had been great, yet those circumstances did not deprive the com- plainant of rights previously acquired ; and that the complainant was entitled to relief, upon payment of the principal due on the notes witli interest, costs, and ex- penses both at law and in equity ; includ- ing not only legal costs, but all reasonable exjienses of every kind, which the litiga- tion had imposed on the defendants. Leg- gett V. Edwards, Hopk. 530. In an action of ejectment, it appeared that one G., under whom the defendant claimed, was let into possession twenty- two years before action brought, by virtue of a contract with P., for the purchase of an allotment accruing to P., under an in- closure act, which provided that a pur- chaser let into possession of an allotment should have the same rights as the ven- dor. G. paid interest on a portion of the purchase-money for some years, but never completed the purchase. Held, that even after a lapse of twenty years his possession was not adverse to P.'s title ; also, that it did not lie in the mouth of G., or any claiming under him, to raise an objection to P.'s title, that the Commissioners of Inclosure had made no formal award. Tindal, C.J., says : " It has not been con- tended that, under such circumstances, Payne himself might not have ejected Gegg within twenty years ; and I want to see how his possession could be deemed adverse, unless it could be shown he re- fused to quit after notice, or refused to pay interest." With respect to the allot- ment, he proceeds to remark : " The au- thority given to the commissioner was to put Gegg in possession ; according to the language of that authority, the allotment must have been made before. Now, under the twenty-third section of the act, a party who has agreed to purchase shall, if let into possession, have the same rights as the vendor ; and it is said that, as no award has been made by Avhich the prop- erty was given to Payne, he can now have no title to recover in ejectment. To which the first answer is this, that, if this argument be well founded, it was as strong at the end of a fortnight as at the end of twenty years ; and yet no one could con- tend that the vendor might not, at the time, have turned Gegg out of posses- sion. Again, if it be established that Gegg was let in under the authority of Payne, it does not he in Gegg's mouth CHAP. XI.] TIME OF PERFORMING CONTRACTS. 193 before lie is called on to make title, or, at least, before tbc bill for specific execution is filed.^ So specific performance of an agree- ment for the sale of an annuity, to commence from the date of the agreement, and to continue for three lives, to be named by the grantee, was decreed, where the lives had not been named, the delay having been occasioned by the grantor.^ So upon a bill in equity, to enforce specific execution of a contract to convey lands, if the complainant has made large and valuable improvements, with the knowledge and acquiescence of the defendant, the Court will decree specific execution, upon payment of the agreed price with interest, although payment has been delayed for an unreason- able time.^ So the execution, by the vendor, of a mortgage on the premises, after the agreement to sell, is not a ground to avoid the contract, provided it be removed before he is called on to make title, or, at least, before the bill for specific execution is filed.* So a vendor suffered the land to be sold for taxes. The purchaser delayed, and finally refused to complete the purchase, but solely on the ground of inability to pay ; and he now sued to recover back what he had already paid. Held, as during all this time the vendor had a right to redeem, and he was ready and willing to complete the contract, he was not in default.^ So the fact, that the vendor has suffered the purchaser to remain in possession, and received payments from him, from time to time, down to a short period previous to the filing of a bill by the purchaser for specific performance, is strong evidence that neither party intended to make the time an essential part of the contract ; and the vendor will not be allowed to insist upon a forfeiture, on that ground, 1 Tiernan v. Koland, 15 Penn. 429. 3 Mason v. "Wallace, 4 McL. 77. '^ Pritcliard v. Ovey, 1 Jac. & Walk. * Tiernan v. Roland, 1-5 Penn. 429. 396. 5 Marsh v. Wyckoff, 10 Bosw. 2j2. to say that Payne had no title. He trespasser till he has refused to quit after must stand or fall by the title of the demand made upon him." " Suppose, party under whom he obtained posses- that instead of a sale in fee, — and Ave sion ; and the twentj' -third section of the have no evidence what interest was sold act was inserted with a different view; liere, — the agreement was for a sliort de- not to raise questions between the vendor mise, the party claiming under such an and vendee, but that the vendee, as agreement would be a person interested against others, might stand clothed with under the act, and entitled to be let into the same right as upon an allotment made possession ; and yet is it to be contended to himself." Bosanquet, J., says : " An that he has all tlie rights of an owner in agreement was made tor the purchase of fee, wlien he is let in only for a term ? the property, and the vendee continued Here the interest of the party occu])ying to pay interest for several years after hav- was only a permissive interest, inferior to ing been let into possession by the .vendor, that of a lessee." Doe v. Edgar, 2 Bing. Being so let into possession, he is not a N. 498, 502-4. 13 194 LAW OF VENDORS AND PURCHASERS. [CHAP. XL And although he is imable to make a title to the whole of the land, he will be required to perform his contract, so far as it can be per- formed, notwithstanding the lapse of time, unless he has been pre- judiced by the delay. ^ And though the vendor does not produce his deeds, or tender a conveyance, within the time limited by the articles, the Court may still decree a sale.^ So, by the terms of an auction sale, the title-deeds were to be produced by a certain day, and were not then ready, but the purchaser received them after- wards, without objection. Held, he could not afterwards, on dis- liking the title, object to the delay .^ So where, by the terms of an auction, the sale is to be completed by a certain day ; yet, if neither party takes any step to quicken the other, till it becomes impossible to execute the agreement by the day ; the time is waived, and equity will interfere, to prevent the purchaser from taking advantage of it at law.'*(a) 1 Voorhees v. De Meyer, 2 Barb. 37. 2 Gibson v. Patterson, 1 Atk. 12. 3 Smith V. Burnham, 2 Anstr. 527. * Jones v. Price, 3 Anstr. 924. (a) By the terms of a sale, the purchaser was to pay part of the price on signing the agreement, and tlie rest on completion of the purchase " on the 11th of October, from which time the purchaser was to be entitled to the rents and profits ; " but if the purchase should not be completed by the 11th of October, he should pay inter- est until such completion. The vendor to deliver an abstract of title within fourteen days from the sale, and deduce a good title. The sale was on July 9th, and the abstract delivered on the 14th. It then appeared, that there were two mortgages on the estate, and the mortgagees had not received the usual six months' notice of redemption ; that some of them were dead, and letters of administration de bonis non were requisite in the case of one of them ; also that a deed of declaration of trust by parties beneficially interested in the mortgage was required. For these and other causes, a conveyance could not be made by the 11th of October, and the purchase was com2)leted in the follow- ing April. Held, the vendor did deduce an abstract, and show a good title. Savo- ry V. Underwood, 28 Eng. Law & Eq. 152. So a delay, amounting to apparent neg- ligence, may be explained ; and, under special circumstances, as where there is a dilBcidty about the title, presents no bar to relief Bill for specific performance. The defendant, in 1822, agrees with the plaintifl' to sell him certain real estate for §600, " to be paid in one year, upon re- ceiving a good title." The plaintiff en- ters, but is soon after ousted of part of the premises by one claiming under an ad- verse title ; upon which the defendant brings ejectment against the latter ; and the contract remains imexecuted until 1829, when the plaintiff tenders the money to the defendant, and demands a deed. Held, the plaintiff was not barred by mere lapse of time. King v. Morford, 1 Saxt. Ch. 274. So A. contracts for the pur- chase of an estate, and is let into posses- sion. The estate being greatly incum- bered, A. pays off some of the incum- brances. Great delay is used on the part of the vendor in clearing other incum- brances, and making good the title. Held, the purchaser shall not for that reason be discharged from his contract. Smith V. Dolman, 6 Bro. P. C. 291. A contract was made for the sale of land, payment of the price to be made to a third person, who held a mortgage from the vendor for the same amount. Before the whole of the money had been paid, the vendor declared the contract forfeited, payment not having been made within the specified time. The balance of the money was subsequently paid by the pur- chaser. Held, upon a bill in equity to enforce the contract, where it appeared that the contract was designed to provide for payment of the mortgage, that the contract had been substantially complied with by the purchaser, and that the ven- CHAP. XI.] TIME OF PERFORMING CONTRACTS. 195 4. Nor will the circumstance, that, at the time of filing a bill for specific performance, the vendor is unable to make a title to the whole of the land sold, relieve him from a performance of his con- tract, so far as it can be performed, any more than it would have done at the time the purchase-money became due; unless something has occurred since that time, by reason of the purchaser's delay, which has placed the vendor in a worse situation than he would have been in, had he been called upon to perform his contract at the time stipulated. 1 5. The same principle, that time is not of the essence of the contract, has also received other applications. Thus if, on a bill for specific performance by the vendor, a good title can be made before or when the cause comes on upon further directions, specific performance will be decreed. So if a title is procured before the re- port, or at the trial, or before or at the final decree ;2 more especially where no injury has arisen from the delay .^ So, where the parties have not made time of tlie essence of the contract, and the delay is not the fault of the vendor, but is occasioned by the state of the title, unknown at the sale ; the invariable inquiry of the Chancellor is, whether the vendor is able to convey at the hearing.'^ So a purchaser cannot insist on being discharged upon a report of de- fective title, if capable of being made good within a reasonable time ; as to which the vendor will be put under terms.^ Thus, in some cases, the vendee may claim costs, if not himself in fault.^ 1 Voorhees v. De Meyer, 2 Barb. 37. 3 Dutch, &c. v. Mott, 7 Paige, 78. But 2 Luckett V. Williamson, 37 Mis. 388; see Nodine v. Greenfield, 7 Paio'e, 545. Baton V. Rogers, 6 Madd. 256 ; Mortlock 4 Cotton v. Ward, 3 Monr. 313. V. Buller, 10 Ves. 292 ; Bennet, &c. v. 5 Coffin v. Cooper, 14 Ves. 205. Carey, 3 Brown Ch. 390 ; Hepburn v. ^ Dutch, &c. v. Mott, 7 Paige, 78. See Auld, 5 Cranch, 262. Cane v. Allen, 2 Dow, 289. dor should be decreed to convey the land it might be," payable, &c. Held, tlie to him. So, though it did not appear by time witliin which the land was to be the bill, that the purchaser had paid taxes, measured was not a material part of the as required by the contract. Ilichmond v. contract ; that tlie defendants were not Eobinson, 12 Mich. 193. estopped from claiming, that tlie quantity The defendants agreed to pay the plain- of land conveyed at $60 per acre was tiff §1,800 for her interest in the property 26t;Vo acres, instead of 24 acres merely and estate of C, her deceased father, and because they omitted to measure it " witli- she was to take, in part payment therefor, in ten days ; " that the li\ct that the land a piece of land, at $60 per acre, which the was described in the deed by metes and defendants conveyed to her, and which bounds, and as "containing' tweiitv-four they estimated to contain twenty-four acres be the same more or less," did not acres, and which was to be measured prevent the defendants from claiminij an " within ten days " from the date of the allowance for the excess ; and that the de- contract; and the defendants were to give fendants, in an action upon the contract, their promissory note to the plaintiff, for were entitled to be allowed for the excess. " tlie balance " of the $1,800, " whatever Clute v. Jones, 28 N.Y. (1 Titla.), 280. 196 LAW OF VENDORS AND PURCHASERS. [CHAP. XI. And the purchaser may claim interest upon the purchase-money paid, from the time of demanding a deed.^ So relief is granted against forfeiture of the deposit, upon putting the other party in the same position, as if the contract had been performed at the time agreed.^ So specific performance was decreed ; the abstract, though delivered very late, and under a notice that the vendee would insist on his deposit, with interest, if the title should not be made out and possession delivered by the time of payment, having been received and kept without objection ; and the vendee, upon the construction and the circumstances, not being entitled to insist on time as the essence of the contract. So where the vendor declines executing the contract, upon the ground that he is unable to give a good title, and the purchaser files his bill for specific per- formance, or to rescind ; if the defendant is able to give a good title at the time of the decree, the complainant will be compelled to accept it.^ But when the vendor, having executed the contract as far as he is concerned, sues for the purchase-money ; the defendant may show, that he refused to convey at the time fixed, and he will not be compelled to accept the deeds at the time of the hearing or decree.* And though, in general, the vendor may compel specific performance if able to make a title at the hearing ; yet, where he is bound by the contract to convey immediately, but asks for an injunction against any transfer of the defendant's property, by which he was to be paid, or for a receiver of such property ; he must show that he has a present ability to fulfil the contract ; not merely that he may possibly be able to perform at the hearing.^(a) i Pierce v. Nichols, 1 Paige, 244. * Akerly v. Vilas, 15 Wis. 401. 2 Moss V. Matthews, 3 Ves. 279. ^ Baldwin v. Salter, 8 Paige, 473. 3 Seton V. Slade, 7 Ves. 265; Cotton V. Ward, 3 Monr. 304, 313. (a) Upon a bill filed by a vendor for vendor a draft conveyance for his ap- specific performance, it appeared that he proval, which was returned, approved, in could make a good title before the com- July, 1816. Afterwards, the purchaser, mencement of suit, but did not show a on the suggestion of counsel, made sev- good title to the purcliaser until after- eral objections to the title, and delayed wards. Specific performance deci-eed, but completing the purchase. In November, the purchaser to recover costs. Towns- 1817, the vendor filed his bill for specific hend v. Champernowne, 3 Y. & Coll. 505. performance, and the Master found, that Agreement between vendor and pur- the vendor could make a good title before chaser, that the purchaser should be en- the bill was filed, but did not show a good titled to the rents on the 1st May, 1813, title to the purchaser till the 20th Janu- or from such time as the pui'chase should ary, 1825. Held, upon a decree for spe- be completed. An abstract of title was cific performance, that the proper date of afterwards furnished to the purchaser, the conveyance was the 20th January, and tlie title appeared to be satisfactory 1825. Ibid, to him ; and in May, 1816, he sent the After bill, answer, and replication, no CHAP. XI.] TIME OF PERFORMING CONTRACTS. 197 6. Though equity will decree specific performance of a contract for the sale of land, if the vendor is able to make a good title at any time before decree ; the dismission of the bill is a bar to a new bill for the same object.^ 7. The inability of the vendor to make a good title, at the time of decree, though a sufficient ground for refusing a specific per- formance, will not authorize a Court of Equity to rescind the agreement, where the parties have an adequate remedy at law for its breach.^ 8. Where the report is in favor of the title, the Court, on allow- ing exceptions to it, will give the vendor a reasonable time to remove the objection, although the exceptions and further direc- tions were set down to come on together.^ 9. All objections to a title were to be taken within twenty-one days from delivery of the abstract, or to be deemed waived, and time was, in that respect, to be considered the essence of the con- tract. Held, that the twenty-one days did not begin to run, until a perfect abstract had been delivered.^ 10. Although time was originally an essential part of the con- tract, it may become unessential by the subsequent conduct of the parties. (a) The delay of one party in fulfilling a contract affords 1 Hepburn v. Dunlap, 1 Wheat. 179. » Portman v. Mill, 1 Russ. & Myl. 696. 2 Ibid. 4 Hobsony. Bell, 2 Beav. 17. further steps were taken in the cause, for true that time is not essential, but imma- upwards of twenty years. Held, not of terial, when comparing its eflect in that itself a reason for refusing specific per- court with that at law. formance, there being acquiescence on Default in respect to time is not a bar both sides. But held to be a good reason of itself, except in peculiar cases ; but is for not giving costs. Cane v. Allen, 2 only evidence with other things of aban- Dow, 289. donment, and, of course, may be rebutted, (a) More especially where both parties Time may in all cases be made essential, have acquiesced in extending it. Schroep- but where it is, it does not follow tliat it pel V. Hopper, 40 Barb. 425. See Williston is necessarily conclusive in equity, as it is V. Williston, 41 ib. 635 ; Shafer v. Niver at law. In equity, time may be waived 9 Mich. 253 ; Heckard v. Sayre, 34 111. by a party, as may any other stipulation 142 ; Stow V. Russell, 36 III. 19 ; Wolf v. introduced for his benefit. A failure to Willitts, 85 111. 89. It is said, time may avail himself of it, on the first fit occasion, be of the essence of the contract in equity, and before or when the other party begins. Exact punctuality may be of great impor- after a default, to act again on the agree- tance to the interests of a contracting ment, may amount to such waiver. Falls party in many situations. In some, it is v. Carpenter, 1 Dev. & Batt. Eq. 277. obvious from the state of the property and Bill for specific performance of a con- other circumstances. In otliers, we do tract between the plaintitts and defendants, not doubt that the instiniment may be so a corporation, for the sale of lands by framed as to show that it is a substantial the former to the latter, at a price to be part of the contract. In those cases, the fixed by tliird persons. The title to be Court can no more dispense with it than perfect, and the defendants to pay within any other vital provision. But the parties ten days after notice of tiie award. Within themselves may ; and it is in that sense the ten days the vendors tendered a deed. 198 LAW OF VENDORS AND PURCHASERS. [CHAP. XI. no ground for equity to relieve the other from the consequences of the delay, Avhere the latter has assented to and acquiesced in such and no objection was made to tlie title. Soon afterwards, another tender was made to tiie president of the company. He made no objection to tlie time or to any incumbrance on tlie property, but subse- quently returned the deed, the company retaining the property and doing nothing to abandon the sale. At the time of tender, there was a small mortgage upon the property of which the land sold was a part ; but it was paid within eighteen days after the award and before commencement of suit. Held, the defendants waived the right to have a perfect title within the ten days ; that the parties had not made time of the essence of the contract, nor was the making of a perfect title within ten days a condition precedent to pajment of the price ; and that the plaintitts were entitled to a decree, if tliey could make a good title at the time of such decree. Viele i'. The Troy, &c. 21 Barb. 381. The Court say (p. 3yO) : " It was as much the duty of the defendants to pay at the time stip- ulated, as of the plaintiffs to convey. Neither party could sue at law, without the tender of a deed by the one party, or of the purchase-money by the otiier. The provision for a conveyance of the prem- ises free from incumbrances was not an express condition precedent, to be per- formed within the period often days after notice of the award, else the contract should be at an end, and the defendants relieved from payment. It was not the understanding of the parties that after the amount of the purchase-money had been ascertained, and notice thereof given, within ten days thereafter the plaintiffs should convey a perfect title, on making default, the agreement to be void. The defendants had taken possession of the premises prior to the award, and at the ex- piration of the ten days were using and still continue to use them. There is noth- ing, therefore, in the contract, or the cir- cumstances surrounding the case, showing that the parties had made time any part of the essence of the contract. The de- fendants could lose notliing by extending the time for the plaintiffs to convey a per- fect title bej'ond the period often days, as they were in possession and use of the premises, and could not be called on to pay the award unless such perfect title were made. Within the ten days the de- fendants might have tendered the pur- chase-money and demanded a deed, and, in default of the plaintiffs, have sued at law. So, also, the plaintiffs having ten- dered a deed conveying a perfect title, in default of payment might have maintained their action at law. As neither party has put the other in default, and the time is elapsed, it is probable that the remedy of both, at law, for a breach of the contract, is gone. Either party may, however, go into equity for a specific performance, and make the offer incumbent on him in the complaint ; and the fiailure to make the tender before the commencement of the suit would only affect the question of costs ( 12 Ves. 25). In general, and where lapse of time is not essential to the substance of the contract, it is not necessary for the plaintiff to show that he was able to give a good title at the time of making the agreement to sell, or even at the com- mencement of the suit. It will be suffi- cient if he can give a perfect title at the time of the decree, or at the time when the Master makes his report (5 Paige, 241). In Seymour v. Delancey, 3 Cow. 445, Suydam, Senator, said : ' In the case of a specific performance it is the usual course of the Court to refer the inquiry as to title to a Master. The JNIaster is to inquire whether the party can make a deed according to his contract. If he can, it is sufficient, although he was not in a situation to do so when he entered into the contract, or at the time for perform- ance ; though it might be otherwise where one party had been quickened by the other, or where time is of the essence of the contract.' " Where a vendor agrees to convey on a certain day, and the vendee in possession to give his notes for the price on a certain subsequent day, and the vendor does not give the deed as agreed, but waits till tlie term that the notes had to run expires, and then tenders it ; such purchaser will be presumed to have acquiesced in the delay ; or, at any rate, if when the deed is tendered he makes no objection to the delay, stating only that he is not prepared to pay the money for which he had agreed to give the notes, and handing back the deed offered, he will be considered, on ejectment brought by the vendor to recover his land, to have waived objections to the vendor's non- compliance witli exact time. Gregg v. Von Phul, 1 Wallace, 274. In case of a sale on seven years' cred- it, with interest annually, if the vendor waives the payment of interest as it ac- crues, until the expiration of the term of credit, and the land has largely appreci- ated in value, by means of improvements made by the vendee, with the vendor's knowledge ; the vendor, on the expiration CHAP. XI.] TIME OP PERFORMING CONTRACTS. 199 delay.i Thus time is waived by the vendor's bill for specific ])er- formaiice.^ So the neglect of the obligee, in a bond for conveyance, to pay an instalment at the time agreed, does not cause a forfeit- ure, if the obligor has not regarded time as of the essence of the contract ; and a subsequent receipt of payment is a waiver of and forfeiture for this cause.^ So a defendant may plead, that, by a subsequent agreement, not under seal, made before breach, the time for deducing title had been enlarged, and that he was ready to deduce it within the enlarged time ; or that, in consideration the defendant would deduce a good title and convey (after breach), the plaintiff agreed to accept such title and conveyance at a later day.'* So it has been sometimes held, that the time of performance of the condition of a bond may be enlarged by a parol agreement. Thus, where certain acts were done by the obligor, amounting to a substantial, though not literal, performance ; held, that evidence was admissible of a parol agreement of the obligee, to waive any further performance.^ So specific performance of an agreement to purchase may be decreed, after considerable delay ; if the vendee has not demanded his deposit, or shown a determination not to proceed.^(a) And if the purchaser demands his deposit at the day, 1 Sloo V. Law, 1 Blatch. 512. 5 Fleming v. Gilbert, 3 Johns. 358 ; 2 Dennis v. M'Cagg, 32 111. 429. Keating v. Price, 1 Johns. Cas. 22 ; 3 Linscott V. Buck, 33 Maine, 530; Erwin v. Saunders, 1 Cow. 250. See Hudson V. Bartrani, 3 Madd. 440. p. 172. * Kippingall v. Lloyd, 2 Nev. & M. 410. " Pincker v. Curteis, 4 Bro. 329. of the term of credit and non-payment of necessary. Friess v. Rider, 24 N.Y. (10 the purchase-money, is not entitled to Smith), 367. rescind the contract as against judgment [a] The plaintiff, on the 26th of April, creditors of the vendee. Brock v. Hidy, agreed to purchase a manor from the de- 13 Ohio (N.S.), 306. fendant, to complete the purchase accord- A vendee was ready on the stipulated ing to certain conditions, and, upon the day, but, at the request of the vendor, purchase taking place, to sign an agree- postponed performance until the next day, ment for payment of the purchase-money when he was again ready, and waited two on or before the 24tli of July. It was also hours for the vendor, who did not appear, agreed, that, on completion of the pur- Later in the day, the vendor called upon chase, the purchaser should be entitled to the vendee and oflered to perform ; the the rents and i)rotits of such ])arts of the vendee refused, assigning as a reason estate as were let, from the 24th of June, the commission of waste, which, however, The day of completing the purchase was, the evidence did not show. The vendor for the convenience of the purchaser, sued him for stipulated damages. Held, altered from the 24tii of June to the 24tli the vendee was guilty of no default, and, of July. A tenant of a copyiioUl parcel after the vendor's second default, was not of the manor having died seised tlicreof obliged to assign any reason tor his re- in 1836, the admittance of the i)arties en- fusal, and the fact that he assigned an titled to be admitted was i)()stp<)ncd from erroneous one could not prejudice him ; time to time, at their request, and did not neither, at the second stipulated time, in take place till the 1st of July, and in tlie absence of the vendor, was any formal December the fine was paid to the defend- offer or display of the purchase-money ant. The conveyance of the manor was 200 LAW OF VENDORS AND PURCHASERS. [CHAP. XI. and the vendor has not delivered his abstract, and also neglects to deliver it, until after an action brought for the deposit ; this is evidence of an abandonment of the contract by the vendor ; who shall not be entitled afterwards to a specific performance. ^ 10 a. Where a person had contracted for the purchase of an estate from trustees, under a deed of release and assignment for the benefit of the creditors of a trader, upon a stipulation that a good title should be made by a given day, and that day fell within the period during which a fiat in bankruptcy might have issued against the trader ; held, he was in the situation of a purchaser who had waived a stipulation, that time should be of the essence of the contract.^ So an agreement was made for sale of real prop- erty ; if the residue of the purchase-money were not paid by a cer- tain day, the agreement to be void, and the vendors might resell. The money was not paid on the day, but the purchaser retained possession, giving a warrant of attorney to confess judgment in ejectment. Held, the stipulation as to time was waived.^ So a vendor and vendee proceeded in the treaty beyond the time for completing the contract. The vendor having brought an action, and withdrawn his record, not having got in a judgment amounting to half the purchase-money ; the Court refused an injunction.* So A. articles to buy land, and pays part of the purchase-money ; afterwards, he enters into several orders of Court, to pay the resi- due by such a day, and, in default thereof, to give up the articles, and lose what he had before paid. The Court will relieve, though these orders have not been complied with.^ So, in assumpsit, the declaration alleged, that the plaintiff was possessed of a house, &c., for the residue of a term of six years, and agreed to assign the lease to the defendant at a certain price, and give possession on a 1 Lloyd V. CoUett, 4 Bro. 469. ^ Ex parte Gardner, 4 You. & Coll. 503. 2 Hipwell ;;. Knight, 1 You. & Coll. * Wood v. Bernal, 19 Ves. 220. 419. 5 Vernon v. Stephens, 2 P. Wms. 66. executed in August, and the purchase- any written memorial of the sale, or corn- money paid in the following September, plaining that he had none until sued on Held, an action for money had and re- his bond for the unpaid consideration, and ceive'd could not be maintained to recover a tender of a conveyance having been the fine. Lord Hardwicke v. Lord Sandys, made to him pending the suit ; lield, he 12 Mees. & Wels. 761. could not be relieved by the Statute of The vendee at an executor's sale, hav- Frauds, especially as his answer did not ing paid several thousand dollars during propose a rescission of the contract, — four years, and being unable to pay punc- even if there had been no written memo- tually, obtained indulgence, and then re- rial of the contract. Hill v. Spalding, 1 newed his obligation, and having occupied Duv. 216. the land seven years, without asking for CHAP. XI.] TIME OF PERFORMING CONTRACTS. 201 certain clay ; and averred, that slic was, from the time of making the agreement, ready and willing to assign her interest in the house, etc. The defendant, in his pleas, traversed this readiness and willingness. The greater part of the house was destroyed by fire shortly after the agreement, and before the time for its com- pletion. The agreement pi-ovided, that either party making default should pay the other X500 as liquidated damages. After the mak- ing of the agreement, but before the day for its completion, the parties agreed, by an indorsement, to enlarge the time for a few days. Held, this amounted to a fresh agreement.^ So under a contract for the sale of houses, which, from defects in the title, could not be completed on the day, the treaty proceeded, upon a proposal to waive the objections on certain terms. The houses being burnt before a conveyance, held, the purchaser was bound, if he accepted the title ; although the vendor suffered the insurance to expire, at the day on which the contract was originally to have been completed, without notice. A reference to the Master was therefore directed, to inquire, whether the proposal was accepted or acquiesced in on behalf of the purchaser .^ So where a vendee of land, incumbered by mortgage and judgment, promised in writ- ing to pay one of the vendor's creditors, by a certain day ; held, a subsequent parol agreement, pointing out the mode in which the title should be secured to the vendee, and. in etfect carrying the contract into execution, but postponing the day of the creditor's payment, was no variance of the original agreement.^ So condi- tions of sale stipulated, that the sale should be completed on a certain day ; that objections to the title, not made within twenty- one days from delivery of the abstract, should be considered as waived ; and that, if the purchaser should not comply with tlie con- ditions, his deposit should be forfeited, and the vendor be at liberty to resell. Tlie purchaser did not deliver his objections until several weeks after the twenty-one days, and after the day appointed for com- pleting the purchase. The vendor's solicitor, however, received them, and entered into a long correspondence with the purchaser on the subject of them, but without coming to a satisfactory conclusion. Finally, the vendor, against the purchaser's objection, resold the property (but at a less price) to one who, some months before the 1 Bacon v. Simpson, 3 Mees. & Wels. ^ Reed v. Chambers, G Gill & Johns. 78. 490. 2 Paine v. Meller, 6 Ves. 349. 202 LAW OF VENDORS AND PURCHASERS. [CHAP. XI. suit, had notice of the first sale. Ahout six months afterwards, he filed his bill against the two purchasers and the auctioneer. The Court held, that the conditions had been waived by the solicitor, and decreed specific performance, with a reference to the Master as to title ; but dismissed the bill, with costs, as against the auc- tioneer, who denied that he had ever intended to part with the deposit ; and without costs, as against the second purchaser, who claimed the benefit of his contract, if the Court should refuse to enforce the plaintiff's. ^ 11. But, on the other hand, it is said, although courts of equity have sometimes interfered in favor of parties who were not ready to perform their agreement at the day, where the time appeared not essential, yet, when a further indulgence is granted, it should only be in extreme cases, where a party has failed through some unforeseen accident ; or where there is something indicating a waiver of the objection by the other party. It is for the parties themselves to settle the terms of their agreement ; and courts have no power to determine which of those terms are, and which are not, material. A new agreement, extending the time for the per- formance of a contract, is evidence that the parties to such con- tract deemed the time material.^ So it has been held, that parol evidence is not admissible, to enlarge the time within which the terms of a written agreement for the sale of land were to be com- plied with ;^ and that the day provided for completion of the pur- chase, in a written contract, cannot be waived by oral agreement, and another day substituted in its place.^ 12. On a bill for specific performance, the questions, whether time was originally of the essence of the contract, and whether, being so, the defendant has, by any act, waived it as a ground of objection to the performance, are questions depending on evidence, and not to be decided except upon the hearing.^ 13. Wbere an agreement in writing is to be performed on a cer- tain day, and the parties agree to enlarge the time, a declaration on the day stated in the agreement, though the evidence is of a different day, will support the action.^ 14. In many cases, notice from one party to the other, or the want of it, determines the effect of lapse of time upon the contract. 1 Cutts V. Thodey, 13 Sim. 206. 4 Stowell y. Robinson, 3 Bing.N.C. 928. 2 Wiswall V. McGowa, 2 Barb. 270. 5 Levy v. Lindo, 3 Mer. 81. 3 Doar V. Gibbes, 1 Bailey, Eq. 371. 6 Thresh v. Rake, 1 Esp. N.P.C. 53. CHAP. XI.] TIME OF PERFORMING CONTRACTS. 203 Thus, where a vendor, havhig notice from the purchaser that he abandoned his contract, did not file his bill for specific performance till about a year afterwards ; the bill was dismissed.^ So where time is not of the essence of the contract, and there is unnecessary delay by one of the parties in completing, the other has a right, by notice, to limit the time, and, upon default, to abandon tlic con- tract.2(a) But the time may be waived, by proceeding in the pur- chase after the expiration of the time fixed by the notice.^ 1 Watson V. Reid, 1 Rus. & Mvl. 236. 2 Taylor v. Brown, '2 Beav. 180. (a) It has been held, that a party who covenants to convey is not in default, \\n- til the other party has demanded a con- veyance, and, after waiting a reasonable time to have it drawn and executed, un- less such demand was absolutely refused, has again demanded it. Lutweller v. Lumell, 12 Barb. 512. That tliis is a rule, not of pleadin;/, but of evidence. Pear- soil V. Frazer, 14 Barb. 514. (But see Demand ; Tender. A bill by a lessee, for specific perform- ance of an agreement for a lease, was dis- missed, because it was not filed, until more than two years after the defendant had given notice to the plaintiff of his in- tention not to perform the contract, on account of the latter not having fulfilled it on his part. Heaphy v. Hill, 2 Sim. & Stu. 29. Bill for specific performance. The plaintiff agreed to take a house of the de- fendant for two years. Afterwards, on the 4th of September, 1817, he agreed to buy it for .£25 paid down, and £425 to be paid on the 25th of December, at or be- fore which time the conveyance was to be executed. An abstract was delivered on the 20t]i of October, and afterwards a draft of the conveyance, with the abstract, sent to tlie plaintiff, with a note of the defendant's solicitor, stating that tiie deeds were with him, and desiring to hear from the plaintiff if any objections oc- curred ; and many ineffectual applications were made to see the plaintiff. A notice was served on the plaintiff on the 22d of December, that the defendant would, on the 23d, 24tli, and 26th attend at the plaintiff's house, to execute the convey- ance, and, on default, he should consider the i)laintiff as refusing to proceed in the purchase, and act accordingly. On tiie 2d of April 1818, the plaintiff returned the abstract, with objections to the title. On the loth, the defendant distrained on the plaintiff for rent. The plaintiff then filed this bill. Held, the defendant should have 3 King i;."Wilson, 6 Beav. 124. given notice that he considered the agree- ment as at an end, and returned the £25; and, he not having done so, the Court directed the usual reference as to the title. Reynolds v. Nelson, (J INhuld. 18. Where a vendor covenants to deduce a good title at A., B., or C, on or before a certain day, a plea that lie was read}' to deduce a good title at that time, without averring notice to the covenantee, at which place he would be ready, is insuf- ficient. So a plea, that, by a subsequent agreement not under seal, made before breach, the time had been enlarged, and that the defendant was ready witiiin the enlarged time. So a plea, that, in consid- eration the defendant would deduce a good title and convey (after breach), tlie plain- tiff agreed to accept such title and convey- ance at a later day. Rippingall i\ Lloyd, 2 Nev. & Mann. 410. The defendant agreed to sell his inter- est in a public house to the plaintiff', &c., at an appraisement ; payment on taking possession, which was to be on or before a certain day. The plaintiff' paid a de- posit, to be forfeited if ho should not complete his jiart of the agreement. The parties appointed A. and B. to be apprais- ers, respectively, as agreed. On the day appointed for executing the contract, A. and B. met, but A., the seller's ajijjraiser, was informed that B. could not conven- iently on that day comjilete the valuation, but would do it tiie next day ; and no objection was then made to the delay. B. went to the seller's premises the fol- lowing day, to make tiie valuation, but the seller refused to allow him so to do, and said he would not complete the contract. In an action for the deposit, held, it was no defence that the contract wiis not com- pleted on the day mentioned, the defend- ant not having given notice that he should insist upon tiiis term of tiie contract. Carpenter v. Blandford, 8 Barn. & Cress. 575. Agreement to sell a piece of land for a 204 LAW OF VENDORS AND PURCHASERS. [CHAP. XI. 15. The question of time has also frequently been raised, in con- nection with the delivery of an abstract of title. Thus it has been held, that merely undertaking to deliver an abstract and posses- sion at a particular time does not make it of the essence of a con- tract. ^ 16. Where objections to title are to be considered as waived, unless made within a certain time after delivery of the abstract, it has been doubted whetlier that condition can be insisted on, if the abstract is very defective. ^ 17. The defendant, a purchaser of a public house, insisted that time was of the essence of the contract, and that the abstract had not been delivered within the time agreed on. A reference, with- out prejudice, was made, on motion, as to the title, and at what time it was first shown. ^ 18. An agreement for the purchase of an estate stipulated, that an abstract of title should be delivered immediately, and, if the contract was not completed by a given day, the purchaser be re- leased. The abstract was not immediately delivered, but commu- nications on the subject of the title were continued between the parties, until the time limited by the contract had expired. Held, the stipulation as to time was waived by the purchaser.* So a purchaser cannot abandon a contract, on the ground of the vendor's not having pefected the title within a reasonable time, where the former, who was in possession, had been aware, from an early period of the treaty, that there was some objection to the abstract, but has nevertheless continued to negotiate down to a recent period, and then on a sudden (a fortniglit after the last act of negotia- tion) notifies the vendor that he abandons the contract. In such case, an injunction will be granted, to stay an action at law for the purchase-money, on motion, almost as of course ; and, if the case 1 Boehm v. Wood, 1 Jac. & Walk. 419. ^ Foxlowe v. Amcoats, 3 Beav. 496. 2 Cutts V. Thodey, 13 Sim. 206. * Hipwell v. Knight, 1 You. & Coll. 419. certain price, payable in instalments, the ance. Held, as time did not appear to be deed to be given on payment of the first of the essence of the contract, and as both instalment. Five months after the first parties regarded the agreement in force day of i)ayment, tlie vendee offered the five months after the time fixed, the lapse money due, and asked to show the deed of another month, as there was no change to his counsel, which the vendor refused, in the value of the property, did not ex- and, in a month afterwards, tlie vendee tinguish the vendee's right. If the vendor tendered the money due, with interest, had considered the agreement at an end, and then brouglit an action of ejectment, he sliould have notified the vendee of the in the nature of a bill for specific perform- fact. Kemington v. Irwiii, 14 Penn. 143. CHAP. XI.] TIME OF PERFORMING CONTRACTS. 205 were made out, it would be sufficieut ou the hearing.^ So the abstract, though delivered very late, aud under a notice that the • vendee would insist on his deposit, with interest, if the title should not be made out and possession delivered, by the time of payment, was received and kept without objection. The vendee, upon the construction and circumstances, not being entitled to insist on the time, as of the essence of the contract ; specific performance was decreed.^ So, on July 22d, an estate was put up at auction. By the conditions of sale, an abstract of title was to be furnished within seven days, upon demand ; all objections considered as waived, unless made within eight days thereafter ; and the pur- chase completed August 8th. July 24th, the solicitor of the purchaser called for the abstract. The land being mortgaged, and the mortgagee abroad, the abstract was delayed till August 3d. The purchaser thereupon claims to rescind the sale, and brings an action for the deposit ; and the vendor files a bill for specific per- formance, to which the defendant demurs. Held, the time of delivery of the abstract was not of the essence of the contract, and the demurrer was overruled.^ 19. Questions have sometimes arisen, as to the effect, upon the contract, of a deterioration in the value of the property, arising from lapse of time. Upon this subject it is held, that deteriora- tion of the estate, arising from delay in completing the purchase, is not a ground for rescinding the contract, but may be the sub- ject of an allowance to the purchaser.* Thus tlie amount of deterioration, pending a suit for specific performance, having been ascertained by an issue, the purchaser was allowed it out of his purchase-money, which he had paid into court under an order, with interest from the time when he paid in his money .^ So the completion of a contract being delayed for three years by difficul- ties in the title, the vendor was held accountable for a deterioration of the land during that period.'^(«) 1 Warder v. Jeffery, 4 Price, 294. * Lord v. Stephens, 1 You. & Coll. 2 Seton V. Slade, 7 Ves. 265. 222. 3 Koberts v. Berry, 17 Eng. Law & 5 Ferguson v. Tadnian, 1 Sim. 530. Eq. 400. 6 Foster v. Deacon, 3 Madd. 394. (a) A. held land by a title-bond, and presently, and that, the imi)rovements had made improvements ; he sold both to being afterwards burnt before tlie day, B., possession to be delivered on a future the loss fell upon B. Thompson v. Norton, day certain. Held, that the title passed 14 Ind. 187. 206 LAW OF VENDORS AND PURCHASERS. [CHAP. XI. 20. Questions often arise as to the construction of contracts in reference to the time of performance. (a) 21. Under an agreement for conveyance of land on payment of the purchase-money, a certain amount of which is to be paid annually, " the time commencing at the date of the agreement," the day of the date is to be excluded, although the purchaser, in the mean time, is to have the use of the land.^ 22. All objections to a title were to be taken within twenty-one days from delivery of the abstract, or deemed waived ; and time was, in that respect, to be considered of the essence of the con- tract. Held, the twenty-one days did not begin to run until a perfect abstract had been delivered.^ 22 a. Where parties contract that the purchase of lands shall be completed within so many months, calendar months are intended ; ^ though the word month may mean lunar or calendar month, accord- ing to the intention of the parties. Thus there was a sale of land on the 24tli of January ; an abstract of the title to be delivered to the purchaser within a fortnight, to be returned by him in two months, to be redelivered within four months, and the purchase to be completed on the 24th of June, making a period of precisely five calendar months from the date of the sale and conditions. Held, calendar months were intended ; and the condition for delivery of the draft of the conveyance within three months was not a condition precedent, with respect to its delivery within the precise time.'^ 23. A vendor, in Illinois, covenanted with the vendee, in Boston, to convey to him certain lands in Illinois before a certain day. It was also verbally agreed, at the time, that the former should record the deed in Illinois before sending it to Boston, but that it should reach Boston before the day named. Held, the covenant was performed by depositing the deed in the registry before the day, though not sent to Boston till after.^ 24. Action on an agreement to let the plaintiff a messuage for a year from the 25th of March ; he to take the fixtures at a valua- tion, and pay for them on entry. Held, the plaintiff might show a tender on the 10th of April.^ 1 Farwell v. Rogers, 4 Cush. 460. ■* Lang v. Gale, 1 Mau. & Selw. 111. 2 Hobson V. Bell, 2 Beav. 17. ^ Shaw v. Hayward, 7 Cush. 170. 3 Hipwell V. Knight, 1 You. & Coll. 419. « Edman v. AUen, 6 Bing. N. 19. (a) Where an agreement was made to two years afterwards, and after the ven- malie a title within "a short time," it was dee had abandoned the land. Hussey v. held not sufficient to tender a deed nearly Eoquemore, 27 Ala. 281. CHAP. XI.] TIME OF PERFORMING CONTRACTS. 207 25. By the conditions of a sale, which took place September 18, the purchaser was immediately to pay a deposit, in part of the purchase-money, and to sign an agreement for payment of the remainder by the 28th of November ; the vendor was to deliver an abstract within fourteen days from the sale, and to deduce a good title; objections to the title were to be taken within twenty-one days after delivery of the abstract ; and the purchaser was to pre- pare the deeds of conveyance by the 10th of November. Held, no precise time was fixed, within which the vendor was to deduce a good title, and therefore a declaration against him for failing to do so ought to aver, that he had been allowed a reasonable time.^ 1 Sansom v. Rhodes, 6 Bing. N. 261. 208 LAW OF VENDORS AND PURCHASERS. [CHAP, XII. CHAPTER XII. TITLE OF THE VENDOR. 1. General importance of the subject; mutual rights and obligations of the parties, in general, the vendor is bound to convey a as to conveyance of the land and payment of good title; grounds of objection to the title; the price. 1. The title, which a vendor of real property by executory con- tract is bound to convey to the vendee, is of course one of the most important topics connected with the general subject of this work ; and, indeed, may be said to connect itself, directly or indi- rectly, with almost every branch of that subject. A mere engage- ment to convey certain land is worth little or nothing to the proposed vendee, unless the vendor is the real as well as assumed owner of the land. It is an important question, therefore, how far such ownership is an essential element or condition of the con- tract, and what binding assurance or guaranty of title the pur- chaser is entitled to receive. The same question arises, in regard to liens or incumbrances upon the land, diminishing its value to the purchaser ; and a want of title to a part only of tlie property. So, also, the time and mode of settling questions of title, and the right of rescinding or claiming compensation for defects of title, are matters upon which numerous questions and nice distinctions are to be found in the books. In the present chapter, a more general view of the subject will be given, and, in succeeding chap- ters, first, the requisites of a good title, and then the specific grounds and modes of objection to a defective title, more particu- larly considered. 2. It is held, as the general doctrine, that an agreement to sell land implies that the title shall be good and unincumbered. ^ (a) 1 Prothro v. Smith, 6 Kich. Eq. 324; Wilde v. Foot, 4 Taunt. 334; Watts v. Waddle, 1 M'L. 200. (a) An agreement by a party to pay a An agreement, to sign off all the right, certain sum, " if he should, get certain title, property, profits, and lands of a com- land," means, " if he should acquire a pany, requires, that tangible chattels and valid title to the land." Woods v. Kirk, notes payable to bearer be transferred by 8 Fost. 324. delivery, unless a writing is expressly re- CHAP. XII.] TITLE OF THE VENDOR. 209 If the contract be, " to convey the land by a deed of conveyance," or " a sufficient deed," or " a good and sufficient deed," or such a deed, " free of all incumbrances," for a stipulated price ; this is not fulfilled by executing a deed merely, but the party must be able to convey such a title, as the other party had a right to expect, — in general, an unincumbered legal estate in fee ; and this is to be determined from the fair import of the terms used, with reference to the subject-matter.! And an agreement to convey land, gen- erally, and with nothing in the transaction itself to indicate the kind of conveyance, requires a deed in fee-simple, with covenants of general warranty .^ More especially, when a vendor seeks spe- cific execution of the contract, he must, if required by the defend- ant, exhibit such a title as the contract requires.^ So where X. agrees to do work for B., and take certain land in payment, a title to which B. agrees to give him ; the title not being in B., A. may rescind the contract, or, if he does the work, may claim payment in cash.^ So, if the vendor cannot make a good title, the purchaser may recover back the purcliase-money with interest.^(a) 1 Lawrence v. Dole, 11 Verm. 549 ; Owings V. Baldwin, 8 Gill, 337 ; Hill v. Ressegien, 17 Barb. 162 ; Fletcher v. Button, 4 Corast. 396. See Garley i-. Rice, 16 Johns. 267 ; Parker o. Parmelee, 20 Johns. 130. 2 Witter V. Biscoe, 8 Eng. (Ark.) 422. 3 Tomhn v. M'Chord, 5 J. J. Marsh. 138. * Fitch V. Casey, 2 Greene, 300. 5 4 Corast. 396. quired ; other choses in action by writing and delivery ; lands of the firm by deed. Thompson v. Richards, 14 Mich. 172. An agreement by a vendee of land, to take care of attachments put upon it by the vendor's creditors, will not maintain a suit as upon a promise to jiay otf and remove such attachments. Lyford v. Winnipiseogee Bank, 17 N.H. 267. A contract for the removal of " cer- tain incumbrances " on land intends all incumbrances, and includes an inchoate right of dower. Fitts v. Hoitt, 17 N.H. 630. A. and B. in good faith entered into a written agreement, reciting that A. was erecting a building on certain premises of which B. claimed to own and represent one-quarter part, and providing that A. should pay over to B. one-quarter of all the rents and income that miglit be re- ceived therefrom, and that B. sliotild defray one-quarter part of the expenses of erecting the building, and of repairs and taxes thereon ; and tliat, in case any part of the rents and income so paid over by A. to B. should be recovered of A. by any lawful owner of the interest claimed by B., then B. would refund the same to A., and bear a proportional share of de- fending suits at law to recover the same. Held, that A. was liable to pay over to B. one-quarter of the rents and income received, no claim having been made therefor, although the claim of B. was unfounded, and A. was solo owner, and executed the agreement under a misap- prehension of his right ; and also to pay interest on the same, although no demand was proved. Spear v. Hancock, 6 Allen, 205. Upon a sale of lands, a note was given, payable on such a day, provided, if the lands should be involved in any suit con- cerning the title, no payment should be required till tiie suit was decided. At the day, no such suit being brought, held, an action wo>ild lie upon the note. Busby V. Treadwell, 24 Ark. 456. («) Bill for specific performance of a contract to convey land. The defendant agreed to " convey by a good and valid deed," within one year, upon four days' notice, on condition of the plaintifi's pay- 14 210 LAW OF VENDORS AND PURCHASERS. [CHAP. XII. 3. It is further said on this subject, that, where one contracts to purchase on the faith of the vendor's having a good title, he has a right to have the title sifted to the bottom, before he can be called upon either to accept an indemnity or compensation for a defect, or to abandon the contract.^ So equity will not compel a pur- chaser to take a doubtful title; as where it depends on the doubtful interpretation of a will, all parties in interest not being bound by the decree.^ Though under a contract, " titles to be satisfactory," the purchaser is not sole judge of the title, but it must be a good marketable one, of which the Court must judge, if the parties dis- agree.^ And a title is doubtful, when it is such as other persons may fairly question, although the Court entertains a favorable opinion of it.^ If the doubts concerning a title arise upon a ques- tion connected with the general law, the Court is to judge whether 1 Knatchbull v. Griieber, 3 Mer. 137. 3 Regney v. Coles, 6 Bosw. 479. - Sohier v. Williams, 1 Curt. 479. See < Pyrke v. Waddinghani, 17 Eng. p. 217. _ Law & Eq. 534. ing in a specified manner at the expiration of the year or the notice. A previous deed of tiie land, unrecorded and unknown to the plaintiff, assigned to the defend- ant's grantor a mortgage made by a former owner, containing a reservation of "such interest as the mortgagor acquired by virtue of a certain prior mortgage of the same to him to secure the payment of $1,400." The plaintiff afterwards made inquiry of the defendant respecting the reservation, and notified him that he should not accept a quitclaim deed. The defendant made no explanation, but of- fered, for a further sum, to clear up the title. Within the year, the plaintiff noti- fied the defendant, that he should take the property, as agreed, and demanded a warranty deed, tendering the price. The defendant refused to give such deed, but tendered a quitclaim deed, and demanded payment, which the plaintiff refused. Held, the convej'ance and paj'ment were to be concurrent, and each party was bound to perform, on his part, at the time appointed ; that the plaintiff was not bound to accept a quitclaim deed, or make further advances, till the title was cleared up ; that any deed, passing a clear title in fee, would satisfy the contract, but, as the property was apparently incumbered, the defendant was bound either to remove or explain the incumbrance, or give a warranty deed. 22 Conn. 513. In a late case in New Jersey, it was held, that a purchaser Avill not be com- pelled to take and pay the agreed price for an incumbered or doubtful title, unless he has expressly agreed to do so. Cham- bers V. Tulane, 1 Stockt. 146. Thus a devise was made as follows : " All and every part and parcel of my real and per- sonal estate hereinbefore not devised and bequeathed, after my son arrives at the age of twenty -one years, in case his mother hath then departed this life, shall be sold at the discretion of my executors." Held, that land devised, but which by these terms had returned and become part of the estate, was not embraced in the power of sale. Also, that the power of sale was personal, and did not pass to an executor of the executor. Upon these grounds, held, a bill to enforce specific performance against a purchaser of the land should be dismissed ; but without costs, the vendor having acted in good faith and by advice of counsel. Tlie Court say (p. 153) : " In decreeing a specific performance, the Court must exercise its discretion, — not an arbitrary discretion, but a discretion regulated and governed by established principles. As a general principle, it is well settled that the Court will not com- pel a party to pay his money and take a doubtful title, or an incumbered property rmless the party has bargained for such. There is no pretence that such was the case here. The complainant acted in good faith. He supposed he could give a good title to the land, and such was the undei'standing of both i)arties in entering into the agreement." CHAP. XII.] TITLE OF THE VENDOR. 211 that law is settled ; if not, or if extrinsic circumstances, which neither the purchaser nor the Court can satisfactorily investigate, may affect tlie doubt as to the title ; specific performance will be refused.^ Thus, upon a bill by a vendor for specific ])crformance, the case tui-ncd on the construction of a will, and the Court strongly inclined in favor of the title ; but, the opinion not resting upon any general rule of law, or upon reasoning which would necessarily satisfy others, or preclude substantial litigation ; spe- cific performance was refused.^ So in case of a written agree- ment, executed at the time of the delivery of a deed of land, and the making of a note for the price, that if, in a suit then pending between other parties, involving part of a certain line, another part of which affected the boundaries of the land conveyed, it should be decided that the grantor was not entitled to a certain part of the land, he should repay part of the price ; held, the effect of the agreement was, to make his right and title to convey dependent upon the final decision of the suit; and an adverse judgment therein might be set up in defence i^ro tanto to an action for the price .3 4. More especially, if the obligor in a bond for titles is insolv- ent, or without the jurisdiction of the courts, leaving no proj)crty within it liable for the claim against him, and there is an out- standing paramount title ; the vendee shall .have relief from pay- ment of a proportional part of the price, before eviction ; the particular circumstances relied on for such abatement being dis- tinctly alleged.^ But in an action by the assignee of a purchaser against the vendor, to enforce specific performance, it is no de- fence, that the assignor, with another person, owes the defendant the purchase-money of other land, that they are insolvent, and the land an inadequate security.'^ 6. We shall hereafter have occasion, in connection with the remedies of vendor and purchaser, to consider at length the claim in equity for specific performance. As a part of the law relating to the present subject, — the title of the vendor, — it need only bo here stated, that, as the Court has a discretion, eitlier to decree specific performance of an agreement for a purchase, or to leave it to law ; a purchaser will not be compelled to take a doubtful 1 Ibid. • 4 McGehee v. Jones, 10 Geo. 127. "^ Ibid. 5 Seaman v. Van Kenssolaer, 10 Barb. 3 Daggett V. Daggett, 8 Cusli. 520. 81. 212 LAW OF VENDORS AND PURCHASERS. [CHAP. XII. title.^(rt) More especially if the contract is for an indefeasible title? Nor will a case he directed without his consent.^ And a purchaser brought into court upon a doubtful title ought to be discharged with costs.^ So a purchaser is not coiupelled to take a doubtful title, although the defect appeared on the abstract, de- livered before he filed his bill.^ So the Court will not compel specific performance of an agreement, and oblige a defendant to accept a title, which the complainant cannot make out to be clearly good and free from incumbrances.^ So upon a bill for specific performance, if the vendor's title to a part of the land is doubtful, the Court cannot compel him to make good that part by a conveyance of land out of the same survey, to which he has an undisputed title, but will give a compensation in money.''' And, in general, the Court will not compel a purchaser to take a title depending upon matter of fact, if the fact do not admit of satisfactory proof, or be not well proved.^ So a purchaser was not compelled to take a title depending on the questions, whether a deed, not delivered, but merely retained by the vendor until payment of the money, could be considered an escrow ; as between a judgment creditor and the assignees in bankruptcy of the ven- dor, whether payment to the assignees would be a performance of the condition, making the deed absolute from the beginning, and any conveyance from the assignees inoperative ; if not an escrow, but absolute from the commencement, whether, with reference to the Stat. James I., ch. 19, § 9, the judgment would 1 Cooper V. Denne, 1 Ves. 565 ; Trent ^ Roake v. Kidd, 5 Ves. 647. V. Harming, 10 Ves. 500 ; Roake v. Kidd, ^ Blos.se v. Clanmorris, 3 Bligh, 62. 5 Ves. 647 ; Price v. Strange, 6 Madd. & Stapylton v. Scott, 16 Ves. 272. 159 ; Hartley v. Pehall, Peake's Cas. 131; 6 Butler v. O'Hear, 1 Desaus. 382. Jervoise v. Northumberland, 1 Jac. & W. "^ Kelly v. Bradford, 3 Bibb, 317. 569 ; Marlow v. Smith, 2 P. Wms. 198. 8 Smith v. Death, 5 Madd. 371. 2 Kelly V. Bradford, 3 Bibb, 317. (a) The rule appears to be now well question of title or no title being matter established, as stated in the text. For- of opinion for the Court, that the purcha- nierly, in compelling a purchaser to take ser is bound bj' that opinion, and cannot a title, the Court acted merely upon its object to take the title on the ground of own opinion. Jervoise v. Northumber- the difficulty of the question on which it land, 1 Jac. & Walk. 569. depends. Rushton v. Craven, 12 Price, Upon a decision of the Court of Ex- 599. chequer, that a presumption from non- Specific performance was decreed payment of tithes could not bar even a against a purchaser under a power of sale lay impropriator, the Lord Chancellor, in a mortgage, without the mortgagor, though holding the contrary opinion, though under a covenant to the mort- would not compel a purchaser to take such gagee to join in a sale ; but without costs, a title; and dismissed the bill against him the only authority produced not being for specific performance. Rose v. Calland, in print. Corder v. Morgan, 18 Ves. 5 Ves. 186. But it has been held, the 344. CHAP. XII.] TITLE OF THE VENDOR. 21; be operative as against the lien of the assignees for the price ; and, if not, wliat would prevent its attaclring on the estate.^ So it being doubtful, on the construction of an inclosure act, whether an allotment for a right of warren was authorized Ijy the act ; held, tlie title to the allotment was not such as a jjurchaser could be compelled to take.^ So in case of mortgage witli a power of sale, the unsupported solemn declaration, under Stat. 5 & 6 William lY., ch. 62, of the mortgagee alone, of a default having been made, is not sufficient evidence of that fact, as between vendor and purchaser.'^(«) 1 Sloper V. Fish, 2 Ves. & B. 145; Colmore v. Tindall, 2 Y. & Jerv. 605. 706. 2 Cassamajor v. Strode, 2 Myl. & Kee. 3 HoLson V. Bell, 2 Beav. 17. (a) Action by the vendor, upon a con- tract for the sale and exchange of lands, the title to be "satisfactory to the party to receive it." Answer, that the lands were subject to the lien of certain judg- ments, which the plaintiff was to convey on the day appointed for tlie exchange of deeds. Held, the defendant could not show, that the judgments were an appa- rent thougli not a real lien, and therefore a cloud upon the title. Fagen v. Davison, 2 Duer, 153. An agreement, made in 1849, recited, that the fatlier of the plaintiff, in 1797, demised' certain premises to one A., and that the plaintiff, under a devise from liis father, owned the reversion in fee. The agreement then provided, that the plain- tiff would, on receiving from the defend- ant $2,000, in certain annual instalments, with interest, the last payable in 1859, convey the property with warranty, ex- cepting any title or right under the lease. The defendant agreed to pay the $2,000 ; and it was agreed that he should enter immediately and pay tlie taxes. The plaintiff brings this action for an instal- ment of the principal and the interest. The answer alleged, that the farm or a large part of it was in possession of per- sons holding or claiming adversely, but stated no facts constituting such adverse possession. Held, as the agreement re- cited that the plaintiff was a reversioner, the plaintiff was not bound to have given possession ; that he did not agree to give possession, but the defendant was to take it, and be himself the actor ; and that tlie answer was no defence, as there can be no adverse possession against a reversioner. Clarke v. Hughes, 13 Barb. 147. By an unsealed instrument, A., in con- sideration of £7,000, agreed to present to a rectory, on the next avoidance, such person as B. should nominate, and to fur- nish an abstract and execute a convey- ance of the next presentation to B. A. afterwards, with the assent of B., agreed to sell the next presentation to C, and to convey such title as he (A.) had received, in consideration of £7,500, of which .£500 was to be paid to B. on a certain day. A. furnished an abstract of such title as he had, but C. refused to take it, and no con- veyance was tendered to him. In an ac- tion by B. against C. for the £500, held, that there was a sufficient consideration for C.'s promise ; that A. was not bound to make a marketable title, but only to convey sucli as he had received ; and that, as C. refused to accept that title, it was not necessary to tender a convey- ance. Wilmot V. Wilkinson, 6 B. & C. 506. In Dwight V. Cutler, 3 Mich. 575, upon the question how far a vendor is bound, by his contract, to convey a perfect title to the vendee, the Court say : " Such accept- ance created an agreement between the parties by which the plaintiff simply en- gaged to sell, and the defendant to pur- chase, the premises, on the terms specified, nothing being said about the title or the covenants which should be contained in the deed by which they should l)e conveyed. The plaintiff tendered a deed of tiie prem- ises, with covenants against her own acts merely, which she claimed was a compli- ance with this contract. The defendant refused to receive this . But on the other hand, where imder a limitation in a mar- riage settlement to the husband for life, then to the wife for life, then to the heirs of the body of the wife and their heirs, the wife took an estate tail ; although it was recited in the deed, that the husband's fatlier conveyed in consideration of the marriage, and " for settling and establishing the lands, &c., to the uses thereafter expressed," and subsequent uses were added in the deed : the Court would only take notice of the legal estate ; and, the hus- band and wife having levied a fine, and agreed to sell the estate to a purchaser, from whom they had received part of the purchase- money, he could not recover it back, in an action for money had and received.^ So in a later case, of assumpsit to recover money deposited upon a purchase, upon an allegation that the defendant had failed to make a proper title ; it was held that a Court of Law 1 Jones V. Taylor, 7 Tex. 240. * Maberley v. Eobins, 1 Marsh. 258 ; 5 2 pJones V. Gardner, 10 Johns. 266. Taun. 625. 3 Ragan v. Gaither, 11 Gill & Johns. 5 Alpass v. Watkins, 8 T. R. 516. 472. CHAP. XIII.] REQUISITES OP A VALID TITLE. 221 will not consider whether the title is of a doubtful description, such as a Court of Equity would not compel an lunvilling- purchaser to take ; but simply whether the defendant has or has not a legal title to convey.^ 9. In general, a title by deed or conveyance is the one most fre- quent and least liable to objection. But, under peculiar circum- stances, a purchaser may object to a title resting on this foundation. Thus title under a deed not seasonably recorded is bad.^ So under a contract for a valid and perfect title, thougli mentioning transfers and conveyances of titles of four persons named ; the former clause is not controlled by the latter.^ So A., entitled under his marriage settlement to a life-interest in freehold estates, with remainder to the use of trustees for a term of one thousand years, to secure a jointure and portions, and remain- der to himself in fee, conveyed part of the lands to B. in fee, in exchange for others. B.'s heir afterwards having contracted for a sale of the land, the purchaser refused to complete the contract, on the ground that A. had no power thus to exchange. The vendor then procured the execution of certain deeds, with a view of bring- ing the exchange within the settlement, which, however, were grossly inaccurate. Held, the purchaser was not bound specifically to perform the agreenient.^ So a purchaser is not compellable to accept a title reported good by the deputy remembrancer, in a creditor's suit, where the close in dispute, having a given name, by which it has been long known, is not described by it in the title- deeds, notwithstanding the vendor has been long in possession of the land, as part of the estate conveyed to him by the deeds. Such a title is merely primd facie.^ 10. But gejierality and vagueness of descriptions of copyhold property on tlie court-rolls are so well known, that a vendor is not bound to show how the description on the court-roll is to be applied to the present state of the property, if he prove that the property has actually been enjoyed and passed under that description for upwards of sixty years.*^ And where a vendee is in possession un- der a conveyance with general warranty, and the title has not been questioned by any suit prosecuted or threatened ; such vendee has no 1 Boyman v. Gutch, 7 Bing. 379. * Cowgill v. Oxiiiantown, 3 You. & 2 SiJeakman v. Forepaugh, 4-i Penn. Coll. 369. 463. 5 Eyton v. Dicken, 4 Price, 303. "^ Jonghaus v. McCorniick, 18 Cal. 660. *> Long v. Collier, 4 lluss. 'I'ol. 222 LAW OF VENDORS AND PURCHASERS. [CHAP. XIII. claim to relief in equity against the payment of the purchase-money, unless he can show a defect of title, respecting which the vendor was guilty of fraudulent misrepresentation or concealment, and which the vendee had at the time no means of discovering.^ So the plaintiff, at the instance of the defendant, purchased all the estate, right, title, &c., in certain lands, from one of four reputed owners, and agreed to convey to the defendant; " [the plaintiff] only to produce a title from his vendor." On a bill for specific perform- ance ; held, it was not open to the defendant to show aliunde that the plaintiff's vendor had no title, and specific performance was decreed.^ 11. The vendee is not hound to accept a title, depending on a conveyance to a creditor, where there is evidence to raise a suspi- cion that the object of the conveyance was to elude other creditors who were pressing for judgments.^ So where the vendor claims the estate by purchase from his son, the purchaser is entitled to evidence of the fairness of the transaction.* 12. A purchaser is not bound to accept a title depending upon a recovery, suffered by a tenant in tail, of lands, the reversion of which had vested in the Crown by attainder of the reversioner.^ 13. In one case the Court hesitated upon giving sanction to a title, founded on the destruction of co7itinge7it remainders by a tenant for life ; there being no trustees to support them.*^ But, in a later case, specific performance was decreed, although the vendor's title was founded on the destruction of contingent re- mainders.'' 14. Title by tvill or devise is hardly less common or important than that by deed ; and, in conformity with the general principle above stated, it is held, that a purchaser is not compelled to take a title, depending upon the words of a will, which are too doubtful ever to be settled without litigation.^ Thus a testator devised all his manors, messuages, lands, tenements, tithes, and hereditaments, and all his real estate whatsoever, " except what is hereinafter mentioned and devised," to the use of all his children successively in strict settlement ; and gave two of them annuities, which he charged upon a rectory held by him under a lease for lives, which 1 Beale v. Seiveley, 8 Leigh, 658. < Boswell i-. Mendham, 6 Madd. 373. 2 Hume V. Pocock, Law Rep. (Eng.) 5 Blosse v. Clanmorris, 3 Bligli, 62. Eq. March, 1866, p. 422 ; ib. July, 1866, 6 Roake v. Kidd, 5 Ves. 647. p. 378. '' Hasker v. Sutton, 2 Sim. & Stu. 513. ^ Gans V. Renshaw, 2 Barr, 34. 8 Sharp v. Adcock, 4 Russ. 374. CHAP. XIII.] REQUISITES OF A VALID TITLE. 223 lease he directed to be renewed, if tliose two children, or cither, should be living at his death ; and that their lives or that of the survivor should be inserted in the new lease, and the fine paid out of his personal estate. He gave part of liis personal estate specifi- cally ; and directed the residue to be laid out in land, to be settled to the same uses as his real estate ; but afterwards, by a testamen- tary paper, unattested, disposed of his personal estate otherwise. The heir contracts to sell the lease of the rectory ; and, upon a case directed to the Court of King's Bench, on his bill for specific per- formance, the certificate was, that the lease did not pass l)y the will, but devolved on the heir as special occupant ; but the Lord Chan- cellor considered that title too doubtful to be forced on a purchaser. An act of Parliament was therefore obtained.^ So where a party was authorized, by a power created since 1838, to appoint by deed or deeds, writing or writings, under hand and seal, attested by two witnesses, and made a will, devising and bequeathing the property, dated subsequently to the Statute 7 Will. IV., and 1 Vict. ch. 2t3, and executed conformably with that act ; a purchase, depending for its title upon the question whether it was valid, was held not to be so free from doubt, as that a purchase!" was bound to take, and would be compelled, in a suit for specific performance, to accept it.^ So a testator devised to his wife, in fee, all his real estates of which he might die possessed. Subsequently he purchased an advowson, and by a codicil ratified and confirmed his will. Pre- viously to the discovery of the codicil, the wife contracted to sell the advowson, but, an objection having been taken to her title, the codicil was found and produced, and a statutory declaration made by the attesting witnesses, as to its due execution and validity. The purchaser, however, refused to complete, on the ground that the codicil did not pass the advowson, and also requiring it to be proved in the Ecclesiastical Court. Held, that the codicil did suf- ficiently refer to the will, but that the evidence of its validity was insufficient ; that the purchaser could not be compelled to take the title, without the proof necessary to establish a will against the heir ; and that the codicil ought to be proved in the Ecclesiastical Court.^ Held, also, the title not being completed before tlie hearing, the purchaser was not liable to pay interest ; but, the suit having 1 Sheffield v. Mulgrave, 2 Ves. 526. » Weddall v. Nixon, 21 Eiig. Law & 2 Collard v. Sampson, 21 Eng-. Law & Eq. 9. Eq. 352. 224 LAW OF VENDOES AND PURCHASERS. [CHAP. XIII. been rendered necessary by his disputing the effect of the codicil, even if proved, as a republication, he was not allowed costs.^ So in case of devise of copyhold estates, the legal estate being outstand- ing, " to my son, R. W. G., to be entailed upon his male heirs, and failing such, to pass to his next brother, and so on from brother to brother, allowing £2,500 to be raised upon the estates for female children each;" the point whether this was a trust executed or executory, and, if the latter, whether an estate tail in R. W. G. was held too doubtful to compel a purchaser to take the title, ^ 15. A purchaser was decreed to take a title under an obscure will, amounting to a power to sell. In such case, the legal estate, not being given, descends to the heir till execution of the power : and then passes to the vendee.^ 16. Where an estate is decreed to be sold for payment of debts, and no surplus remains, the heir or devisee need not covenant any further than for his own acts. But where the surplus is consider- able, the heir must covenant, that neither he nor his immediate ancestor, and a devisee, that neither he nor his devisor, have done any act to incumber."* 17. Exception does not lie to a report in favor of a title derived from an heir, on the ground that the reversion in fee might have been disposed of, so as not to have descended.^ 18. A conveyance in 1793, from persons residing in Bermuda, of lands then in their possession, and to which, subject to an out- standing but satisfied mortgage term, they claimed title under an entail created in 1732, through a descent recited in the deeds ; a subsequent assignment of the mortgage term from the mortgagee to . the purchaser, and uninterrupted enjoyment under his convey- ance ; — will not enable him to make a good title, if unsupported by extrinsic evidence of the pedigree recited in the deeds, or of possession prior to 1793, conformable to that pedigree.^ 19. Upon the death of one of two partners, intestate, \\\^ personal representatives agreed to sell his moiety of the real property of the partnership to the other, and to furnish him at their own expense with an abstract of tbeir title. Held, they were bound to furnish the usual abstract of titles, and not merely their letters of admin- istration in relation to the personal estate.'' 1 Ibid. 4 Loyd v. Griffith, 3 Atk. 267. 2 Jervoise v. Northumberland, 1 Jac. ^ Sperling v. Trevor, 7 Ves. 497. & W. 56U. 6 Fort v. Clarke, 1 Russ. 601. ^ Warneford v. Thompson, 3 Ves. 513. "^ Morris v. Kearsley, 2 You. & Coll. 139. CHAP. XIII.] REQUISITES OF A VALID TITLE. 225 20. A testator gave his real and personal estate to A., subject to the payment of his debts and certain annuities, and appointed him executor. Held, that A, could make a good title to the real estate, without the concurrence of the annuitants, and that a purchaser from A. was not bound to see to the application of the purchase- money ; also, that the objection was one of title and not of convey- ance.^ 21. A. having sold the real estate, the purchaser, insisting that the annuitants ought to concur, filed a bill against the vendor for specific performance. The vendor's answer admitted the sufficiency of the personal estate to pay the debts ; that they had all been paid since the contract ; and that the sale had not been made for the spe- cific purpose of satisfying the debts. Held, these circumstances did not vary the rule as to the liability of the purchaser to sec to the application of the purchase-money, and he was bound to complete.^ 21a. Devise of all the testator's worldly effects. The debts to be paid from the personal estate, and the executors to sell " all his stocks, shares, securities, &c., and all other his estate, &c., and stand possessed of the proceeds upon trust to pay debts, &c., and invest the residue thereof upon the trusts therein declared." After the date of the will the testator became possessed of a freehold house, which was put up for sale by his executrix, who, her co- executor, the heir, being absent from the country, had alone proved the will. Upon a bill brought by the executrix for specific per- formance against the purchaser, it appeared that one of the convey- ancing counsel of the court had given an opinion, that the will did not authorize a sale. Held, notwithstanding such opinion, as the simple expression of doubt in the court below prevents a title from being forced on a purchaser, and as the court above might correct the error of a decision in favor of the sale ; the plaintiff should have judgment in the court below.^ 21 h. Where, by the terms of a trust under a will, the receipt of the trustees is made a good discharge ; upon a sale l}y the court, for the purpose of dividing the proceeds among the beneficiaries, notwith- standing a practice among conveyancers, of giving a covenant of title, upon such sale, on the part of the beneficiaries, to the extent of their interest, no such covenant will be required. The Court pro- 1 Page V. Adam, 4 Beav. 269. • •' Hamilton v. Buckmaster, Law Rep. 2 Ibid. (Eng.) Eq. March, 18G7, p. 322. 15 226 LAW OF VENDORS AND PURCHASERS. [CHAP. XIII. nounce this " an oppressive practice." " The beneficiaries are not contracting parties, but mere volunteers." ^ 21 c. A will, attested by two witnesses, devised freeholds in Eng- land to A., the son and heir of the testator, for life, with remainder to trustees. Also, to the trustees, estates in St. Kitts, upon trust to sell, and invest the proceeds in estates in England, to be held upon the same trusts. A. was in possession of the English estate, and received the rents of the other, during his life, which, with his consent, the trustees endeavored, though unsuccessfully, to sell. A. having died intestate, leaving a minor heir, B., the trustees con- tracted to sell one of the St. Kitts estates, but the purchaser refused to complete, on the ground that the will was then inoperative. Held, A. had elected to take under the will, and B. was bound by his acts, and, under the act of 1850, was a trustee for the claimant under the will.^ 22. Questions of title also arise in reference to leasehold interests and rent8.(a) 23. As to the title or assurance of title which the vendee of a leasehold may demand, it is held, that, if a contract be made for the sale of leasehold property unconditionally, and not merely the vendor's interest in the residue of the term, and a proviso that he will not warrant his lessor's title ;(5) in order to enforce the con- tract he is bound to show, to the satisfaction of the purchaser, that his lessor, or the original grantor of the term, was entitled to grant the lease. (c) If the vendor of a leasehold interest means to sell, 1 Weeds v. Bristow, Law Eep. (Eng.) '^ Dewar v. Maitland, Law Rep. Eq., July, 1866, pp. 32y, 332. (Eng.) Eq. Dec. 1866, p. 834. (a) ^ee Leasehold. agreed to purchase of Mr. B. [the defend- {h) Whether tlie effect of advertising ant] two leasehold houses, &c., Mr. B. for sale a lease in possession is equivalent hereby agrees to paper, &c. ; Mr. H. to to a declaration that the lessor's title can- pay, &c., at the time of the conveyance, not be produced, cjucere. Deverell v. Bol- &c." Nothing was said in the agreement ton, 18 Ves. 505. as to making a title. Held, tlie agree- (c) And the implied obligation of the ment to purchase, though recited as an vendor may be confirmed, by an implica- existing agreement, was to be considered tion in the construction of the agreement as forming part of tlie agreement pro- itself. Thus, a declaration alleged, tiiat duced. Hall v. Betty, 4 Mann. & Gra. it was agreed between the plaintiff and 410. So a contract for a lease by a mort- defendant, that the plaintiff should pur- gagor cannot be enforced by him, without chase two houses of the defendant for the obtaining a reconveyance of the mort- residue of a term of years, &c. ; that tlie gage, or procuring the mortgagee to con- defendant should paper them, &c. ; that firm the lease. But a tenant holding the plaintiff should pay part of the pur- under such contract cannot compel the chase-money on completion of the convey- landlord to pay off the mortgage, to give ance of the houses, and the defendant efiect to the contract. Costigan v. Hast- make a good title. The agreement was ler, 2 Scho. & Lef. 160. as follows : /' Mr. H. [the plaintifl'] having CHAP. XIII.] EEQUISITES OF A VALID TITLE. 227 without producing his lessor's title, he ought to declare it. So, though the lease was originally granted by a lay corporation, (a) or is very old. ^(5) So a contract for the sale of an existing and a reversionary lease will not be specifically performed without a production of the title of the lessors.^ So where, on a sale by auc- tion of leasehold property, one of the conditions was, that the vendor " should not be obliged to produce the lessor's title ; " the vendee having aliunde discovered certain defects in the title, held, notwithstanding the condition, he was entitled to insist upon those defects.^ So a purchaser is not compellable to accept a title to leasehold premises, formerly svibject to an incumbrance, the dis- charge of which is shown only by presumption. Thus a leasehold was sold, subject to a ground-rent, which was said to be apportioned out of a larger rent, but the apportionment was not evidenced by any existing deed, but only by the acceptance of a mesne landlord, and presumption. Held, the purchaser was not bound to accept the title.^ So an assignee of a lease, to show his interest in the premises, is bound to prove the execution of the lease and all the mesne assignments.^ So, in an action against a purchaser of a leasehold at auction for not completing, the declaration averred, that the vendor had delivered an abstract of title, pursuant to the conditions of sale, which averment was traversed by the plea. Held, the allegation was not sustained, by proof that the vendor caused the lease and assignment, which composed the whole title, to be handed to the purchaser for perusal, and offered to send them to his attorney, to enable him to prepare the necessary assign- ment.^(c) 1 Souter V. Drake, 5 B. & Atl. 992; 3 Shepherd w. Keatley, 1 Cro. Mees. & Purvis V. Rayer, 9 Price, 488; Hall v. Rose. 117. Betty, 4 Mann. & G. 410 ; Ogilvie v. * Barnwall v. Harris, 1 Taun. 430. Foljambe, 13 Meri. 53. 5 Crosby v. Percy, 1 Camp. Ca. 303. '^ Deverell v. Bolton, 18 Ves. 505. f> Home v. Wingfield, 3 Scott's N C 340. («) The rule has been held not to chase of leasehold property, described apply to a Bishop's lease. Fane v. Spen- therein as " a messuage lield for the re- cer, 2 Meri. 430. mainder of a term of years under the (b) But it has been held, that, to make Corporation of Bath, and the late R. A., a good title to the residue of tui old term, at the sum, &c. ; " an abstract to be made mesne assignments, which cannot be pro- out and delivered by the vendor, and the duced, will be presumed, even at law. assignment to be made and prejiared at But an old incumbrance must be attended the expense of the i)urchaser, the pur- to, unless it can be presumed that it does chase-money to be paid at or before mid- not exist. White v. Foljambe, 11 Ves. summer. The contents of two existing 337. deeds were not introduced in the abstract (c) Memorandum of an agreement, delivered on the 24th of May ; though dated the 15th of May, for sale and pur- they were contained in an abstract delfv- 228 LAW OF VENDORS AND PURCHASERS. [CHAP. XIII. 24. The purchaser of a lease, though not so far a purchaser for valuable consideration, without notice, as not to be bound to know ered on the 3d of September. Held, on exception to the report of the Master, adverse to the title, that the purchaser might abandon his contract. Purvis v. Eayer, y Price, 488. Property was put up for sale by auction, described as " a leasehold ground-rent of ^23 reserved by a mesne lease of certain premises for ninety-eight years wanting seven days, and assigned apart from the reversion for the remainder of the term by an indenture of 1817." By the condi- tions of sale, no title prior to the assign- ment, nor the title of any ground or mesne landlord, was to be produced. From a recital in the deed of 1817, it appeared that the property out of which the rent issued had been originally demised, with other property, at a rent of £10, subject to the covenants, conditions, and agree- ments in the original demise contained. Held, that, under such circumstances, a good title was not made to the rent of £23, inasmuch as it appeared upon the face of the deed of 1817, that, upon failure of payment of the £10 rent, the rent of £23 might be liable to diminution or for- feiture. Taylor v. Martindale, 1 You. & Coll. 658. Bill by a vendor for specific perform- ance of an agreement to take a lease for twenty-one years at rack-rent. The Mas- ter reported in favor of the title shown by the abstract, but exception was taken to the report. Held, in the absence of an express agreement, such vendor is bound to produce the title of his lessor. The principle was laid down, that whether the interest contracted for be freehold or leasehold, for a long term of years, or a short lease at rack-rent, the party who comes for specific performance should be prepared to show, that he is able to give what he seeks to compel the other to take. It was questioned whether the rule applies, where the length of possession under the original lease has been sufficient to raise a presumption of title. Fildes v. Hooker, 2 Mer. 424. Declaration in assumpsit, that the plaintiff put up leasehold premises at auction, subject to conditions that the purchaser should complete the purchase by a certain day, and the plaintiff deduce a good title, commencing with the lease under which they were then held. Breach, that, although the plaintiff did deduce a good title, commencing with the lease, the defendant did not complete the pur- chase according to contract. Plea, that the premises were, on, &c., demised by T. L. to W. B. for a term still subsisting, subject to a covenant by W. B. to keep the premises in repair, and for re-entry by T. L. in default tliereof ; that the in- terest of W. B. vested by assignment in the plaintiff, and that tlie plaintiff, after the assignment, suffered the premises to be out of repair, and they continued so iip to the time of sale, so that the term might at the option of T. L. be determined ; and that the plaintiff, by reason of the prem- ises, had not, at the time of the sale or at any time afterwards, any good and valid title to the premises, and did not deduce or make a good title to the defendant. On special demurrer to these pleas, the former was held bad, as being an argumentative denial of the allegation in the declaration, that the plaintiff made a good title ; and the latter, on the ground tliat, if the de- fendant meant to object to the validity of the lease, he ought to have confessed the allegation of title in the declaration as it stood, and then to have pointed the plea specifically to the objection that the lessor had not title. Wheeler v. Wright, 7 Mees. & W. 359. Plaintiff put up to sale by auction a lease of premises, which he occupied as assignee of the lease, stipulating not to produce any title prior to the lease. In an action against a purchaser for not com- pleting his purchase, the plaintiff declared that he was possessed of the lease. Held, the defendant having rejected the abstract, that the plaintiff was bound to prove the execution of the lease by the attesting witness, and that it was not sufficient to prove the assignment to himself. Lay- thoarp V. Bryant, 1 Bing. N.C. 421. A. had purcliased at auction an under- lessee's interest in a house, and refused to pay a check given for the deposit, because the ground-rent, payable to the superior landlord, was greater than it was stated to be at the sale. Held, the superior land- lord's solicitor Mas not compellable to pro- duce the counterpart of the original lease, nor could a person who had advanced money on that lease, and held it as equi- table mortgagee, be compelled to produce the lease itself; but if both these, on being called as witnesses, refused to produce the lease and counterpart, secondary evidence might be given of the contents of the lease by calling any person who had seen it, and who neither claimed under it as one of his own title-deeds, nor was privileged as an attorney or solicitor. Mills v. Oddy, G Car. & P. 728. A., having sold certain leasehold prem- CHAP. XIII.] REQUISITES OP A VALID TITLE. 229 from whom the lessor derived his title, is not bound to take notice of all the circumstances under which it is derived. Therefore, he ises to B., assigned them by indenture, containing a proviso tiiat B. should not assign over, until the wliole of the i)ur- cliase-money should have been paid ; and B. and C. covenanted for themselves, tlieir executors, administrators, and as- signs, for the payment of the money. The premises, having been taken in execution for a debt of B., who had not paid tlie purchase-money, were sold by the sheritf to D., who paid down a deposit, and agreed to complete the purchase on having a good title. Held, the non-payment of the pur- chase-money bj'B. was a sufficient objec- tion to the title, and D. might recover back his deposit in an action for money had and received. Elliot v. Edwards, 3 Bos. & Pull. 181. Declaration for not completing the purchase of a term of years, of which the plaintiff was lessee. Plea, that the plaintiff did not adduce a good title. The plaintiff's lease contained a covenant, to insure and keep insured the premises during the term, with a proviso of forfeit- ure and re-entry by the lessor for breach of covenant. The plaintiff had insured, but had not paid the last premium pre- vious to his agreement with the defendant, until a month after it was due. Held, the plaintiff had incurred a forfeiture, which the lessor could still enforce, not- withstanding the subsequent payment and acceptance by the insurance office of the premium ; and the defendant had there- fore a good defence. Wilson v. Wilson, 25 Eng. Law & Eq. 392. Premises sold at auction were described in the particulars as being customary lease- holds, renewable every twenty-one years, at the customary rent of 10s., on paj-ment of the customary fine. The fourth condi- tion of sale, after fixing a time for the delivery of the abstract and objections to the title, stipulated, that, if there were any objection, which the vendor should be unable or unwilling to remove, he might vacate the sale on repayment of the de- posit-money, without interest or costs. The fifth condition stipulated, that the production of the lease by the vendor should be accepted as sufficient evidence of the lessor's title. The sixth condition stipulated, that errors of description, or any errors inserted in the particulars, should not vacate the sale, but should be the subject of abatement or compensation. It turned out on the investigation of the title, what was previouslj' unknown to all the parties interested, that there- was no custom to renew, but that the premises were held for an absolute term of twenty- one years. Helil, the fact of the ]m)perty being sold as leaseholds renewable by custom, when there was no such custom, was an error of description, not a defect of title. Newbv v. Paynter, 19 Eng. Law & Eq. 68. Also, that the purchaser was, under the sixth conchtion, entitled to specific per- formance, with a deduction from the i)rice. Ibid. Declaration, that the defendant caused to be put up to sale by auction cei'tain premises, for the residue of a term of j^ears, on the condition, among others, that the defendant should deduce and make a good title thereto, commencing with the lease under which they were then held. Breach, that the defendant did not deduce a good title commencing with the lease. Plea, that the premises were premises of which the defendant was possessed under a mortgage from the plaintiff, for the residue of the term, and were put up to sale under a power of sale in the mortgage ; that, before and at the time of the mortgage, the plaintiff held the premises under a lease from A., sub- ject to a covenant by the phiintifi' for repair, and a proviso for re-entry, or the cesser of the term, at the option of A. on breach of such covenant ; that the plaintiff, before and at the time of the sale, had full knowledge of all the premises ; that the defendant did deduce a good title, com- mencing with the lease, in all respects except this, that the premises were out of repair, of which the plaintiff had full knowledge ; that they were at the time of the sale in as good repair as at the time of the mortgage ; and that A. had not re-entered or claimed to re-enter, or in any way avoided the lease. Held bad, on general demurrer. Barnett v. Wheeler, 5 M. & W. 3G1. A railway company served a land- owner with a notice to treat for the pur- chase of a portion of his land. The land-owner, in the particulars of his claim, stated that he was seised in fee-simple, subject to an unexpired term, and a re- served rent, and that he claimed .£1,500 for his interest ; which the company agreed to pay. An abstract of title was then de- livered to the solicitor of the companj^ who was also informed that the rent was payable in respect of other land belonging to the plaintiff, as well as of that required by the company, and that it must be ap- portioned. The company claimed the whole rent, and refused to complete their 230 LAW OP VENDORS AND PURCHASERS. [CHAP. XIII. is charged with notice that the lessors were trustees for a charity, but not that the lease was bad ; that depending on circumstances dehors} 25. But the general rule, as to requiring production of the les- sor's title, does not apply, where the terms of the advertisement, l^roposal, or agreement plainly negative such an obligation. (a) Thus A. agreed to sell to B. the two leases and good-will in trade of a public house, and shop adjoining, for £4,250, " as he holds the same," for terms of twenty-eight years from midsummer next en- suing, at the annual rent therein mentioned ; and B. agreed to accept a proper assignment of the said leases and premises as above described, without requiring the lessor's title ; and, upon payment of said sum, A. agreed to execute an effectual assignment 1 Attorney-General v. Backhouse, 17 Ves. 283. contract on any other terms. On a bill filed by tlie land-owner against the com- pany, tlie Court decreed specific perform- ance. Inge V. Birmingham, &c. 23 Eng. Law & Eq. 601. Bill for specific performance of an agreement to take a sub-lease. The question was, whether the defendant was entitled to call for tlie production of the plaintiff's title, or wliether, if he had had that right, lie had not waived it by his conduct. Lord Cranwortli says : " Priind facie, every person contracting for a lease is entitled to call for the title of the lessor. There may be a technical difference be- tween the case of the lessor being the owner of the fee-simple and where he is but a lessee himself; in the one case the inquiry as to title is frequently dispensed with ; in the other, seldom. I should liave thought the mere taking possession not important ; but the question is, whether the conduct of the defendant was not in- consistent with calling for tlie title. It is to be observed that part of the contract was, that the fixtures were to be paid for by Sadd at a valuation, and he concurred in tlie nomination of the agent who was to make the valuation. Now, tliat was very unlike insisting upon his right to call for the inspection of the title, for the valuation was an expense wliicli he would not have had to incur until he had become the lessee. On the 8th of December, he, wishing to get rid of his contract, adver- tised for a purchaser of his interest, he having previously written, on the 25th of November, to the solicitors of the plaintiff, requesting them 'to defer tlie preparation of die leases, &c., as I have a i)rospect of finding a partner in that matter, who, I think, should be included therein.' I tliink that was very strong to show he had waived all right to call for the title." The Lord Chancellor proceeds to mention other circumstances, indicating a waiver of the party's right to object to the title, such as examining without objection a draft of the lease, &c. ; adding, " Upon the whole, I consider the result irresistible that the defendant never meant to ask for the production of the title ; but, as a mat- ter of form, I think the language of the decree is wrong in saying that the defend- ant had accepted the title. I think, also, with Alexander, C.B., in "Warren v. Rich- ardson, 1 Younge, 1, that this is a matter, not of form merely, but of substance ; for suppose that the plaintiff could not execute proper leases ? I think, therefore, that the language sliould be, as in Warren v. Richardson, that the defendant had waived his right to call for the title of the plain- tiff." Simpson v. Sadd, 31 Eng. Law & Eq. 385. (a) Even where the sale is a. general one, the same doctrine has been sometimes held. Thus in an action by the vendee against the vendor of a lease, for the de- posit, it was held, that the vendor is not bound to produce his lessor's title, with- out an express stipulation to that effect. George v. Pritchard, 1 Mood. & Ry. 417. So it has been suggested, that the owner of land, agreeing to grant a lease, does not thereby impliedly engage that he has a good title in fee, and will deliver a writ- ten abstract. Temple v. Brown, 6 Taunt. 60. CHAP. XIII.] REQUISITES OF A VALID TITLE. 231 of the said leases, and deliver up possession of all the said premises. Held, the vendee was to purchase without inquiring into the title of the lessor, and could not refuse to complete his purchase on account of an objection to that title.^ So even the liability of the purchaser for the future default of a third person, in consequence of the terms of the lease sold, has been held not to atfect the valid- ity of the sale. Thus two houses, held under one lease, were sold separately to A. and B. The lease was produced, and inspected at the sale by the purchasers' solicitors. The conditions of sale provided for the apportionment of the rent between the two pur- chasers, but did not notice covenants to insure, &c., and a proviso for re-entry on non-performance, contained in the lease. Held, though A. might be evicted by the default of B., still he was bound to complete.^ So on a sale in lots of premises, the particulars of which state them to be held under one lease reserving rent, and that the purchaser of one lot is to be exclusively subject to the rent ; the other purchasers cannot object to the title, on the ground of a clause of re-entry or non-payment, contained in the lease.^ 26. While the production of title may be dispensed with by the special terms of the sale itself; it may also be impliedly loaived by the purchaser. Such implication, however, must be clearly estab- lished, in order to prevail over the general rule of law. Thus, where a lessee in possession contracted to sell the residue of his term, being three years and a quarter, at the rent of £42 per annum, the vendee paying X30 for the fixtures, as per list ; held, it was not to be inferred, from the short residue of the term, the small value of the property, and the absence of any premium for the lease, that the vendee intended to waive his right to call for the production of the lessor's title.'^ So the objection to the title is not waived by a premature conditional approbation of it by the purchaser's counsel ; but the expense of making out the title, before this objection was taken, shall be repaid.^ 27. In a suit for specific performance of an agreement to accept a lease, the Court, considering the defendant (the intended lessee) by his conduct to have waived all objections to the vendor's title, decreed a specific performance, and referred it to the Master to 1 Spratt V. Jeffery, 10 Barn. & Cress. * Senter v. Drake, 5 Barn, and Adol. 249. 992. 2 Paterson ?'. Loner, 6 Beav. o'.iO. 5 Deverell v. Bolton, 18 Ves. 505. 3 Walter v. Maunde, 1 Jac. & Walk. 181. * 232 LAW OF VENDORS AND PURCHASERS. [CHAP. XIII. settle the lease. In settling the lease, it became necessary, for identifying the premises, to produce before the Master the original lease, under which the plaintiff was entitled to the property, and from which lease it appeared that the property in question was held with other property at one entire rent, and under some spe- cial covenants, no provision with respect to which was made in the agreement between the plaintiff and the defendant. On the hear- ing for further directions, these facts being brought before the Court by exceptions to the report ; held, though the defendant had by his conduct waived his right to the production of the lessor's title, yet as, in the course of the proceedings, it had become neces- sary to produce that title, and that production showed that a suf- ficient lease could not be made, according to agreement, the Court would not enforce a specific performance ; and the bill was dis- missed, but without costs.^ But where the purchaser of the benefit of an agreement for the lease of a public house, and also of the stock and good-will, enters before the lease has been granted, pays part of .the purchase-money, and mortgages his interest; he cannot call for the lessor's title, or for evidence that the lease was made in conformity with the power under which it was granted. ^ 27 a. If there be a covenant for title, clear of incumbrances, where there are unextinguished ground-rents, it is error to instruct the jury that the defect may be compensated by a deduction from the purchase-money .2 28. In reference to the title of leasehold property, questions often arise upon the necessity and effect of covenants for the pro- tection and benefit of the lessee or purchaser. Thus, in addition to the rule above stated, as to the implied obligation in the sale of leasehold estates to give a good title to the purchaser, an agree- ment for a lease often stipulates for the insertion in such lease of the usual covenants.'^ What covenants fall under this description, depends upon various circumstances, such as local custom, or the nature of the property ; but it is always a question of fact for the jury. It has been held, that a lessee is not impliedly bound to covenant that he will not carry on a particular trade or business on the premises ; nor assign nor underlet without license ; nor that he will keep the premises insured, or pay the taxes. Nor is the lessor impliedly bound to covenant that he will rebuild in case 1 Warren v. Richardson, You. 1. ^ Gans v. Eenshaw, 2 Barr, 34. 2 Haydon v. Bell, 1 Beav. 337. * See Sargent v. Adams, 3 Gray, 81. CHAP. XIII.] REQUISITES OF A VALID TITLE. 233 of fire, and that the rent shall cease if he does not. But it seems he is bound to covenant for the lessee's quiet enjoyment, as against the lessor or those claiming under him.^(a) So covenants made for the benefit of the lessor may come in question upon a sale of the lessee's interest. Thus a lessee, subject to covenants, cannot com- pel specific performance of an agreement to purchase the premises, though he ofier to indemnify the purchaser against the perform- ance of the covenants.2 So if the vendor of a lease, in which is a covenant not to assign, contract to assign his interest, it is incum- bent on him, and not on the purchaser, to procure tlie lessor's license for the assignment.'^(6) 29. Title sometimes depends upon, or is impaired by, legal jJro- cess,(c) more Q&\)QQ\di\\j judgments, as constituting a lien upon land sold. Thus, in 1846, the plaintiff, a mortgagee with power of sale, under a mortgage dated in January, 1844, contracted to sell the premises to the defendant. At the date of the contract, the prem- ises were subject to two judgments, registered against the mort- gagor in 1843 ; but it appeared that, on taking his mortgage, the plaintiff also took an assignment to a trustee for himself of the residue of a term of one thousand years, created in 1818 ; and it 1 Church V. Brown, 15 Ves. 258 ; Ben- 2 Tildes v. Hooker, 3 Madd. 193. nett V. Woniack, 7 B. & C. 627 ; Doe v. 3 Lloyd v. Crispe, 5 Taunt. 249. Sandhara, 1 T. K. 705 ; Van v. Corp, 3 My. & K. 269. " (a) Contract for an assignment of a lease in 1843. Up to that time the rent was of a public house, which was described as paid regularly, but the covenants to repair liolden at a certain net rent, upon usual and and insui-e wei'e neglecteil. Upon the common covenants. The lease contained a decease of the lessee, disputes arose in the covenant by the tenant, to pay land-tax. Ecclesiastical Court as to the right to rep- sewers-rate, and all other taxes, and a resentation to his estate, and probate was proviso for re-entry, if any business but not granted until 1847. During these that of a victualler should be carried on in four years the rent was in arrear, and the the house. It was proved that a consid- covenants to insure and repair were totally erable majority of public-house leases con- neglected. The lessor threatened to bring tained such a proviso. Held, the cove- ejectment. Held, on a bill brought to re- nant was a common one in a lease strain the ejectment, and to have a specific reserving a net rent ; and the proviso was performance of the agreement, inasnmch also usual and common. Bennett v. Wo- as the lessor, if the lease had been formally mack, 7 B. & C. 627. executed in 1814, would now have had a {h) A. agreed, in 1814, for a lease of right to determine it by breach of cove- building-ground for seventy -five years, at nant, the Court would not decree specific a ground-rent, containing the usual build- performance ; and that the disputes in the ing-covenants to insure, repair, allow les- ecclesiastical courts did not afford suffi- sors to enter and view repairs, &c. ; and cient ground for relief. Gregory v. Wilson, that in case of non-payment of rent, or 10 Eng. Law & Eq. 133. breach of any covenant, the lessor was to (t) It is no objection to a title, that the have the right to re-enter. The lease was vendor had notice of a Us pendens concern- never executed, but the tenant entered, ing it, without proof of the claim asserted ; and built, at considerable expense, and the action liaving been compromised and continued in possession up to his decease settled. Wilsey v. Dennis, 44 Barb. 354. 234 LAW OP VENDORS AND PURCHASERS. [CHAP. XIII. was denied by the plaintiff that, at the date of the mortgage, he had notice of the judgments. The defendant, who had been let into possession, having refused to pay the purchase-money, the suit was instituted for specific performance. Shortly afterwards, the five years from the date of the registration of the judgments terminated, without a registration of such judgments having been made, pursuant to Statute 2 Vict. ch. 11, § 4 ; and afterwards, pending the suit, one only of such judgments was re-registered. Held, the purchaser could not be forced to take a conveyance, except upon the terms, either of the concurrence therein of the judgment creditor who had re-registered, and of the other in case he should re-register, or of a release or exoneration of the premises from the judgments. ^ 30. But in case of conveyance by a debtor to trustees, his creditors, in trust to soil, and pay themselves, and the surplus pro- ceeds to the debtor ; and to convey to him the lands remaining unsold ; the receipt of the trustees to be a sufficient discharge to a purchaser ; with covenants for repayment of the money by a cer- tain day, for good title and quiet enjoyment : on a sale under a decree to execute the trusts ; held, that judgments confessed by the debtor subsequent to the deed, and still outstanding, were not objections to the title,^ So an outstanding docketed judgment, not registered pursuant to the provisions of the Statutes 1 & 2 Vict, ch. 110, § 19, and 2 & 3 Vict. ch. 11, §§ 2 and 3, is not a valid objection to the title of a vendor on the sale of realty.^ 31. The decree of title in one State, to lands in another, cannot vest the legal title.^ 32. On reference of title, in a suit by a vendor for specific per- formance, a subsequent suit still pending for part of the lands, claimed adversely to the vendor, is not sufficient ground for re- porting against the title.^ 33. A contract to convey, so soon as a suit then pending for the title shall be decided, gives the vendor all the time necessary to close the litigation in all its forms. ^ 33 a. Title hy foreclosure, where the owner was not party to the suit, is bad.'^ 1 Freer v. Hesse, 21 Eng. Law & Eq. * Watts v. Waddle, 1 McL. 200. 82. ^ Osbaldeston v. Askew, 1 Russ. 160. 2 Alexander v. Crosbie, 6 Ir. Eq. Rep. « Watts v. Waddle, 1 McL. 200. 513. '7 Jouglians v. M'Cormick, 18 Cal. 3 Bedford v. Forbes, 1 Carr. & K. 33. 660. CHAP. XIII.] REQUISITES OF A VALID TITLE. 235 34. All act of hankniptcy is a sufficient objection to title, without showing a debt, upon wliich a commission could issue.^ So an act of bankruptcy and a docket struck, though no commission issued, are a sufficient objection to a bill for spccilic performance of a previous contract for the sale of an estate to the plaintiff; in a case even where part of the money had been paid, and sub-con- tracts for sale of part entered into by the plaintiff; and the defend- ants had agreed to convey accordingly .^(a) So a devisee, subject to debts and legacies, contracted to sell in order to raise money to pay the debts. Afterwards a bill was filed against her, by the legatees for the administration of the testator's estates, and the purchaser consented to go before the Master upon a reference as to title in that suit. Hold, he was not thereby bound to take an equitable title, but might insist on having the same title as he might have required if a suit had been instituted against him for specific performance. And, as two commissions of bankrupt had issued against the devisee, before the contract was entered into, though neither of them was proceeded in, he was not bound to accept the title.^ But, in another case, lands were settled on A. for life, remainder to his wife for life, remainder to their children, with a power of revocation and appointment to new uses by the husband and wife jointly ; but if A. should become bankrupt, &c., the limitation to him for life should cease, and the lands should go to trustees during his life, for the benefit of his wife and chil- dren. A. agreed for the sale of this estate, and proposed to make title to the purchaser by executing tliis power of revocation. The conveyance on the part of the purchaser required an indemnity against A.'s having committed any secret acts of bankruptcy, for that the power of revocation would be extinguished by the forfeit- ure of the life interest of A. On a bill filed by A. to compel per- formance, held, there was no ground for the objection, and the mistaken opinion of the conveyancer could not save the defendant from costs.* 34 a. In the case of Frewe v. Wright,^ where assignees of a bank- 1 Lowes V. Lusli, 14 Ves. 547. ^ Maling v. Hill, 1 Cox, 186. 2 Franklin v. Brownlow, 14 Ves. 550. 5 4 Madd. 364. 3 Cann v. Cann, 1 Sim. & Stu. 284. (a) Upon an exchange of land, it is no vent, with the warranty of a solvent per- objection to a specific execution, that one son as security. Tyree v. Williams, 3 of the parties has become insolvent, if the Bibb, 366. Court decree a conveyance from the insol- 236 LAW OF VENDORS AND PURCHASERS. [CHAP. XIII. rupt had stipulated that such title only as the bankrupt had should be required by the purchasers ; Sir W. Page Wood, V.C., remarks, that it was " thought a stretch of the jurisdiction of the Court to force the title on a purchaser. The principles on which such sales " (by order of Court) " are conducted ought not to be more lax as to the complete bona fides required than those which are held to gov- ern in other cases." ^ 35. In some cases, a legal title may be presumed ; and, in mat- ters of presumption, the Court will bind a purchaser, where it would give a clear direction to a jury.^ Thus a reconveyance of the legal estate was presumed under obscure circumstances, after a great lapse of time, though the possession was originally not adverse, but under a trust ; and, upon this presumption, specific performance was decreed against a purchaser.^ So a term was created in 1711 for raising portions. There was no evidence of the portions being satisfied ; but a settlement of the estate took place in 1744, and a recovery was suffered ; and there was a covenant that the estate was free from incumbrances. No assign- ment appeared to have been made at any time of the term. On an objection to the title by a purchaser, held, that a surrender of the term must be presumed.* So it was held to be no objection to a title, that two fee farm-rents, created by letters-patent by James I., were not shown to have been extinguished ; it being proved that no claim had been made by the Crown of the rents from the year 1706, and there being no proof of any previous claim.^ 36. But it has been held, that a purchaser is not compellable to accept a title to premises formerly subject to an incumbrance, the discharge of which is shown only by presumption. Thus a lease- hold was sold, subject to a ground-rent, which was said to be apportioned out of a larger rent ; but the apportionment was not evidenced by any existing deed, but only by the acceptance of a mesne landlord, and presumption. Held, that the purchaser was not bound to accept the title.^ 37. A title may be gained by lapse of time or limitation, as well as by direct transfer or alienation. Thus it has been held, that sixty years' possession is an unobjectionable title to a fee-simple.''' 1 Edwards v. Wickwar, Law Rep. * Emery v. Grocoek, 6 Madd. 54. (Eng.) Eq. Jan. 1866, p. 68. 5 Simpson v. Gutteridge. 1 Madd. 609. '^ Emery v. Grocoek, 6 Madd. 54. 6 Barnwall v. Harris, 1 Taunt. 430. 3 Hillary v. Waller, 12 Ves. 239. 1 Ibid. CHAP. XIIT.] REQUISITES OF A VALID TITLE. 237 So the Court will compel a purchaser to take a title depending upon parol evidence of adverse possession under the Statute of Limitations, 3 & 4 Will. IV. ch. 27.^ So King Charles II., being seised in fee of the lands of A., granted them by letters-patent to B. and the heirs male of his body, reserving a yearly rent equal in amount to the quit-rent which would be payable if they had been granted in fee. The reserved rent was thereupon put in charge in the Crown rentals, as if it were a quit-rent, and so continued. Subsequently, in 1776, the estate tail determined, by failure of the issue male of B. ; and ever afterwards the person deriving under the patentee continued in possession, claiming in fee-simple, and paying tbe rent reserved in the letters-patent, as quit-rent. The lands having been decreed to be sold, held, upon exception to a report of good title, that the title of the Crown was barred, and transferred to the vendor, by the operation of the 48 Geo. III. ch. 47, and the exception was overruled.^ Upon the same principle, it was held, that a deed under which lands had been claimed forty years, purporting to be executed before the mayor of Georgetown, though without covenants, seal of the mayor, or certificate that he was mayor, could not be objected to by the vendee as a defect in the title.3 38. A title may be questionable, as derived from a married woman or an infant. A vendee will not be compelled to take a title founded on a decree against an inftuit, because the latter may show cause against it when of age.'^ So where title is sought through a wife, the husband must be made a party, in order to decree a good title ; or where there is a dower interest out- standing.^ So in case of devise to A. for life, remainder to B. for life, remainder to his sons successively in tail male ; A. and B., during the infancy of B.'s eldest son, obtained an act of Parlia- ment, vesting the estates in trustees, in trust to sell. Held, that A. and B. must covenant with the purchaser for the title. *^ So, a vendor dying intestate, and leaving an infant heir, the purchase- money, being paid into court in a suit for specific performance instituted after his death, will be retahied, till the heir attains twenty-one, and conveys.^ So conditions of sale, after stating that 1 Scott V. Nixon, 3 Dm. & Warr. 388. 5 Watts v. Waddle, 1 McL. 200. 2 Tuthill V. Kogers, 1 Jo. & Lat. 36. •> London Bridge, &c., 13 Sim. 176. 3 Brown v. Witter, 10 Ohio, 142. 1 Bullock v. Bullock, 1 Jac. & W. 603. 4 Bryan v. Keed, 1 Dev. & Bat. Eq. 86. 238 LAW OF VENDORS AND PURCHASERS. [CHAP. XIII. the estate was by settlement limited to IMrs. C. for life, with remainder to trustees in trust to sell for the benefit of her chil- dren, proceeded as follows : " And there being three such children only, all of whom have attained the age of twenty-one, such chil- dren or their trustees shall, if required, join in the conveyance to the purcliaser ; but no objection to the title of the vendors shall be made on account of the sale taking place during the life of Mrs. C." Two of the children of Mrs. C. were married women, having chil- dren who were minors ; and they had settled their portion of the money to arise from the sale of the estate in trust for themselves for life, with remainder to tlieir children. Held, that neither the children of Mrs. C. nor the trustees had legal capacity to join in a conveyance, and therefore a purchaser was entitled to recover the deposit.^ 39. But, on the other hand, an estate was settled to the husband and wife successively for life, with remainder to their children, as they should appoint, and, in default of appointment, between such children. The husband and wife incumbered their life inter- ests, and, having seven children, appointed the whole estate to the eldest daughter. Soon after, the husband, wife, and daughter mortgaged the property, with power of sale. The mortgagee sold to the plaintiff; and, after the title had been approved, one of the younger children gave notice to the plaintiff not to complete, and that the appointment was a fraud on the marriage settlement, and also cautioning the purchaser not to pay the purchase-money. Held, no objection to the title, and that the purchaser must com- plete the sale.2 So it is no objection to a sale in court in execution of a will, that there are infants interested under the will, who cannot join in the conveyance.^ So two persons, one an infant, being joint claimants of a lot, the elder sells it, and covenants to deliver the deed of both, upon payment of the purchase-money. The whole price falls due, payment is enforced, and the deed made and tendered before the infant attains to majority. Held, the vendee cannot object to the deed on account of the infancy.* 40. Upon a bill for specific performance of a sale, and excep- tions to the Master's report in favor of the title, one link in the chain was a deed found among the title-papers accompanying the 1 Moseley v. Hide, 6 Eng. Law & Eq. 3 Powell v. Powell, 6 Madd. 53. 247. 4 Beckwith v. Marryman, 2 Dana, 371. 2 Green v. Pulsford, 2 Beav. 70. CHAP. XIII.] REQUISITES OF A VALID TITLE. 239 possession, but with respect to which the weight of evidence was, that the deed was not genuine. By exchuling that deed, the complainant would be reduced to rely upon adverse j^ossessmi, which was less than twenty-five years. There was slight evidence that the maker of the deed was an alien ; and, if not so, there was no account of his' heirs or devisees. Held, a case proper for an issue at law. If the complainant's title had been clearly adverse for twenty-five years, it would not be sufficiently impeached by the possibility, either of an escheat, or of such grantor's having left heirs or devisees, whose title would be protected by disabilities. Such title by adverse possession would be sufficient to preclude all other questions, and to be made the ground for a decree.^ 41. In the same connection, it may be stated that the alienage of the vendee is an insufficient ground to entitle the vendor to a decree rescinding a sale, though it may afford a reason for refusing specific performance against the vendee. But, if the parties have not an adequate remedy at law, the vendor may be considered as a trustee for purchasers under a sale by order of the Court, for the benefit of the vendee.^ 42. The following miscellaneous principles and cases may prop- erly be stated in connection with the subject of this chapter : — 43. A reservation of salt-works, mines, &c., in 1704, with a right of entry, though there was no instance of any claim, and the title had been transferred in 1761, without such reservation upon the usual covenants, was held an objection to the title giving a right to compensation, the purchaser not insisting upon it further ; the Court being of opinion that the inference of abandonment of a right from non-user is not applicable to the case of mines.'^ 44. Commissioners under an inclosure act were empowered to allot common lands among the proprietors of common lands in the parish, and to assign any messuages, buildings, new allotments, and old inclosures, in exchange for others ; so that such exchange should be ascertained in the commissioners' award, or in some deed executed by them, and be made with the consent in writing of the respective proprietors. An appeal was provided to the quarter sessions in six months after cause of complaint. The commissioners, among other things, awarded to A., in respect of an estate of his in the parish, rented by B. and C, furze close 1 Seymour v. Delancey, 1 Hopk. 436. ^ Seaman v. Vawdrey, 10 Ves. 390. 2 Hepburn v. Dunlap, 1 Wheat. 179. 240 LAW OF VENDORS AND PURCHASERS. [CHAP. XIII. of five acres, and hill dose of four acres, late A.'s land ; and to D., a proprietor of meadow and arable land in the parish, in respect of his freehold estate, two acres of arable, called iShortlands, late a common field, and sixteen acres of old inclosure, called Stearts, late A.'s ; without saying that the several closes had been given in exchange for each other, but concluding the award with an approbation of the exchanges made between A. and D. There was no consent in writing by A. or D. Held, in 1813 D. could make no title to Stearts or SJiortlands, the lands awarded him, though they had been in his possession ever since the execution of the award in 1798.^ 45. Trustees were empowered by act of Parliament to sell and exchange all or any of the hereditaments mentioned in the sched- ule to the act, amongst which was a farm, called the Mountain Farm, parcel of the manor of W. In the body of the act there was a proviso that the manor of W. should not be sold. The trustees having contracted to sell the Mountain Farm, held, the purchaser was not bound to accept the title.^ 46. It is a sufficient objection to a title, that a person, under whom the vendors claim, held, during his seisin of the estate, a newly created office under the Crown (that of Commissioner of Dutch Property), in which he was directed by statute to pay the surplus (after certain charges answered) of the proceeds of certain sales into the Bank of England, there to remain subject to such orders as the king in council should give thereon, and that his accounts with the Crown were not yet liquidated ; the lands being liable to an extent under the Stat. 13 Eliz. ch. 4, and at common law also.^ 47. By conditions of sale, it was stipulated that the vendor of an estate, sold in lots, should deliver an abstract of the title to the purchasers, and deduce a good title, but as to a part of the estate, acquired under an inclosure, should not be bound to show any title prior to the award ; that he should deliver up to the largest purchaser in value all the title-deeds and other documents in his custody, but should not be required to produce any original deed or other documents than those in his possession, and set forth in the abstract. Held, the conditions did not relieve the vendor from verifying the title shown upon the abstract, by producing the title- 1 Cox V. King, 3 Bing. N.C. 795. 3 Wilde v. Fort, 4 Tauu. 334. 2 Lincoln v. Arcedeckne, 1 Coll. 98. CHAP. XIII.] REQUISITES. OF A VALID TITLE. 241 deeds themselves, or, if any of them were not in his possession, by other satisfactory evidence. A vendor, to exonerate himself from the production of any evidence necessary to verify tlie title beyond what the title-deeds in his own custody will supply, is bound so to inform the purchaser in clear and explicit terms. ^ 1 Southby V. Hutt, 2 My. & C. 207. 16 242 LAW OP VENDORS AND PURCHASERS. [CHAP. XIV. CHAPTER XIV. TITLE OF THE VENDOR ; MUTUAL CLAIMS OF THE PARTIES, AS DEPENDING THEREON. 1. Mutuality of the rights of vendor and 5. Question of time, as bearing upon the vendee; chiim of the former to the price, as rights of vendor or vendee ; notice; title at the depending upon title, and of tlie latter to time of decree in equity ; title-deeds. a deed, as depending on payment or tender 12. Waiver of the rights of a party; of the price. Suits in equity and at law. notice, possession, delay, &c. 3. What deed the vendor is required to 15. Right of the vendor to rescind for tender; deed of a third person. want of title. 4. Effect of the vendor's disabling him- self to convey. 1. In connection with the general subject of the title which a vendor must make to the vendee, we proceed to consider more particularly the claim of the former upon the latter for the stipu- lated price, as affected by his making or failing to make such title. 2. Upon this point it is the general principle — equally a rule of law, equity, and moral justice — that the rights and duties of the parties to a sale and purchase of real property are mutual or reciprocal; that the vendor cannot claim the price without having conveyed or offered to convey the land ; nor the vendee the land without having paid or offered to pay the price. (a) Thus, it is said to be a universal rule of equity, that he who asks for a specific performance must be himself in a condition to perform. There- fore the vendor, being unable to make a title free from incum- brances, is not entitled to a decree for specific performance.^ So, 1 Morgan v. Morgan, 2 Wheat. 290, 299; Smith v. M'Cluskey, 45 Barb. 610; Small V. Reeves, 14 Ind. 163. (a) The same general principle has the lessee, the purchase-money to be been applied, in case of a contract relating paid on completion of a good title by the to real and personal property, to the title plaintiff. Before completion of a good of the latter, and as between the vendee title, the contract was rescinded by con- and a third person. Thus the plaintiff sent of both parties. Held, the furniture let a liouse and the furniture therein for never vested in the lessee, and therefore six months. During that period, the could not be taken under an execution plaintiff and the lessee entered into a against him. Lanyon v. Toogood, 13 written contract, whereby the plaintiff Mees. & Wels. 27. agreed to sell the house and furniture to CHAP. XIV.] TITLE OP THE VENDOR, ETC. 243 under a contract to pnrchasc land, generally, good and snfficiont titles must be delivered or tendered before the purchase-money can be recovered. A covenant by the vendee to pay, and of the vendor to convey upon payment, arc dependent covenants ;(a) and an action to compel payment cannot be maintained, without proof of a previous tender of a conveyance.^ So the declaration in an action for the price must aver a readiness to convey, and the plaintiff must prove his ability to convey .^ So if one party covenants to convey land to the other within one year, at an agreed price per acre ; and the other to pay the same price within the same time ; the covenants are dependent, and neither party can maintain an action against the other, without proof that he was ready and willing to perform on his part at the proper time.^ So it is held, that a purchaser discovering an incumbrance may retain so much of the price.* So a purchaser (though with war- ranty) will not be compelled to receive a title and pay the pur- chase-money, if an apparently valid adverse title has been asserted ; and, if there is no probability that the claim purchased will pre- vail, equity will enjoin the payment of the purchase-money, and dissolve the contract.^ So an injunction, to a judgment for the purchase-money, ought not to be dissolved, until a good and suffi- cient deed be tendered by the vendor.^ So where a purchaser stipulates to pay the residue of the purchase-money on a day 1 Adams v. Williams, 2 W. & S. 227; * Troughton v. Troughton, 1 Ves. 88. Tharin v. Fickling, 2 Rich. 361. 5 Young v. Lillard, 1 Marsh. 482 ; '^ Lawrence v. Dole, 11 Verm. 549. Marlow v. Marlow, 2 P. Wms. 19'J. 3 Low V. Marshall, 17 Maine, 232 ; 6 Grantland v. Wight, 2 Munf. 179. Lawrence v. Dole, 11 Verm. 549. (a) The dependence or independence having covenanted to do two things, one of covenants is to be collected from the of wliich he lias done, may maintain an evident sense and meaning of the parties, action for tlie part done, as upon an inde- Balch V. Smitli, 12 N.H. 444. And this pendent covenant. But, if the failure of intention is to be sought for, rather in the the plaintitf to perform any covenant has order of time in which the acts are to be been injurious to the defendant, the latter done, than from the structure of the in- may set up this injury as a defence pro strument. Goodwin v. Lynn, 4 Wash, tanto. Ibid. (See Cuveiiant.) C. C. 714. In a contract between parties, relative When the time for paying the last to the same subject, some stipulations instalment under a land contract has ex- may be mutual and independent, and pired, tlie obligations to pay the money others dependent aiul mutually condi- and to convey are mutual and dependent tional. Thus the plaintiff, without hav- covenants, to be executed simultaneously, ing tendered perfornumce on his part, Eunkle v. Johnson, 30 111. 328. recovered on a breach of one covenant Though dependent in form, the cove- because it was independent, and failed on nants will be construed as independent, the other because it was dependent, when necessary to effect justice. Todd Kane v. Hood, 13 Tick. 282; Couch v. V. Simmons, 2 Gratt. 167. Hence a party, Ingersoll, 2 Pick. 292. 244 LAW OF VENDORS AND PURCHASERS. [CHAP. XIV. specified, upon the vendor's making a good title, or, otherwise, if such title should not be completed, upon his executing a bond to complete such title and to convey the estate as soon as the same could be completed : the vendor is bound to show a good title ; and, till a good title is shown, the purchaser, though he had entered into possession, is not bound to pay the purchase-money.^ So where the legal title cannot be conveyed, and the vendee must resort to a Court of Equity to establish his title, notwithstanding a conveyance of all the right of the vendor to him, the Court will not compel him to pay the purchase-money, and thus take a laio- suit instead of the land.^ So where a purchaser by bond for a deed enters, but fails to comply with the terms of purchase ; the vendor may bring an action of ejectment against him.^ So where a vendor covenants to give a deed on a certain day, and the pur- chaser covenants on the same day to pay part of the consideration, and give security for the residue ; the covenants are dependent, and neither party can maintain an action, without averring per- formance, or readiness to perform, on his part.* So where a sale has been in part executed by a conveyance of part of the land, and the vendor is unable to convey the residue ; equity will decree repayment of a proportionate part of the purchase-money, with interest.^(a) 1 Clarke v. Faux, 3 Russ. 320. * Garley v. Price, 16 Johns. 267. 2 Bank, &c. v. Has;ner, 1 Pet. 455. * Pratt v. Law, 9 Cranch, 494. 3 Dean v. Comstock, 32 111. 173. (a) The following miscellaneous cases cottage portion of Magnolia Farm, for more fully Illustrate the general rule in $3,000, to be paid as follows : .$1,500 on the text : — the 1st of January, 1842 ; $1,000 in twelve Action on a contract, to pay the plain- months, and $500 in eighteen months tiff for certain land $1,500, "payments as after that date; each of the two latter follows : $200 cash ; $300 in negro prop- suras to draw interest from the above- erty ; the balance of §1,000 to be paid in stated periods, or date of the bond. At one, two, and three years, bearing inter- the time the agreement was made the est from the time of possession, and giv- premises were under mortgage, and, in ing approved personal security with a May, 1842, were sold under a decree of mortgage on the premises, to secure the foreclosure, pronounced against the plain- payment of the $1,000." Shortly after tiff in January, 1842. Held, the plaintiff, the contract was executed, the defendant in order to recover on the contract, should entered on the land, and cultivated it for have removed the incumbrance and ten- one year. The action was for the first dered to the defendant titles to the farm, payment of $500. Held, the plaintiff Also, that the plaintiff could not show, could not recover, without proof that he by parol, that the defendant knew of the had executed and tendered titles to the mortgage, and that the agreement was defendant, before action commenced, entered into with a view to raise money Breithaupt v. Thurmond, 3 Rich. 216. to pay it off. Tharin v. Fickling, 2 Rich. The defendant, on the 6th of Decem- 361. ber, 1841, agreed in writing to purchase One who has agreed to convey three from the plaintiff his farm, called the lots, two of which are represented to be CHAP. XIY.] TITLE OF THE VENDOR, ETC. 245 3. Ill reference to the obligation of a vendor to give a deed of the land before claiming the purchase-money, it has been held that subject to a mortgage for §1,750 eacli, and the tliird to a mortgage for $1,600, amounting in all to $5,100, cannot main- tain a bill for specitic performance, if the first two lots are each subject to a mort- gage for $1,000, and the third to two mortgages amounting together to $1,000, and there is a fifth mortgage upon all the lots for $1,500; although after tender of his deeds he has tendered an agreement by the assignee of the last mortgage, that either of the first two lots shall be released from it, upon payment of $750. Park v. Johnson, 7 Allen, o78. The plaintiff sold to the defendant a lot for $700, agreed to make a pavement in front of the property, and to clear all incumbrances ; and was to receive the $700, on giving a good and sufiicient deed. The contract was dated 17th June, 1836, and the defendant was to receive the rent from July 1st; but, if the deed was not given by that day, the plaintifi' was to receive the rent until he gave a good deed. Held, the payment and con- A'eyance were to be concurrent ; and a declaration, alleging that the plaintiff was at all times ready to execute, and did execute and offer to deliver, a good and sufiicient deed, before the action was in- stituted, was, after verdict, equivalent to an allegation of seisin in the plaintiff. Kagan v. Gaither, 11 Gill & Johns. 472. In the sale of a farm, it was stipulated, that part of the purchase-money should be paid when the deed was ready, and the residue in annual instalments. Held, tlie vendor could not claim any part of the purchase-money, until he had ten- dered an unincumbered title ; not merely a warranty deed ; the farm being subject to a mortgage then due. Swan v. Drury, 22 Pick. 485. (In an action by the vendor upon such contract, parol evidence is inadmissible, that, when the contract was made, the vendee knew of the mortgage, and tiiat it was then agreed, that the mortgage should remain. The vendor having tendered a warranty deed ; held, the declarations of the vendee, made previously to the ten- der, that he should not insist on the removal of the incumbrance, were not a waiver of exception to the title, unless, taken in ccmnection with what took place at the time of tender, the whole evidence proved, that the vendee intended at that time to waive such exception ; for such declarations, being made without con- sideration, were not obligatory, it not appearing that the vendor acted on the faith of them, or liad been subjected to any damage or expense thereby. lb.) By the conditions of a sale by auction of a copjiiold, it was stipulated, that the purchaser should p;iy down a dejiosit, and sign an agreement for payment of the remainder of the purchase-money at a certain time, on having a good title, and that he should have a proper sur- render of the estate, on such payment. Held, in order to maintain an action, the seller must not only allege tliat lie had been always ready and willing, and fre- quently offered, to make a good title and a proper surrender on payment of the purchase-money ; but also actually made a good title, and surrendered the estate to the purchaser, or a tender and refusal ; and also what title the seller had. Phil- lips V. Fielding, 2 H. Bl. 123. By an agreement under seal for sale and purchase of land, the defendant cove- nanted to pay $2-50 on a certain day, and the plaintiff covenanted, that, upon per- formance of the covenant of the defendant, he would " execute to him, his heirs and assigns, a good warrantee deed of convey- ance." The declaration alleged, that the plaintiff was, and had been at all times, ready and willing, on payment of the $250, &c., to execute a good warrantee deed of conveyance, &c., but that the defendant did not pay the $250, &c. Pleas, that the plaintiff was not seised, &c., and had no title; and that tiie plain- tiff did not on the day appointed, nor at any time since, tender or otter to execute a good warrantee deed of conveyance. Held, the covenants were dependent ; that the words, " a good warrantee deed of conveyance," referred to the instru- ment of conveyance only, and not to the title ; that the first plea was not sufficient, because, to an action on a deed or spe- cialty, mere failure of consideration is no defence at law. But that the second plea was good, for the vendor cannot nuiintain an action for the purchase-money, without having executed or actually tendered a conveyance. Parker v. Parmele, 20 Johns. 130. Bond from defendant to plaintifi" to convey land by a quitclaim deed, at a day named, on payment of a certain sum. On the day, the plaintifi", having tlie money within reach, thougli not actually in hand, offered to pay it, but made no formal tender ; but tlie defendant required pay- ment before the conveyance was made. 246 LAW OP VENDORS AND PURCHASERS. [CHAP. XIV. a promise " to make a valid deed " is not fulfilled by offering the deed of a third person. ^(a) It is said (p. 289), " The defendant was 1 Ilussey V. Roquemore, 27 Ala. 281. Held, the plaintiff was entitled in equity to a decree for a quitclaim deed of tlie land, free from incumbrances since the date of tlie bond. Parker v. Perkins, 8 Cush. 318. Land was sold at auction to the de- fendant, wlio subscribed the terms of sale ; which were, that a certain part of the purchase-money sliould be paid within seventy-five hours; a deed given by tlie vendor, with warranty of title, except as to the quit-rents, in such lots as should be designated ; that tlie purchaser should execute a bond and mortgage for the residue of the purchase-money ; and that the deed, bond, and mortgage, should bear date on the day of the sale. At tlie time of sale, the premises were subject to a registered and unsatisfied mortgage. The vendor brings ass)impsit, for breach of the conditions. Held, that giving the deed, bond, and mortgage, were to be simultaneous acts ; that, as the plaintiff was not in a situation to convey an inde- feasible title, the defendant was not bound to perform the agreement on his part ; and tliat defendant's notice of the regis- tration was immaterial, because, according to the true construction of the terms of sale, the quit-rents were the only incum- brance. Judson V. Wass, 11 Johns. 525. Contract for the sale of lands, made in August, 1845. The vendee agreed to pay therefor $950; viz., §200 in April, 1816, $200 in April, 1847, and the rest in two subsequent annual payments. The vendor agreed to deliver possession in November, 1845, and a deed in May, 1846. Possession was delivered and the first instalment paid, but no deed delivered or tendered. Held, an action did not lie for the second instalment. Grant v. Johnson, 1 Seld. 247. A bond was given to sell and convey certain land, upon payment of a certain sum, by a good and sufficient deed of warranty, and to procure the wife of the grantor to release her dower. Held, if the grantor was seised, and tlie deed ten- dered was duly executed, with proper covenants of warranty, the penalty was saved, although the land was incumbered by a mortgage. The Court say : " The import of these words is confined to the form of the deed and its execution, and not to the title. If tlie money was to be paid on receiving the deed, it might be a reasonable construction, that a good and sufficient title should be conveyed; other- wise the purchaser might part with his money, not merely for the land, but for a lawsuit also. In the present case, how- ever, the money was to be first paid, and the plaintiff might as well sue on the covenants in his deed, as on his bond." Aiken v. Sanford, 5 Mass. 494, 499. The advertised terms and conditions of an auction sale of land were, that war- ranty deeds should be given ; tliat pur- chasers should have ten days to examine the title ; that upon these terms the ven- dor would convey to purchasers, who sliould make their payments and take their deeds, within twelve days from the sale, provided the deeds conformed to the conditions. The defendant, a purchaser, having ascertained that the vendor had no record title, except a mortgage made to the person from whom he bought, and that the latter derived his title in part from one whose wife did not appear by the record to have released her dower, refused to make payment and receive a warranty deed. Held, as the title was defective, the defendant was not bound to take the deed. Fletcher, J., says (in substance): "By a reasonable and just construction of the contract, the plaintiffs were bound to make a good and clear title. Ten days were allowed purchasers to examine the title. Purchasers could have no other object in examining the title, than to see if the plaintifls could make a good title ; and there could be no object in ascertaining this, unless they were bound to make such title. The purchaser was allowed time to examine the title, to see if he could get what he had purchased, and whether the plaintiffs actually had and could convey what they had vmdertaken to sell. Upon examining the title, the defendant ascertained, and such clearly was the fact, that the plain- tiffs could not convey a good and clear title. The land was incumbered, and the defendant was not bound to take and pay («) But a late case decides, that a con- tract to deliver " a good and sufficient deed of conveyance " is satisfied, if the contracting party, having no good title, procures a good conveyance from the owner. Bateman v. Johnson, 10 Wis. 1. CHAP. XIV.] TITLE OF THE VENDOR, ETC. 247 not bound to accept a deed from any other person than the plaintiff. If the title was in the party who made the tender, it might, it is true, for an incumbered estate. The delendant did not contract for a deed only ; he con- tracted for and purchased the land. The plaintiffs undertook to nudce to the de- fendant a good and clear title to the land." Mead v. Fox, 6 Cush. 199, 201, 202. Declaration, that it was agreed between the plaintiff and defendant, that the plain- tiff siiould purchase two houses of the defendant for the residue of a term of years, &c. ; that the defendant should paper them, &c. ; that the plaintiff should pay part of the purchase-money on com- pletion of the conveyance, and that the defendant should make a good title. The agreement was as follows : " [The plain- tiff] having agreed to purchase of [the defendant] two leasehold houses, &c. ; [the defendant] hereby agrees to paper, &c., [the plaintiff] to pay, &c., at the time of the conveyance, &c." Held, the agree- ment to purchase, though recited as an existing agreement, was to be considered as part of the agreement produced ; also, that there was no variance (m the ground that the agreement was silent as to the title, the contract to make a title being implied. Hall v. Betty, i Mann. & G. 410. By an indenture dated in March, A. agrees to give B. 450 acres of land in Ridgeville, Ohio, the land to be as good as C.'s, and B. is to receive in addition §200 at or before the 1st of July, and A., as agent of D., is to receive therefor certain lands of B., the possession to be given of B.'s land by the 1st of April, and B. is to make his selection after E., C, and F., w'hich selection is to be made by or before the 1st of July, and in conse- quence of B.'s not satisfying himself, then G., H., and I. shall average, if he chooses the land above-mentioned according to the above contract, or refuses to select, himself, and if the said lands should not prove to be as good as the average of lands in that vicinity of towns, then this contract to be void. Held, that the cove- nant of B. to deUver possession by the 1st of April was an independent covenant ; that A. might declare for a breach of it without taking any notice of his own cov- enants ; and that it was insufficient to plead, that the land in Kidgeville, from which B. might have made his selection, was not as g(jod as C's, or tliat A. was not the agent of D., or not authorized by 1). to make the contract or to prosecute the ac- tion, or that D. had no land in Ridgeville. Held, also, that the covenants to convey were mutual dependent covenants, and that A. should have averred performance on his own part, or an excuse for non- performance ; and that. B. having omitted to select by the 1st of -luly, the jtaynient or tender of tlie Sl^OO was a condition precedent to A.'s right to demand a deed of B., and should have been averred. Couch V. IngersoU, 2 Pick. 800. Wilde, J., says : " Tlie principal object of the contract was the exchange of lauds. No time was appointed for nuikiug the con- veyances, but as the one conveyance was the consideration of the other, we cannot doubt that it was the intention of the parties that both should be made at the same time. The plaintiff declares that the defendant's covenant was to have been iierformed within a reasonable time ; but it cannot be held reasonable that the plaintiff' should require the defendant to perform his covenant, before the plaintiff should be readj' to perform his. If the parties had intended that any such ad- vantage of priority should be secured to either party, it would have been expressed in the deed. It has been argued, that the defendant was bound to convey at the same time he was to deliver possession ; but it is manifest from the language of the deed, that such was not the intention of the parties. . The two conveyances were to be concurrent acts, and the covenants are therefore dependent. But this point does not appear to be material. For if the plaintiff was prevented from performing liis covenant by the neglect of the de- fendant, it is equivalent to performance by the lilainliii'. Now it is clear that no conveyance coidd be made by the plaintiff', before the selection of the lands was made, and this selection was to be made by the defendant. If he refused to make it, it was incumbent on him to give notice, that the selection might be nuide by the three commissioners. This defect in the declaration, however, is not material, be- cause on another ground the declaration is defective. It is stipulated in the deed, that the plaintiff' should pay the sum of $200. If this j)ayment was to be nuide previous to the time when the convey- ances were to be made, or at the same time, it is very clear that the plaintiff" cannot recover without averring that he paid or tendered payment of the money. This payment was to have been made the 1st day of July, nearly, a month before the time when a deed was demanded, and 248 LAW OP VENDORS AND PURCHASERS. [CRAP. XIV. have accomplished the object of the contract, which could only have been the transfer of a valid title ; but it might have involved before the time contemplated by the par- ties for the performance of the principal covenants. The defendant was not obliged to make the selection before the 1st day of July ; and if not tlien made, a further time was allowed, that it might be made by the men appointed for that purpose. When the plaintifl' demanded a deed of the defendant on the oOth day of July, he was obligated to pay or tender payment of the $200." Agreement, that the defendant should have certain land, for which he was to pay the plaintiff a certain sum in three instal- ments, the deed to be executed at the com- pleting of the last payment. Held, the agreement to pay the first two instalments was independent, but the agreements of tlie defendant to pay the last instalment, and of the plaintiff to execute and deliver the deed, were mutually dependent and conditional. Shaw, C.J., says : " Where the whole purchase-money is to be paid at once, and the deed is to be tlien given, the covenants are held to be dependent, because it is unreasonable to jiresume that the purchaser intended to pay the whole consideration, without having the equivalent, in a title to the land pur- chased. The same reason applies to the last instalment. An obvious reason why the first and second instalments should be paid without having a deed is, that the vendor was to witlihold the title, as a security for the purchase-money, and the vendee was content to rely on the ven- dor's contract for his future title ; but no such reason applies to the final and com- plete pavment of the purchase-money." Kane v. Hood, 13 Pick. 281, 283. The plaintiff agreed to sell the defend- ant his estate for a certain sum before a particular day, in consideration whereof the defendant agreed to pay that sum on the day, and, on failure, to pay £21. Held, tlie covenants were dependent ; and the plaintifl' could not recover the £21, without showing a conveyance on his part, or a tender of one. Goodisson v. Nunn, 4 T. II. 761. The plaintiff' covenanted to sell to the defendant a school-house, &c., and to con- vey the same to him on or before the 1st of August, and to deliver possession in June, and, in consideration thereof, tiie detendant covenanted to pay tlie ijlaintitf £120, on or before the 1st of August, 1797. Held, the covenants were dependent cov- enants ; and the plaintiff could not main- tain an action for the £120, without averring that he had conveyed or tender- ed a conveyance. Glazebrook v. Wood- row, 8 T. li. 366. The defendant, in consideration of the covenants of the plaintiff' in the same deed, covenants that he will purchase certain lands of the plaintiff', then in pos- session of the defendant, and will pay for the same a certain sum in four years, with interest annually ; and the plaintiff cove- nants that he will deliver to the defendant a conveyance of the land, upon his pay- ing the said sums at the time or times mentioned. Held, the plaintiff" might re- cover the interest at the end of each of the three fii'st years, by way of rent ; but not the fourth year's interest, nor the princi- pal, without making a tender of the con- veyance. Gardiner y. Corson, 1-5 Mass. 504. Jackson, J., says : " The defendant was to pay his money for the land ; he did not in- tend to pay at the end of the four years, if the plaintiff" should then refuse to de- liver the deed. On the other hand, the plaintiff''s intestate was to deliver the deed upon receiving the money ; he did not intend to convey the land, unless the defendant should pay the money. These were mutual conditions, and neither party could complain of the default of the other, until he had offered to perform his part of the agreement. The defendant was al- ready in possession of the land to be conveyed, at the time of executing the instrument. It appears that he was to continue in possession during the four years. He would receive the considera- tion for which this interest or rent was to be paid, whether the land was finally con- veyed to him or not ; and he therefore covenants to pay it, without reference to the expected conveyance. This interest, therefore, does not appear to us to be a sidjstantial part of the price. The price was to be paid, when he received the deed ; the deed not having been delivered nor tendered, the plaintiff" cannot recover tlie price. But the plaintiff" was entitled to sue for and recover the interest, at the end of each of the three first years ; and nothing has since occurred to bar that right. As to the interest for the fourth year, that was to be paid, together with the principal, on receiving the deed. In one view, this may be considered to be equitably due, as much as the interest for the three preceding 3'ears. But the par- ties have thought fit to make the last pay- ment of interest, as well as the payment of the principal sum, depend on the con- CHAP, xrv.] TITLE OF THE VENDOR, ETC. 249 the trouble and expense of an inquiry to ascertain whether such title was good, and this inquiry the defendant was under no obliga- tion to make."('0 dition of his receiving a deed at that time." Where it was stipuhited, in a con- tract for the sale of a farm, tliat part of the price sliould be paid when the deed was ready, and tlie residue in annual in- stahnents ; held, tiie vendor could not claim an}^ part of the price till a tender of an unincumbered title ; and, there being a mortgage on the farm, that tender of a warranty deed was insufticient. Wilde, J., sa\'s : " The agreement of the plaintiff was to convey the farm, which must be construed as an agreement to convey a good title free from all incumbrances. There is a material distinction between the case at bar, and tliat of Aiken v. San- ford, 5 Mass. 494. In that case the con- dition of the bond was, to convey by a good and sutBcient deed of warranty, and the deed was not to be given until after the i)ayment of the purchase-money. And the Court say, ' that if the money was to be paid on receiving the deed, it might be a reasonable construction, that a good and suthcient title should be conveyed.' That such is the law, we think very clear ac- cording to all the authorities." Swan v. Drury, 22 Pick. 489. A. agreed to convey to B. a farm on which C. lived, on the 1st of May, 1811, and B. covenanted to pay to A. on that day $500, part of the purchase-money. On the day appointed, A. tendered a deed, executed by A. and his wife, not acknowl- edged by the wife, and which did not em- brace all the farm. Held, the covenants were dependent, and delivery of the deed and payment of the money were concur- rent acts. Also, that this tender was not a performance of the covenant of A. Jones V. Gardner, 10 Johns. 266. By articles of agreement between the plaintilf and defendant, the plaintiff, for the consideration thereinafter mentioned, covenanted to execute and deliver to the defendant, on the 1st of May, 1806, a good and sufficient deed of eighty-four acres of land, and the defendant cove- nanted to pay to the plaintiff $1,000 on the 1st of May, 1806, and S875 on the 1st of May, 1812. In an action for the S1,000, held, these were dependent covenants, and the plaintiff must deliver or tender a deed to the defendant, before he could bring this action. Greene v. Reynolds, 2 Johns. 207. (d) On the other hand, it is helii that a bill for specific performance does not lie against one who contracted to convey to the i)laintifl' land of which he was not tlie owner; the i)laintiff having knowledge of tlie fact, and it l)eing expressly stipulated that the deed shall come from a third per- son. Nor will the C'ourt retain the bill for the purpose of awarding damages. Hill V. Fiske, 38 Maine, 520. Appleton, J., says (p. 521) : "There is no allega- tion, that at the time when this process was instituted, he (the defendant) had the title or the means of compelling its con- veyance. It is not in proof that he has since acquired the means of doing either. Not having the title, no decree for a con- veyance will be made against him. In Hatch V. Cobb, 4 Johns. Ch. 560, the Chancellor says : ' A specific performance cannot be decreed The defendant has fairly disabled himself before the suit was brought, and this was known to the plain- tiff.' In Kempshall v. Stone, 5 Johns. Ch. 193, the CiianccUor says: 'That where the defendant has disabled himself before filing the bill, and that the plaintiff knew that fact before he commenced his bill, it is then reduced to the case of a bill filed for the sole purpose of assessing damages for a breach of contract, which is a matter strictly of legal and not of equitable jurisdiction.' The same doc- trine has been held to apply where the party contracting to convey never liad any title to the premises contracted to be conveyed. Morse v. Elmendorf, 11 Paige, 279. It is obvious, where the part}" con- tracting has no title to the land agreed to be conveyed, that there is nothing upon which a decree for a specific performance can operate. Woodark v. Bennet, 1 Cow. 711." As to the claim of compensation, it is further remarked : " The cases of com- pensation in equity, I consider," says Lord Ch. -Baron Alexander, in Newliam IK May, 13 Price, 752, " to have grown out of the jurisdiction of Courts of Equity, as exercised in respect to con- tracts for the purchase of real property, when it is often ancillary as incidentally necessary to eflectuate decrees of specific performance. It is well settled, that where the vendee never had title to the land contracted to be sold, or where he has conveyed the same subsequent to the making the contract, so that he lias not the power specifically to perform the same, and that fact is known to the ven- dee, the latter cannot file a bill in equity for the mere purpose of obtaining com- pensation in damages." 250 LAW OF VENDORS AND PURCHASERS. [CHAP. XIV. 4. Where a party agrees to convey land, upon performance by the purchaser of certain conditions, and designedly incapacitates himself to convey, the purchaser is discharged from the condi- tions. ^ So a vendee may bring an action for breach of the con- tract to convey, before demanding a deed, if the vendor, by his conduct, indicates that he does not intend to perform his covenant.^ So the vendee may rescind the contract, if the vendor is unable to fulfil it, without a tender of the purchase-money.^ And, if a party who has agreed to sell an estate is afterwards disabled from doing so, the vendee may recover the money deposited, with interest, in an action for money had and received, although the contract for the sale be under seal.* So a contract, that one party shall remain with the other and carry on his farm until the decease of the latter, and shall then receive the farm in compensation of his services, is broken by a sale of the farm, or a part of it, by the owner, although for the purpose of paying an antecedent debt ; and, the special con- tract being at an end, the party who has rendered the service may recover the value of it in an action upon the common counts.-^ In a late case,^ Scates, C.J., says (p. 493) : " The instruction refused, we think misconceived the nature of this action. It seems to be predicated upon the idea that the suit is in the nature of an action for a specific performance, and, consequently, to entitle himself to a recovery, defendant must show performance of precedent condi- tions. But the suit is to recover back the consideration paid, on a breach of the contract by plaintiff by selling and conveying the land to another. Plaintiff has put it out of his power to perform, by sale to another. Yet the principle he contends for would lead to this injustice and hardship, that had there been two instalments due, as precedent conditions to a conveyance, and, after the payment of the first, he should sell the land to another, and so rescind the contract on his part, yet the other party could not treat it as re- scinded, and sue for his payment back again, without first paying the second instalment, and thereby adding to the amount of his damage, injury, and the amount he would be entitled to recover. Were defendant relying for rescission upon the simple non-compli- ance of plaintiff, it might be necessary to establish his right to re- 1 Miller v. Whittier, 32 Maine, 203. Ca. 113; Judson v. Wass, 11 Johns. 525. 2 Gray v. Dougherty, 25 Cal. 266. 16 111. 4U2. 3 Runkle v. Johnson, 30 111. 328. ^ Canada r. Canada, 6 Cush. 15. * GreviUe v. Da Costa, Peake's Add. « Hurd v. Denny, 16 III. 492. CHAP. XIV.] TITLE OF THE VENDOR, ETC. 251 scind, by showing performance, or an offer to perform." The Court proceed to allow interest, upon the ground, that, " when the money was paid, it was intended to be paid in good faith, on the land; but, without apprising defendant of the fact, plaintiff resold the land, and concealed the fact from defendant's knowl- edge, until called on for a deed." o. We have already (ch. 11) considered the question of timey as bearing upon the respective rights and liabilities of vendor and vendee. As has been stated, time is generally treated as of the essence of the contract. Thus, if the vendor of an estate by auc- tion does not show a clear title by the day specified, the purchaser may immediately recover back his deposit, and rescind the con- tract. ^ So where it was an objection to a title, that it was doubtful whether the wife of a party to a deed thirty years old was barred by that deed of her dower ; it was not answered by proving at the trial that she was then dead, such proof not having been before given.2 So, it being necessary, in order to make a title perfect, that a recovery should be suffered, for the purpose of barring an old estate tail, vested in one not a trustee for the vendor ; the deed making the tenant to the prtecipe, and the warrant for suffer- ing the recovery, were executed before the filing of the bill for specific performance, but the recovery was not completed till a few days afterwards. Held, a good title was not shown before com- mencement of suit.^ So A., being entitled, under his marriage settlement, to a life interest in certain freehold estates, remahider to the use of trustees for a term of one thousand years, to secure a jointure and portions, remainder to himself in fee, conveyed part of the lands to B. in fee, in exchange for other lands. B.'s heir having afterwards contracted for the sale of the land, the purchaser refused to complete the contract, on the ground that A, had no power to exchange the lands in fee. The vendor then procured the execution of certain deeds, with a view of bringing the ex- change within the terms of a power of sale and exchange, given to the trustees under the settlement. Held, under these circum- stances, and likewise on the ground that the after-executed deeds were grossly inaccurate, the purchaser was not bound specifically to perform the agreement.* 1 Wilde I'. Forte, 4 Taunt. 33-1. 4 Cowgill v. Lord Oxmantown, 3 You. 2 Ibid. & CoU. 377. 3 Lewin v. Guest, 1 Russ. 325.' 252 LAW OF VENDORS AND PURCHASERS. [CHAP. XIV. 6. But on the other hand it has been held, that the purchaser cannot avoid the sale upon the ground of want of title at the time, provided the vendor reasonably satisfies his contract in this re- spect. The Court will not annul a sale for want of title, without giving the vendor a reasonable opportunity, in point of time, to make an imperfect title sufficient. Thus, if the vendor be willing, ready, and able to make title at the time when he has contracted so to do, it is immaterial that he had no title at the date of his contract, especially where the vendee, at both periods, has notice of the facts of the case.^ So where a vendor, who has covenanted to make a good title upon payment of the balance of the purchase- money, sues for such balance, and, being called upon to make good his covenant, presents a title which is defective in some particu- lars ; if the vendee has not been compromitted to the acceptance of such title, the Court should allow to the vendor a certain time within which to jDcrfect the title, the collection of the money to be suspended in the mean time, and, if it shall be out of his power to perfect the title, then the vendee should be required to accept the vendor's deed with warranty, or to restore the pre- mises, and equitably account for the rents and profits.'^ So where one agrees to sell an estate, a small portion of which turns out to be the property of another person ; the Court will not dis- charge the purchaser from his contract, without giving the vendor an opportunity of acquiring a title to that portion.^ So where, by the terms of a sale, the vendee was entitled to immediate posses- sion, the first payment to be made in part, by his obtaining an assignment of a judgment against the vendor, after which the deed was to be given, the judgment cancelled, and the residue of the first instalment paid ; held, the vendor was entitled to a reasona- ble time, after notice of objections to his title, to clear off the in- cumbrances, and procure the necessary certificate that the property was unincumbered. Also, that three weeks was not an unreason- able time.^ So, though equity will not compel a purchaser to take a title substantially defective, yet it is the privilege of the vendor to complete his title, at any time before a decree, provided there has been no unnecessary delay ; and, if the purchaser forestalls 1 Tison V. Smith, 8 Tex. 147 ; ace. '^ Jones v. Taylor, 7 Tex. 240. Webb V. Austin, 7 M. & G. 701 ; Stowell 3 Chamberlain v. Lee, 10 Sim. 445. V. Kobinson, 5 Scott, 196. See Shaw v. * More v. Suiedburgh, 8 Paige, UOO. Rowley, 16 M. & W. 810. CHAP. XIV.] TITLE OF THE VENDOR, ETC. 253 him, and perfects tlie title liiinself, he is not entitled to rescind, but cau claim only the expenses of removing the defect.^ So A. pur- chased land from B., and gave his bond for the purchase-money. Afterwards, supposing the title to be defective, A. procured a con- veyance from C, the original owner, under whom B. claimed, B. having refused to procure such conveyance himself. Held, al- though A. might have claimed to have the contract rescinded before his purchase from C, he could now only claim to be reimbursed what it had cost him to perfect the title.2(a) 7. Greater vigilance is required of the vendor, in perfecting the title to the purchaser, where the latter is not in possession under the contract. But where a day is fixed for the conveyance, the vendee must give notice of any objections to the title a reason- able time previous to the day, that the vendor may remove them and convey at the time ; or equity may consider a strict perform- ance by a conveyance on the day as waived. And, where the ven- 1 Westall V. Austin, 5 Ired. Eq. 1. 2 Kindley v. Gray, G Ired. Eq. 445. {a) A party holding a bond for title to three-sixteenths of a tract of land, condi- tioned that, if certain ore upon the premises should prove to be good silver ore, he was to pay a specified sum, and, if not, tlie sale to be void, sold one-sixteenth abso- lutely, the grantee knowing the terms of the grantor's purchase, and the grantor being guilty of no fraud or misrepresenta- tion. Held, the latter sale was valid, and the grantor was entitled to a reasonable time in which to perfect his title. Reeves V. Dickey, 10 Gratt. 138. Wliere a title-bond binds the obligor to convey a certain quantity of land in one, two, or three surveys, as the obligee may choose, the former is not bound to convey, until tiie latter has made his se- lection, and had the land surveyed. And, there being a latent ambiguity in the de- scription of the land sold, which can only be cleared up by an actual survey, it is error to decree a rescission of the contract until a survey has been made, so as to enable the Court to decide whether the obligor can comply with his contract or not. Purcell v. McCleary, 10 Gratt. 246. The same favorable principle in re- gard to the rights of a vendor has been adopted with reference to the title-deeds. Agreement on tlie sale of an estate, that the title-deeds should be delivered to the purchaser on the completion of the contract ; but, as the deeds related also to other property belonging to the vendors, the purchasers should enter into, or pro- cure to be entered into, one or more proper and sufficient covenant or cove- nants with the vendors for the production and delivery of copies of such deeds. The purchasers were trustees, and entered into the contract in pursuance of the di- rections in the will of their testator, for the investment of his personal estate in the purchase of lands, to be settled to cer- tain uses creating estates for life, with remainder over in strict settlement. The estate was conveyed by tlie vendors to the purchasers to the uses declared by the will of their testator. Held, that the agreement, to enter into a proper and suf- ficient covenant for the production of the deeds, did not mean that the vendors should be entitled to a covenant which would secure to them their production at all times and under all circumstances ; that the words sufficient and proper were to be construed together ; that the mode of taking tlie conveyance must in a great degree determine the meaning and suffi- ciency of the covenant ; that tlie releasees to uses, like trustees, would ordinarily be required to covenant only ibr their own acts ; and the Court would not require the purchasers, being such releasees, to covenant as demanded, especially after the uses were executed by the statute. Onslow V. Londesborough, 17 Eng. Law & Eq. 542. 254 LAW OP VENDORS AND PURCHASERS. [CHAP. XIV. dor has not been guilty of gross negligence in perfecting bis title, equity may decree a specific performance, upon a bill filed by him, although the title was not perfected on the specified day ; unless the time is expressly made an essential part of the agreement.^ 8. So, as has been seen (ch. 11), it has been often held in equity to be a sufficient compliance with the contract, if a party can make a good title in a bill for specific performance, at any time before the final decree.^ So where the vendor declines exe- cuting the contract, upon the ground that he is unable to give a good title, and the purchaser files his bill to compel the defendant to complete the contract, or rescind it ; if the defendant is able to give a good title at the time of the decree, the complainant will be compelled to accept it. But the defendant will be decreed to pay interest upon the purchase-money, from the time a conveyance was demanded.3 So the plaintiff, in a bill for specific performance, more especially where time is not material, and there has been no unreasonable delay, is entitled to a decree, if, at the hearing, he can show a good title, although he had not such title at the time of the contract, or the commencement of suit. Otherwise, if the defendant retired from the contract as soon as the want of title was discovered.^ So, though a vendor cannot come at any distance of time for a performance, yet, where a bill was filed fourteen months after the correspondence upon the objections to the title ceased, by the defendant's returning no answer to the last letter, by calling for a distinct answer, and threatening a bill, and the auctioneer had not been called on to return the deposit, it was referred to the Mas- ter.^ So, though a covenant to execute and deliver a good and sufficient deed means an operative conveyance, or one that transfers a good and sufficient title, not a title admitted to be doubtful ; yet a title at the time of the decree, or the coming in of the Master's report, is sufficient ; and the party may be allowed then to per- form his contract, and save the forfeiture of his bond, on making compensation for the delay. The rule of compensation is the amount of the interest on the bond, from its date to the time of final decree.^ Thus in case of a bill for specific performance, the plaintiff, claiming through an alien, contracted to sell the estate, 1 More V. Sniedburgh, 8 Paige, 600. * Hoggart v. Scott, 1 Kuss. & Myl. 2 Bennett, &c. v. Carey, 3 Bro. 390. 293 ; Wynn v. Morgan, 7 Ves. 202. 3 Pierce v. Nichols, 1 Paige, 244. ^ Hertford v. Boore, 5 Ves. 719. *> Clute V. Robison, 2 Johns. 595. CHAP. XIV.] TITLE OF THE VENDOR, ETC 255 having for this reason no legal or equitable title to it. The pur- chaser by his own inquiries ascertained the defect, but did not till after some months of negotiation with tlie plaintiff repudiate the contract. Pending the investigation of the title in the Master's office, the plaintiff obtained a grant of the estate from the Crown. Held, he was entitled to a decrce.^(a) 9. Though equity will decree specific performance of a sale of land, if the vendor is able to make a good title at any time before decree ; the dismission of the bill is a bar to a new bill for the same object. But the inability of the vendor to make a good title at the time of decree, though ground for refusing a specific performance, will not authorize a Court of Equity to rescind the agreement, where the parties have an adequate remedy at law for its breach. 2 10. Where a purchaser, having discovered a technical defect in 1 Eyston v. Simonds, 1 You. & Coll. C.C. 608. '^ Hepburn v. Dunlap, 1 Wheat. 179. (a) Bill for a sale of land to pay the purchase-money. Defence, a cloud on the title. By delay in bringing the cause to a hearing, partly througli fault of the ven- dee ; the lapse of time, and possession without disturbance or interruption, qui- eted the title. The defect being thus cured, a sale was decreed, but with costs to the purchaser. Peers v. Barnett, 12 Gratt. 410. Allen, J., says (p. 415) : " A distinction seems to have been taken by some of the reported cases, as to the re- lief a Court of Equity will extend to a vendee who has accepted his deed with covenants of general warranty, where he seeks to enjoin a judgment for the col- lection of the purchase-money, and the case where the vendor, instead of pro- ceeding against the vendee personally, is attempting to sell the land under a deed of trust or by a bill in equity ; that although the facts may not authorize the Court to enjoin the collection of the purchase- money by a proceeding against the vendee at law, yet, as a Court of Equity repro- bates a sale of land when clouds are hang- ing over the title, it will, for the benefit of the parties, and the security of the pur- chaser at any sale of the subject, enjoin or refuse to decree a sale of the land until the title is cleared up. The case of Beall V. Lively, 8 Leigh, 658, is a case of the first class. It was there decided that where a vendee is in possession of land under a conveyance with general war- ranty, and the title has not been ques- tioned by any suit prosecuted or threat- ened, such vendee has no claim to relief in equity against the payment of the pur- chase-money, unless he can show a defect of title respecting whicii the vendor was guilty of fraudulent concealment or mis- representation, and which the vendee had at the time no. means of discovering. In Ralston v. Miller, 3 Rand. 44 ; Roger v. Lane, 5 Leigh, 606 ; Clark v. Ilardgrove, 7 Gratt. 3U9, this Court has extended the relief to cases where the vendee, placing himself in the position of the superior claimant, can show clearly tliat tlie title is defective. The principle that a Court will not sell or permit a sale of land with a cloud hanging over the title, is affirmed in Lane c. Tidhall, Gihn. loO; Gay v. Hancock, 1 Rand. 72; Miller v. Argyle, 5 Leigh, 460." Upon a bill for specific performance against a purchaser in possession, by de- cree directing an inquiry as to title, he was ordered to pay into court the interest on his purchase-money, whicli was also declared to be a lien ; but tlie certificate was, that the plaintirt" could not show a good title. It ajipearing, howevi'r, that since the purchase the (lelL'iidant had him- self acquired the means of perfecting the title ; held, the bill should not be dis- missed, but leave siiouid l)e granted to amend, or file a supplemental bill. Hume V. Pocock, Law Rep. (I'^ng.) Eq., April, 1866, p. 662. 256 LAW OF VENDORS AND PURCHASERS. [CHAP. XIV. the title, abandons it, and files a bill to enjoin collection of the price, and the vendor then supplies such defect, the vendee is bound to complete the purchase.^ 11. When performance of a contract of purchase is resisted, upon grounds wholly independent of the title, and the objections are overruled, or when the purchaser, although doubtful of the title, consents by his answer to accept it, if in the judgment of the Court it can be rendered valid ; it is sufficient to warrant a decree for specific performance, that a good title can be made within a reasonable time before the final decree. But when the purchaser rejected the title offered, as insufficient, and upon that ground re- fused and still refuses to complete the contract, the entire contro- versy turns upon the validity of the objections, and, if they are sufficient, the Court will not decree specific performance.^ 12. In general, although a vendee may require a good and satisfactory title to the estate sold, yet by his own conduct -he may waive his rights in this respect. Thus a purchaser buying with full knowledge of a defect in the title will not, for that defect, be permitted to come into equity for relief.^ So the Court will not set aside the purchase of a house and lot, on the allegation of an imperfect or incumbered title, not clearly shown to be so, after long possession by the purchaser, and a confession of judgment for the purchase-money. Such conduct amounts to a waiver of objections, though the Court might give some relief, ultimately, if the title turned out to be bad. The vendor having enforced the judgment, and bought in the property at a very low rate, but offering to re- scind the sale on payment of the debt, the Court decreed accord- ingly.* So although a complainant who seeks specific performance of a sale, but has not performed his part of the contract, is not entitled to a decree, especially if any injury has resulted to the defendant ; if the defendant has taken possession, paid part of the purchase-money, and executed the agreement in part, the Court will consider him as having waived his objections, and will decree the execution of the agreement. It will, however, extend the time of payment, vary the security to be given, and regulate the pay- ment of interest, according to the justice of the case.^ So a pur- chaser, in possession under an agreement, having exercised acts of 1 Mays V. Swope, 8 Gratt. 46. * Roach v. Rutherford, 4 Desaus. 126 ; 2 Dominick v. Michael, 4 Sandf. 374. Fludyer v. Cocker, 12 Ves. 27. 3 Craddock v. Shirly, 3 Marsh. 1139. 5 Ramsay v. Brailsford, 2 Desaus. 582. CHAP. XIV.] TITLE OF THE VENDOR. ETC. 257 ownership, but ol)iecting to tlic title, was ordered to i)ay in the purchase-money ; and slighter acts of ownership were held suHi- cient, if subsequent to a discovery of an objection to the title. ^ ^o where the vendee has entered into possession, if he wishes to re- scind the contract, on the ground that the vendor has not perfected his title, and executed a conveyance within a reasonable time, or at the time specified, he must give up the possession.^ So if a purchaser, after delivery of the abstract, on the face of which part of the estate appears to be subject to a right of sporting, not men- tioned in the particulars of sale, enters into possession, he waives that objection, notwithstanding a subsequent offer of compensa- tion made by a clerk of the vendor's solicitor, without express authority,'^(a) 1 Dixon v. Astley, 1 Mer. 138. 2 More V. Sniedburgh, 8 Paige, 600. (a) The defendant agreed in writing to sell and convey land to the phuntifl', who entered, paid part of tlie price, and after- wards demanded a deed, and ottered to pay the balance. Tlie defendant was un- able to make a good title, and tlie plain- tiff brings this action, for money had and received, to recover the sum paid ; but still retaining possession. Held, the action did not lie. Hurst v. Means, 2 Swan, 594. The Court say (p. 5'J8), " The rule on this subject is stated in Clarke v. Locke, 11 Humph. R. 300. If the vendor, on a proper demand made, refuse or be unable to execute his contract, the vendee may bring his action thereon for the recovery of damages, thereby affirming the contract, or, at Ins election, may disaffirm the contract ab initio, and sue for money had and received to his use. The vendee has elected to disaffirm tlie contract. Do the facts amount to a disaffirmance and rescission of tiie con- tract ? We are of opinion that they do not. It is a valid contract in writing, and was in part executed by the vendor ; for he placed the vendee in possession under it. Tliis possession lias not been restored, but continued in tlie vendee at the time this suit was instituted. The vendee pretends to disaffirm and rescind the contract, and yet holds the possession, a benefit under it. It is in tiiis respect that tlie contract is not rescinded ; and the action can only be maintained ujjon its absolute and total rescission. It would be unreasonable and unjust to permit a purchaser to retain the possession and use of the thing purchased, and yet to recover back the consideration as for a 3 Burnell v. Brown, 1 Jac. and Walk. 168. defect of title. The action for money liad and received is, in its nature, equitable ; and it cannot be maintained upon a prin- ciple so unequal and unjust. When a contract is properly rescinded, the parties are placed in statu quo. Where, however, the contract is void in itself, no act ot' rescission is necessary in order to main- tain the action for money had and received upon it. No right or duty can be predi- cated upon a void contract. It is tiie same as if it had not been made. Tliere- fore, if a par-ty enter upon land and i)ay money under a parol contract, for its jnir- chase, he may recover it back, by action for money had and received for his use, without restoring the possession or doing other acts to rescind the contract ; for the contract never had a legal existence, and, of course, no action could be maintaineil upon it. Walker v. Constable, 1 H. >.^ V. 306 ; Beckerman v. Ivuykendol, 6 Blackf. R. 22 ; Pipkin v. James, 1 Ilumph. R. 325." Conditions of sale stipulated that tlie sale should be completed on a certain day ; that objections to the title, not made within twenty -one days from delivery of the abstract, should be considered as waived ; and that, if the purchaser should not comply with the conditions, his de- posit should be forfeited, and the vendor at liberty to resell. The purciiaser did not deliver his objections until several weeks after the twenty-one days, and after the day ajipointed for completing tiie purchase ; the vendor's solicitor, iiowever, received them, and entered into a long correspondence with the purchaser re- specting them, but without coming to a 17 258 LAW OF VENDORS AND PURCHASERS. [CHAP. XIV. 13. The rule above stated, however, will not be adopted in all cases. Thus a purchaser was held entitled- to an investigation of the title, notwithstanding possession taken, acts of ownership inci- satisfactory conclusion. Finally the ven- dor resold the property, at a less price, notwithstanding the purchaser's protest, and gave notice of his intention to file a bill to enforce the contract. About six months afterwards he filed his bill against the vendor, the auctioneer, and the second purchaser, to whom he had some months before given notice of his prior contract. Held, the conditions had been waived by the vendor's solicitor, and the Court de- creed a specific performance by the vendor, with a reference to the iNIaster as to title, dismissed the bill with costs as against the auctioneer, who denied that he had ever intended to part with the deposit, and without costs as against the second purchaser, who claimed the benefit of his contract, if the Court should think that the plaintiff's ought not to be performed. Cutts V. Tliodey,"l3 Sim. 200. r The defendant, a purchaser, was eight years in possession ot" jjremises, to which the vendor was unable to make a good title ; and refused either to iibandon the agreement, or accept such title as the ven- dor could give, but paid no purchase- money or rent. Upon a bill filed by the vendor for relief, the Court directed the agreement to be delivered up to be can- celled, and the rents and profits accounted for, and ordered the purchaser to pay the costs. King V. King, 1 Myl. & Kee. 442. Written agreement to buy a farm at •$60 per acre, stilting that it contained ninety-six acres, more or less. The sub- sequent deed used the same terms, and security was given for the price at $60 for ninety-six acr&s. There were in fiict but eighty-six acres. Held, tiie whole price might he recovered. Faure v. Mar- tin, 3 Seld. 210. Agreement, to sell the two leases and good-will in trade of a public house, and shop adjoining, for tlie sum of £4,2-30, " as he holds the same," for terms of twenty -eight years from midsummer next ensuing, at the annual rent therein men- tioned. The purchaser agreed to accept a proper assignment of the said leases and premises as above described, without re- quiring the lessor's title ; and, upon pay- ment of said sum, the vendor agreed to execute an effectual assignment of the leases, and deliver possession of all the said premises. Held, the vendee was bound to purchase the two leases, without inquiring into the title of the lessor, and could not refuse to complete his purchase on account of an objection to that title. Spratt V. Jeflfery, 10 Barn. & Cress. 249. A condition of sale was, that, in case the purchaser should raise objections to the title, which the vendor should not be able or willing to remove, the vendor migiit rescind the contract, on notice, and repayment of the deposit; objections not delivered within fourteen days after deliv- ery of the abstract to be treated as waived, in whicii respect time was to be essen- tial. The purchaser returned the ab- sti'act, with queries, within the fourteen days, and the vendor answered the que- ries ; the pinx'haser on the same day objected to the answers ; the correspond- ence on the subject continued for several weeks, and then the vendor gave notice that he rescinded the contract. Held, the continuance of the treaty for completion of the title, after the first objection of the purchaser, was a waiver of the condition as to the rescinding ; that such a condition of sale ought to be discouraged, and not to .receive a construction oppressive on the purciiaser ; that the vendor's right to re- scind must be co-extensive with the pur- chaser's right to object to the title; under the same condition ; that the vendor was only bound bonujide to deliver an abstract of such title as he had at the time of de- livering it ; and, so long as the condition remained in force, was not bound to deliver any supplemental abstract of title afterwards acquired. It was doubted, whether the benefit of the condition would not in equity be forfeited by a vendor'who designedly delivered an imperfect abstract of the title which he had at the time of delivering it. Morley v. Cook, 2 Hare, 106. So where land liad been purchased under a decree in a creditor's suit, the Court, on the application of a creditor, who had for four years acquiesced in the purchase, and who was not supported in his objections by the other creditors, refused to set aside the purchase, on the ground of misdescription of'tiie land in the particulars of sale. VricQ v. North, 2 You. & Coll. 620. So specific performance will be decreed against a purciiaser, without reference as to the title, upon possession, and no ob- jection made to tlie ahstmrt. Fleetwood v. Green, 15 Ves. 504. So, upon possession, a correspondence, and no oiyection to the title till two years after delivery of the abstract. Margravine, &c. v. Noel, 1 Madd. 310. So a purchaser, after long possession and vexatious objections to CHAP. XIV.] TITLE OF THE VENDOR, ETC. 259 dent to possession, and preparation of a conveyance. ^ So where a devisee of real estate, subject to debts and legacies, had contracted to sell the estate in order to raise money to pay the debts ; and afterwards a bill was filed against her by the legatees, for the ad- ministration of the testator's estates ; and the purchaser consented to go before the Master, upon a reference as to the title in that suit : held, he was not thereby bound to take an equitable title, but might insist on having the same title, as he might have re- quired in a suit for specific performance ; and that, as two com- missions of bankrupt had issued against the devisee before the contract, though neither of them was proceeded in, he was not hound to accept the title.^ iSo where the conditions of sale pro- vided, that all ol)jcctions to the title disclosed by the abstract, not taken within a certain time after its delivery, should be deemed to be waived ; held, the time for objecting was not to be comjjuted from the delivery of an imperfect abstract ; and an objection might still be taken which arose out of evidence called for before the ex- piration of the time fixed.^ So in case of sale under a decree, the abstract stated, that the person, at whose death the sale was to be made, proved the will of the testator ; but it did not state the pleading in the cause, or whether that person was living or dead. Held, this was not a sufficiently distinct intimation to the purchaser, that the time of sale had, without any sufficient ground, been anticipated.*(a) 1 Burroughs v. Oakly, 3 Swanst.*159. 3 Hobson v. Bell, 2 Beav. 17. 2 Cann v. Cann, 1 Sim. & Stu. 284. •* Blacklow v. Laws, 2 Hare, 40. complete the purchase, was held to have described, and the quantity of the land waived his right to an investigation of tlie slialt be taken as stated, wliether more or title, and decreed to perform the agree- less (although the title-iieeds state such ment specificahy, and to pay interest at quantity to be less), without any compen- £i per cent on the unpaid purchase-money sation on eith.er side. And no other evi- from the time of taking possession, and denceofidentity shall he reciuired than that the costs. Hall v. Laver, '6 You. & Coll. furnished by tlie title-deeds, antl the state- lyl. ments therein sliall be tieemetl conclusive (a) A contract of sale described the evidence of the identity of the property." property purciiased as " the cottage and On default, the deposit-money was to be paddock, comprising 1 a. 2 r. 8 p., situate ibrfeited. The vendor delivered an ab- at, &c., described in the particulars as lot stract of title to 'i r. 22 p. only. Held, this 1." The description of lot 1 in the juir- did not, under the circumstances, autliorize ticulars was, "The property comi)rises the purchaser to contend that the title had 1 a. 2 r. 8 p., situate, &c., consisting of a not been made according to the conditions, cottage and paddock in tlie occupation of and that he was hound to complete. Mr. P." By the contract of sale, the title Nicholl v. Chambers, 8 Eng. Law & Eq. and conveyance were to be completed 423. So A. bought land of B., and gave according to the conditions of sale. One his bond for the purchase-money, condi- of these was, " The property comi)rised in tioned to be paid on 13. 's making a clear the particulars is presumed to be correctly title in fee-simple. B.'s agent delivered to 260 LAW OF VENDOES AND PUECHASERS. [CHAP. XIV. 14. The objection to a title is not waived by the premature con- ditional approbation of the purchaser's counsel ; but the expense of making out the" title before this objection was taken shall be repaid.^ So where the purchaser's solicitor wrote to the vendor's solicitors, that, unless certain proof of title were adduced, the pur- chase must go off; held, the purchaser might still maintain an action for his expenses in investigating the title .^(a) 15. Where the contract binds the vendor to give a good title, the want of such title may avoid the contract at his election, even tliough the purchaser seeks to enforce it. Thus, one of the terms of an agreement was, that the contract should be void, if the pur- chaser's counsel should be of opinion that a marketable title could not be made by a certain time. The counsel being of that opinion, a bill by the purchaser for specific performance, with compensa- tion, was dismissed with costs ; and an application, afterwards made by the plaintiff, that his deposit might be set off against the defendant's costs, and the surplus (if any) paid to him, was re- 1 Deverell v. Bolton, 18 Ves. 505. 2 Hall V. Betty, 5 Scott N. R. 508. A. a deed, on its face in fee-simple ; but thei'e were incumbrances on the land un- known to A. Held, A. might waive his right to a deed in fee, and accept a title for a less interest ; that whether there was such a waiver was a question for tlie Court ; that there must be unequivocal proof of it; and the record of a judg- ment lien was not notice to A. Minor v. Edwards, 12 Mis. 137. W. T., being possessed of certain copy- hold premises, mortgaged the same to P., and, by the indenture of mortgage, cove- nanted to surrender them into the hands of the dean and chapter of W., the lords of the manor, to the use of the defendant, who was to be a trustee to sell upon non- payment of the mortgage-money. W. T. made no surrender, but died, after devis- ing all his real property to certain trus- tees. Subsequently the lords of tlie manor, at the nomination of the defend- ant, granted the property to certain per- sons upon tlie above trusts, &c. W. T., in his lile, surrendered other property to the lords of the manor, by way of mort- gage to C, in consideration of a loan of £100, and, by an indenture of even date, covenanted, amongst other things, to repay the money borrowed, and gave the mort- gagee a power of sale, upon non-payment. The defendant sold the whole property to the plaintiff, under the following condi- tions : that he should deduce a good title to the premises for the lives by which they were held under the dean and chap- ter of W., but that no earlier or other title should be deduced, or any deed or document produced, anterior to the last copy of the court-roll, by which the prem- ises were granted. Held, the defendant showed no title in himself, as no surrender of the premises had been made to his use by W. T., and the vendee was not pre- cluded by the conditions from making this objection to the title, as it appeared on the face of the abstract delivered. Sellick V. Trevor, 11 Mees. & VVels. 722. (a) The right to a good title does not grow out of the agreement between the par- ties, but is given btj law. But a purchaser may waive his right, by going on with the agreement alter he has full notice that he is not to expect a good title. This is, in such case, matter of notice, and not of contract. Ogilvie v. Fonjambe, 3 Meri. 53. Where the doubt as to a title is upon matters of fact, it may form a projjer case for an issue at law ; and, till the doubt is removed, or confirmed, by further investigation, the Court will not either decree performance or dismiss the bill. Seymour v. Delancey, 1 Hopk. 436. CHAP. XIV.] TITLE OF THE VENDOR, ETC. 2G1 fused with costs.^ So where, by the conditions of sale, if the vendee makes any requisition which the vendor is unable or unwilling to comply with, the latter may by written notice anniil the sale ; if the purchaser insists upon a requisition after information of such inability, the vendor may rescind by notice, without giving time in the notice for the purchaser to waive his requisition, and the vendor may avail himself of tliis condition, although, being entitled to an underlease for twenty-four years, less three days, he put up the property for sale, as held under a lease for twenty-four years, relying on the promise of parties having the three days to concur, which they afterwards did.^ So where parties have made a written agreement to exchange lands which neither of them owns, with a proviso that it is satisfactory, " provided titles can be procured and made;" the contract is contingent, and not binding, if the parties are unable to comply with their conditions.^ 1 Williams v. Edwards, 2 Sim. 78. beyond what he ever contemplated, or he 2 Duddelli'. Simpson, Law Rep. (Eng.) involved in litigation and expense which Eq. February, 18G7, p. lOL In this case he never contemi)lated. But to say that Sir G. J. Turner incidentally remarked a vendor could annul a contract hrevi maim, (p. 106), "The word 'imwilling' is not to would, in truth, be giving to tlie vendor be considered as giving an arbitrary power the power of saying that that which was to the vendor to annul the contract. He intended as a sale, and was a sale, shall in must show some reasonable ground," as truth be no sale at all." that " he will be involved in expenses far 3 Lacy v. Hall, 37 Penn. 360. 262 LAW OF VENDORS AND PURCHASERS. [CHAP. XV. CHAPTER XV. INDEPENDENT COVENANTS IN A CONTRACT OP SALE AND PURCHASE. EXCEPTIONS TO THE RULE OF REQUIRING THE VENDOR TO CONVEY A GOOD TITLE. 1. Although the contract of sale and purchase, as has been stated, is in general mutual and conditional, so that the vendor cannot enforce performance, without fulfilling his own part of the agreement ; yet this construction depends upon the circumstances of the case, and the peculiar phraseology used by the parties, and will not be adopted, where, from the language used, they appear to have intended otherwise, or where substantial justice requires a different construction. (a) Several old and leading cases may (a) No subject has been more prolific of nice distinctions and conflicting decis- ions, tlian tliat of tlie dependence or in- dependence of covenants, entered into, respectively, by the parties to a contract. As the cases do not pertain wliolly or chiefly to the sale and purchase of real property, it would be foreign from our plan to do more than state the general principles which may now be considered as settled by the weight of authority. In Kingston v. Preston, Dougl. 690, Lord Mansfield says, " There are three kinds of covenants : 1st. such as are called mutual and independent, where eitJier party may recover damages from the other for the injury he may have received by a breach of the covenants in his favor, and where it is no excuse for the defend- ant to allege a breach of the covenants on tiie part of the plaintiff. !2dly. Tl^ere are covenants which are conditions de- pendent on each other, in which the per- formance of one depends on the prior performance of tlie other, and therefore till this prior condition be performed, the other party is not liable to an action on his covenant. 3dly. There is also a third sort of covenants wliich are mutual con- ditions to be performed at tlie same time ; and in these, if one party was ready, and offered to perform his part, and the other neglected or refused to perform his, he who was ready and offered has fulfilled his engagement, and may maintain an action tor the default of the other, though it is not certain that either is obHged to do the first act. The dependence or in- dependence of covenants is to be collected from the evident sense and meaning of the parties; and, however transposed they ma}^ be in the deed, their precedency must depend on the order of time in which the intent of the transaction re- quires their performance." It is further said, by a writer of high authority, " Almost all the old cases, and many of the modern ones on this subject, are decided upon distinctions so nice and technical, that it is very difficult, if not impracticable, to deduce from them any certain rule or principle by which it can be ascertained, what covenants are inde- pendent, and what dependent, and, of course, when it is necessary to aver per- formance in the declaration, and when not." 1 Wms. Saun. 320, n. 4. " The Judges in these cases seem to have founded their construction of the inde- pendency or dependency of covenants or agreements on artificial and subtile dis- tinctions, without regarding the intent and meaning of the parties. Covenants are construed to be either dependent or CHAP. XV.] INDEPENDENT COVENANTS, ETC. 2G3 be cited, to illustrate this exception. Thus, where A. covenants with B. to marry his daughter, and B. covenants to convey an estate to A. and the daughter, in special tail ; it is said, that, though independent of ciieli otlicr, accordintj to the intention and meaning- of the parties, and the good sense of tlie ease ; and teeh- nieal words sliould give way to such intention. The following rules are to determine the question: 1. If a day be appointed for payment of money, or part of it, or for doing anj' other aet, and tlie day is to hapjien, or mai/ hapjien, bcjorc the thing which is the consideration of the money, or other act, is to be per- formed ; an action may be brouglit for the money, or for not doing such other aet before performance, for it appears that the party relied upon his remedt/, and did not intend to make the performance a con- dition precedent. And so it is where no time is fixed for performance of that, wliich is the consideration of the money or other act. 2. When a day is appointed for the payment of the money, &c., and the day is to hapjjen after the thing which is the consideration of the money, &c., is to be performed, no action can be main- tained for the money, &c., before per- formance. 3. Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independ- ent covenant, and an action may be main- tained for a breach of the covenant on the part of the defendant, without averring performance in the declaration. 4 But, where the mutual covenants go to the ivliole consifleration on both sides, tliey are mutual conditions, and performance must be averred." lb. 320 a, b, c. Some further tests of the dependence or independence of covenants have been suggested by Judges and elementary writers ; such as, the provision that the acts on the one side and the other are to be done at the same time; the nature of the acts to be performed, and the order in which they must necessarily precede or follow each other ; the fact that one aet is the consideration for the other ; and the use of the partici])le, " doing," " performing," &c., wliich, prefixed to a covenant by another person, is said to be a mutual l (independent) covenant, and not a condi- tion precedent. See 1 Chit. PI. 313-5 ; 2 Pars, on Contr. 40 and n. In a late case it is held, that bonds mutually en- tered into at the same time between two parties, each to the (tther, rcsj)ecting the sanu' suljjecl-niatter, will be consiruod as dependent upon each other, and either party who seeks to enforce the stipulations entered into by the other must be ready to perform his own. Smith i\ Boston, &c., 6 Allen, 262. It would seem, how- ever, that this is an uniiecessary ami)lifi- cation of the diflerent classes of covenants, and involves the subject in needless in- tricacy, because, as has been already remarked, nearlj' all these artificial rules are, by the later authorities, made to yield to the intent of the ])arties and the justice of the ease. The following remarks may be cited, as showing that covenants are to be con- strued, with reference to the point now under consideration, rather by the ajjpar- ent intent than by any more technical standard : — " If a party promise to build a house upon the land of another, and to dig a well on the premises, and to place a jnnnp on it ; and the owner of the land cove- nants seasonably to suppl}' all materials and furnish a pump ; it is very clear that the stipulation to furnish materials is de- pendent, and constitutes a condition, be- cause the builder cannot perform on liis part until he has the materials. So to put a pump "into the well. But the stipu- lation to dig a well is not conditional, because it goes to a small jiart only of the consideration, and does not necessarily depend on a prior j)erformance, on the part of the owner, and because a failure can be compensated in damages, and the remedy of the owner is by action on the contract." Per Shaw, C.J., Knight v. N.E. Worsted Co., 2 Cush. 280. " When the act of one party must necessarily precede any act of the other, as where one stipulates to manufacture an article from materials to be furnished by the other, and the other stipulates to furnish the materials, the act of furnishing the materials necessarily ])recedes the act of manufacturing and will constitute a condition j)recedent, without express words." Per Shaw, C.J., Milldam, &c. V. Hovey, 21 Pick. 439. Upon the same principle, a late case was decided in Massachusetts. The de- fendant covenanted with the plaintiffis to 1 This word is nrdiniirily used in tlie the diroctly contrary sense of rm conditional sense of conditional or dependent, .but. some- aud independent. See 4 Met. (Ky.), 110. times, either designedly or iuadverteiitly, in 264 LAW OF VENDORS AND PURCHASERS. [CHAP. XV. A. many another woman, or the daughter another man, still A. may have an action against B. on the covenant ; but if B. had covenanted to convey the estate for the cause aforesaid, the mar- riage is a condition precedent, and no action will lie until it be sol- emnized.^ So where one covenanted with liis copyholder, to assure to him and his heirs the freehold and inheritance of his copyhold, and the copyholder, in consideration of the same performed, cove- nanted to pay a certain sum ; held, a condition precedent, and the party must make the assurance before he could claim the money ; otherwise, had the words been, in consideration of the said covenant to he performed.^ So, in articles of agreement between A. and B., A. covenants tliat, for the consideration thereafter expressed, he will convey lands to B. in fee, and B. for the consideration afore- said covenants to pay a certain sum to A. Held, independent covenants, and that A. might bring an action for the money before any conveyance of the lands.^ So, in a case often cited, the plain- tiff conveyed to the defendant the equity of redemption of a plan- 1 15 H. 7, 10, pi. 17 ; Bro. Covenant, 22. proceed to California, as one of a joint- stock companj', and labor tliere for two years, and to remit the plaintiffs one-half of tlie net proceeds of one share in the company, so often as dividends should be made. The other members, while on the way to California, contrary to the defend- ant's wishes, abandoned the enterprise, and sold their vessel and cargo. Hold, the defendant was not liable on his cove- nant to proceed to California. Bigelow, J., says, in substance, " It is necessary to consider the situation of the parties, the subject-matter of the contract, and the purposes and objects to be accomplished by it. The defendant, it is true, agreed with the plaintiffs to go to California and to remain there for two years, and it appears that he failed to comply with tliis stipulation. If notliing furtlier appeared, the plaintiffs would have sliown a breach of the agreement, for which they would be entitled to damages. But it is neces- sary to bear in mind with whom, liow, and for what purpose he was to go there. He was not to go alone, upon his indi- vidual responsibility, to trade and labor for the benefit of the plaintiffs and him- self. He was to proceed thither as one of a company or copartnership, of which the plaintiffs and others were members. It was a joint enterprise or adventure, in which the capital, industry, and energy 2 Brocas' case, 3 Leon. 219. 3 Rulle's Abr. 415, pi. 8. of each member, or a substitute to be approved by the company, were to be combined for the mutual benefit and profit of all. The plaintiffs had no right, under this contract, to require the de- fendant to give his individual time and services to them, disconnected from those who had agreed to render theirs in carry- ing on the joint enterprise." Field v. Woodmancy, 10 Cush. 427, 4.31, 432. The course of decisions upon this sub- ject has been exceedingly variable in different courts, and elaborately decided cases have been often overruled by sub- sequent ones in the same court. Thus the cases of Terrj' v. Duntze, 2 H. Bl. 389 ; Seers v. Fowler, 2 Johns. 272 ; and Havens v. Bush, ib. 387, which were supposed unreasonably to extend the gen- erally correct principle, of construing covenants to be wholly independent where any part of the one is to be performed before execution of the other, were over- ruled in Cunningham v. Morrell, 10 Johns. 203. So the cases of Craddock v. Al- dridge, 2 Bibb, 15, and Mason v. Cham- bers, 4 Litt. 253, which adopted the same doctrine, were overruled in M'Lane v. Rusli, 9 Dana, 64, and Allen v. Sanders, 7 B. Mon. 593. So also the decision of the Supreme Court of New York, in Grant v. Johnson, 6 Barb. 337, was sub- sequently reversed, 1 Seld. 247. 4 CHAP. XV.] INDEPENDENT COVENANTS, ETC. 2G5 tation ill the West Indies, with the stock of negroes upon it, in consideration of XoOO and an annuity of <£1G0 for life, and cove- nanted that he had a good title to the plantation, was lawfully possessed of the negroes, and that B. should quietly enjoy. The defendant covenanted, that, the plaintiff well and truly performing all and every thing contained on his part to be performed, he would pay the annuity. In an action on the defendant's covenant, for non-payment of the annuity, the plea was, that the plaintiff was not at the time legally possessed of the negroes, and so had not a good title to convey. The Court of King's Bench, on demurrer, held the plea bad, remarking that, if such plea were allowed, any one negro, not being the property of the plaintiff, would bar the action.^ So, in a sale of land, the bond to the pur- chaser recited, that a certain sum was to be paid on the first of the next March, and the residue in two annual instalments, for which the purchaser gave his notes. The bond stipulated, that possession should be given on a day named, and a general warranty deed " when the first payment is made." In a suit upon the note for the last instalment, the first payment having been made, and the vendor having failed to make the deed ; held, the contracts to convey and to pay were mutual, not dependent ; and the failure to convey was no defence.^ 2. As has been already explained, the mutuality of the contract of sale and purchase has been chiefly illustrated, in requiring the vendor to make a perfect title to the vendee, involving, of course, not merely the execution of a conveyance, but also the transfer, by means of such conveyance, of an absolute ownership or property in the land. On the other hand, the doctrine, that the covenants of vendor and vendee are independent, has been chiefly applied, in giving the former a claim upon the latter without any performance on his own part. But the subordinate question also arises, whctlier, even where the stipulations are dependent, the special terms of the contract are not satisfied by the mere execution of a convey- ance, although insufficient to pass a perfect title ; the vendor him- self not having such title. Some cases are found in the books, which thus restrict the vendor's obligation. Thus it is held, that under a general contract for the sale and purchase of lands, or where the terms " well and sufficiently " are added, the purchaser 1 Boone v. Ejre, 1 H. Bl. 273.' 2 Hutchings v. Moore, 4 Met. (Ky.), 110. 2()6 LAW OF VENDORS AND PURCHASERS. [CHAP. XV. is entitled to a covenant of special warranty only, or a covenant against the acts of tlie grantor and his heirs ;^ so also that equity will decree a good and sufficient conveyance to be made upon pay- ment of the purchase-money.^ So an agreement to make a " deed " and to " convey " requires such a conveyance as will give the vendee a sufficient title, in view of the provisions of the statute, which defines what is necessary to be contained in a deed.^ And it has been further held in Massachusetts, in construction of the terms " good and sufficient," that a contract to execute and deliver a good and sifficient warranty deed of land is not a contract to convey a good title. Therefore a declaration, alleging as a breach that the defendant had no legal and valid title, is insufficient.* It is said, " The words ' good and sufficient ' relate only to the validity of the deed to pass the title which the defendants had to the plain- tiff, and do not imply that their title was valid, or that it was free from incumbrances. To guard against any defect of title, a cove- nant of warranty was provided for ; which shows clearly that the agreement was so understood by the parties. If any authority were necessary to support so plain a construction of the contract, the case of Gazley v. Price ^ will be found full and decisive as to this point." ^ So, in the case in New York just referred to, it is held, that, when the plaintiff covenants to give a good and sufficient deed on a certain day, and the defendant covenants on the same day to pay part of the consideration, and secure the residue, the covenant is performed by the plaintiff's delivering a deed sufficient in law to pass any title which he may have, but without covenant or warranty ; and the plaintiff, in an action of covenant on the agreement to recover the consideration, having averred that he had given a deed, a plea that the plaintiff was not seised, and had not power to sell, is bad." And other cases have occurred in the same State, to the same effect. Thus, in case of an agreement to " exe- cute a, deed to [the vendee], his heirs and assigns for ever," held, the vendor was bound only to give a conveyance or assurance of the property, without warranty or personal covenants.^ The Court 1 Lloyd V. Parrell, 48 Penn. 73 ; 14 6 Per Wilde, J. Tinney v. Ashley, 1-5 Ind. 12 ; Cadvvalader v. Tryon, 37 Peuu. Pick. 552. 318. "^ Gazley v. Price, 16 Johns. 267. - Murphy v. McVicker, 4 McL. 252. ^ Van Eps v. Schenectady, 12 Johns. 3 Parker v. McAllister, 14 Ind. 12. 436. A case said to be " very well con- * Tinney v. Ashley, 15 Pick. 546. sidered." 16 Johns. 269. 5 16 Johns. 268. CHAP, XV.] INDEPENDENT COVENANTS^ ETC. 267 say, " By covenanting to execute a deed, no greater duty or obliga- tion can be intended than to execute a conveyance or assurance of the property, which may be good and perfect, witliout warranty or personal covenants. In the case of Frost and others v. Ray- mond,i it is stated, in the opinion of the Court, to be a settled position, that an estate in fee may be created by the usual and solemn forms of conveyance, without warranty, express or implied ; and that a conveyance in fee does not, ipso facto, imply a warranty ; that, if it did, our books would be inconsistent and unintelligible on the subject. The case of Nixon v. Hyserott^ supports the same principle, and shows that a general power to execute a deed does not authorize the giving it with the usual covenants of warranty, &c. It is evident, then, that where it is contracted to execute a deed, as in this case, to the plaintiff, his heirs and assigns, for- ever, no covenant of any description can be intended, either by implication or otherwise ; nor will the circumstance of the sale being at auction vary the result." ^ So an agreement to give a deed of land was held to be satisfied by a quitclaim deed without covenants.* " Courts of law can exact no more of parties than the performance of their contracts, according to the intention man- ifested by the terms used by them. When, therefore, it is agreed that a deed shall be given, nothing more can be exacted than an instrument sufficient to pass the estate of the party who is to give a deed. If it be required that the deed should contain covenants of warranty, nothing is more simple than the insertion of that stipulation. A deed does not, ex vi termini, mean a deed with covenants of warranty, but only an instrument with apt terms conveying the property sold." ^ So the words, " a good warranty deed of conveyance," were held to relate to the instrument of con- veyance, not to the title.^(a) 1 2 Caines' Eep. 191. * Ketchum v. Evertson, 13 Johns. 359. 2 5 Johns. 58. ^ Per Spencer, J. 13 Jolins. 364.. 3 Per Yates, J. 12 Johns. 442, 443. e Parker v. Parmele, 28 Jolins. 130. (a) In a late case, it is held, that an State. Thus, in the case of Ketchum agreement for a " warranty decil " re- v. Evertson, it was romarkod, in con- quires only the common covenant of war- nection with the point, that, under the ranty. A covenant against incumlirances form of sale there proved, no rchaxe of is not necessary. Wilsey v. Dennis, 44 dower was necessary : " Had the agree- Barb. 354. With reference to the cases ment been, that the defendant should, by in New York, referred to in the text, it deed, vest the title to the lamls sold in is to be remarked, that they do not con- the plaintiffs, then the plainiiffs would form to the current of decisions in other have had a right, if the entire legal title courts, and can hardly be considered to was in the defendant, so tlint the wife express the existing rule of law in that might liave been endowed of the land 268 LAW OP VENDORS AND PURCHASERS. [CHAP. XV. in case of lier survivorship, to insist on her joining in the deed." So, in Gazley V. Price (p. 266), the Court comment with approbation upon the prior case of Jones V. Gardner, 10 Johns. 266, wliich was as follows : Covenant to give a good and sufficient deed in law to vest the pur- chaser with the title of the farm of land, with the appurtenances. The vendor's wife did not duly execute the deed. Held, the deed was not a fulfilment of the con- tract, because the agreement bound the vendor to give a deed which should pass the legal estate in fee, free and clear of all valid claims, liens, and incumbrances. Ace. Thrasher v. Pinckard, 23 Ala. 616 ; Stevens v. Hunt, 15 Barb. 17. So a more recent case decides, that a covenant to sell and convey land by warranty deed is not answered by the delivery of a deed with the usual covenant of warrant3% so as to pass whatever estate the grantor has in the lands, but should also be an opera- tive conveyance, and pass to the grantee a perfect title. Atkins v. Bahrett, 19 Barb. 639. And the former decisions may perhaps be regarded as virtually overruled by. the case of Fletcher v. Button, 4 Comst. 896, 6 Barb. 646, where a contract to give a good and sufficient deed of land, free from all incumbrances, was held not to be sat- isfied by a warranty deed, the grantor not having the legal title. Ruggles, J., says : " I think the defendant is mistaken in assuming that a deed which conveyed no title would have been a jierformance of his contract. There are, however, two cases which give countenance to the de- fendant's construction of the bond in this respect. The one is Gazley v. Price (16 Johns. 267) ; the other is that of Parker V. Parmele (20 Johns. 130). But the rea- soning in that case falls short of showing that a covenant to execute a good and suf- Jicimt deed of conveijance is satisfied by a deed which conveys nothing. It is difficult to reconcile these cases with Clute v. Rob- inson, 2 Johns. 213, and Judson v. Wass, 11 ib. 525, and Van Eps v. Schenectady, 12 ib. 436. In the first-mentioned case, Chief-Justice Kent says, " A covenant to execute a good and sufficient deed of a piece of land does not mean merely a conveyance good in point of form. Tiiat would be a covenant without substance. But it means an operative conveyance, one that carries with it a good and suffi- cient title to the lands." In Judson v. Wass, the plaintiff agreed to execute and acknowledge a deed to the purchaser, with warranty of title except as to the quit- rents on certain lots. This was held to mean, " not merely that he would execute a deed containing such a covenant, but that he had the power to give a deed which would convey with it an indefeasi- ble title to tlie lots, subject to no other incumbrance or charge than that specified in the agreement." The learned Judge proceeds to remark, that the case of Van Eps V. Schenectady (p. 266), although de- ciding that a deed without covenants was a compliance with the conditions of sale in that case, yet also decided, that, in order to be so, such deed must actually convey the land ; and, as the deed in question did not thus convey it, the pur- chase-money should be recovered back. So in Atkins v. Bahrett, 19 Barb. 648, Brown, J., says, " In Carpenter v. Bailey (17 Wend. 244), the cases of Gazley v. Price and Parker v. Parmele were in effect overruled. In Pomeroy v. Drury (14 Barb. 418), the late Mr. Justice Bar- culo declares it ' safe to say, that [these cases] are no longer authorities for hold- ing that a covenant to convey lands by warranty deed, on a sale, refers only to the form and sufficiency of the deed, and not to the title conve3'ed.' " After an elaborate and careful examination of the authorities, he arrives at the conclusion, that " when a man buys a piece of land, and contracts for a conveyance, in gen- eral terms tlie presumption is, that he expects the title, and the grantor should be required to give him a perfect title." The following terras in the contract of a vendor have been held to require the conveyance of a good title : — Covenant to execute a good and valid deed of land, with the usual covenants. Stone V. Stevens, 7 Verm. 27; Lawrence V. Dole, 11, 549. Covenant to give a " good and perfect deed." Greenwood v. Ligon, 10 Sm. & M. 615 ; Eeemster v. May, 13, 275. To give a " warranty deed, free and clear of all incumbrances." Porter v. Noyes, 2 Greenl. 22. To " sell and convey, the title to be a good and sufficient deed." Brown v. Gannon, 14 Maine, 276. To " execute a proper deed, conveying the fee-simple, with full covenants." Tra- ver V. Halsted, 23 Wend. 66. To " grant, convey, and assure, by a good and sufficient deed, to be made and executed according to law, with proper covenants of seisin, right to convey, against incumbrances and of warranty." Little V. Paddleford, 13 N.H. 167. To convey " by a good and sufficient warranty deed, in fee-simple, free and clear of all incumbrances." Everson v. Kirtland, 4 Paige, 628. To " make a lawful 'title." Clark v. Eedraan, 1 Blackf. 380. To " give a good and sufficient deed. CHAP. XV.] INDEPENDENT COVENANTS, ETC. 269 with covenant of warranty." Tiiidall v. Conover, 1 Spenc. 214. In Hill V. Hobart, 16 Maine, 164, Sliep- ley, J., says, " Without asserting that they (the decisions) can all be perfectly reconciled, it is believed, that tlie general principle to be collected from them is, that when the contract stipulates for a conveyance of tlie land or estate, or for the title to it, performance can be made only by the conveyance of a good title ; and when it stipulates only for a deed, or for a conveyance by a deed described, performance is made by giving such a deed or conveyance as the contract de- scribes, however defective the title may be." Other later decisions on the subject are as follows : — A contract which recites that the ven- dor is the owner of the premises, and that he is to convey them " by a good and sufficient deed," &c., requires a deed that conveys a complete title. Taft v. Kessel, 16 Wis. 273. An allegation that a party gave " a good and sufficient deed " is not sustained by proof of a quitclaim deed. Watkins V. Rogers, 21 Arlc. 298. When a vendor agrees to execute a good and sufficient warranty deed, the vendee is entitled to a warranty deed free from all incumbrances. Davidson v. Van Pelt, 15 Wis. 841. A covenant to make a general war- ranty deed is performed by making a deed with covenants to " warrant and defend the title ; " and this is in effect a covenant for quiet enjoyment. Athens V. Nale, 25 111. I'Jo. An agreement by tenants in common of land, to give " a good and sufficient warranty deed " thereof, is complied with by a deed in which each warrants his title to his own share only. Coe v. Harahan, 8 Gray, 198. The following cases may be cited as illustrating the general subject of this chapter : — In an action of covenant in the nature of a bill for specific performance, on an agreement to convey land in fee-simple free from incumbrances ; it was held to be sufficient for the vendor to prove, that he had paid a judgment which was a lien, though satisfaction was not entered on the docket ; and tendered a deed in fee-simple, with special warranty ; and that it was not necessary for him to tender the whole chain of title. Kspy v. Anderson, 14 Tenn. 308. Plaintiff sold to the defendant a tract of land for $7,969, payable in several in- stalments. When §2,000 were paid, he was to convey certain parts of it. Plain- tiff also agreed, — that be would see that " Stanle\- Street was continued, and opened to the defendant's north line ; " and that, when the contract had expired, and the payments were all made, lie would convey the premises. In an ac- tion brought before all the {jayments were due, held, the plaintiff was not obliged to continue and open Stanley Street until all the payments were made ; that the defendant was not entitled to raconpnumt for damages occasioned by non-fulfilment by the plaintiff' of his engagements, and that, from the contract and circumstances, it was not the intention of the parties, that Stanley Street M'as to be opened in a reasonable time. Farmers, &c. v. Hunt, 10 Barb. 514. A. contracted to execute to B. a quit- claim deed of certain premises, and after- wards gave him a certificate, that, at the making of the contract, he consented and agreed he should take possession forth- with. Held, B. could not maintain an action against A. for damages because a third person had intruded upon a portion of the premises, and kept B. out of pos- session, there being no agreement to put B. in possession. Tewksbury v. I.affim, 1 Cal. 129. Where a railway company, purchasing lands, agree under seal with the vendor to make and support certain accommoda- tion works, he cannot claim to have this agreement inserted in the conveyance, inasmuch as it would either relate to a past act, or would be a superfluous secu- rity for a future act, already sufficiently provided for. Raphael v. Thames, &c., Law Rep. (Eng.) Eq., June, 1866, p. 37. 270 LAW OF VENDORS AND PURCHASERS. [CHAP. XVI. CHAPTER XVI. TITLE TO THE PROPERTY SOLD. PARTIAL FAILURE OF TITLE. 1. Partial defect of title, what constitutes. 5. When ground for rescinding the sale. 2. When it is no ground of objection by 9. Whether the vendor may object on the the vendee. ground of deticiency or excess in the prop- 4. Cornijensation for partial failure of title, erty. 1. Questions often arise, as to the effect of a partial failure of title to the property sold. Such failure may apply to the interest of the vendor in the estate itself, as where he owns less than a fee- simple, or a fee-simple subject to incumbrance ; or to the amount or quantity of the property, as where only a part of the lands sold belongs to him. And it may depend upon different combinations of circumstances, whether the purchaser shall be allowed to make any objection on these grounds ; whether he shall be restricted to a proportional dednction from the agreed price ; or whether he may at his election wholly rescind the bargain. 2. As has been seen (ch. 12), Chancery will not" decree specific performance of a contract to purchase, where the vendor is unable to give a valid title, unless it appears from the contract, that the understanding of the parties was, that the purchaser should take the risk of the title.^ But specific performance will be decreed, when the vendor is able to perform his agreement in substance, although there is a trifling variation in the description, or a trifling incumbrance on the title, which cannot be removed, but which is a proper subject of compensation. (a) Thus it is no valid objection to the title, that the conveyance,* under which the vendor holds, contains a reservation of mines and minerals and water privileges, if there is no reason to suppose they exist. So the reservation of 1 Winne v. Reynolds, 6 Paige, 407. See St. Paul, &c. v. Brown, 11 Miia. 356. (a) It is a somewhat analogous rule, failure to make the deed, when he has that, to make a vendor liable for deprecia- never been requested to do so. Mulliu v. tion in the property, pending the contract. Bloomer, 11 Iowa, 300. he must be in some fault beyond mere CHAP. XVI.] TITLE. — PARTIAL FAILURE. 271 a pepper-corn, or any other rent which is merely nominal, is not a valid objection to the title of the vendor, more especially if known to the vendee ; and specific performance will be decreed without compensation, although by mistake of the scrivener they were not excepted in the written contract of sale. Though a restriction upon the power of alienation, or the reservation, to the original owner, of a pre-emptive right of purchase for a certain time, is an incumbrance, which diminislies the value of the title ; and a pur- chaser without notice will not be compelled to take the premises, subject thereto, without a proper allowance. 3. Thus the vendor of a farm in the manor of Rensselaerwick, held under a lease at a nominal rent of a pound of wheat, with a reservation of mines and minerals and water privileges, and a pre- emptive right of purchase ; covenanted to give the purchaser a good and lawful deed. Held, the rent was no objection to the title ; and, there being no mines or minerals, or water privileges, on the premises, and the lessor having agreed to relinquish his pre-emptive right, of which the vendee had notice at the time of sale, a specific performance was decreed.^ So in case of an agree- ment to sell and assign " the unexpired term of eight years' lease and good-will " of a public house ; held, the purchaser could not refuse to perform the agreement, on the ground that, when it was entered into, there were only seven years and seven months of the term unexpired,^ So a purchaser is not entitled to abatement for a deficiency in quantity, where the particulars describe the estate as containing by estimation a certain number of acres, be the same more or less.^ More especially where the purchase is made by metes and bounds, estimated to contain a specific quantity, or " for more or less," and a gross sum to be paid for the entire tract ; and the land, at the time of purchase, is of equal value to the price paid ; — unless there is some misrepresentation or concealment.'* So, where land is sold at auction in separate lots, and several are purchased by one person, this is not an entire contract ; and, though the vendor cannot give a title as to all the lots, the vendee cannot rescind the agreement in toto,\n\t must take* a conveyance of the rest.^ So the vendor of a largo tract, consisting of vari- ous parcels, as surveyed by the government, at a gross price, and 1 Winne v. Reynolds, 6 Paige, 407. •* Ketcliiim v. Stout, 20 Oliio, 453. 2 Belworth v. Hassell, 4 Camp. Ca. 140. 5 "Van Eps v. Schenectady, 12 Johns. 3 Winch V. Winchester, 1 Ves. & B. 43G. 375. 272 LAW OP VENDORS AND PURCHASERS. [CHAP. XVI. not by the acre ; and guilty of no fraudulent concealment ; is not liable for any deficiency of quantity. ^ So when the land is de- scribed by reference to adjoining tenements, and sold from bound- ary to boundary, no action can be maintained for a diminution of price, on account of deficiency of quantity .^ The distinction is, that, when a specified tract is sold for a sum in gross, the boundaries control the description of the quantity ; and neither party can have a remedy for excess or deficiency in quantity ; unless so great as to furnish evidence of fraud or misrepresentation. Oth- erwise, where the mistake is in the boundaries, and not in tlie quantity. So where the deficiency is not in the thing described, but in the ability of the defendant to convey the thing de- scribed.^(a) 1 Terrell v. Kirksey, 14 Ala. 209. 2 Zeringue v. Williams, 15 La. An. 76. '^ Voorhees v. De Meyer, 2 Barb. 37. (a) A. sold to B. three quarter sections of land for $1,000 each, and gave liim a title-bond for two hundred and eighty acres, and a deed for the balance. B. gave, for the price, three notes, for §1,000 each, payable at different times ; the two first absolutely, and the last on condition of receiving a full title. A. afterwards conveyed one hundred and twenty acres, transferred all the notes for value, became insolvent, and left the State without mak- ing or being able to make title to the remaining quarter section. Held, the con- dition of the last note operated as an indemnity against any damage arising to B. from not receiving such title ; and, as the title was not proved defective, that the hond-Jide pa\anent by B. of the note first due, and afterwards of the conditional note, with notice of the transfer of the second note, did not entitle him to relief in equity against the latter note. Graham V. Nesmith, 18 Ala. 763. Copyhold and freehold lands, \ymg intermixed and undistinguishable, were sold, witii the timber. The vendor was not to be bound to distinguish the free- holds from the copyholds, and the timber was to be taken at a speci^ed valuation of the timber on each lot. A deposit was paid of £10 per cent. It was also stipu- lated, that, in case of delay in the comple- tion of the purchase, interest, at .£5 per cent, should be payable on the whole price. Held, an entire contract, — not two con- tracts, one for the sale of land, and another of timber. Crosse v. Lawrence, 10 Eng. Law & Eq. 7. Also, that the purchaser was not entitled to any abatement, though he could not cut a single tree, not being able to distinguish any one tree as standing on freehold ground. Also, that in case of one lot sold under the same conditions and particulars, and which consisted entirely of copyholds, the purchaser was equally bound to pay the stipulated price for the timber, although he could not cut any of it. Ibid. An estate, consisting of fen-land, and so described in the particular of sale, was charged by a local but public act of Par- liament with drainage and embanking taxes, of which the purchaser had no express notice. Held, that he was not entitled to a compensation for those taxes. Barrandos v. Archer, 2 Simons, 433. So an injunction was granted, to stay an action against the auctioneer for the de- posit, although the estate sold was repre- sented as freehold, and turned out to be almost all leasehold, and although there had been great delay in making out the plaintiff's title. Eordyce v. Eord, 4 Bro. C. C. 494. But see Drewe v. Corp, 9 Ves. 368. A piece of ground being sold at auc- tion, according to certain metes and bounds, which were shown to the pur- chaser before his purchase, be the same more or less ; he is not entitled to com- pensation for a deficiency ; although the previous advertisement described tlie ten- ement as containing more than the actual quantity. So, notwithstanding a subse- quent agreement under seal (written by the purchaser, and signed by the vendor, for the purpose of binding the vendor to make a title), in which the terms of sale CHAP. XVI.] TITLE TO THE PROPERTY SOLD, ETC. 273 4. Although a Court of Equity docs not ordinarily exercise its jurisdiction by awarding damages, yet in tiie class of cases now under consideration, for the purpose of effecting substantial justice between the parties, it sometimes departs from its usual course of procedure, and, instead of rescinding a contract for partial failure to fulfil it, seeks to indemnify the purchaser by decreeing a fair and equitable compensation for his loss. It has been said, the plaintiff in a bill for specific performance is not entitled, generally, to damages for non-performance, to bo ascertained by an issue, or a reference to tlie Master.^ But the prevailing doctrine now is, that specific performance will be decreed upon the princi})le of cotnpensation and indemnity, where there is no suhstantial deviation from the contract.^ Thus a small incumbrance, which may be the subject of compensation, is no objection to a specific performance.^ An incumbrance, for less than an instalment of the price wliich has become due, justifies only the suspension of payment, and an in- junction, to this extent.^ So quit rents, being incidents of tenure, are proper subjects of compensation. It has been doubted whether the same principle applies to rent charges, which are not incidents of tenure ; though the Court has allowed them, when small, to be 1 Todd V. Gee, 17 Ves. 273. 3 Quest v. Homfray, 5 Ves. 818. 2 Horniblow v. Shirley, 13 Ves. 81 ; * Walker v. CucuUu, 15 La. An. 689. Dyer v.- Hargrave, 10 Ves. 505. are referred to, but the qiiantity mentioned that the clear profits exceeded .£200 a in the advertisement is specified, omitting year. Held (on a bill by the purchaser the words "more or less;" the vendor for specific performance, with compensa- may still prove the terms of sale by parol tion in respect of the misstatement as to testimony. Grantland v. Wight, 2 Munf. the fines), he could not claim compcnsa- 179. tion, inasmuch as the annual profits, which Trustees for sale of a manor described constituted the substantial value, far ex- it in advertisements, and particulars and ceeded the amount stated. Wliite v. conditions of sale, as a manor in which Caddon, 8 Clark & Finnelly, 7GG. In tlie fines were arbitrary ; adding, that the case of sale by a trustee in chancery, a clear profits, on an average of the last claim was made for deduction of price for eight years, had been £150 per year ; and fifty-tln-ee acres' deficiency in quantity of it was one of the conditions of sale, that, if land and defects in niacliinery, making there should be any error or misstatement part of the property sold. The property in the particulars, the vendors or purchaser, was thus advertised: "That valuable as the case might happen, should pay or cotton factory known as the IMiaMiix Fac- allow a proportionate value, according to tory, with 187 acres of land, more or less, the average of the whole purchase-money, attached thereto. Tiie machinery is in as a compensation either way. After the good running order, and now in use. sale, it was found that by the custom of Persons desiring to examine the i)remises the manor arbitrary fines were payable can leave Baltimore in the morning cars, only on alienation, and that, on the death and return the same day." There was of a tenant, his customarj- heir paid, upon no allegation of fraud. Held, tlie pur- admittance, a small fixed sum, and the chaser was not entitled to a deduction, widow was admitted to her free bench Slothower v. Gordon, 23 Md. 10. without any payment. It was also found 18 274 LAW OF VENDOES AND PURCHASERS. [CHAP. XVI. subjects of compensation.^ So, if there be a small deficiency in the land, a reference may be made to the Master to ascertain it, and report the value.^ So where the objection by a purchaser applies only to a small part of the estate.^ Thus, where a tenant in pos- session purchased the property, which was represented to be forty- six feet in depth, but turned out to be thirty- three only ; held, he was entitled to an abatement.'^(a) So where the title is good except as to a small portion, the loss of which would not materially affect the value of the rest ; equity will not rescind the contract, but will credit upon the bonds the value of such portion.^ So a purchaser of two lots cannot refuse to take one because a good title is not shown to the other.^ So the general rule of specific performance, that the purchaser shall have what the vendor can give, with an abatement of price for deficiency in the quantity, was enforced against trustees for infants, upon the mere mistake of their agent, without fraud, &c. ; but the relief adapted to the jus- tice of the case ; viz., the purchase being of wood upon a gross valuation, without regard to the quantity of land, an abatement for a deficiency of quantity, from erroneously inserting the hedges and fences not included in the purchase, was directed with reference to land, merely, not wood-land." So where there was a defect of title to a small piece of land, over which lay the approach to a house and other land, the main subject of purchase ; and the contract provided for compensation, in case of any omission or mistake in the description : held matter of compensation.^ So, in case of a contract to purchase lots, to two of which a title could not be made, and the others having deteriorated in value ; if the value of the remaining lots is not affected by that deterioration, a specific per- formance shall be decreed as to all but two.^ So where there was 1 Esdaile v. Stephenson, 1 Sim. & Stu. ^ Lewin v. Guest, 1 Russ. 325. See 122. Roots V. Dormer, 4 Barn. & Ad. 77. 2 Cannon v. Mitchell, 2 Desaus. 320. ^ Hill v. Buckley, 17 Ves. 394. 3 M'Queen v. Farquliar, 11 Ves. 467. ^ Freer v. Hess, 17 Eng. Law & Eq. 4 King V. Wilson, (J Beav. 124. 154. 5 Tomlinson v. Savage, 6 Ired. Eq. '' Poole v. Siiergold, 2 Bro. C. C. 118 ; 480. 1 Cox, 273. (a) The true criterion of abatement is neighborhood of the property, to purchase not the ratio of tlie quantities real and eitlier tliat or another estate, at his discre- represented, but the ditterence of location, tion, for that price, and tlie agent purchased size, improvements, value, purposes, Slc. tliis lot. Held, the riglit of the vendee to Fall'w. McMurdy, 3 Met. (Ky.), 364. recover for a failure in quantity was not Previous to purchase, a vendee received at all affected by the exercise of this a note from the vendor, stating tlie price, agency, which was limited only to the and that the lot contained six acres. The discretion of a choice. Ibid, vendee then wrote to his agent in the CHAP. XVI.] TITLE TO THE PROPERTY SOLD, ETC. 275 an auction sale of lots, under condition tliat they were subject to the perpetual payment of XI 20 a year to the curate of N., Imt that this, and the perpetual annual payment of £20 to the hospital of C, were in future to be charged upon and paid by the purchaser of lot 1 only ; held, the purchasers of the other lots were entitled, not to an absolute discharge, but to an indemnity from the pur- chaser of lot 1.^ So where it is provided by the conditions of sale by auction, that, if any mistake be made in the dcscriptiun of the premises, or any other material error shall appear in the particu- lars of sale, such mistake or error shall not annul the sale, but a compensation shall be made ; the vendee is not released by a mis- description in the particulars, obvious, on inspection of the prem- ises, unless wilful and designed.^ So an advertisement described the estate as all freehold, though a small part was held at will : after execution of articles, a treaty for an exchange of that part took place ; pending which, at the time appointed for completing the purchase, the purchaser took possession forcibly ; but proceeded in the treaty afterwards, till he finally refused to agree to the pur- chase. On a bill of the vendor, the purchase-money was decreed to be paid, with four per cent from the time it ought to be paid ; but an inquiry was directed, what ought to have been the compen- sation at that time, that, with the outgoing, to be deducted.^ So it has been held, that, where part of the premises are subject to tithes, though represented as tithe-free ; the purchaser, if he chooses to take the purchase, has a right to compensation, but not to compel the vendor to purchase the tithes.* In another case it is decided, that the purchaser of an estate, sold as tithe-free, can- not be compelled to take it subject to tithe, on terms of compensa- tion ; but, an estate of a hundred and forty acres being sold under a decree, and the particulars stating about thirty-two acres to be tithe-free, and no evidence of exemption having been produced on the reference of the title, the Master was directed to certify the proper amount of compensation. ^(a) So specific performance of a 1 Cassamajor v. Strode, 1 Wils. C. C. ' Calcraft v. Roebuck, 1 Ves. 22L 428 ; 2 Swanst. 347. * Todd v. Gee, 17 Ves. 273. 2 Wright V. WUson, 1 Moo. & Rob. 207. 5 Binks v. Rokeby, 12 Swanst. 226. (a) Even where the iDrincipal subject meadow, and the possible conversion from of contract was all the corn and hay tithes arable, not distinctly appearinjz;, the in- of a parish, and half of the latter was junction against recovering the deposit allotted to the vicar, and the other half was continued after answer. Drewe v. commuted for a customary payment ; the Hanson, 6 Ves. G7tj. nature of that payment, the extent of 276 LAW OF VENDOES AND PURCHASERS. [CHAP. XVI. sale was decreed, with compensation, notwithstanding a variance from the description, though a minute examination might have discovered the defects ; as in the state of the house and the culti- vation of the land. Otherwise as to a variance from the description, as lying within a ring-fence; this being an object of sense; and; upon the evidence, the purchaser being apprised of it.^ So a res- ervation of salt-works, mines, Withy V. Cottle, Turn. & Rus. 78 ; l" Matthews v. Dana, 3 Madd. 470. 1 Sim. & Stu. 174; Boyes v. Liddell, 1 ^ v. Skelton, 1 Ves. & Bea. 517. You. & Col. 133. 1^ WalHnger v. Hilbert, 1 Mer. 104. 1 Blyth V. Elmherst, 1 Ves. & B. 1 ; CHAP. XVII.] REFERENCE OF TITLE. 285 purchaser, besides objecting to the title, claimed compensation for defect of quantity ; even though he submitted to complete his agreement.^ 7. If exceptions to the report of a good title arc overruled, other objections cannot be made ; otherwise, if exceptions are allowed, and a new abstract delivered.^ 8. A bill prayed specific performance " if a good title could be made." At the hearing it was declared, that the agreement ought to be specifically performed, and referred to the Master to inquire, whether a good title could be made. The Master reported in the negative. The plaintiff, on further directions, waived all objec- tions to the title, and proposed to take the property ; but the ven- dor ol)jectcd. Held, the plaintiff was entitled to a decree ; but being aware, at the first hearing, of the objections to the title, he ought to pay the costs of the investigation in the Master's office.^ 9. Injunction to restrain a purchaser from proceeding at law, to recover part of the purchase-money paid by him in advance, for want of title, and outstanding incumbrances. Held, the Court would not make absolute the common order nisi to dissolve the injunction, without the Master's report upon the title, although the objections were fully stated in the defendant's answer.* 10. The Court will not, on motion, after an order for a reference, the Master having found that a good title can be made, direct him to inquire when such title could first be made. Such direction should be applied for at the hearing on the merits.^ But, in case of a decree for reference upon the title, the cause coming on for further directions, after a report approving the title, the de- fendant was held entitled to an inquiry, at what time a title could have been made.^ , 10 a. Bill for specific performance, filed by the vendor. On a reference of title, the Master having reported that a good title could be made, an order was passed, referring it back to him, to see whether such title could have been made prior to the filing of the bill." But the inquiry, at what time a title could be made, is a proper subject of further directions after the report upon the title ; and not to be combined with the reference of title.*^ 1 Lowe V. Manners, 1 Mer. 19. « Daly v. Osborne, 1 Mer. 382. 2 Brooke v. , 4 Madd. 212. T Birch v. lluynes, 2 I\Ier. 444 ; 3 3 Bennett v. Fowler, 2 Beav. 302. Madd. 4'J5. 4 Cliurdi V. Legeyt, 1 Sugd. 491. » Gibson v. Clarke, 2 Ves. & Bea. 103. 5 Lubin V. Lightbody, 8 Price, 600. 286 LAW OF VENDORS AND PURCHASERS. [CHAP. XVII. 11. A reference having been made as to title, on one motion, the party cannot afterwards, by another motion, have a reference as to the deUvery of the abstract.^ 12. Bill for specific performance against a purchaser. The defendant, admitting that he had been for several months in possession, and had exercised acts of ownership, on the faith that a good title to three hundred and forty-nine acres would be shown, insisted that in the contract acres meant statute acres, and that he was not bound unless three hundred and forty-nine statute acres were conveyed to him. Held, a reference of title would not be directed on motion. It seems, the clause, " be the same more or less," would not cover so large a deficiency.^ 13. Reference of title before answer ; the plaintiff, the vendor, undertaking to do all such acts, for the purpose of executing what the Court thinks right, as if the answer were in, and the cause brought to hearing. Direction, if the report shall be against the title, for compensation ; but refused as to indemnity .^ 14. On a report against the vendor's title, his bill for specific performance was dismissed, with costs, on motion.'* But an order to dismiss a bill for want of prosecution is not of course, pending a reference on motion; the title alone being in question.^ But where, in a suit by a vendor for specific performance, the Master reported in favor of the title, but the Court, on exception, deemed it doubtful ; an order was made, dismissing the bill, without costs, but neither allowing nor disallowing the exception.^ 15. Where the report is in favor of the title, the Court, on allowing exceptions to it, will give the vendor a reasonable time to remove the objection, although the exceptions and further direc- tions were set down to come on together.'' 16. On a motion by a vendor against a vendee in possession, for a reference to set an occupation rent, the title not being completed, an order was accordingly made, and that interest at X5 per cent upon the deposit should, under the circumstances, be deducted out of such rent.^ 17. Upon a question of title, as to specific performance, further evidence may be produced on both sides before the Master.^ 1 Hyde v. "Wroughton, 3 Madd. 279. & Biscoe v. Brett, 2 Ves. & Bea. 377. 2 Portman v. Mill, 2 Buss. 570. 6 Wilcox v. Bellares, Turn. & Kuss. 3 Balmanno v. Luniley, 1 Ves. & Bea. 491. 224. 7 Portman v. Mill, 1 Enss. & Myl. 696. 4 Walters v. Pyman, 19 Ves. 351; Ben- « Smith v. Jackson, 1 Mad. 618. nett V. Carey, 3 Bro. 390. 9 Vancouver v. BUss, 11 Ves. 458. CHAP. XVII.] EEFERENCE OF TITLE. 287 18. One general exception was taken to the Master's report of a good title, which did not point out the ohjections to the title. The Court disapproved of this inconvenient mode of proceeding.^ 19. Where, on reference as to title, in a suit against a purchaser for specific performance, the Master reports in favor of the title, but the Court holds it to be so doubtful, that the inirchaser should not be compelled to take it ; the bill may be dismissed, without allowing the exceptions taken by the defendant to tlic report.^ 20. Leave was given, under the circumstances, to except to a report, although the party had not carried in objections to it.^ 21. A purchase before the Master is not complete, before con- firmation of the report. Therefore a loss by fire, after the report, but before confirmation, falls upon the vendor ; although the sale was delayed by the purchaser's having opened the biddings.'* 22. After a report, which was confirmed, in favor of a title, by one Master, another Master, in another proceeding, made a report, by which the title was affected. On motion, the title was referred back to the former Master.^ 23. If, upon a question of title, the Master is satisfied with the evidence, but, upon the hearing of an exception to the report, the Court thinks the evidence not sufficient ; the Court, upon the appli- cation of the vendor, even though for some time delayed, will refer it back- to the Master to review his report, in. order to give the ven- dor an opportunity of producing further evidence.^ 24. The plaintitf, holding a contract for the purchase of land, sold the land to tlie defendant ; and, upon the defendant's failure to fulfil his contract, files a bill for specific performance. The case was referred to a Master, to report whether the plaintiff' could make a good title. The report was favorable, and the defendant ex- cepted. Held, the report followed the reference, though it should properly show how title could be made ; and specific performance was decreed.'^ 1 Flomer v. Hartopp, 6 Beav. 476. 5 Jeudwine v. Alcoek, 1 Madd. 597. 2 Robinson v. Miliier, 1 Hare, 578, n. 6 Andrew v. Andrew, 3 Sim. 390 ; 3 Wood V. Lambirtii, 9 Sim. 195. Egerton v. Jones, 3 Sim. 392. * Ex parte Minor, 11 Ves. 559. ^ Scott v. Thorp, 4 Edw. Cli. 1. 288 LAW OF VENDORS AND PURCHASERS. [CHAP. XVIII. CHAPTER XVIII. TITLE-DEEDS. 1. In the English law the deeds, under which a title to real property is derived or claimed, constitute an important subject of inquiry, and give rise to numerous and nice questions. And although in the United States, whej'C the system of registration universally prevails, the rules upon this subject cannot be con- sidered as generally in force ; still a comprehensive view of the law of vendors and purchasers requires that they should be sum- ma,rily noticed. 2. In England, it is the settled rule of law, that a purchaser of real property is not bound to complete his purchase without the title-deeds, unless he has a legal covenant to produce them.^ And the production of title-deeds and other papers is sometimes re- quired by the Court, as a condition of enforcing specific perform- ance, (a) Thus a reversion having been put up to sale by auction, describing the estate as leased, with a covenant on the part of the tenant to repair ; and the purchaser objecting to the title, because no counterpart of the lease was in possession of the vendors, it being stated to be in the hands of a party under a partition made some time before : the Court thought that such counterpart ought to be deposited for the benefit of all parties, before it could com- pel the purcliaser to take.^ So specific marriage articles limited a joint estate to the intended husband and wife, and after the 1 Barclay v. Raine, 1 Sim. & Stu. 449. 2 Shore v. Collett, Coop. 234. (a) Equity will not order, that a volun- of Eliz., give the purchaser an advan- tary deed or agreement affecting land be tage at law which the donor could not delivered up to a purchaser of the land, have obtained in equity, it does not ... in to be cancelled. " The Court will not, at equity have any such effect, but the pur- the instance of a donor who repents of his chaser can only do what the vendor him- gift, cause the deed of gift to be given up, self could have done." De Hoghton v. nor will it, at the instance of the donee, Money, Law Rep. (Eng.) Eq., Feb. interfere to complete an imperfect deed of 1806, pp. 152, 157, 158, per Sir J. Rom- gift." And, " although the sale for value illy, M.R. may in some cases, by virtue of the 27th CHAP. XVril.] TITLE-DEEDS. 289 death of the survivor to the use of the heirs of the body of the husband begotten on the wife ; and the settlement after marriage pursued the words of the articles. The husband and wife levy a fine and first mortgage, and then agree to sell. The articles not being produced, the Court would not decree them to be carried into execution by a strict settlement, against the purchaser, who had no notice of tliem.^ 3. By analogy to this rule, it is held tliat a vendee is not bound to accept the title, unless the deeds under which it is deduced are regularly recorded ; there being no otber proof of their execution.^ But where a party binds himself to execute a deed to anotlier, he is bound to deliver or tender it to him ; the acknowledgment of it before the clerk of the county court, and deposit of it with liim for the benefit of the grantee, are no performance of his obligation.^ 4. While the title-deeds must themselves be produced, a good title also requires the production of extraneous evidence of the facts stated in the deeds ; even though the purchaser makes no requisition therefor.'^ A vendor must produce all evidence neces- sary to verify the title, beyond the title-deeds in his own custody, unless his intention to the contrary be previously made known to the purchaser in clear and explicit terms.^ If a vendor retains the title-deeds, and covenants for further assurance only, the pur- chaser may compel him to covenant for production of the deeds.*^ But a purchaser is not entitled, as a matter of course, to a cove- nant for tlie production of all documents contained in the abstract of title, which are not delivered to him ; but only of those which are necessary to make out a good sixty years' title." 5. Although conditions of sale provide, that no earlier or other title should be deduced, or any deed or document produced, ante- rior to a specified document ; the vendee is not precluded from making an objection to the title, which appears on the face of the abstract delivered.^ 6. A purchaser, who cannot have the original title-deeds, the estate being sold in a great nvimber of lots, is entitled to attested copies at the expense of the vendor, notwithstanding the incon- 1 Cordwell v. Mackrill, Ambl. 515. 5 Southby v. Hutt, 2 Myl. & Cra. - Bartlett v. Blanton, 4 J. J. Marsh. 207. 428. 6 Fain v. Ayers, 2 Sim. & Stu. 533. 3 McFadgen v. Eisensmidt, 10 Humph. 7 Cooper v. Emery, 1 Piiil. 388. 567. . 8 Sellick v. Trevor, 11 Mees. & "Wels. * Sherwin v. Shakspeare, 23 Eng. Law 722. & Eq. 199. 19 290 LAW OF VENDORS AND PURCHASERS. [CHAP. XVIII. venience and expense. ^(a) So, where title-deeds cannot be deliv- ered, assignees must, like any other vendor, give attested copies of them at the expense of the estate ; but their covenant for the pro- duction of the deeds should be confined to the time of their con- tinuance as assignees.^ 7. In case of objection to a title for want of a deed, which had been enrolled at a public office, but could not be found, a copy of it, taken in 1632, attested to be a true one by five witnesses, was produced in court. Lord Hardwicke was of opinion, that this would have been sufficient, even without an attestation.^ 8. If after a sale, but before the title is accepted, the title-deeds be destroyed by fire, the Court will not compel specific perform- ance, unless the vendor can furnish the means of showing their contents, and that they were duly executed and delivered.^ 9. While a title depending on deeds must generally be verified by production of them; still, as we have already seen (ch. 13), a good title may be made, although the origin cannot be shown by any deed or will ; if there has been such a long, uninterrupted pos- session and enjoyment of, and dealing with, the property, as afford a reasonable presumption tliat there is an absolute title in fee- simple.^ Thus where the plaintiff produces an original lease of a long term, and proves possession for seventy years, the mesne assignments shall be presumed.^ So the existence and execution of a settlement by indentures of lease and release were presumed from circumstances ; — principally the existence of the drafts ; the statement in an abstract of title ; and the existence of the lease for a year of other estates, appearing to have been included in the same plan of settlement." But it has been held, that a vendor's ' Dare v. Tucker, 6 Ves. 459 ; Ward ■* Bryant v. Busk, 4 Russ. 1. V. Garmons, 17 Ves. 134; Boughton v. ^ Cottrell y. Watkins, 1 Beav. 361. Jewell, 15 Ves. 176. « Earl v. Baxter, 2 Blackst. 1228. 2 Ex parte Stuart, 2*ose, 215. 7 Ward v. Garraous, 17 Ves. 134. 3 Harvey v. Phillips, 2 Atk. 541. (a) But, on the other hand, a pur- copies of them, as well as of the surren- chaser is not bound to put up with copies, ders and admittances, which would be where the originals can be had. Thus good evidence, might be procured by the the vendor of copyhold, enfranchised in purchaser at any time. The vendor was 1799, delivered to the purchaser two ab- unable to deliver to the purchaser the stracts commencing in 1736, one of title deed of 1799, or any of the prior instru- to the land and the other of the title to ments, but was willing to covenant to the manor. The deed of 1799, which was produce that deed. Held, that he was forty years old, recited, that the then bound to give the purchaser covenants lord and the then owner of the land wore for the production, not only of that deed, respectively seised in fee ; and several of but of all the prior instruments mentioned the deeds relating to the lord's title were in the abstracts. Cooper v. Emery, 10 bargains and sales enrolled, and tlierefore, Sim. 609. CHAP. XVIII.] TITLE-DEEDS. 291 showing an uninterrupted possession of twenty years in himself, and those under whom he claims, is not sufficient.^ 10. Where a title was derived from one who entered as heir, under the impression that his ancestor's will was void, a purchaser was not compelled to complete his contract, without production of the will, or evidence of its contents.^ But where one articles to buy land, and the title is under a will, not proved in equity against the heir ; yet, in some cases, equity will compel the purchaser to accept the title.^ 11. The abstract of title is one of the documents upon which questions have often arisen between vendor and purchaser. Where the title and abstract are to be made at the vendor's expense, the purchaser is entitled to the custody of the abstract, until either the purchase is finally rescinded by consent, or declared imprac- ticable by a Court of Equity. When the contract is determined, the abstract becomes the property of the vendor. If the sale proceeds, it is the property of the vendee. An opinion written thereon, as it was necessarily written on the seller's paper by his consent, continues the property of the purchaser.* 12. On reference of title to a Master, he proceeds on the abstract only, unless the purchaser requires the deeds ; and the latter cannot except to the report on this ground.^ 13. Specific performance decreed ; the abstract, though deliv- ered very late, and under a notice that the vendee would insist on his deposit, with interest, if the title should not be made out, and possession delivered, by the time of payment, having been received and kept without objection ; and the vendee, upon the construction and the circumstances, not being entitled to insist on the time, as of the essence of the contract.^(a) A Lewis V. Herndon, 3 Litt. 358. * Roberts v. Wyatt, 2 Taunt. 268. 2 Stevens v. Guppy, 2 Sim. & Stu. 439. ^ Poole v. Shergold, 1 Cox, 160. 3 Colton V. Wilson, 8 P. Wms. lyO. ^ Sei,„ j,.. glade, 7 Ves. 265. (a) Conditions of sale of an estate sold session and set fortli in tlie abstract. in lots, that the vendor should deliver an Held, these conditions did not relieve tlie abstract of the title to the purchasers, and vendor from verifying the title shown deduce a good title ; but, as to a part of upon the abstract, by producing the title- the estate, acquired under an inclosure, deeds themselves, or, if any of them were he should not be bound to show any title not in his possession, by otlier satisfactory thereto, prior to the award; that the evidence. Southby v. Hutt, 2 Myl. & Cra. vendor should deliver up, to the largest 207. purchaser in value, all the title-deeds and In 1745, J. executed a settlement of other documents in his custody, but not lands, reserving a power, with the con- be required to produce any original deed sent of A., to revoke the uses. The or other documents than those in his pos- abstract of title set forth a will of J., dated 292 LAW OF VENDORS AND PURCHASERS. [CHAP. XVIII. in 1761, whereby he, with the consent of A., revoked the uses ; and it referred to a copy of the will. P., tlie son and heir of J., by indenture of 1763, reciting tlie will, resettled the estates ; and possession had since gone accordingly. Held, the non-production of the will was not an objection to the title. In the same case, the abstract stated a deed of March, 1814, making a tenant to the jmrcipe, which recited articles of February, 1814, be- tween the father, tenant for life, and his son, tenant in tail, empowering them to revoke the uses thereby declared ; and the recovery was declared to enure to the uses in the articles. In 1815, the fiither and son revoked the uses, and resettled the estates ; and possession had gone accordingly. The abstract stated, that the articles had been lost ; and it appeared that search had been made for them. Held, that their non-production was not an objection to the title. Held, in the same case, if counsel for the purchaser M'aive the production of a particular docu- ment, stated in the abstract to be lost, and the purchaser adopt that opinion, and deal with the seller upon that view, he will not be permitted to repudiate the opinion of his counsel. Alexander v. Crosby, 1 Jones & Latouche, 666. Upon the death of one of two partners, intestate, his personal representatives agreed to sell his moiety of the real prop- erty to the other, and furnish him at their own expense with an abstract of their title. Held, they were bound to furnish the usual abstract of title, and not merely the letters of administration. Morris v. Kearsley, 2 You. & Coll. 139. Purchase of a mansion-house and park under conditions of sale, which stated that the whole property was freehold, except eight acres which were copyhold, but un- distinguished, except as not including any of the buildings. The abstract of title having been delivered, and discussions arisen thereon, which raised difficidties in the way of completing the purchase ; a supplemental agreement was entered into, detailing, among the requisitions , " dec- laration of identity of lands mentioned in deeds to those now sold." Held, on a bill tiled by the vendor for specific per- form.ance, that the supplemental agree- ment was a substitution for the original contract, and that the vendee was not entitled to demand, that the vendor should distinguish the freehold from the copy- hold, so as to show that the latter did not include any of the buildings. Dawson v. Brinckman, 3 Eng. Law & Eq. 239. A condition of sale of copyhold estates stipulated, that the vendors should not be required to produce any deeds, instru- ments, or documents of title, not in their possession. Held, in an action to recover back the deposit, that the vendors were not bound to procure a covenant, for the production of two deeds not in possession of the vcTidor, but which were set out in the abstract of title delivered to the pur- chaser, and to which the vendors had procured access, for the purpose of veri- fying the abstract. Gabriel v. Smith, 6 Eng, Law & Eq. 172. CHAP. XIX.] TITLE TO LEASEHOLDS. 293 CHAPTER XIX. TITLE TO LEASEHOLDS. 1. Agp-eement for a lease. 12. Compensation. 5. Whether an agreement for a lease or 14. Effect of notice. purchase in fee; agreement not containing 16. Parol evidence, words of inheritance, iS:c. 17. Waiver. 9rt. Obligation as to title; performance 18. Statute of Frauds. inpart. 21. Part-performance. 1. The principles stated in the foregoing chapters, as to the title of a vendor, apply more particularly to sales in fee-simple or of the entire estate. There is anotlier interest in real property, which often becomes the subject of sale and purchase, and which may most properly be considered in this connection, to wit, leasehold estates or te7'ms for years. A lease, being an executed conveyance., and not a mere executory co7itract, does not fall within the plan of the present work, except so far as connected with the subsequent sale and purchase of the lessee's interest. But an agreement to lease., being in its nature executory, requires to be briefly noticed. 2. Whether an instrument is a lease, or only an agreement for one, depends upon the paramount intent of the parties, as collected from the whole tenor and effect of the instrument. ^(a) Words of present demise, as doth let, agrees to let, agrees to pay for, i complain of the hardship of this, you shall reschid the contract." A Court of Equity may not compel the mortgagor, if highly inconvenient, to pay off' the mortgage for the purpose of giving effect to the contract ; but then he sliall not en- force it against the tenant, if the tenant does not wish to abide by it. If the ten- ant will not give up the contract, the Court might say that it should not be specifically enforced against the landlord under such circumstances, and leave the tenant to seek his compensation in dam- ages at law.' Wedgewood v. Adams, 6 Beav. 605, was as strong a case as could be. There Lord Langdale said, ' I con- ceive the doctrine of the Court to be this, that the Court exercises a discretion, in cases of specific performance, and directs a specific performance unless it should be what is called highly unreasonable to do so. What is more or less reasonable is not a thing that you can define ; it must dejiend on the circumstances of each par- ticular case. The Court, therefore, must always have regard to the circumstances of each case and see whether it is reason- able that it should, by its extraordinary jurisdiction, interfere and order a specific performance, knowing at the time that if it abstains from so doing, a measure of damages may be found and awarded in another Court. Though you cannot de- fine what may be considered unreason- able, by way of general rule, you may very well, in a particular case, come to a balance of inconvenience, and determine the propriety of leaving the plaintiff' to his legal remedy by recovery of damages. If we acceded to tlie respondent's argu- ment, we should, I think, be deviating from the principles on which the Court has acted in these cases. The Court does not refuse a specific performance on the arbitrary discretion of the Judge. It must be satisfied that the agreement would not have been entered into if its true effect had been understood.' " (a) See Title. CHAP. XXI.] MISTAKE. 329 without any > fraud, misrepresentation, or concealment as to the quantity, the Court will not inquire wliether there has been a mis- take upon that point. ^ Thus if the vendor sells, and the vendee buys, a tract of land, for so many acres, more or less, and it turns out, upon a survey, that there is less than the estimated quantity, the buyer shall not be relieved in equity.^ So it is said, the cases in which equity interferes, where the quantity of the land exceeds or falls short of that specified in the dieed or contract, are those in which the sale has been made hy the acre or foot ; or where there has been fraud or wilful misrepresentation on the part of the party against whom relief is sought.^ And even where there is a written contract for the sale of land by the acre, equity will not relieve the purchaser on the ground of a mutual mistake as to the boundaries, unless the mistake be fully and clearly proved.'* 9. But, in general, on a sale of land by the acre, relief is to be granted for all deficiencies, not reasonably imputable to the varia- tion of instruments and small errors in surveys, whether the pur- chaser has expressly retained an election to have the tract sur- veyed or not.^ And this principle is not departed from, but in case of a sale by the tract, the purchaser clearly agreeing to take the hazard of all deficiencies upon himself.^(a) i Veeder v. Fonda, 3 Paige, 94. See Quesnell v. Woodlief, 2 H. & M. 174 ; 2 Joliffe V. Hite, 1 Call, 262. Nelson v. Matthews, ib. 164, 181. 3 Morris, &c. v. Enimett, 9 Paige, 168. « See Joliffe v. Hite, 1 Call, 301, 329 ; * Leas V. Eidson, 9 Gratt. 277. Hull v. Cunningham, 1 Munf. 336 ; Grant- 5 Nelson v. Carrington, 4 Munf. 332. land v. Wight, 2 Munf. 179 ; Duvals v. Eoss, ib. 290. (a) If A. purchase a tract of land as dred ninety-one acres and a quarter, and containing about a specified number of allowance, at twelve shillings and six- acres, more or less, at a certain price per pence per acre." The plaintiff' afterwards acre, " the quantity to be ascertained by obtained patents in his own name, and actual survey, if A. shall require it;" executed a conveyance of the tracts to this is a sale by the acre, if A. shall re- the defendant, describing them by courses quire the survey. And if no time be and distances according to the patents, specified for making his election, he may and as " containing in the whole nine demand the survey at any time before hundred ninety -one acres and a quarter, the whole business shall have been con- and allowance, &c., be the same more or eluded, and a title to the land made or less." The defendant, having previously tendered by the vendor. So though he paid a part of the purchase-money, gave has taken possession, or given bonds for his bonds for the balance on the day after the purchase-money. Nor is such right the conveyance, with a mortgage on the necessarily limited by the last day of pay- three tracts, stating them to contain " in ment ; for even then he is not bound to the whole nine hundred ninety-one acres part with the purchase-money, nor to and a quarter, and allowance," and de- make a final adjustment of the balance scribing them by courses and distances. due, unless a title is made or tendered. Upon a survey made twelve years after- agreeably to the contract. 4 Munf 332. wards, the tracts were ascertained to fall The plaintiff sold to the defendant short 88 acres, 48 perches. Held, the de- three tracts of land, " containing nine hun- feudant was not entitled to any deduction 330 LAW OF VENDORS AND PURCHASEES. [CHAP. XXI. 10. We have heretofore spoken of the effect upon the sale of a jyartial want of title. This is to be understood as the result of mistake; inasmuch as any fraud of the vendor avoids the sale, alike whether the failure of title be partial or total. The general remark may be here repeated, that partial failure is not a ground for an entire rescinding. Thus the complainant sold at auction to the defendant several parcels of adjoining land, sepa- rately, but delayed several years to execute the conveyances, though importuned to do so. Afterwards the defendant discovered, that the title of one of the tracts, a principal one, was not in the ven- dor, and refused to complete the purchase ; alleging that this tract was the principal object of the purchase, but offering on the trial no proof of this allegation. Held, there was no ground to vacate the contract ; that the delay in executing the conveyances should not prevent a specific performance, but was ground only for deduct- ing interest.^(a) 1 Osborne v. Bremar, 1 Desaus. 486. from his bonds on account of the defi- ciency. Bond, to convey a lot of land, number 78, in the townsliip of Lysander, &c., con- taining 600 acres. A deed was delivered, describing the lot as " containing 600 acres, be the same more or less." On actual survey, the lot was found to con- tain only 42i(| acres. In an action on the bond, held, the mention of the quantity of acres was matter of description, and the delivery of the deed for the lot, according to its usual and known description, was a performance of the bond. Mann v. Pear- son, 2 Johns. 37. Agreement by A., in November, 1811, to convey " all his plantation in L. town- ship, adjoining lands of D., B., and others, retierence being had to several deeds of conveyance to A. will show the metes and bounds ; the whole tract contains 225 acres and allowance ; 201 acres the said A. has a patent deed for, and the remain- ing 24 he will also get a patent deed for." In April, 1812, a conveyance was made of 22.5 acres, more or less, the hand-money paid, and bonds given for tlie residue. In 1823, the vendee discovered by actual measurement, that the patented tract fell short 20 acres and 90 perches. Held, he was not entitled to any deduction, in a suit on one of the bonds, for this defi- ciency. Frederick v. Campbell, 13 S. & R. 136 ; M'Lelland v. Creswell, ib. 148. (a) It is no ground for rescinding a sale, that lands have by mistake been in- cluded in the deed, to which the vendor has no title, but which did not make part of the property purchased. Butler v. Miller, 15 B. Mon. 617. The Court say (p. 626), "Miller does, however, allege in general terms that the plaintifis had no valid title to the lands sold him, and that to a portion of it they had no valid or colorable title whatever. It appears in testimony that the title is in some re- spects defective ; although Fitch and those under whom he claimed had been in the possession of it for many j'ears, claiming it as their land, and the defend- ant has been in the undisturbed possession of the whole of the property actually pur- chased by him, ever since he obtained the possession of it imder his contract. The charge of fraud against the vendors is wholly unsupported. They deny having made any representations to the purchaser about the title, or to have stated to hira that the title was good, although they ad- mit they may have said that in their opin- ion it was good. It does not appear that tliey said or did any thing to induce the purchaser to believe they had any knowl- edge of the goodness of the title. The very terms upon which they proposed to sell should have put him on his guard, and induced him to investigate the title for himself. They only agreed to convey the title which had been vested in them without any covenant of warranty, and without any responsibility upon them- selves whatever. He purchased from CHAP. XXI.] MISTAKE. 331 11. Substantially the same point arises, in connection with the claim of compensation for any partial failure to comply with the contract, whether by reason of partial defect of title to the whole property, or of partial or total want of title to a part of the prop- erty. Upon these subjects, the cases are by no means uniform, and law and equity adopt very different rules. 11 a. It is held, that a Court of Equity may inquire into all the circumstances, and ascertain how far one part of the bargain in- duced the rest, and award compensation accordingly ; l)ut at law a vendor cannot on an entire contract recover any part of the pur- chase-money, where he is unable to make title to the whole estate, nor is a purchaser entitled to retain that part, the title to which is good, and vacate the contract as to the rest.^ Thus it is held, that, 1 Johnson v. Johnson, 3 B. & P. 162 ; Chit, on Contr. 303. them upon these terms, anrl after having had time to examine tlie title he accepted a deed from them in fulfihnent of tlie con- tract upon tlieir part. Tiie fact that the deed does not contain a covenant of war- ranty, cannot operate in his favor. It proves that lie did not only rely upon his vendors, but was willing to purchase the propei'ty and risk the title. Purchasers have a right to make such risking con- tracts, and when made can only be re- lieved from them upon the ground of fraud in their procurement." Ejectment. The plaintiff agreed to convey all his right, &c., in tract No. 3133, when in fact "the tract was No. 4821. The purchasers had examined the land before the sale, and they entered and made improvements, but did not pay the price. Held, the misdescription was no defence to this action. Miles v. William- son, 21 Penn. 135. Black, C.J., says (p. 142), "The vendees saw the land, exam- ined the lines on the ground, investigated the vendor's title, and took it at their own risk. They got possession of the very land which they meant to buy, and which the other party intended to sell them. The defendants insist that this error en- titles them to keep the land without pay- ing the purchase-money. They will neither rescind the contract nor perform it, and this action is brought to compel one or the other. The jury were in- structed that although the vendees agreed to run the risk of the title, yet if the ven- dor was guilty of any fraudulent misrepre- sentation the contract was void', and he could not recover; and that, if the con- tract was made under a mutual mistake injurious to the vendees, there should be a deduction from the purchase-money large enough to compensate for the loss. It is impossible to see how any thing bet- ter for the defendants could have been done. The jury negatived the allegation of fraud, and, by allowing nothing to the defendants for the mistake in the number, they declared their conviction that it did no injur}'. The vendees got possession of the land they bought witii perhaps a defective title ; l)ut the verdict is conclu- sive upon us tliat the title would have been no better than it is if the land had been found to lie within the limits of the survey which was supposed to embrace it. The defendants complain of it as a hardship that they should be compelled to surrender possession after making im- provements. They took the title at their own risk, and of course improved the land on the same terms. A vendee cannot improve away the vendor's right to the purchase-money. One who has bought land with his eyes open, and without a warranty, is as much bound to pay for it after he puts up a building on it as he was before. These defendants are not asked to surrender the land, and lose tlieir im- provements. They may keep both if they will perform their covenant." A vendee cannot avoid specific perform- ance, or claim compensation, upon the ground that after the sale tlie land was laid out into streets in a way not antici- pated by the parties, and injuriously af- fecting the shapes of the lots ; there being no warranty or misrepresentation by the vendor. Morgan v. Scott, 20 Penn. 51. 332 LAW OF VENDORS AND PURCHASERS. [CHAP. XXI. where a farm is sold for a gross sum, or at so much per acre, and the quantity mistaken by the parties, equity will relieve the party injured. The vendee has a right to take the farm at the price of the real number of acres, and to have compensation for the defi- ciency, if he has paid the consideration. Though it may be other- wise, if the statement of the quantity be mere matter of descrip- tion, and not of the essence of the contract ; as where the contract contains the words " more or less," or " containing by estimation," &c. ; without any fraud or wilful misrepresentation of the quan- tity.^ More especially, want of title to an unimportant part of the land is a subject of compensation, not a ground for rescission.^ Where a purchaser cannot get a title 'to all he contracted for, if he can get the substantial inducemeyit to the contract, he may insist upon taking, or he may be compelled to accept, a title, with rea- sonable compensation.^ While, on the other hand, in a sale of land by the acre, and not of a tract in gross, if an unusual and unrea- sonable excess or deficit appears, chancery will relieve ; particu- larly if the deed contains no indication that the vendor intended to sell the tract " more or less." ^ Thus a mistake of the parties, in a sale by the acre, of the boundaries of the patent under which the vendor sold, whereby he sold and conveyed 1,000 acres outside of the grant, is ground for relief against payment of so much of the purchase-money ; although, the land not obtained not being mate- rial to the purchaser, he cannot have a rescission.^ 11 h. Whether a sale be by the acre, or in gross, is a question of intention, to be collected from all the circumstances of the trans- action.^ Under a written agreement to purchase a farm for a gross price, without specifying the number of acres, the purchaser is en- titled to an abatement of price, upon proof that it was represented to him by the seller to be very much larger than it really is, the error being an honest mistake of both parties.''^ So it is immaterial that there was a verbal agreement that the buyer should take the farm as a certain number of acres, be it more or less, there being no pretence that this qualification was left out of the writing by any mistake. It is to be understood, from an agreement as above, that the seller represented that the farm contained that number of 1 Stebbins v. Eddy, 4 Mas. 414. 5 Grant v. Coombs, 6 Monr. 281, 2 Durrett v. Simpson, 3 Monr. 519. ^ Bierne v. Erskine, 5 Leigh, 59. 3 Evans v. Kingsberry, 2 Rand. 120. ' Kent v. Carcaud, 17 Md. 291. 4 Whaley v. Eliot, 1 A. K. Marsh. 343. CHAP. XXI.] MISTAKE. 333 acres, and the abatement is to be made accordingly. If sold in gross, for so much, be it more or less ; yet, if both parties were clearly mistaken in a material point, as to the lines by which the vendor held, and there was no express agreement of the purchaser to take the risk, equity will give relief for the deficiency. But unless the purchaser, by eviction or otherwise, lose the land he expected to get ; as if he make an entry for it as vacant, and ob- tain a patent : the proper measure of relief is only the amount of his expenditures in procuring the patent, with a reasonable allow- ance for trouble, and actual costs of suit.^(a) 12. Where a vendor erroneously supposes he has title to certain land, and contracts to sell and convey it, he cannot be compelled to convey an adjoining lot, to which he has title.^ 12 a. Where it was discovered that a vendor took by his own deed only an undivided two-thirds of the land sold, and he refused to convey, although the vendee was willing to take the land, paying a proportional price ; held, the latter was entitled to specific per- formance, but could not properly be further ordered to deliver up possession of the whole land, and charged with rent for the whole from the time when a deed should have been given.^ 13. A deduction, for want of title to part of the land, was directed to be taken equally off all the instalments.* 1 Hull V. Cunningham, 1 Munf. 330. 3 Covell v. Moseley, 16 Midi. ; Law 2 Morse v. Elmendorf, 11 Paige, 277. Reg. Jan. 1868, p. I'Jl. 4 Grant v. Coombs, 6 Mon. 281. (a) Diminution of one hundred and eight hundred acres, he afterwards sold it seventy-one acres of higii land, out of six to tiie plaintiff, according as it had been hundred and sixty-two acres of iiigh and held by him and his ancestors under the swamp land. Notice was given at the sale old survey, for £3,200 (equal to £\ per that a claim existed, and that, if it sue- acre), offering to survey it, if the plaintiff ceeded, a proportional deduction would be would pay at the same rate for the excess ; made. Moreover, the purchaser volunta- which the latter, (who also believed that rily renewed the bond for the price in part it contained more than eight hundred to a third person, several years after the acres, as it was an old survey), declined, purchase ; and the renewed bond had been Subsequent to the execution of the deed, assigned for valuable consideration. Held, the jjlaintifF had the land surveyed, and no ground for a rescission ; but that the found it to contain much less than eight purchaser was entitled to a deduction out hundred acres. Whereupon he filed a of the original bond; also of interest till a bill in chancery, for a proportional dednc- resurvey by the vendor. Wainwright tf. tion from the purchase-money. Held, tlie Read, 1 Desaus. 573. deficienc}' was too great for a purchaser, In 1788, tlie defendant, owning a tract notwithstanding the sale was for eight of land called Sion Hill, held by him and hundred acres, more or less. Decree for his forefathers mider a survey upwards of a deduction, and also an indemnity against a hundred years old, advertised it for sale all charges and incumbrances on the es- as containing about eight hundred, acres ; tate. Quesnel v. AVoodlief, 6 Call, 218; and believing that, as it was an old sur- S.C. 2 Hen. & Munf. 173, n. vey, it would probably contain more than 334 LAW OF VENDORS AND PURCHASERS. [CHAP. XXI. 14. There is a still stronger class of cases, where equity will wholly rescind or annul the bargain, by reason of mistake of one or both of the parties. Thus it is said, that a vendor is bound to know he actually has that which he professes to sell. And, even though the subject of the contract be known to both parties to be liable to a contingency, which may destroy it immediately, yet, if the contingency has already happened, it will be void.^ Hence, if one person should sell a messuage to another, which was at the time swept away by a flood, or destroyed by an earthquake, without any knowledge of the fact by either party ; equity would relieve the purchaser.^ So if a life-estate be sold, which, at the time of sale, is terminated by the death of the party in whom it is vested, but without the knowledge of either party ; equity will rescind the contract.^ So where a purchaser buys the interest of a vendor in a remainder in fee, expectant on an estate tail ; if, at the time of the contract, the tenant in tail had actually suffered a recovery, of which both parties were ignorant till after the conveyance had been executed, and an absolute bond given for the purchase-money ; equity will rescind the contract, on the ground that the vendor had no interest in the subject-matter at the time of the sale.^ So where, by the mistake of both parties, one contracted to sell and convey, and the other to purchase and pay for, a supposed gore of land, which had in fact no actual existence ; the vendee cannot file a bill in equity for specific performance, or for a compensation in dam- ages.^ So where an estate is purchased at auction, under a mistake as to the lot put up for sale, tlie Court will not decree specific per- formance against the purchaser, but leave the vendor, if he has sustained any damage by the mistake of the purchaser, to his rem- edy at law. A bill for specific performance was accordingly under such circumstances dismissed, without costs.^ So where, at the time of entering into a contract for the sale of a tract of land, there was a misunderstanding between the parties as to the identity of the land, to which the contract related ; a Court of Equity, in its dis- cretion, ought not to interfere by decreeing a specific performance.'^ 15. And the general doctrine upon this subject is stated to be, that, in an executed contract, where there has been a gross mis- 1 Hitchcock V. Gicldings, Daniel's * Hitchcock v. Giddings, 4 Price, 135. Exch. R. 1. 5 Morss v. Elmendorf, 11 Paige, 277. - Hitchcock V. Giddings, 4 Price, 135. '' Mahns v. Freeman, 2 Kee. 25. 3 Allen V. Hammond, 11 Pet. 71. 'J Graham v. Hendren, 5 Munf. 185. CHAP. XXI.] MISTAKE. 335 take ill the quantity sold, for " more or less," the complaining party, who has practised no fraud, nor any culpable negligence, nor impaired his equity in any other way, is entitled to relief in chancery. And his condition is still more favorable, where the opposite party comes into chancery for a specific execution ; for then he must show that he has a clear right to it, equitably and conscientiously ; otherwise he will be left to his legal remedy. (a) 16. Although, as has been seen, the conditions of sale pro- vide, that any error or misstatement in the particulars shall not vitiate the sale, but be made the subject of compensation to the vendor or purchaser, as the case may be ; this condition will not apply to a wilful or fraudulent misstatement. Thus, where an estate thus sold was described as about one mile from Horsham, a borough town, when in fact it was between three and four miles ; in an action to recover the deposit, Lord Ellenborough remarked, that the clause in question was designed to meet unintentional errors ; not to compel the purchaser to complete the contract, if designedly misled ; and left this question to the jury ; who found a verdict for the plaintiff.^ 17. The vendor as well as the vendee may claim relief on the ground of mistake. This class of cases usually arises from an excess in the quantity of land claimed, over the quantity said to be contracted for ; and includes the twofold question, whether the vendee is bound to take the surplus, and whether he has a right to demand it with or without extra compensation. 17 a. If lands be sold by metes and bounds ; and the vendor covenant to warrant the title ; he is bound to include, in a convey- ance with warranty, and, in case of eviction, to make compensation for, all the lands within those bounds, which he held and claimed as his own at the time of sale, and showed to the purchaser as part of the lands sold ; notwithstanding his title thereto may be defec- tive. But not lands which were not thus held and claimed, nor thus shown ; although his title-papers may comprehend them.^ 18. When a tract is sold upon a conjectural estimate of the quantity, for a gross sum, and the variance is not very extraordi- nary, showing that it could not have been contemplated ; there can be no relief. Thus it is held, that a surplus of forty or fifty acres, 1 Norfolk V. Worthy, 1 Camp. 337. Innis v. M'Crummin, 12 Mart. 425; Mor- 2 Beverley v. Lawson, 3 Munf. 317 ; ris v. Emmett, 9 Paige, 168, (a) Ub. sup. 336 LAW OF VENDORS AND PURCHASERS. [CHAP. XXI. in a tract of one thousand, would not justify a decree for the value of the surplus.^ So if one, who has obtained a survey upon a land warrant for two thousand acres, sell and transfer it for valuable consideration, and assign the plat and certificate to the purchaser, whereupon he obtains a patent in his own name ; and if, upon a resurvey, it appear that the grant conveys two thousand seven hundred acres : the vendor cannot in equity support a claim for the surplus against the vendee.^ So where A. purchased of B. one hundred and sixty-five acres of land, but obtained from B. an obli- gation to convey all his right in the tract, that right being supposed to be only one hundred and sixty-five acres, but which turned out to be more ; equity will not enforce the claim for the surplus.^ So in case of a sale of a tract of land, described, in a covenant for a conveyance, by its boundaries, and as containing four hundred acres, for $6,000 ; it really contained four hundred and ninety acres ; and the vendee files his bill for a conveyance of the whole for $6,000. The vendor insists, that the sale was in fact by the acre, at $15, the parties being under a mistake as to the quantity, which, from a family tradition, had been called four hundred acres ; and that he had a right to retain the surplus, unless he was paid for it. Decree for the plaintiff.^ 18 a. But it is held, that, in general, whenever it does not clearly appear, that land was sold by the tract, and not by the acre, the vendee ought to be responsible for the value of the surplus land ; which value is ordinarily to be estimated by the average value, per acre, of the whole purchase.^ Thus a sale of a farm " containing 160 acres, more or less," particularly described in the bond for a conveyance, for the consideration of $6,400, " being at the rate of $40 per acre," — as the bond recites, — was held to be a sale by the acre, and not in gross, and the purchaser was held liable to pay for a surplus of eleven and a half acres contained in the tract, and not to have the right to surrender the surplus to his vendor.® 19. Where, upon a sale of land by auction, the advertisement described the tract as containing three hundred acres ; and, on the day of sale, doubts being expressed as to the quantity, the vendor 1 Clark V. Bell, 4 Dana, 115. 5 Hundley v. Lyons, 5 Munf. 842. See 2 Vowles V. Craig, 8 Cranch, 371. Nelson v. Matthews, 2 H. & M. 178. 3 Smith V. Smith, 4 Bibb, 81. ^ Hutchings v. Moore, 4 Met. (Ky.), 4 Harrison v. Talbot, 2 Dana, 258. 110. CHAP. XXI.] MISTAKE. 337 said " lie would sell it at three lunidred acres, more or less, and he would sell it by the acre, and it should be measured ; " and it was accordingly cried and sold at so much per acre : held, the vendee was bound to take it, although a subsequent survey showed an excess of forty-five acres. Also, that, if the vendee refused to carry the same into execution, and the vendor resold at a less price, the vendee would be liable for the loss. If the vendor acted Iwmt fide, and with reasonable care, the measure of damages is the diifer- ence of price on the resale. ^ On the other hand, if A. contract to convey to B. one hundred acres of land, adjoining C, and make a deed, according to a mistaken survey furnished by a surveyor, calling for one hundred acres ; and afterwards the tract is ascer- tained to contain one hundred and nineteen acres : A. is entitled to a reconveyance of the surplus.^ Though a vendee, required to surrender a surplus, may elect from which end or side of the tract it shall be taken. ^ 20. Where part of a tract of land is lost, but there is a surplus in the tract, for which the vendor is entitled to pay ; and, the value of the surplus exceeding the loss, the latter is deducted, and a de- cree rendered for the balance : it should so appear by the decree ; which should also release the vendor from his obligation to convey the lost land.'^ 21. A vendee may ivaive his right to rescind on the ground of mistake. Thus a sale was at first made of a farm, for so much per acre, to be ascertained by measurement. Afterwards, the parties agreed to waive any measurement, and the vendee took the farm at the gross sum of ^2,500, supposing it to contain fifty acres, from the representation of the vendor ; which the vendor himself believed, to be true. In the deeds, the quantity was stated to be forty-seven and a half acres, more or less. The real quantity was forty acres and a half. Held, the vendee was not entitled to relief in equity, each party having been well acquainted with the local boundaries of the farm.^ 22. But equity will not hold the rights of a party to be waived, except by unequivocal acts or declarations of such waiver. Thus, in a case of mistake by conveying to a husband and wife, instead of 1 Ashcoin V. Smith, 2 Penn. 211. Whaley v. Elliott's, &c. 1 A. K. Mursh. 2 Gilmore v. Morgan, 2 J. J. Marsh. 254. 65. 4 Clark v. Bell, 4 Dana, 115. 3 Harrison V. Talbot, 2 Dana, 266. See ^ Stebbins v. Eddy, 4 Mas. 414. 22 338 LAW OF VENDOES AND PURCHASERS. [CHAP. XXI. conveying to the wife alone ; upon a bill in equity brought after the death of the wife by her heirs, it appeared, that more than twenty years had elapsed between the execution of the deeds and the commencement of the suit ; during which time, the defendant was in possession, and his wife never called upon him to rectify the mistake, or complained of it to him ; but also, that he was unques- tionably entitled to the use of the property, that there was nothing in the manner of that use adapted to awaken suspicion of mistake, and that she had no knowledge of the mistake, until about a year and a half before her death, and, when it was communicated to her, was troubled about it. Held, the lapse of time did not affect the rights of the plaintiffs.^ So the plaintiff purchased at auction a house, of which he did not know the position, by the description in the particulars of sale, of No. 58 on the north side of Pall Mall, opposite Marlborough House. The same particulars stated the amount of the rent, rates, and taxes of the house. The house was not in Pall Mall, but behind No. 57 Pall Mall, and only connected with Pall Mall by a narrow passage leading through the ground- floor of No. 57, and communicating with the street by a door numbered 58. He did not make any objection to this, but, upon discovering that the cellars of No. 57 extended underneath this passage, and under a small part of No. 58, and that the floor of the passage was not very strong, he filed a bill to set aside the contract, and for the return of the deposit, with interest. Held, he was entitled to this relief, notwithstanding that by his conduct he had waived his right to object to the position of the house, upon the ground that the passage was not such an access to the house as he was entitled to expect, from the description.^ 23. The ordinary course, as has been seen, for correcting mis- takes by the interposition of a Court of Equity, is to rescind the sale in whole or in part, or decree restitvition of the purchase- money. The same object is also accomplished, by reforming the agreement or the conveyance in which a mistake is alleged and proved to have been made. (a) The general doctrine is, that a 1 Stedwell v. Anderson, 21 Conn. 139. 2 Stanton v. Tattersall, 21 Eng. Law & Eq. 154. (a) The general power of reforming Gen. St8.) Babcock v. Smith, 22 Pick. contracts, as a distinct branch of equity 69. See Bellows v. Stone, 14 N.H. 175. jurisdiction, has been held not to be con- Where neither fraud, mistake, nor surprise ferred on the Supreme Court of Massa- is proved, a Court of Equity will not in- chusetts. (See Statutes, 1847, ch. 214; terfere to reform an agreement or deed CHAP. XXI.] MISTAKE. 339 Court of Chancery will correct a written instrument, where through mistake it was written differently from the intention of the parties.^ And such relief is not effected by erasures or interlineations of the instrument, but by injunctions, and orders for necessary and proper releases.^ Thus it was agreed by a father and his children, three sons and a daughter, that referees should divide his real estate into two parts, assigning one part to two of the brothers, and the other part to the other brother and the sister. This being done, the brother and sister agreed, with the assent of the father, that the referees should divide their portion between the two, which was done ; but, there being no buildings on the land assigned to the sister, they assigned to her an undivided half of the buildings. The father then caused deeds to be written by one of the referees, that to the sister being intended and supposed to be a deed of the part assigned to her by the last award. They were executed by the father, and delivered to A., to be delivered to the grantees on his death. By mistake, the deed to the sister did not include the undivided half of the buildings. Held, equity would decree, that deeds of release should be executed by the respondents to the ora- tors (the sister and her husband), of one undivided lialf of the buildings.^ So, four sisters being the joint owners of land, they and their husbands mutually agreed, that it should be assigned to them in severalty. One of the husbands "undertook to prepare deeds for that purpose ; and by mistake, misapprehension, and ignorance, the name of each husband, as a grantee with his wife, was inserted. There was no intention, in any of them, to convey to the husbands a greater interest than they would be entitled to, as husbands ; but, under the deeds, each husband took an estate in fee. One of the sisters died, without having had issue. Upon a bill in chancery, brought by her heirs at law, against her husband, who was in possession, claiming title under one of the deeds ; held, as the defendant was concerned in making and carrying out the mistake, as he had paid nothing for the land, and as he was now holding it contrary to the intention and agreement of the parties, 1 GoodeU V. Field, 15 Verm. 576 ; 2 Smith v. Greeley, 14 N.H. 378. Ruhling V. Hackett, 1 Neva. 3G0. See ^ Craig v. Kittredge, 3 Foster, 231. Cochrane v. Willis, Law Rep. (Eng.) Eq. Jan. 1866, p. 57. which is such as the parties designed it to with the terms of the deed. McElderry be. A conventional trust cannot be set up v. Shipley, 2 Md. 25. on a special parol agreement, inconsistent 340 LAW OF VENDORS AND PURCHASERS. [CHAP. XXI. the plaintiffs were entitled to a decree in their favor, establishing the title in them.^ So equity will rectify an executed sale of real property, on the ground of mistake on the part of the vendor alone. As where the plan on the deed included land which he did not in- tend to include. But the purchaser may have his option to annul the contract ; and no costs were allowed, both parties appearing to have been in fault.^ So where a purchaser of lands, without an exception in his deed, but with notice of the rights of another, who held under an unrecorded lease, to the use of a spring situated on the land, destroyed the spring ; held, the lessee was entitled to his rights under«the lease, and the deed should be reformed accordingly.^ 24. But there are numerous cases where equity declines thus to interpose. Thus where land, sold by A. to C. under a mistaken description, was afterward conveyed by A. to B.,by a proper deed, for a valuable consideration, and without notice of the mistake ; held, a bill to reform the deed to C. would not lie against either A. or B. ; though the former should be allowed no costs, as he had received payment twice for a portion of the land.^ So where a deed is drawn strictly in accordance with the intention of parties, and, by a mistake in judgment, it will not effect the desired object, the Court will not interfere.^ So where a party files a bill in equity to have a title-bond corrected, by inserting therein a parcel of land which was omitted by the mistake or fraud of the vendor, and it appears that another parcel was inserted instead, by mistake ; he is not entitled, under his bill, to a reformation of the bond.^ So where, by a mistake of boundaries in a deed, more land is included than was intended, equity will not reform the bounda- ries, after the land has passed to a hond-fide purchaser without notice.'^ 25. In a bill to reform an agreement, on account of mutual mis- apprehensions, the Court, although they cannot reform the agree- ment, will afford relief by causing it to be set aside. ^ 26. A bill in equity to reform a conveyance, on the ground of accident or mistake, will be held defective on demurrer, unless the persons under whom tlie defendant claims by deeds of warranty, 1 Stedwell v. Anderson, 21 Conn. 189. 5 Durant v. Bacot, 2 Beasl. 201. - Harris v. Pepperell, Law Rep. (Eng.) ^ Easter wood ?■. Linton, 36 Ala. 175. Eq. Jan. 1868, p. 1. 7 "Whitman v. Weston, 30 Maine, 285. 3 Herbert v. Odiin, 40 N.H. 267. See Cliiner v. Honey, 15 Mich. 18. 4 Sealey v. Brumble, 6 Jones, Eq. 295. 8 Bellows v. Stone, 14 N.H. 175. CHAP. XXI.] MISTAKE. 341 subsequent to the alleged mistake or accident, arc made parties ; and unless an allegation is contained in the l)ill, that the grantees in such deeds purchased with notice of the mistake or accident.^ 27. A bill to correct a mistake in a written agreement must not only state the agreement as it ought to have been reduced to writ- ing, but also the substance of the written agreement itself. And the party alleging a mistake holds the affirmative, and must satisfy the Court beyond all reasonable doubt, that the alleged agreement was made, and that a mistake has occurred in reducing 'it to writing.^ 28. It is held that a mistake in a written instrument may be shown by parol proof.^ Thus where, by ignorance or mistake, a deed intended for the benefit of a woman for life, remainder to her children, was made to her and her heirs ; the deed was thus corrected.* And this, as well on the part of the plaintiff wlio seeks relief or a reformation of the writing, and to have it afterwards enforced, as on the part of a defendant who resists its perform- ance.^ So, though denied in the answer.^ But not a mistake in law? 29. Evidence offered in equity to reform a deed need not be positive, in the strictest sense of that term ; ^ but it must be clear, strong, and satisfactory, that the deed does not conform to the oral contract as understood by either party .^ Thus, it seems, mere confessions are insufficient.^*^ 29 a. It is no defence to a suit for the price of land, that the purchaser has not got all the land he bought, if he has got all that his deed calls for. And par^ evidence is not admissible to vary the deed ; and the mistake in it, if one exists, can be corrected only in equity.^^ And, in a late case, parol evidence is held inad- missible to reform a deed, unless in case of fraud, mistake, or a latent ambiguity ; as by the use of local terms and terms of art.^^ 1 Davis V. Rogers, 33 Maine, 222. 9 Beard v. Hubble, 9 Gill, 420 ; Leas 2 Coles V. Brown, 10 Paige, 526. v. Eidson, 9 Gratt. 277 ; Shay v. Pettes, 3 Rosevelt v. Fulton, 2 Cow. 129 ; 85 111. 360 ; Sawyer v. Hovey, 3 Allen, Beard v. Hubble, 9 Gill, 420. 331. See White v. Williams, 48 Barb. ; 4 Clayton v. Freet, 10 Ohio (n.s.) 544. Law Reg. Jan. 1868, p. 187. 5 Bellows V. Stone, 14 N.H. 175. 10 Gillespie v. Moon, 2 Johns. Ch. 585. « Gillespie v. Moon, 2 Johns. Ch. 585. n Wear v. Parish, 26 111. 240. ■J Wheaton v. Wheaton, 9 Conn. 96. 12 Levering v. Buck, &c., 54 Penn. 8 Greer v. Caldwell, 14 Geo. 207; 291. Goodell V. Field, 15 Verm. 576. 342 LAW OF VENDORS AND PURCHASERS. [CHAP. XXII. CHAPTER XXII. GROUNDS OF AVOIDING A SALE. — FRAUD. 1. Misrepresentation avoids a sale. of rescinding; acceptance of deed; lapse of 3. Whether made ignorautly or inten- time, &c. tionally; express or implied. 14. Part-performance and compensation. 8. Under what circumstances the vendee 16. Parties; principal and agent, &c. is bound by a fraudulent sale; waiver; mode 19. Fraud of the vendee. 22. Evidence, damages, &c. 1. It has been seen that even mistake may wholly or partially avoid a sale and purchase of real property. We proceed now to consider the somewhat analogous subject of fraud ; consisting either in positive misrepresentation or wilful concealment, or in circumstances of personal incapacity, or terms and conditions of sale, from which a fraudulent purpose may be inferred. 1 a. In the first place, actual misrepresentation of the seller avoids the sale. Thus misrepresentation, though in a slight de- gree, is an objection to a specific performance.^ For example, as has been sometimes held, misrepresentation of the value of an estate.^ And when fraudulent representations relate to the quantity of land sold, it is immaterial whether the sale is in gross, or by the acre.^ So articles may be set aside for fraud and imposi- tion.^ Thus a vendor cannot maintain a bill for specific performance of a sale at auction, where the vendee was induced to purchase by his fraudulent contrivance and management.^ So equity will re- scind a sale at the request of the vendee, and restore the purchase- money, in case of false representations by the vendor, relative to his title ; and the whole conduct of the vendor may be inquired into relative to the matter.^ So specific performance was refused, even on the ground of representations, made at the sale by the ven- dor, of improvements, affecting the value of the premises, intended by him, which were not carried into effect.^ 1 Cadman v. Horner, 18 Ves. 10. « Baugh v. Price, 1 Wils. 820. 2 Wall V. Stubbs, 1 Madd. 80. But 5 Rodman v. Zilley, 1 Saxt. 320. see § 7 a. •> Smith v. Kobertson, 23 Ala. 312. 3 Thomas v. Beebe, 25N.Y. (11 Smith) • Beaumont v. Dukes, Jac. Ch. 422. 244. CHAP. XXII.] FRAUD. 343 2. The party who alleges misrepresentation must prove it.^ And it has been held, that it is not every representation of the vendor in regard to property sold that will amount to fraud, be it ever so exceptionable in point of morals.^ So, also, that to avoid a con- tract for misrepresentation, it must be shown that the other party intended a deception, and was successful therein, to the damage of the party defrauded.^ 3. The doctrine, however, seems to be now well established, that actual misrepresentation avoids the sale, even though made through ignorance of the seller himself. It is said, a seller is bound to act with the utmost good faith, and, if he mislead the purchaser by a false or mistaken statement as to any one essential circumstance, however small, the sale is voidable.^ And the gen- eral principle may be gathered from the authorities, that^ if a party innocently and by mistake misrepresent a material fact, affecting the value of the property, upon which another party is ignorantly induced to act ; it is as conclusive a ground for relief in equity as a wilful and false assertion.^ Any person undertaking to describe is bound by the description, whether conusant or not.^ Hence a misrepresentation in a matter of substance, affecting the value of the estate, is a good defence to a suit for specific performance, although the vendor, as well as the vendee, was ignorant of its un- truth. As in case of an erroneous statement, that land in a dis- tant State was situated in a particular county, in which the pur- chaser desired to buy.' So wliere a purchaser buys on faith of a false representation by the seller' touching the essence of the con- tract, the sale will be set aside in equity, whether the misrepre- sentation were the result of fraud or mistake ; ^ as in case of a defect in the title, when a conveyance has been executed and accepted, and there is a misrepresentation of a material fact, which was believed and acted upon.^ So a trustee was charged in respect of a misrepresentation to a purchaser ; he having notice, 1 Park V. Johnson, Mass. S.J.C. Law Dev. Eq. 411 ; Smith v. Babcock, 2 Keg. Jan. 1868, p. 180. Woodb. & M. 216 ; Housh v. Richardson, '^ Yeates v. Prior, 6 Eng. 58. 3 Story, 659 ; Lewis v. McLemore, 10 3 Pratt V. Philbrook, 33 Maine, 17. Yerg. 206. See Duckenfield v. Wliich- * Doggett V. Emerson, 3 Story, R. 659 ; cott, Cha. Cas. Pt. 2, 24. Rogers i'. Mitchell, 42 N.H. 158. « Calverley v. Williams, 1 Ves. 211. 5 Waters v. Mattingly, 1 Bibb, 244 ; 7 Best v. Stow, 2 Sandf. 298. Shackleford v. Handley, 1 A. K. Marsh. 8 Doggett v. Emerson, 3 Story, R. 370; Bibb w. Poather, &c. Pr. Dec. 153; 659. Pile V. Shannon, Hard. 55 ; McFerrin v. 9 Lanier v. Hill, 25 Ala. 554. Taylor, 3 Cranch, 270 ; Woods ;;. Hall, 1 344 LAW OF VENDORS AND PURCHASERS. [CHAP. XXII. and alleging only that he did not recollect the fact.^ So where a farm is sold at an auction sale, not held upon the premises, by a description contained in an advertisement of the sale ; if the ma- terial representations in such description, as to the character and condition of the property, turn out to be false, whether by fraud or mistake, the contract cannot be enforced.^ So the commissioners of a town, in selling the lots, in good faith but untruly represented, " that there was along the whole extent of the town a first-rate steamboat landing all seasons of the year ; that the landing was one of the safest and best on the Mississippi ; that on the west side of the river, immediately opposite the town, there was more elevated ground than was to be found on that side of the river, and that the nearest and best road could be made from that point to Little Rock." Held, the representations were material, and the pur- chasers, having bought under a supposition that they were true, were entitled to relief.^ And in case of a bill, originally brought in New York, to rescind a contract for the purchase and sale of land in Virginia, on which there was a gold-mine, alleging fraudulent misrepresentations as to the mine, and other arts of the seller, by which the purchaser was induced to buy ; in rendering a decree for the plaintiff the Supreme Court of the United States remarked, in substance, as follows : It is an ancient and well-established principle, that whenever suppressio veri or suggestio falsi occurs, and more especially both together, they afford sufficient ground to set aside any release or conveyance. The party selling property must be presumed to know whether the representation which he makes of it is true or false. If he knows it to be false, that is fraud of the most positive kind ; but if he does not know it, then it can only be from gross negligence ; and, in contemplation of a Court of Equity, a representation founded on a mistake resulting from such negligence is fraud. The purchaser confides in it upon the assumption that the owner knows his own property, and truly rep- resents it. And it is immaterial to the purchaser whether the misrepresentation proceeded from mistake or fraud. The injury to him is the same, whatever may have been the motives of the seller. The misrepresentations of the seller of property, to author- ize the rescinding a contract of sale by a Court of Equity, must be of something material, constituting an inducement or motive to 1 Burrowes v. Locke, 10 Ves. 470. ^ Lewis v. McLemore, 10 Yerg. 206. 2 Hutcheon v. Johnson, 33 Barb. 392. CHAP. XXII.] FRAUD. 345 purchase ; and by which he has been misled to his injury. It must be in something in which the one party places a known trust and confidence in the other. Whenever a sale is made of property not present, but at a remote distance, which the seller knows the purchaser has not seen, but which he buys upon the representa- tion of the seller, relying on its truth, then the representation in effect amounts to a warranty ; at least the seller is bound to make good the representation.^ 4. Any apparent discrepancy in the authorities upon this subject may be to some extent reconciled by the consideration, that, although the law does not make the vendor responsible for every unauthorized, erroneous, or false representation made to the ven- dee, even though it may have been injurious, unless also fraudu- lent ; yet, where one has made a representation positively, or pro- fessing to speak as of his own knowledge, without having any knowledge on the subject, the intentional falsehood is disclosed, and the intention to deceive is also inferred.^ 5. Upon the ground above stated it has been held, that, on a bill filed by a vendee for rescission of the contract, alleging a fraud- ulent misrepresentation of a material fact by the vendor ; if the evidence shows an honest mistake only, the intent being imma- terial, the variance is not fatal, and relief will be granted.^ 6. Where, in a treaty for the sale of property, the vendor makes material misrepresentations, even though through mistake, by which the purchaser, having no knowledge or means of knowledge in relation thereto, is actually deceived to his injury ; equity will rescind the contract, although it do not itself contain the misrep- resentations.* So misrepresentations on a plat of lands, produced at the time and place of a public sale, are good grounds for rescis- sion. As where a fine stream of water was laid down, with a good mill-seat on it, in the centre of a tract of timber land, fit only for lumber; and which, upon examination, turned out to be only a dry gully three-fourths of the year, without any running water in it. And such misrepresentation may be given in evidence against a bond given for the consideration-money, by way of discount, under the terms of a discount act, in a Court of Common Law.^ 7. Upon similar grounds, a compr'omise of rights, doubtful in 1 Smith V. Richards, 13 Pet. 26. * Hough v. Eicliardson, 3 Story, R. 2 Hammatt v. Emerson, 27 Maine, 308. 659. 3 Lanier v. Hill, 25 Ala. 554. 5 The State v. Gaillard, 2 Bay, 11. 346 LAW OF VENDORS AND PURCHASERS. [CHAP. XXII. point of law, but founded upon a misrepresentation or suppression of facts in the knowledge of one of the parties only, cannot be sup- ported. Therefore a deed of compromise, induced by the opinion of counsel, upon a case laid before him, which was prepared by the defendant's agent, but mistaking the tenures under which the es- tates, the subject of the compromise, were held, was set aside.^ So where one having a clear title to 12 pounds for rent, and claiming the property of the land, is induced by the representations of two professional persons that he had no right to either rent or land, to agree to accept .£10 in full for rent and land; the Court will not entertain a bill for specific performance.^ So if one hav- ing the fee-simple be induced by fraud to accept a chattel interest, equity will control the setting-up of the lease.^ 7 a. But it is held, that no action for deceit in the sale of land can be maintained, for misrepresentations as to the price which the vendor paid for it.'*(a) 8. And the important qualifications to the general doctrine upon this subject require to be stated, that, while chancery will grant relief where the vendor of real estate, by false and fraudulent rep- resentations respecting its quality, induces another to purchase it, if the purchaser is not in a situation to discern the defect by ordi- nary diligence, provided there is no adequate remedy at law ; ^ yet, where a purchaser relies upon his own judgment, uninfluenced by any misrepresentations, and has full means of knowledge within his reach, equity will not relieve him.^ So to authorize a vendee to refuse to comply with the terms of sale, on account of a misrep- resentation made by the vendor, the misrepresentation must be in a matter important to the purchaser's interest, by which he is actu- ally misled. And if he knows the representation is false, it can- not be said to influence his conduct, and he has no right to com- plain of any one but himself." Thus where, under an agreement 1 Leonard v. Leonard, 2 Ball & Beatt. * Henimer v. Cooper, 8 Allen, 334. 171. See§ L 2 Stanley v. Robinson, 1 Russ. & Myl. 5 Sherwood v. Salmon, 5 Day, 439. 527. 6 Hough V. Richardson, 3 Story, R. 3 Saunders v. Annesley, 2 Sclio. & 659. Lef. 101. ^ Ely v. Stewart, 2 Md. 408. (a) Where the defendant sold to the greater sum ($85,000), and received pay- plaintifF shares in an association, and ment therefor from the association : the promised that he would put into the asso- plaintiff ^yas held not hound to receive ciation two farms at the cost thereof the shares, .and entitled to recover back ($16,000) ; but, before the shares were de- his payments. Seaman v. Low, 4 Bosw. livered, contributed the farms at a much 337. See p. 342. CHAP. XXII.] FRAUD. 347 for the sale of land, the vendor reserved the richt to have a way over the premises declared a public road at any time ]n-ior to the execution of his deed ; held, in an action to recover the ])rice, the fact that the vendor, before delivery of the deed, represented to the vendee that nothing had been done about the road, -when at the time it had already been laid out as a highway, was immaterial, and parol evidence of the making of such statement was incompe- tent.^ So a sale cannot be objected to for a misrepresentation that the land is fertile and improvable, when part of it has been al)an- doned as useless ; unless in extreme cases, as where a considerable part is under water or otherwise irreclaimable. Nor for the rep- resentation that, in course of time, it may be covered with tvarp^ and considerably improved at a moderate cost.^ So a sale, though founded on the misrepresentations of the seller, cannot be for that cause wholly rescinded, if, prior to the completion of the sale, the purchaser had become acquainted with the whole facts, and yet confirmed the bargain.^ So the misrepresentation, to affect the validity of the contract, must relate to some matter of inducement to the making of it, in which, from the relative position of the par- ties, and their means of information, the one must necessarily be presumed to act on the faith and trust which he reposes in the rep- resentations of the other, on account of his superior information and knowledge in regard to the subject of the contract.'^ Thus, where the parties are present at the property sold, the assertions of the vendor as to its value and prospective profits, where there is no misrepresentation of facts, afford no ground for setting aside the contract.^ So the parties to a sale went upon the land, saw the location of the various parcels, and had plats of the land before them, but the vendor represented that one parcel was situated within certain lines of a survey, which was not so situated. Held, that the question, whether that representation was fraudulent or not, should be left to the jury, and that the vendor must use means which would impose upon a person of ordinary prudence, to con- stitute fraud, and the vendee must place confidence therein and receive damage.^ So, where A. gave a certificate, that certain lands, which he had " partially explored," contained, " as far as 1 Castleman v. Griffin, 13 Wis. 585. 5 Hutchinson v. Brown, 1 Clarke, 408 ; '^ Dimmock v. Hallett, Law Kep. Vigers v. Pike, 8 Cla. & Fin. 650, 651 ; (Eng.) Eq. Jan., 1867, pp. 26, 27. Gritrgs v. Woodruff, 14 Ala. 'J. 3 Pratt V. Philltrook, 33 Maine, 17. « Griffith v. Eby, 12 Mis. 517. 4 Yeates v. Prior, 6 Eng. 58. 348 LAW OF VENDORS AND PURCHASERS. [CHAP. XXII. my knowledge extends," a certain average of timber, and it ap- peared that the purchasers, to whom it was given, had as full means of knowledge as A. ; held, they were not entitled to place implicit reliance thereon, and make it the basis of their contract, but should have investigated the grounds of the opinion, and the extent of the exploration. ^ So A. sold to B., who was just moving into the State, a tract of land on a bank of the Mississippi, repre- senting it to be above overflow, and also that there were public lands back of and adjacent to it, subject to entry with dona- tion claims, held by B., which were likewise above overflow, when in fact a larger portion of botli the front and back lands were subject to ordinary overflow. Held, such misrepresentation^ were fraudulent, and constituted sufficient grounds for rescinding the contract ; but, B. having had an opportunity of ascertaining the true character of the lands, in a short time after making the con- tract, and having failed for some two years of a determination to abandon the purchase, that he waived the fraud and confirmed the contract.^ So where a purchaser of shares in a mine had not re- lied upon the representations of the vendor as to the value of the mine, but had himself inspected it ; held, as there was no proof that representations were untrue, which, if taken as true, would have added to the value, nor that these representations were not merely conjectural, the plaintiff was not entitled to relief in equity, but his bill must be dismissed, without prejudice to any action lie might bring.3 So A. agreed with P., in consideration of .£165,000, to grant to P. a lease of certain mines, as trustee for a joint-stock company, which P. undertook to form ; the consideration to be paid partly in shares in the company, partly in money to be raised by calls on the remaining shares. The lease was afterwards exe- cuted ; and the company, having been formed, with power to sue and be sued by one of the directors, entered into possession and worked the mines, and paid part of the purchase-money. Upon A.'s death. P., his executor, filed a bill against V., then managing director of the company, for an account and payment of what re- mained due to A. of the purchase-money. Y. answered, and then filed a cross-bill on behalf of the company, setting forth various matters as evidence of misrepresentations, concealment, and other frauds practised by A. and P. on the company, and prayed that 1 Hough V. Richardson, 3 Story, R. 657. ^ Jennings v. Broughton, 27 Eng. Law. 2 Yeates v. Prior, 6 Eng. 58. & Eq. 397. CHAP. XXII.] FRAUD. 349 the consideration might be declared exorbitant and fraudulent, and that the company was entitled to a valid lease of the mines at their true reduced value ; or that the agreement might 1)0 declared fraud- ulent and void, and the company discharged therefrom, and enti- tled to a lien on A.'s estates for the i)ayments made to him. Held, 1st, That the company were not entitled to any relief from the agreement, by reason of acts and misrepresentations which pro- ceeded from themselves, or were adopted by them, and acquiesced in after full knowledge, while they continued to work and exhaust the mines. 2d, That as the executed contract was not to be set aside, A.'s executor was entitled, as matter of course, to the account and payment prayed by his bilL^(a) 9. But where a purchaser of timber land seeks to rescind the contract for fraud, on the ground of falsehood as to the quantity of timber on the township ; although he makes an examination of the land before the purchase, still, if he confides as to the details in the false statements of the person negotiating witli liim, and his agents, he is not precluded from rescinding tlie sale ; more espe- cially if there was falsehood as to other material matters in the trade, not offered to be examined.^ 10. A sale procured by fraud and misrepresentation of the ven- dee is not absolutely void, but only voidable, at the option of the vendor, which must be exercised as soon as the fraud is discov- ered, or in reasonable time thereafter.^ Thus a vendee cannot rescind the sale for fraud, after taking possession, and after the expiration of ten years from the time of sale, and five years from discovery of the fraud."* So upon a bill in equity to rescind the sale for fraud, and recover the purchase-money, he must show a surrender of the property, or an offer to surrender it, and tliat the vendor can be placed m statu quo. It is not sufficient to allege that he abandoned and yielded tlie possession of the land.^ So, he must restore, or offer to restore, whatever he has received under 1 Vigers v. Pike, 8 Clark & Fin. 562. 3 12 Barb. G41. 2 Tuthill V. Babcock, 2 Woodb. & M. * Davis v. Tarwater, 15 Ark. 280. 298. 5 Ibid. (a) Where fraud and misrepresenta- had fraudulently misrepresented his land, tion, as to the quality of land conveyed by and the defendant had not thus agreed, the plaintiff, is set up in defence, and they sliould find for the defendant ; there is evidence of an agreement on the for the questions of fraud, waiver, false part of the defendant to waive inspection representations, and the assumption of all of the land, and take the risk of its quality ; risks, are for the jury. Burr v. Todd, 41 it is not error in the Court to instruct the Tenn. 206. jury, that if they find that the plaintilF 350 LAW OF VENDORS AND PURCHASERS. [CHAP. XXII. the contract, in substantially the same condition in which it was received : he cannot rescind in part, and affirm as to the residue. Producing at the trial, and offering to cancel, the notes received in part-payment of the purchase-money, is not sufficient. ^(a) 11. But a deed of quitclaim, made six months after the pur- chase, was held within a reasonable time ; it not appearing that the fraud was sooner discovered. So where such a deed was left with the clerk of the Court, in which an action on the note given for the estate was pending, with notice to the vendor ; held, a sufficient restoration of the property .^ So where the vendee, in an executory contract for the sale of land, goes into and remains in possession, he does not thereby waive objection to the title : other circumstances must exist, such as to show that he knew of its defects, and intended to accept such title as could be made, rely- 1 The Matteawan, &c. v. Bentley, 12 Barb. 641. Concord Bank v. Gregg, 14 N.H. 331. (a) In a late case (Davis v. Tarwater, 15 Ark. 290), it is said : " The rule is the same, whether the rescission is sought on the ground of fraud, mistake, or for any other cause. McDonald v. Fithian, 2 Gil- man, 26'J ; 18 Ark. 182; Cunningham v. Fithian, 2 Gilman, 651 ; Griffith v. Depew, 3 A. K. Mar. 180. This doctrine con- forms to the civil law ; and the applica- tion of a vendee to a Court of Equity to rescind a contract of sale, closely resem- bles the rescissory action of the civil law on the part of the buyer. The object of this action is to rescind the contract of sale ; and it cannot be commenced but by virtue of letters of rescission obtained in chancery, by which a rescission is directed, if the injury set fortli by the buyer shall appear to the Judge. The seller must render to the buyer the price which he has received, upon condition that the lat- ter render him the estate sold, which must be restored in the condition in which it was found, with all the augmentations subject to the contract, whether natural or alluvions, or artificial, as buildings erected upon the land. The seller, how- ever, must make allowance for necessary repairs and erections ; and the buyer is liable for rents and profits. Pothier on Contracts of Sale, part v. chap. 2, §§ 374, 381, 382. The duty and obligation of vendor and vendee do not differ essen- tially under our system and under tli« civil law, because, under both, the vendee may obtain the purchase-money with in- terest, and must restore the estate. And, while he is accountable for rents and prof- its, he may be reimbursed for necessary repairs and erections, and also for taxes and assessments. Reynolds v. Nelson, 6 Mad. 19 ; Hunter v. Geridy, 1 Ham. 449. In Murphy v. Officer, 8 Yerg. 502, it was held, that, on rescinding the contract, the purchaser was bound to give up the land ; and, until he did so, an adverse title in himself, procured after the decree of re- scission, could not be set up by him. And in Fitzjiatrick v. Feathei'stone, 3 Ala. 40, it was expressly held, that a contract for the sale of land could not be rescinded, where the purchaser did not offer to re- turn the land to the vendor. It may therefore be asserted, as a rule well sus- tained by reason and authority, that if the vendee has gone into the possession of the estate, and wished to rescind the contract, he must give fair notice of his intention to do so, and must surrender, or ofier to surrender, the estate to the vendor, or, in case of death, to him on whom the descent is cast. He has no right to abandon it to the mercy of the public without notice, because the inevitable consequence would be waste and dilapidation, even if it should escape a sale for taxes, and thus pass beyond the reach of vendor and vendee for ever. And it is for the person asking for the exercise of this highest power of a Court of Equity to show clearly that he can restore the land on rescission, and that the parties can be placed in statu quo ; and it is not for the opposite party to show that it cannot be done. 1 S. & M. 146." CHAP. XXII.] FRAUD. 351 ing, in case of its failure, upon the covenants of warranty for redress.^ 12. Although, in general, a parol contract is merged in the deed by which sucli contract is perfected, yet an action for fraud in the sale of lands will lie against the grantor and others, notwithstand- ing the covenants of seisin in the deed.- 13. So although the acceptance of a deed, under an agreement, is primd facie and generally an extinguishment of the agreement ; yet if the vendor fraudulently induce the vendee to accept a deed, by making him believe that the whole of the land contracted for is included in it, the agreement is not merged, and the vendee may maintain an action upon it. So although he has paid the full amount of the consideration-money to the vendor. So he may maintain assumpsit for non-performance of the contract, and is not obliged to bring an action for deceit ; nor would an action of cove- nant be proper.^ 13 a. It has been seen in previous chapters, that o. partial loss of the property purchased, or failure of title thereto, arising merely from mistake, does not generally furnish ground for rescinding the sale, but only for compensation. But the maxim, caveat emptor, is not to be applied, so as to protect the vendor in knowingly defrauding the vendee as to the quantity of the land sold.* So, even where a party has been induced to purchase land by the iinin- te7itional misrepresentations of the seller as to the quantity included within the boundaries, the deficiency being material, equity will re- scind the contract ; and this, though the complaint seeks relief upon the ground that the representations were fraudulently made, if the answer admits a mistake as to the quantity.^ So where the quantity of land is fraudulently misrepresented by the vendor, the contract is not obligatory on the vendee, though the land be sold in gross or by certain boundaries ; and, in an action to rescind the contract, it is error to reject evidence of the actual quantity of the land ; the deficiency in quantity being the basis of the right to introduce evidence touching the representations of the defendant concerning the quantity of land, and such other circumstances as tended to give character to the transaction. "^ And the fact that the deficiency 1 Jones V. Taylor, 7 Tex. 240. * Pringle v. Samuel, 1 Litt. 44. 2 Bostwick V. Lewis, 1 Day, 33, 250 j ^ Belknap v. Sealey, 2 Duer, 570. Norton v. Hathaway, ib. 255. tj Hatch v. Garza, 7 Tex. GO. 3 Lee V. Dean, 3 Whart. 316. 352 LAW OF VENDORS AND PURCHASERS. [CHAP. XXII. was small is no bar to relief, if it bears a considerable proportion to the whole tract.^ Thus there was a purchase of land, on the representation that it was only overflowed from tlie backwater of a certain bayou ; but it was proved, that it did overflow generally, that the owner knew it, and that this diminished its value. Held, a fraud, and the contract was rescinded.^ So a sale of the fixtures and fittings of a public liouse was held to be avoided, by a false representation of the vendor as to the amount of business attached to the house, though the agreement expressly excluded the good- will.^ So a misrepresentation, by a vendor of a saltpetre cave, of the quantity of saltpetre which a given quantity of nitrous earth will produce, authorizes a rescission of the contract ; even though the purchaser employed a person in whom he had confidence to exam- ine the cave for him after the representation was made, and he made a favorable report.^ So the plaintiff purchased of the de- fendant a tract of land on the Ohio River, the latter representing and believing that it contained a valuable coal-mine ; and, besides paying $4,400, covenanted for an annuity of $1,000 for 20 years, which was to cease, if, after the mine was faithfully worked, it should not yield a certain quantity of coal. The land was ac- cordingly conveyed, but proved not to contain such a coal-mine as was represented. A perpetual injunction was granted to re- strain the defendant from prosecuting at law for the annuity. It was also held, that, as there was no such coal-mine in the land as was represented, the plaintiff need not work the mine in order to discover the quantity of coal.^ So a misrepresentation by the ven- dor of an occult quality in the land, although made ignorantly, and although the vendee agrees to run the risk in this respect, has been held to bar an action for specific performance. *"(«) 1 Pringle v. Samuel, 1 Litt. 44. * Perkins v. Rice, Litt. Sel. Cas. 218. 2 Alexander v. Beresford, 27 Miss. 747. ^ Eosevelt v. Fulton, 2 Cow. 129. 3 Hutchinson v. Morley, 7 Scott, 341. « Fisher v. Worrall, 5 W. & S. 478. [a] So, in case of exchange of lands, if (eighteen months is too long a time, in A. represents his land as a well-timbered equity) after discovery of the fraud, tract, valuable, and taxed at $15 per Cox v. Montgomery, 86 111. 896. acre ; and B., having never seen the land, A farm, being part of the estate sold, which was nearly a lumdred miles distant and containing much grass land, was de- from the place of making the bargain, scribed in the particulars as late in the takes it on the faith of this representa- occupation of A., at the rent of .£290. A. tion ; and the tax has really been only had occupied the farm, as yearly tenant, from .'J2.12 to $6, and about half the tim- at .£290, but entered at midsummer, pay- ber, including all that was easily accessi- ing only £1 for the first quarter, and quit ble, has been cut oiF: this is ground for at Michaelmas, in the next year, making rescinding the contract in reasonable time the rent £291 for a year and a quarter. CHAP. XXII.] FRAUD. 353 14. But, on the other hand, when a misrepresentation as to the quantity of land agreed to be conveyed is made, though innocently, it is the rigid of the purchaser, if he does not abandon the contract, to have what the vendor can convey, with an abatement of a pro- portionate amount of the purchase-money.^ So where an agent of a vendor, by misrepresenting a material fact, of whicli the ven- dee had not the means of obtaining correct information, induced the vendee to make the purchase ; in an action against the vendee on the articles of agreement, which had been in part complied with on his part, it was held, that he was entitled to have deducted, from the sum claimed in the action, the difference between the value of what he received, and what he thought he was purchasing.^ So, whenever it appears that the vendor's own title-deeds must have disclosed to him the true quantity of land, he is bound to make compensation for a deficiency, though his deed to the vendee express a quantity " more or less." ^ 15. But it is doubted, whether a bill filed for compensation singly, without other relief, can be maintained, for the difference between the value of an estate sold and conveyed, and the purchase- money paid, on the ground of fraud. The jurisdiction of equity in cases of compensation is said to be only incidental and ancillary to that of giving relief, by enforcing the performance of contracts i Walling V. Kinnard, 10 Tex. 508. » Duvals i'. Boss, 2 Munf. 290. 2 Pennock v. Tilford, 17 Penn. 456. The plaintiff, the purchaser at a sale by as to the amount of subscription, of alleged order of Court, had agreed to let the farm expenditure upon A. and as to a valid for £225; but the agreement was rescind- purchase of B. It appeared that S., by ed before entry, and the farm would not whom the company was got up, had con- let for nearly £290. Held, the plaintiff tracted for A., to be sold to the company, should be discharged from the purchase, but had expended nothing upon it, al- Dimmock v. Hallett, Law Rep. (Eng.) though about £70,000 had been expended Eq., Jan. 1867, p. 21. by his vendors ; also, that he had verbally A limited company being incorporated, contracted for B. Before the prospectus its prospectus commenced with the state- was issued, and while its terms were be- ment, in prominent type and red ink, that ing discussed, S. subscribed for 2,500 more than half the issue of 5,000 shares shares, and requested the directors to "allot had been taken, and with an invitation for that number" to him or his nominees applications for the remaining sheires. Also, in such manner as he might direct at the that the company had contracted to pur- time of allotment. After the i)rospectus chase two properties, — A. on which was issued, S., by his agents, procured " upwards of £70,000 has already been applications for shares, including 200 for expended by the vendor in buildings and himself, to an amount not exceeding half improvements, in addition to the purchase- the first issue of 5,000. Upon this evidence money paid by him for the land," and B. of misrepresentation by the defendants, The plaintiff, an applicant, to whom ten and S., their authorized agent, the allot- shares were allotted, brings a bill in equity ment to the plaintiff was set aside. Ross to set aside the allotment; alleging fraud- v. Estates, &c., Law Eep. (Eng.) Eq., Feb. ulent misrepresentations in the prospectus 1867, p. 121. 23 354 LAW OF VENDORS AND PURCHASERS. [CHAP. XXIJ. for the sale of real property. The remedy in such cases is at law, by an action for damages. ^(a) 16. With regard to the jjarty who is responsible for a fraudulent representation in the sale of land, it is held, that, upon a proceed- ing in equity to set aside such sale, the person most benefited by it is in a situation to be suspected of the fraud. Therefore, if such a person makes false statements as to material matters connected with the value of the land, and which, from being more within his private knowledge, or other circumstances, were clearly relied on in the purchase, the sale is void, whether he believes them to be true or not. And, in a bill against such party and another, it is no objection to rescinding the contract, that another remedy on a guaranty may exist against the person alone, now become insol- vent, but not against tlie other respondent ; or that the complainant had an opportunity to examine the land, and one of his friends did examine it, some time before the bargain was completed ; if the false representations were relied on as to details, and others, hired by him unknown to the examiner, were uniting in statements and acts likely to mislead ; and more especially if the misrepresenta- tions extended also to other matters than the timber on the land, which were material, and were not attempted nor offered to be examined.^ 17. The vendor is responsible for the misrepresentation of his authorized agent. Thus the purchase of an estate was rescinded at the suit of the purchaser, on the ground of fraudulent misrep- resentation ; the contract having been completed with the knowl- edge, on the part of the defendant, or her agent, of a public right 1 Newham v. May, 13 Price, 749. '■^ Smith v. Babcoclc, 2 Woodb. & M. 216. (a) Tlie vendees of land entered and title as the vendors can make, with com- made expenditures, not only in good faith, pensation for the deficiency, they have a and in reliance upon the execution of the right to a judgment to that effect. Held, agreement by the vendors, but also in further, where the purchase, though of actual and direct compliance with their several parcels, was entire, the vendees own covenants. The vendors were una- would not be compelled to take part, ble to give a good title to the whole of the Also, that the compensation, where part- premises. Held, if the vendees elected to performance is decreed, should consist in rescind the agreement in toto, they were an abatement from the price, for the dimi- entitled to be repaid the amount they had nution in value of the whole property, in expended, in comphance with the contract, consequence of defects or incumbrances, in permanent improvements, and that and not in a deduction of what might be such amount should be a hen on the supposed to be a proportionate part of the premises, or its payment a condition to whole price, for a part not conveyed at the surrender or recovery of their posses- all, with a conveyance only of the residue, sion by the legal owners. If, however, Gibert v. Peteler, 38 Barb. 488. the defendants elect to receive such a CHAP. XXII.] FRAUD. 355 of way over the property, and the plaintiff not knowing, nor having the means of knowing, that fact.^ So tlie defendant, being owner of a house, employed an agent to sell it. The agent described it as free from rates and taxes, and did not know it to be otherwise ; but it was in fact liable to certain rates and taxes, as the defend- ant knew. On the faith of the agent's description, the plaintiff bought the house. Held, the plaintiff might maintain an action on the case for deceit against the defendant ; though it did not appear that the defendant had instructed the agent to make any representation as to rates or taxes.^ So A. and B. gave a bond to C, conditioned to convey certain timber land, provided C. should elect to buy the same on certain terms within thirty days, or make sale thereof within the same time ; in which case, only one-half of the excess over a certain price was to be paid to A. and B. C. did make sale of the land, and A. and B. received one-half of the excess of the price over the stated sum, and made a deed thereof to the purchaser. Held, C. was the agent of A. and B. in the sale, and they were bound by his representations.^ And where a sale made by an agent is ratified by his principals, his repre- sentations, made at the time of the sale, bind them. Thus a paper was executed by A. as agent of the defendant to D., giving D. the refusal of certain timber lands for a certain time at a certain price. D. subsequently sold the land to the plaintiff, and the deed was made by A. The plaintiff brings an action against A. and his principals, to set aside the sale, on account of fraudulent misrepresentations by D. Held, the circumstances created a legal presumption that D. was acting as agent of A. and his principals, and that, as A., by his conduct, subsequently ratified the sale, he and his principals were responsible for all D.'s misrepresentations made at the sale, whether D. exceeded his authority or not, inas- much as they could not ratify a portion of the transaction and reject the rest.^ 18. If a sub-agent receives from the vendee a part of the pur- chase-money, and pays it over to the principal, taking land instead of it for his compensation, the principal is liable (on a rescission of 1 Gibson v. D'Este, 2 You. & CoU. C.C. 3 Hough v. Richardson, 3 Story, R. 542. 659. 2 FuUer v. Wilson, 3 Ad. & EU. N.S. * Doggettr. Emerson, 3 Story, R. 700. 68. 356 LAW OF VENDORS AND PURCHASERS. [CHAP. XXII. the purchase for fraud) to repay that part, as well as what he received directly .^(a) 19. A sale of lands may he avoided for the misrepresentation of the vendee as well as the vendor. Thus, if A. articles for the purchase of B.'s estate, pretending he bought it for one whom B. was desirous to oblige, but in truth bouglit it for another, and by that means got the estate at an undervalue ; equity will not decree an execution of these articles .^(6) So to a declaration upon a 1 Doggett V. Emerson, 1 "Woodb. & M. 195, 206. 2 Phillips V. Bucks, 1 Vera. 227. for the purchase-money, according to their respective interests, that they would bear their respective proportions of any losses wliich might arise from inabiUty of the purchasers to pay the same ; held, the plaintiff could not, in equity, have any benefit from this agreement, in case he • was not able, from the parties directly liable to him, to obtain back the purchase- money decreed to him. Daniel v. Mitchell, 1 Story, R. 172. In a very late case. Sir G. J. Turner, L.J., remarked, " The defendant chose to take the representations of the agent of the vendor that the vendor's title was good. I can conceive cases in which, upon its appearing that there was no foundation whatever for such representa- tions, the representations might be con- sidered fraudulent, and a contract entered into on tlie faith of them might be held to be one which this Court would not en- force. But the question in such cases must, as I apprehend, be, were or were not the representations, fraudulent, and known to be fraudulent, at the time when they were made ? " Hume v. Pocock, Law Rep. (Eng.) Eq. July, 1866, p. 384. (b) But if A., in contracting with B., falsely represents himself to be the agent of C, and thereby obtains better terms, the Court will, notwithstanding, enforce the contract, unless A. knew that such would be the effect of the misrepresenta- tion. Fellowes v. Lord Gwydyr, 1 Sim. 63. A purchase of lands from an execu- tor, at a discount of eighteen per cent, the purchaser knowing that the condition of the estate did not require the sale, is a fraud in him, thougli he may know that they do not amount to more than the executor's interest in the estate ; and, the executor not having jjaid to the other legatees their portion of the estate, the purchaser will be compelled to repay the money to them. Pinckard v. Woods, 8 Gratt. 140. (a) The following case, founded equally upon mutual mistake and actual mis- representation on the part of the vendor, and at the same time involving the mutual rights and obligations of principal and agent, may properly be cited in this connection : — A contract was made by certain par- ties, that one should sell and the other purchase a tract of timber land in Maine, and if, upon an exploration, it did not contain sixty millions of pine timber, and there was not a stream running through it, which would, with an ordinary freshet, carry logs from the tract to the Kennebec River, without difficulty, the agreement should be void. The vendees procured an exploration, and, upon a favorable report of their agent, purchased the tract, taking a deed, and making the stipulated pay- ments. It subsequently appeared, that there was a gross mistake in the estima- tion of the quantity of timber, that the exploration was not made entirely upon the tract in question, but partly upon an adjacent one, and that the pine timber did not exceed Jive millions. Upon a bill in equity, brouglit by one of the pur- chasers to rescind the contract, and pray- ing for general relief: Held, 1. That the original contract must be set aside, as founded in gross mistake. 2. That the conveyance to the plaintiff must be re- scinded, and the purchase-money restored. 3. That the agent of the owners, who had effected the sale in his own name, having received the purchase-money, was primarily liable to repay it; and in his aid, those of the other defendants for whom he had acted as agent, and who had received any part thereof, with a full knowledge of all the circumstances, must repay the proportions thereof respectively received by them. A mutual agreement having been made between the defendants, upon the division among them of the notes taken CHAP. 5XII.] FRAUD. 357 written agreement, by which the plaintiff agreed to purchase of the defendant his unexpired term in a farm, and all the crops, ifec, alleging that the defendant had not delivered up possession ; one of the pleas was, that the defendant in his lease covenanted with the lessor not to assign without his consent ; that tlie defendant, being desirous of parting with the farm, applied to the agent of the lessor, wlio stated that, if he could find a successor eligible as tenant, in the landlord's opinion, after they had had an oppor- tunity of inquiring and a reference, there would be no obstacle ; that the agreement was made for the purpose of J. M. becoming occupier of the farm, and the defendant was induced by the plain- tiff and J. M. to enter into the agreement, on the faith and belief that the plaintiff knew, and the plaintiff, to induce the defendant to enter into it, represented, that J. M. was a person of respecta- bility, and eligible, &c., and could give references; whereas J. M. was not a person of respectability, and could not give references, &G., as the plaintiff well knew. Held, a good, though informal, plea of fraud ; and that the representation was material to the agreement, and not collateral.^ So where the vendee applied to the vendor to purchase a lot of wild land, and represented to him that it was worth nothing except for the purposes of a sheep pas- ture, when he knew there was a valuable mine on the lot, of the existence of wb.ich the vendor was ignorant ; held, a fraud, which would avoid the purchase.^ 20. But it is elsewhere held, that a purchaser of land, knowing it to contain a mine, is not bound to inform the vendor, who is ignorant of it.^ Black, J., says (p. 359), " A purchaser is not bound by our laws to make the man he buys from as wise as himself. Every man must bear the loss of a bad bargain legally and honestly made. If not, he could not enjoy in safety the fruits of a good one. If the defend- ant, during the negotiation for the purchase, wilfully made any misstatement concerning a material fact, and then misled the plaintiff and induced him to sell it at a lower price than he other- wise would, then the contract was a cheat and the deed is void utterly. But in all cases where the evidence brings the parties face to face, the language and conduct of the defendant seems to 1 Feret v. Hill, 6 Eng. R«p. 261. See 2 Livingston v. Peru, &c. 2 Taige, 3y the visitation of God has lost it ; 3. a lunatic, one who has lucid intervals, being sometimes of good and sound memory, sometimes not ; 4. a non compos by his own act, such as a drunkard.^ 3. Mental incapacity must of course be affirmativchj and distinctly proved, in order to avoid a sale. Thus, that the intellectual ca- pacity of one of the parties to a contract is below that of the aver- age of mankind, does not alone furnish sufficient ground for setting aside the contract.^ So a contract is not invalid, if made by a man in the habit of buying and selling, and transacting his own business, merely because he was illiterate, unless he has been grossly deceived or fraudulently imposed on.^ But those, who from iml)ecility of mind are incapable of taking care of themselves, are under the special protection of the law ; and a contract entered into by one of weak understanding, more especially if superin- duced by undue influence(a) or misrepresentation, will, upon ap- plication of the deceived party, be set aside by a Court of Equity.* Thus equity will annul a contract for the purchase of land, obtained, by the fraudulent practice of the vendor, from a man whose faculties were greatly impaired, and when he was without the counsel of friends.^ So a stipulation procured by one party from the other, while his mind was incapable of rational volition, either by reason of unsoundness, or of illegal and unjust constraint, ought to be dissolved by a Court of Equity, as wanting the assent of the party, unless ratified and confirmed while the mind was sound and free to act.^ 4. A contract for the sale of land, made by one who had been adjudged a lunatic, is held absolutely void, and no action can be maintained to enforce it ; nor can the committee, to whom the care of his estate has been intrusted, by any act of his, make such a con- tract good.'' But although sales at a great undervalue, from one 1 Beverley's case, 4 Co. 124 ; Co. Lit. « Taylor v. Patrick, 1 Bihb, 168 ; Euth- 247 a. See Boyce v. Smith, 9 Gratt. 704, erford v. Ruff', 4 Desaus. 350. as to monomania. "! Fitzhugh i\ Wilcox, 12 Barb. 235. 2 Mann v. Betterly, 21 Verm. 32G. See Donald v. Morton, 1 Mass. 543; See Farnam v. Brooks, 9 Pick. 220. White v. Palmer, 4 ib. 147 ; Leonard v. 3 Rodman ;;. Zilley, 1 Saxt. Ch. 320. . Leonard, 14 Pick. 280 ; Gaugmore, 14 4 Craddock v. Cabiness, 1 Swan, 474 ; Penn. 417 ; M'Creight v. Aiken, 1 Price, Seeley v. Price, 14 Mich. 541. 15G. 5 Garrow v. Brown, 1 Wins. (N.C.) No. 2 (Eq.) 46. (a) As in case of undue influence on relation to the vendee. Rhodes v. Bate, the part of one sustaining a confidential Law Rep. (Eng.) Eq. March, 1866, p. 252. 368 LAW OF VENDORS AKD PURCHASERS. [CHAP. XXIII. that was afterwards a lunatic, were set aside, the conveyances were decreed to stand as a security for what was really paid.^ And where a bill is filed to set aside a purchase made by a lunatic, and, upon the report of the clerk and Master, it appears that the price was not grossly extravagant, and that the lunatic has not power to make compensation if the contract should be set aside ; the bill will be dismissed.^ So the plaintiff contracted for the purchase of an estate from the defendant, and paid a deposit, on the terms that, unless he objected to the title within a certain time, it should be considered as accepted. No objection was made by him to the title. The plaintiff, at the time of the contract and of the payment of the deposit, was a lunatic, incapable of understanding the mean- ing of a contract, or of managing his affairs, and derived no benefit from the contract ; but these facts were unknown to the defendant, who made the contract with him fairly and bond fide, believing him capable of understanding its meaning. Held, the plaintiff was not entitled to recover the deposit.^ 5. Another form of mental incapacity is drunkenness. As a principle of criminal law, subject perhaps to occasional exceptions or qualifications, drunkenness is held to be no excuse or justifica- tion for crime ; and indeed is sometimes said rather to aggravate than extenuate an offence against law. Upon tlie same principle, drunkenness is regarded as, in general, a less substantial ground for avoidiyig contracts, than any form of mental imbecility, not the result of the party's own act. Still, however, equity will relieve against contracts made by a person when drunk, if procured by any fraud or imposition, or even without this accompaniment, in case of excessive drunkenness, where the party is utterly deprived of the use of his reason and understanding. So also, where he has been drawn into drink by some contrivance or management. In other cases, the parties will be left to their rights and liabilities at laiv.'^Qi) In general, a contract is voidable only for drunkenness.^ 1 Addison v. Dawson, 2 Vera. 678. Smith, 3 Camp. 33 ; Dorr v. Munsell, 13 '■^ Carr v. Holliday, 5 Ired. Eq. 167. Jolnis. 480 ; Seymour v. Delancy, 8 Cow. 3 Beavan v. M'Donnell, 24 Eug. Law 445 ; Barrett v. Buxton, 2 Aik. 167 ; Mor- & Eq. 484. rison v. M'Leod, 2 Dev. & Bat. 221 ; Ford * Beverley's case, 4 Co. 124 ; 3 Bac. v. Hitchcock, 8 Ohio, 214 ; Conant v. Abr. Idiots, &c. A. ; Johnson v. Medlicott, Jackson, 16 Verm. 335 ; Prentice v. 3 P. Wms. 130 ; Cook v. Clay worth, 18 Achorn, 2 Paige, 30. Ves. 12 ; Cory v. Cory, 1 Ves. 19 ; Pitt v. & Broadwater v. Darne, 10 Mis. 277. (a) " Where the party, when he enters drunkenness as not to know what he is into the contract, is in such a state of doing, and particularly when it appears CHAP. XXIII.] INCAPACITY, ETC. 3G9 6. More especially, if, when a man is so drunk as to render liini an easy prey to the fraudulent designs of another, an unfair advan- tage is taken of his situation to procure from him an unreamnahle bargain^ equity will rescind the contract, not on the ground of his drunkenness, but of the fraud.^ So a contract may be avoided by the legal representatives of a party, on the ground of his having been drunk when it was made, though such drunkenness was not occasioned by the procurement of the other party .^ Thus A. and B., tenants in common of a lot of land, contracted separately with C. to convey to him all their interest therein, on the payment to each of them of $300. The money being paid, possession was delivered to C, who, after the death of A. and B., filed a bill in chancery against D., their heir, for specific performance. D. by her answer alleged, that both A. and B. were in habits of intemperance, and almost constantly in a state of intoxication ; that the contract was made by them when in a state of intoxication, or when they were incapable of transacting business, at a price greatly below its value, ) Upon the same principle, where one purchases an estate, pays part of the price, and gives bond to pay the residue, subsequent notice of an equitable incum- brance before such payment is sufficient. Tourville v. Naish, 3 P. Wms. 307 ; Story V. Windsor, 2 Atk. G30 ; More v. Mayhew, 1 Clia. Ca. 34 ; 2 Freem. 175, pi. 235. So, notice of an incumbrance after payment, but before a deed is executed. Wigg v. Wigg, 1 Atk. 384. See Gibson i-. Lair, 37 Mis. 188 ; Speakman v. Forepaugh, 44 Penn. 363; Laverty v. Moore, 33 N.Y. (6 Tiffa.) 658 ; Merithew v. Andrews, 44 Barb. 200. Specific jJiTformance will be decreed against a venilor and his grantee with notice, without tender of a deed. St. Paul, &c. V. Brown, 9 Min. 157. A second jnircliaser witli notice camiot have an allowance even for his purchase-money and taxes. Forbes o. Hall, 34 lU. 107. 408 LAW OP VENDORS AND PURCHASERS. [CHAP. XXVI. sion delivered, was decreed to be performed against a subsequent purchaser with notice, who had a conveyance and paid his money .^ 3. A purchaser with notice, from one without notice, is held a bond-fide purchaser.^ So a bond-fide pvirchaser, for valuable con- sideration, is protected under the statutes of 13 and 27 Eliz., whether he purchases from a fraudulent grantor or grantee, and whether the first deed was made to defraud subsequent creditors or subsequent purchasers.^ 4. Notice is either express and actual or implied and construc- tive ;(^a^ but, it is said, there is no difference between actual and constructive notice in its consequences ; ^ and the terms actual and constructive are said to be indefinite with reference to notice.^ Actual notice is such as men usually act upon in the ordinary affairs of life ; not positive and certain knowledge (in reference to a prior deed) of its existence, as by seeing it, or being informed of it by the grantor himself.^ 5. But, beyond tliis, it is held that any notice is sufficient, which should put a party on inquiry. '(])) Information, which makes it the duty of a party to inquire, and shows where such an inquiry may be effectual, is notice of all facts, which might be thereby ascertained, after a reasonable time for making the inquiry.^ No 1 Butcher v. Stapley, 1 Vern. 363; 7 Gibbes v. Cobb, 7 Rich. Eq. 54; Smoot V. Rea, 19 Md. 398. Rupert v. Mark, 15 111. 540 ; M'Gehee v. '^ Lowther v. Carlton, 3 Atk. 241. Ghidrat, 20 Ala. 95; Sergeant v. Ingersoll, 3 Hood V. Fahnestock, 8 Watts, 489. 15 Penn. 343 ; Smith v. Low, 1 Atk. 489. 4 2 Sugd. 537. 8 Carr v. Hilton, 1 Curt. 390 ; Ring- 5 Jordan v. Pollock, 14 Geo. 145. gold v. Bryan, 3 Md. Ch. 488 ; Stockett 6 Curtis V. Mundy, 3 Met. 405. v. Taylor, 3 Md. Ch. 537. (a) Express notice of a deed is equiva- to justify tlie Court m breaking in upon an lent to recording. Knotts v. Geiger, 4 act of Parliament." Per Lord Hard wicke, Rich. 32 ; Draper o. Bryson, 17 Mis. 71. Hine v. Dodd, 2 Atk. 275 ; 6 Barb. GO. (b) Where the creditor of a publican in See p. 414. So it has been held, that no- London took from the latter a legal mort- tice of an unrecorded deed must be proved gage of copyhold, knowing that the pub- beyond all reasonable doubt. Rogers v. Wi- lican was indebted to his brewers, and also ley, 14 111. 65. So, that it must be direct knowing the ordinary practice in London and positive or implied, not merely sufBcient of publicans' depositing their leases with to put the party on inquiry. Nor is a their brewers by way of mortgage ; held, suspicion of notice sufficient. Fort v. such notice as would liave put a prudent Bunch, 6 Barb. 60. man on further inquiry ; and that the The purchaser said, in a conversation equitable security had priority. Whit- with a tliird person, about the time of the bread v. Jordan, 1 You. & Coll. 303. purchase, that " he had understood that It is to be observed, that some author- [his grantor] had fooled away the lot, and ities exact more stringent express notice had sold it several times, and did not con- than that stated in the text. Thus it is sider it worth his trouble to look about said, to show express notice the proof it." Held, this conversation did not jus- must be " clear and unequivocal." Per tify an inference of notice. Jackson v. Wilde, J., M'Meehan ;;. Griffing, 3 Pick. Given, 8 Johns. 107. Hearing reports or 154. So it is said, " Suspicion of notice, rumors is not notice. Colquitt y. Thomas, though a strong suspicion, is not sufficient 8 Geo. 258. CHAP. XXVI.] NOTICE. 409 purchaser is at liberty to remain intentionally ignorant of facts relating to his purchase, within his reach, and then claim protec- tion as an innocent purchaser.^ Thus, where a person other tlian the grantor is in possession, it is the purchaser's duty to inquire into the title, and the presumption of law is, that upon such inquiry he ascertains the true state of the title ; unless he makes such inquiry, a fraudulent intent in making the purchase is pre- sumed.2(a) So notice of a judgment against a vendor is sufficient to put a purchaser upon further inquiry. Hence, if instead of a judgment the party has a specific incumljrance on the property, the purchaser will be bound by it.^ Though notice to a purchaser of judgments against the vendor, whose estate is limited to uses to bar dower, does not prevent the purchaser from taking the estate free from the judgments, under an exercise of the power reserved to the vendor."^ So notice to a purcliaser that there is a lease is notice of its contents.^ So notice of possession by a tenant is notice of his interest.^ So, of his interest, either as tenant, or further, by an agreement to purchase.'^ So a purchaser, with notice of the tenant's possession of pm't of the estate, has constructive notice of the whole of the tenant's interest.^ So, although notice to a pur- chaser in one transaction will not affect him in an independent subsequent one ; notice of a deed is notice of the whole of its con- tents, so far as they can affect the transaction in which such notice is acquired.^ 6, The class of cases which has given rise to the most numerous questions as to notice, is that of implied or constructive notice, usually arising from the occupation and improvement of the land, by one not having a perfect legal title. On the general subject of implied notice, involving in part, however, what has been already 1 Jenkins v. Eldredge, 2 Story, 181. 6 Heirn v. Mill, 13 Ves. 114. 2 McLaughlin v. Shepherd, 32 Maine, "^ Daniels v. Davison, 16 Ves. 249. 148. 8 Powell V. Dillon, 2 Ball & Boat. 416. 3 Taylor v. Baker, Dan. 71. 9 Hamilton v. Royse, 2 Sclio. & Lef. 4 Eaton V. Sanxter, 6 Sim. 517. 327. 5 Hall V. Smith, 14 Ves. 426. (a) But constructive notice of title is tive notice consists of a knowledge of not sufficient to postpone the owner of facts which should lead to further in(iuiry. land to a purchaser having equal notice, The inquiry need be only of a party in because the owner, knowing of the in- interest, unless tiie information confirms tended sale, permits it without objection; prior, or shows new grounds of suspicion, unless there be actual notice of .his right, Constructive notice does not excuse actual or positive acts inducing the purcliase. fraud. Converse v. Blumrich, 14 Mich. Paul V. Squibb, 12 Penn. 296. Construe- 109. 410 LAW OP VENDORS AND PURCHASERS. [CHAP. XXVI. suggested with regard to a certain kind of express notice ;(«) it is held that tlie doctrine of constructive notice appHes in two cases ; first, where the party charged has notice that the property in dis- pute is incumbered, or in some way affected, in which case he is deemed to have notice of the facts and instruments, to a knowledge whereof he would have been led by due inquiry after the fact which he actually knew ; and, secondly, where the conduct of the party charged evinces that he had a suspicion of the truth, and wilfully or fraudulently determined to avoid receiving actual notice of it.^ 7. But, as has been stated, the terms implied notice are commonly applied to the inference arising from possession of the land? Our plan does not lead to a statement of the numerous cases of this class, in which a subsequent recorded conveyance is relied upon on one side, and a prior unrecorded conveyance on the other ; the second grantee being alleged to have implied notice of the former deed, growing out of the occupation of the first. The questions arising from a mere sale of the land, not consummated by a con- veyance, have been comparatively rare ; but the principle involved is substantially the same ; and indeed a conveyance not registered bears a very close analogy to a mere executory contract, (i) Thus it has been held, that, where a parol sale of lands has been made, money paid, and possession delivered, the contract is good between the parties, but not against a hond-fide purchaser, without clear evidence of notice to him, either actual or legal ; that legal notice exists only where there is a violent presumption of actual notice ; and that undisturbed possession by the equitable owner has gener- ally been considered legal notice ; but it must be a clear, open, notorious, and unequivocal possession ; mere occasional entries, as for mining, are not sufficient. So where A. bought by parol from B. a corner of B.'s tract, paid for it, was put into possession, and 1 Jones V. Smith, 1 Hare, 43. 104 ; Dickey v. Lyon, 19 Iowa, 544 ; 2 See Woodward v. Clark, 15 Mich. Reeves v. Ayers, 38 111. 418. (a) Meaning by express notice, that subject to a life-interest in his mother, which is expressly communicated, though who really was the owner in fee, conveyed not in such a way or from such a source all his interest to trustees for the benefit as to be absolute and positive, in contradis- of his creditors, with covenants for title tinction to that which is to be inferred and for further assurance. Upon her from facts and circumstances. Such is death the fee descended to him. Held, the notice, which is held suflBcient to put although not a valid conveyance, the trans- a party on inquiry. See Howorth v. Deem, action amounted to a contract for sale, 1 Ed. 351. wliich the defendant was in equity com- (b) The defendant, under the belief pellable to execute. Smith v. Baker, 1 that he had the fee-simple in an estate. You. & Coil. 223. CHAP. XXVI.] NOTICE. 411 had buildings erected, but at the same time had no survey of the part, or other admeasurement to reduce it to certainty, and on B.'s own part there was a forge, dwclling-liousc, grist and saw mill, and buildings for the workmen, which, with A.'s building, might strike the eye as one establishment ; tlie possession of A. was held not to be legal notice of his title to a purchaser at sherifFs sale, under a judgment against B. ; but the equity of such purchaser would pre- vail ; particularly if A. gave no actual notice of his title, when he probably knew of the judgment, execution, and sale.^ So under an agreement of exchange between A., who held lands under a college lease, and B., the owner of an adjoining estate, B. occupied part of the college lands, and A. had occupied, along with the res- idue of the leasehold, part of B.'s estate. A. having become bank- rupt, the college leasehold was sold, and was described in the particulars of sale as " late the residence of A." Held, the pur- chaser was not to be considered as having implied notice of the exchange, and had a riglit to recover tliat portion of the leasehold which was in B.'s occupation.^ So, where a part of an unimproved tract of land was sold under articles of agreement not recorded, the price paid, possession delivered, a survey made, but no house or division fence built thereon ; the sale is not good as against a subsequent purchaser at a sheriff's sale of the whole tract upon a judgment against the vendor, if the second purchaser has neither actual nor constructive notice of the right of the first purchaser.-^ 8. In case of an unrecorded prior conveyance, it has been some- times held, that the possession of the grantee is of itself construc- tive notice, equivalent to that derived from registration. (a) But the prevailing doctrine is now otherwise. Thus it is said,'^ " the doctrine in the English law of constructive notice of the title of the lessee, or party in the possession, is not favored in tlie Ameri- can courts." So Judge Story says, " The American courts seem indisposed to give effect to this doctrine of constructive notice from 1 Billington v. Welch, 5 Binn. 129, 131 ; 48 Penn. 238. 2 Miles r. Langley, 1 Russ. & Myl. 39 ; 2 ib. 626. 3 Meehan v. Williams, 48 Penn. 238. * 4 Kent, 179, n. (a) In Illinois, a late case so decides. ac. 3 2 Sugd. 538. 1 Croftoii v. Ormsby, 2 Sclio. & Lef. 4 Dickey v. Lyon, 19 Iowa, 544. 583. 416 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVI. the purchaser, having notice, must specifically perform, by granting a new lease with the same provision. ^ So the lord of a West- country manor (his tenants refusing to renew) makes a lease of the premises to his daughter for ninety-nine years, and afterwards sells the manor to one who has notice of the lease, but has security that the daughter, when at age, should surrender. The daughter was decreed to have the benefit of the lease.^ So A. made an equitable mortgage to B., and afterwards agreed to lease to C, who had notice of the prior charge. A. became bankrupt before the lease was executed, and on the petition of B. an order in bank- ruptcy was made, under which the premises were sold to B., and he retained the amount of his mortgage out of the purchase-money. Held, on a bill filed by C. for specific performance of the agree- ment, that B., having become the purchaser, and thereby united his equitable mortgage with the equity of redemption, was bound to perform the agreement.^ 15. An agent may take a lease from his principal, if prepared to prove that full information has been imparted to the latter, and that the contract has been entered into with perfect good faith. And the same principle applies to one who takes an assignment of a lease from the agent of the lessor, with notice of the agency. If the lease cannot be upheld by the agent, neither can it be by the purchaser.*(a) 16. A purchase pendente lite, though without actual notice, and for valuable consideration, shall be set aside. " Pendente lite nil innovetur^ Though this rule of equity is said to be hard, yet it is in imitation of the common law, where in a real action, if the defendant alienes pending the writ, the judgment will overreach the alienation. Thus acts of the Court, as the commitment of a wardship, and in a cause depending, are to be taken notice of by every one at his peril.^ So, pending a suit in equity to foreclose, 1 Taylor v. Stibbert, 2 Ves. 437. * Molony v. Kernan, 2 Dru. & War. 2 Jennings v. Selleck, 1 Vern. 467. 31. 3 Smith V. Pliillips, 1 Kee. 694. 5 Herbert's case, 3 P. Wms. 117. (a) Demise by a copyholder for one no lease at law further than from year to year, and, at the end of tliat term, from year ; also, that no equity arose from the year to year, for the term of thirteen circumstance, that the lord purchased his years more, if the lord will give license; tenant's interest with notice of the demise, and so as there sliall be no forfeiture, and an express exception of all subsisting witli the usual covenants in a farm lease, leases, or agreements for leases. Lufkin The license not being granted, held, it v. Nunn, 11 Ves. 170. See Doe v. Luf- was a condition precedent, and there was kin, 4 E. 221. CHAP. XXVI.] NOTICE. 417 in which a subsequent mortgagee was joined as defendant, the plaintiff sold the land under a i)ower of sale, and A. became the purchaser. This sale was set aside, uj)on cross bill of the sul)se- quent mortgagee, and he was admitted to redeem. Held, the pendency of the suit for foreclosure was notice to A., and he took his title subject to any decree therein.^ So, an heir-at-law being as mucli at lil)erty to invalidate the will, as the devisees to establish it ; a suit for tliat purpose is to all intents a Us pendens.'^ So, in case of a devise of lands charged witli payment of del)ts ; if the devisee sell, pending a suit by creditors for sale and payment of debts, such alienation is void.^(a) 17. It has been held, that a final decree is not implied notice to a purchaser, after the cause is ended ; but it is the pendency of the suit that creates the notice.'* As it is a transaction in a sover- eign court of justice, it is supposed all people are attentive to what passes there.^ And where the defendant, having actual notice of a decree to which he was no party, paid money contrary to that 1 Kurd V. Case, 32 111. 45. 2 Garth v. Ward, '2 Atk. 174 ; 3 Bar- nard, Rep. Cha. 450. (a) Whether a subpoena served, and a bill filed, is a lis pendens against all per- sons, qu.. The former alone is not. Anon. 1 Vern. 318. But, where a Reg- ister Act directed, that no judgment should affect lands, Init from the time of registry of such judgment, a purchaser with notice of an unregistered judgment was still held to be bound by it. Tunstall V. Trappes, 3 Sim. 301. In a case of a real purcliase pendente lite, the plaintiff' is to Ije held to strict proof. And, if any flaw at tlie hearing be on the plaintiff's side, the Court will not let him amend ; but, if the purchase pendente lite be fraudulent, and to elude tlie justice of the Court, it ought to be highly discoun- tenanced. Sorrel v. Carpenter, 2 F. Wms. 482. A conveyance made pendente lite is not wholly void. Tlie rule merely means that the conveyance does not vary the rights of the parties to tiie suit; that they are not bound to take notice of the title acquired under it; but, with regard to them, the title is to be taken as if it never existed. 2 Story Eq. § 908 ; Hopkins v. M'Laren, 4 Cow. 678. So it is lield, that the effect of the maxim, "pendente lite nihil innovctur," is limited to the rights and parties in that suit. It does not absolutely annul a con- •* Walker v. Smahvood, Ambl. 67(5. •* Worsley v. Scarborough, o Atk. 3U2. 5 Ibid. veyance pendente lite. Therefore a plea in bar to a bill by a purchaser from tlie defendant, witli actual notice, was over- ruled. Metcalfe v. I'ulvertoft, 2 Ves. & Beam. 200. " The reason of the rule is, tluit, if a transfer of interest pending a suit, were to be allowed to affect the proceedings, there would be no end to litigation ; for as soon as a new i)arty was Ijrought in, he might transfer to another, and render it necessary to bring that other before the Court ; so that a suit might be intermin- able. But this reason has no application to a third person, whose interest subsisted before the suit was commenced,. and who might have been made an original ])arty." Per Kent, Ch., Murray v. Lylburn, 2 Johns. Ch. 441. The doctrine is said to rest, not upon the presumption of notice, but upon l)ublic policy. Newman v. Chapman, 2 Rand. 03. A creilitor's bill, to be a lis i)endens, and to operate as a notice against real estate, must be so definite in the descrip- tion of the estate, as that any one reading it can learn thereliy what ))r()i)erty is the subject of the litigation. If it is not so, it will be postjjoiied to a junior bill, which is. Miller v. Sherry, 2 Wall. 237. 27 418 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVI. decree ; ordered, that lie should pay the money over agaiii.^(a) So land held by a husband under a contract of purchase, upon a decree of divorce, was set apart as alimony for the wife, and after- wards he assigned the contract, and a conveyance was made to the assignee. Held, the grantee was chargeable with notice, and should be compelled to convey the land to the wife.^ 18. After a decree, the bar to the right of reviving the suit, whicli arises from delay, depends altogether on the discretion of the Court. A bill of revivor may be filed, at any time within twenty years after decree for an account, unless there has been such a variation of tiie rights of parties, as may work positive injury and injustice to other persons. Parties claiming under a marriage settlement, subsequent to sach decree, are affected with notice, as purchasers pendente lite, a decree for an account being only a continuance of the litigation.^ 19. A writ of restitution will not be granted, to put into pos- session one not a party to the cause, who had been turned out by an injunction, though he had a legal title ; he having obtained possession iinder a grant from the defendant pending the suit.^ 20. A devisee obtains a decree to hold and enjoy against the heir, who it was supposed had suppressed the will. Pending this suit, a third person gets an assignment of a mortgage made by the testator, and then purchases the equity of redemption of the heir, with notice of the will. The Court would not admit the purchaser to dispute the decree, nor to try at law, whether the will was not cancelled by the testator.^ 21. A purchaser 2J<^ndente lite, on filing a supplemental bill, is liable to all the costs from the beginning to the end of the suit.6 22. In a creditor's suit, the debts and costs were paid by the sale of one of two devised estates, and the Court directed the Master to settle the proportion which was to be borne by the other. The devisee of the former was entitled for life only ; and, he being an ignorant person and a day-laborer, no proceedings were had 1 Harvey v. Mountas;ue, 1 Vern. 57, * Gaskell v. Durdin, 2 Ball & Beat. 122. See Bluer. Blue, 38 111. 9. 167. '^ Blue V. Blue, 38 111. 9. 5 Finch v. Newnham, 2 Vern. 216. 3 Higgins V. Shaw, 2 Dru. & War. 356. « Anon. 1 Atk. 89. («) In case of a void decree, and a purchase under it, notice is implied. Morris V. Hogle, 37 111. 150. CHAP. XXVI.] NOTICE. 419 under this direction for twent3'-six years, at the end of which time the other estate was sold. The year following, the tenant for life died, and his son, the remainder-man, filed a bill, to charge the purchaser of the other estate with the j)roportion which it onght to have contributed towards the debts and costs. Held, there was no such Us pendens at the time of purchase, as amounted to equi- table notice of the charge. ^ 23. A joint-stock company, established by Act of Parliament, vesting in them all property then belonging to them, and author- izing them to bring actions in the name of their treasurer for the time being, having purcliased an estate, pending a suit against the vendors, to compel the specific performance of an agreement to grant a lease of part ; on a bill by the vendee against the treas- urer and directors, the plaintiffs were declared entitled to a lease, and the treasurer was enjoined from disturbing their possession, though the rest of the proprietors, being very numerous, were not parties ; but no decree could be made for the execution of a leasc.^ 24. A decree was made against A. B., setting aside, as fraudu- lent, a purchase by an agent from his principal ; and a reconvey- ance, and the usual accounts of rents and purchase-money, were directed, in which an allowance was to be made for substantial repairs and lasting improvements. A. B. sold and conveyed part of the property, pendente lite, and died before the accounts were completed. A supplemental bill was filed against the purchasers, and the heir and personal representatives of A. B. ; charging that the purchasers, in case of eviction, claimed compensation out of the estate of A. B., the conyeyances, pendente lite, being set aside. Held, the purchasers were entitled in this suit, as against their co-defendants, the personal representatives of A. B., to an order for the repayment of their purchase-money ; and, as against tlie plaintiff, to an allowance for substantial repairs and lasting im- provements, but to no greater relief. Held, also, that the heir and personal representatives were proper parties. ^ 25. The rule in question has been held inapplicable, wliere a party has articled to purchase the estate, taken possession, and made improvements, before the commencement of a suit against the vendor, although the price be paid and the deed executed pending 1 Kinsman v. Kinsman, 1 Russ. & Myl. 2 Meux v. Maltby, 2 Swanst. 181. 617. 3 Trevelyan v. White, 1 Beav. 588. 420 LAW OP VENDORS AND PURCHASERS. [CHAP. XXVI. such suit ; tliis being a mere fulfilment of a prior contract.^ So one holding a deed at the time of suit commenced may effectually record it afterwards. -(a) 1 Parks V. Jackson, 11 Wend. 442; ace. Trimble v. Boothby, 14 Ohio, 109. 2 Irvin V. Smith, 17 Ohio, 226. (a) Witli regard to the allerjations re- quired in case of notice to a purchaser ; a defendant, pleading a purchase for valu- able consideration without notice, must aver, not that he, but that the vendor, was seised as owner or pretended owner, and was in possession ; which would be satis- fied by the possession of his tenant. Daniels v. Davison, 16 Ves. 249; Wall- wyn V. Lee, 9 Ves. 24. Where the bill charges particular and special instances of notice of the plaintiff's title on the defendant, his denial of notice generally is not sufScient. Eadford v. Wilson, 3 Atk. 315. CHAP. XXVII.] REMEDIES, ETC. — EQUITY. 421 CHAPTER XXVII. REMEDIES OF VENDORS AND PURCHASERS. — LAW AND EQUITY. — GENERAL JURISDICTION OP COURTS OF EQUITY J COMPENSATION; RESCINDING ; LIEN, ETC. 1. Having completed our view of the rights and UahiUties of the respective parties to contracts for the sale and purchase of real estate, we proceed to the remaining topic, of the remedies by which those rights may be asserted, and those liabilities enforced. It being a universal proposition, that, wherever there is a legal right, there is also a legal remedy ; much that falls with strict propriety under the present division has been incidentally stated or alluded to in the preceding chapters. But our plan requires that this whole branch of the general sulyect should now be fully illustrated. 2. From the whole course of this work, it may have been inferred, that the sale of real property is a prolific subject of questions and cases in Courts of Equity ; (a) very many of the cases heretofore cited having been settled in those courts. And the statement may be safely hazarded, that no single subject in the law gives more frequent occasion for the exercise of chancery jurisdiction, in the various forms of injunction, rescission, compensation, and more especially sjyecific jjerforinajice, than executory contracts relating to real property. Such subjects are said to be within the settled aiid common jurisdifction of the Court, and if the jurisdiction attaches, the Court \vill go on to do complete justice ; although in its progress it may decree on a matter which was cognizable at law.^ Thus it is held, that chancery has unquestionable jurisdic- 1 Cathcart v. Robinson, 5 Pet. 264, 278. (n) A plaintiff, suing at law and in chancellor decidins: another. Bradford v. equitj' at the same time, and for the same Williams, 2 Md. Cli. 1. matter, will be compelled to elect in which A Court of Equity, in settling the court he will proceed. The reason and riglits of parties, will not look Ijoyond the object of this rule is, to relieve a defend- circumstances of the transaction in respect ant from the "double vexation" of de- to whicli relief is asked by one ])arty, and fending himself in two courts against the take into consideration other and different same demand, and to avoid the clashing transactions, set up by tiie other party, as of jurisdiction, wliich would result from presenting equities on his side. Tripp v. a jury finding a verdict one way, and the Cook, 20 Wend. 143. 422 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVII. tion to decree specific performance of a purchase of real estate, and compel the vendee to pay the purchase-money, although the complainant has a remedy at law.^ So, where either party has performed a valuable part of his agreement, and is in no default for performance of the residue, he is entitled in equity to a specific execution of the other part of the contract ; more especially where it is impossible to place him in statu quo? And it is, in general, no objection that the vendor's remedy is gone at law, by reason of a mortgage on the estate, &c., so that he could convey a good title at the day fixed upon by the contract.^ 3. But, on the other hand, equity will not enforce a purchase, where the vendor cannot recover at law, unless he shows a suffi- cient excuse for his failure, or that his forfeiture at law had been waived by the vendee.^ So, when assumpsit will not lie on a breach of promise, equity will not decree specifically.^(a) 1 Brown v. HafF, 5 Paige, 235. 2 Hays V. Hall, 4 Port. Eq. 374. 3 Seymour v. Delaneey, 3 Cow. 445. i Tevis V. Eichardson, 7 Men. 656. 5 Hickman v. Grimes, 1 A. K. Marsh. 87 ; Smith v. Carney, 1 I.itt. 295. («) The respective powers of, and remedies in, law and equity, in case of executed coiiveijcutces, with the covenants of title usually contained therein, have been thus stated : — Chancery does not interfere, by decree- ing specific or further performance, with executed ar/reements. Thus the plaintiffs, supposing they were seised, sold and con- veyed lands, with covenants of seisin and warranty, to which they liad no title. Six years afterwards, on being sued by the grantee, the defendant, on tlie covenant of seisin, they purchased the lands, and tendered a new conveyance, but he refused it. Held, that the Court had no power to compel him to receive the deed, or to in- terfere with his action on the covenants. Tucker v. Clarke, 2 Sandf Ch. 96. When a purchaser is evicted by a title covered by his covenants of warranty, this eviction cannot be called a failure of con- sideration, nor is it available as a defence at law, to an action for the price ; because a Court of Law cannot do coni[)lete justice between the parties, by placing them in statu quo. So, where the sale has been executed by acceptance of a conveyance, fraud is no defence to an action at law for tiie price. But, when a purchaser with warranty is evicted by a title to which his covenants extend, and the vendor is insol- vent, equity will restrain him from recov- ering the purchase-money, to the extent for which he is liable on his covenants. So fraud committed by the vendor by concealment of an incumbrance created by himself, whereby the purchaser is af- terwards evicted, is relievable in equity, by restraining the collection of the pur- chase-money to the extent of the injury, or by an entire rescission of the contract, although the incumbrance is of record, and the conveyance with warranty against all incumbrances. In all cases of pur- chase, there is a trust and confidence reposed by the purchaser in the vendor, that the estate is not impaired in value or incumbered by any act done by him ; and, by ofiering to sell, he virtually represents it as not incumbered by himself, or, if it is, that he will free it before the sale is executed. And the cases in which mere concealment of an incumbrance has been held no ground to rescind the contract, it being removed before the hearing, are said to rest upon the principle that no injury has resulted to the purchaser. When an incumbrance has been concealed, the pur- chaser may require a prompt removal of it. If not effected, he is entitled to a re- scission, and may abandon the possession, unless he chooses to retain it as a trust fund, to reimburse himself for money paid. The ettect of retaining possession until a decree for rescission, will be only to charge the purchaser with interest on the pur- chase-money, if the possession is of any value. A covenant covering the eviction will not prevent the purchaser from re- CHAP. XXVII.] REMEDIES, ETC. — EQUITY. 423 4. The doctrine of compensation in Courts of Equity has ah'eady been referred to under several titles. (a) In more immediate con- nection with tlie present topic of remedies^ it may again be appro- priately introduced. 5. The rule in equity is, tliat a vendor cannot conscientiously coerce the payment of the wliule purcliasc-money, when there was fraud in the sale, in selling what did not belong to the vendor, and leave the vendee to the uncertain damages of an action at law ; but the vendee has the right of withholding so much of the purchase- money as will reimburse him for his loss.^ But chancery does not entertain jurisdiction of a suit, where the sole object is to obtain compensation in damages for breach of contract, unless the con- tract is of equitable cognizance merely ; if the defendant sea- sonably object by demurrer or answer.^ The jurisdiction of equity for this purpose is held to be merely incidental or ancillary to a claim for specific performance ; even in case of fraud.^ Upon a claim for damages only, a Court of Law is said to be the only proper forum. So it is held, that equity will give damages in lieu of a specific performance, only where it has obtained jurisdiction of the cause on other grounds. Thus, where the defendant has power to fulfil his contract when the bill is filed, but from any cause becomes unable to do so during the pendency of the suit; or where, at the time of making tlie decree, -he can perform it in part only ; the Court, having had jurisdiction at first, or having the power to afford partial relief by decreeing a specific performance as far as the defendant's ability extends, can give the plaintiff compensation by way of damages. It is said, this is as far as the principle ought to be carricd,'*(i) So where it would be difficult . 1 Ransom v. Shuler, 8 Ired. Eq. 304. 3 Newham v. May, 13 Price, 749. 2 Morss V. Elmendorf, 11 Paige, 277. 4 Wiswall v. McGown, 2 Barb. 270. scinding for fraud. Nor the circumstance, out a remedy in equity as well as at law, that the incumbrance could have been provided the contract were fair and no removed by the payment of a sum greatly fraud. But, if fraud is sliown in making less than that remaining due for the pur- the purchase or completing it, and whether chase-money. CuUum v. Branch Bank, there be covenants of title or not, the i)ur- 4 Ala. 21. chaser may come into equity for relief, But it is said to be a well-settled rule or to obtain indemnity against eviction, of equity, that a grantee, to whom posses- disturbance, or defect of title. Denstoa sion has been delivered under covenants v. JMorris, 2 Edw. 37. of title and warranty, can have no relief (a) See Chapters 16, 19, 20; Compen- against his grantor for a return of pur- sation. chase-money or security on account of a (b) Upon a bill for specific perform- deticiency or failure of title. And if a ance of an agreement in a lease, that, grantee in possession has taken no cove- at the expiration of the term, the im- nants, and the title fails, he will be with- provements made by the lessee shall 424 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVII. to ascertain the amount of injury resulting from breach of contract, equity will not itself ascertain the damages, nor direct an issue quantumi dam nificatus.^ 6. Nor can the complainant entitle himself to such compensation, merely by concealing tlie fact, in his bill, that the defendant is not able to perform his contract specifically, where such fact is known to the complainant at the time of filing the bill.2(«) 1 Pratt V. Law, 9 Cranch, 456, 494. 2 Morss V. Elmendorf, 11 Paige, 277 ; Bradley v. Bosley, 1 Barb. Eq. 125. remain the property of tlie lessor, on making a fair compensation therefor, the Court will entertain jurisdiction, though the bill be purely for compensation and damages, i)rovided a specific performance may be decreed, and tlie complainant can have adequate relief only in equit3^ The charge for improvements is, in equity, a lien on the property. But the Court will not extend its jurisdiction beyond tliis claim to a claim for alleged infringements of the rights of tlie lessee during his term. Berry v. Vanwinkle, 1 Green, Ch. 269. (a) It has been decided in Connecticut, that, where an unexecuted contract for the purchase of real estate for a piddic purpose, as a highway, railroad, &c., is abandoned by the vendee, and the vendor retains possession, his remedy is not in equity, but at law. Bill in equity to enforce a contract, by which the city of New Haven agreed to purchase of the plaintiff certain lands, and as mucli of the water of Mill Kiver as should be required to supply the city with pure water, for the consideration of $50,000, and of a covenant to construct a costly dam and a canal to convey tor the plaintitTs use the surplus water of the river. The plaintiff retained possession of the property. Held, the suit could not be maintained, there being a complete remedy at law. Ellsworth, J., says, " Our statute, as well as common law, forbids a party, that can obtain complete redress at law, to seek redress by specific execution. True it is, that, as a general rule, where the purchaser of real estate can come into a Court of Equity, to obtain a deed of it, the vendor can come there to get his money, which was agreed to be paid, but the rule is not universally true, and it should not be applied, we think, where it will do unnecessary mischief to one of the parties. This is a case of that char- acter. The plaintiff not onlj' asks to re- cover his money, but he seeks to compel the city to construct, at a great expense, their water-works, with a dam thirty-three feet high, for an immense pond, or reser- voir of water, with a canal, for surplus water for the plaintiff's works ; or if the plaintiff will be satisfied, as he may be, to take a decree only for the fifty thousand dollars, and not pursue the rest of his prayer, then, we say that the remedy is unequal and oppressive, and will not leave the parties where they should be left, and where they will be left, after a recovery of damages, at law. Is it not more equal and just, that the plaintiff should recover his damages, whatever they may be, and retain his jiroperty, as it is, than to force the city to pay fifty thousand dollars, and go on with the water-works, whether they will use them or not; or, if the works are not to be constructed, to pay Mr. Whitney the fifty thousand dollars, and leave him, as they necessarily must do, in that case, in the undiminished enjoyment of the whole of this same property ? The truth is, the city get nothing at all for the fifty thousand dollars, nor is the plaintiff to part with any tiling for it. In Webb v. The London & Portsmouth I'ailway Compa- ny, 9 Eng. Law & Eq. 249, on appeal, the defendants had entered into an agreement to purchase certain lands, not exceeding eight acres, for a proposed railroad, and to pay .£4,500 for them, but which was not taken, though the defendants entered to make a survey and estimate, and cut one tree, and the plaintiff was not otherwise disturbed in his possession and enjojnnent ; the Court held, tliat the plaintiff' was not entitled to a specific performance ; their language is, 'It is the plain doctrine of the Court, that it is not upon every con- tract that the Court will interfere to decree specific performance. It does so, to give more complete justice to a party, who seeks the aid of this Court, where a con- tract has been entered into to purchase aa estate. It may often happen that the mere legal remedy of recovering damages for the non-performance of the contract would afford inadequate relief, and, from the earliest time, it has been the doctrine of this Court to interfere to make the party do what he has engaged to do ; namely, convey the land he has agreed to sell. — CHAP. XXVII.] REMEDIES, ETC. EQUITY. 425 7. Where the vendor never had title, or has conveyed it subse- quently to the sale, tlie vendee having notice cannot maintain a bill in equity for mere compensation in damages, but must resort to his remedy at law. But where the defendant deprives himself of the power to perform his contract specifically, pending a suit to compel such performance, the Court will retain the suit, and award damages. ^(a) 8. Where the owner of land, bound by a judgment against a previous owner, covenants to give him a quitclaim deed of an undivided share thereof, at a certain day, and after the day con- 1 Morss V. Elmendorf, 11 Paige, 277 ; Woodcock v. Bennett, 1 Cow. 725. But even in the case of a suit by a pur- chaser, if there be circumstances, ren- dering it unjust tliat the Court sliould interfere, the Court will not interfere in his lavor ; and I should say, much more readily will the Court listen to an ob- jection, that is made against a vendor seeking a specific performance ; because of necessity the vendor can get complete redress at law. — But here it is admitted that what the corftract amounts to is really this : a contract to pay .£4.500, to select eight acres of the plaintiff's land and take it from him, and for sucli land, and conse- quential damage to pay the £4,500. — The amount of damage.s to be calculated will then, as I conceive, be a calculation made on the agreement, as to what, taking all the circumstances into consideration, will do justice; whereas, the relief that would be afibrded in this Court would be positive injustice. It would be giving to this gentleman £4,500 as the purchase- money for that which they had not taken, and which I believe they never can take.' The same is decided in Stuart v. The L. N. AV. R.R. Co., 11 Eng. L. & Eq. 112. Lord Cranworth says, ' The ground on which we proceeded in Webb, &c., was this : that, whether it was a contract or not, the circumstances of the case made it such, that it was not fit for this Court to interfere by way of specific performance, because these two circumstances con- spired : first, that complete relief might be obtained at law, if the parties were en- titled to any relief; and, secondly, the principle of mutuality wholly failed, for it was impossible for the company to hold the land for their benefit, in consideration of the money they were to pay.' So in Gooday v. The C. & S. V. U.K. Co. 15 Eng. L. & Eq. 5'JG, — where the compa- ny had not taken possession of the land, and had abandoned for ever the project contemplated, — the Master of the Kolls saj's, 'Had there existed any such con- tract, then it has been settled, as a rule of law, by recent cases, that assuming a con- tract to have existed between an individ- ual and a railway company, and if the undertaking had been abandoned, the Court will nevertheless, in the exercise of its discretion, send the case to law.' " Whitney v. New Haven, 26 Conn. G24, 631. (a) A contract was so drawn, as legally to entitle a vendee to a large quantity of surplus land, not known to the i>arties ; but the vendee had omitted to make his payments, so that he had not a strict legal right to a performance. Upon a bill brought by the vendee for specific performance ; held, performance should be decreed, only on his making additional compensation, and after deducting so much of the surplus land as had been sold to another. King V. Hamilton, 4 Pet. 311. A. agreed to sell an estate tithe-free to B. Afterwards, C, the vicar of L. (in which parish part of the estate was situ- ate), filed a bill for tithes ag.ainst the occupiers of another part of the estate as also being situate in L. A. agreed that part of the purchase-nione}' sliould be set apart, as an indenmity to B. against this claim, which was accordingly done, and B. paid the remainder of his purchase-money, and took a conveyance. C. died, and his suit was dismissed for want of prosecution ; but the indemnity fund was not transferred to A. One of C.'s successors instituted a fresh suit for the tithes. Pending these jiroccedings, it was discovered that the lands were situate in the parish of S., and tithable to the rector of S., and, on proof of those facts, the latter suit was dismissed at the hear- ing. Held, B. was entitled to a compen- sation out of the fund, for the tithes of the land situate in S. Crompton v. Melbourne, 6 Sim. 353. 426 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVII. veys to another ; on a bill filed by the covenantee for specific exe- cution, chancery ought not to decree damages to the value of the land, without providing that the covenantee shall first pay or secure a proportional part of the judgment. In such case, the Court may refer it to a Master to assess the damages.^ 9. A purchaser may claim compensation in equity for breach of contract to make a good title, and have an issue to a jury, without first proceeding at law ; if the vendor has conveyed away his prcp- erty in trust, whereby there might be difficulty in obtaining sa See M'Garvey v. Hall, 23 Cal. 140; 684. Adderley v. Dixon, 1 Sim. & St. 607. 3 2 Story, Eq. §§ 748, 749. "^ Ensign v. Kellogg, 4 Pick. 1. * Cathcart v. Robinson, 5 Pet. 264. CHAP. XXVIII.] SPECIFIC PERFORMANCE. 433 Upon these considerations, the general doctrine is laid down, that, where a contract respecting real property, in whatever form, is in its nature and circumstances unobjectionable, it is as much a mat- ter of course for Courts of Ecjuity to decree a specific performance of it, as it is for a Court of Law to give damages for the breach of it.i (a) 1 2 Story, Eq. § 751 ; St. Paul, &c. v. Brown, 9 Min. 157 ; Scliroeppel v. Hopper, 40 Barb. 425. (a) Witli regard to the claim for spe- cific performance, as depending ui)on the wiint of an adequate remedji at law: it lias been held in a late Englisli case, that the projectors of a proposed railroad are liable to a bill for specific performance of a con- tract to purchase land, although an action at law might also be maintained against them. Eastern, &c. i'. llawkes, 35 Eng. Law & Eq. 8. In the course of his opinion. Lord Cranworth refers particularly to two previous cases, where a contrary doctrine was said to have been held by the Court : Webb V. The Direct London, &c. 1 De G. Mac. & G. 521 ; and Stuart v. The Lon- don, &c. ib. 721. " In the former of these cases the Court proceeded on two grounds. In tlie first place, the terms in wiiich the deed was framed were such as to lead the Court strongly to the conclu- sion that the whole contract was meant to be conditional on the line being formed, and that if it should be (as in fact it was) abandoned by its projectors, then all the provisions of the agreement were to fall to the ground ; a construction, I may ob- serve, which receives great support from the subsequent case of Gage v The New- market, &c., 18 Q.B. Rep. 457. But in- dependently of that difficulty, the case appeared to be one in whicli a Court of Equity ought not to interfere in favor of the plaintiff, for that, by any such inter- ference, we should be doing injustice in the attempt to add to the legal remedy. The injury which tlie plaintiff sustained by the non-pertbrmance of the contract was tills : though he was left with the whole of his land untouched, he lost all claim to the £4,500, and might, perhaps, have sustained damage consequent on his having been for five years liable to have any portion of it, not exceeding eight acres, taken by the company for the pur- pose of the railway. That was evidently a case for compensation by action for dam- ages, and not for relief by way of specific performance. Indeed, I liardly know how a decree for specific performance could have been there enforced, for no jiarticuiar eight acres had been contracted for, and the company had no power to select eiglit acres, except for the purpose of making the railway, the power to make whicii had long since ceased. On tliese grounds tiie Court refused to interfere, leaving the plaintifl" to the legal remedy on his cove- nant. " The circumstances of Lord James Stuart's case were similar in principle. The only or principal difference between this latter case and that previously de- cided was, that in Lord .Tames Stuart's case there was no contract by the com- pany under seal, but in the course of the argument the directors ofiered to remove all difficulty on that head, by admitting, in any action which the plaintiff' might bring against them, that they had by deed, under seal, covenanted to perform any contracts entered into by the agent of the projectors before the passing of the act. To permit the plaintiff" to remain passive till the directors could not have any use for the land, and the power to make the line had expired, and then to compel them to select and purcliase the land, would be to make the extraordinary interposition of the Court ancillary to in- justice instead of justice. " Here there is no uncertainty as to the subject-matter of the purchase. Tlie vendor did not sleep on his rights, and wait until it was impossible for the pur- chaser to make the line. On the con- trary, from the very day on wliich the contract was to be completed he insisted on its performance, having shortly before that time quitted possession of the ])rop- erty, and within less than five months afterwards he filed his bill. It is true that the directors, after the filing of the bill, allowed the time to j)ass within wliich they were bound to complete tlieir line. But the plaintiff" is not to blame for that. He did not, either actively or passively, mislead the defendants, and it would be impossible to hold that he is not entitled to the relief that he asks, without going the length of saying that no vendor of an estate, contracting to sell to a railway company, can ever have a decree for a 28 434 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. 4. Witli reference to the jurisdiction of the Court, as deter- mined by the location of the property on the one hand, or the resi- dence of the defendant on the other, it is well settled in Great Britain, that a bill for specific performance may be maintained, though the land is situated in a foreign country, if the parties re- side within the territorial jurisdiction of the Court. " ^quitas agit in personam.''^ Thus specific performance was decreed of a contract, entered into by the Proprietors, respecting the bounda- ries of the colonies of Pennsylvania and Maryland. So of an agreement respecting the Isle of Man, and lands in Ireland.^ So, it seems, a contract made in South Carolina, for land lying in another State, may be enforced in personam^ by one party against the other.2 And, on the other hand, it has been held, that specific performance of a contract to convey land in Massachusetts may be decreed against an inhabitant of Connecticut, who has been served with personal notice in Massachusetts.^ So the Court in New 1 Penn v. Baltimore, 1 Ves. 444 ; Athol V. Derby, 1 Ch. Cas. 221; Archer v. Preston, 1 Vern. 77. specific performance if the company should see fit afterwards to abandon the undertaking, with a view to which the contract was made." Lord Brougham remarked (p. 22), "If these cases [above reterred to] were ap- plicable to such a state of facts as those which exist in the present, I should dis- sent from them, and consider that they do not give the law of the Court ujyon the subject of specific performance. But I am of opinion that they do not apply to the facts of this case." Lord Campbell says (p. 25), "Where there is a valid executory agreement for the sale and purchase of land, there can be no doubt that the vendor as well as the purchaser is jtrimd facie entitled to resort to a Court of Equity for the purpose of having the contract specifically per- formed. Generally speaking, pecuniary damages adequate to the pecuniary loss sustained from the breach of the contract would be an indemnity to the vendor ; but still, damages would not place him in the same situation as if the contract had been performed, for in that case he would entirely have got rid of his land, and he would have in liis pocket the net sum for which he had agreed to sell it ; whereas if he is driven to his action at law, he re- tains the land, and he can only recover the difference between the stipulated price and the price which it would probably 2 Ramsay v. Brailsford, 2 Desaus. 582. 3 Dooley v. Watson, 1 Gray, 414. fetch if resold, together with incidental expenses, and any special damage which he had suffered. In every case justice requires that tlie purcl)aser should be en- titled to specific performance, for as to him no amount of damage would necessa- rily be an adequate compensation ; and tliere must be reciprocity of remedy be- tween vendor and purchaser. Indeed, the remedy must necessarily be afforded to the vendor as well as purchaser, from the well-known doctrine of conversion upon the signing of a valid contract for the sale of land, the equitable estate tiien vesting in the purchaser, and the vendor then holding the legal estate only as his trustee. This being so, the onus lies upon the appellants to show that tlie respondent was not entitled to a decree for specific performance. Here the objection of de- lay, which has sometimes very properly prevailed, cannot be taken, and it cannot be contended that the vendor has lost his right to the remedy he seeks by doing any thing which he ought not to have done, or by omitting to do any thing whicli he ought to have done subsequently to the date of the agreement, with good faith and punctuality. He has performed his part of the agreement ; he has always been ready and willing to comjjlete tlie purchase, and he has urgently and earn- estly pressed the company to complete it." CHAP. XXVIII.] SPECIFIC PERFORMANCE. 435 York may compel specific performance of a contract respecting lands in Illinois.^ I)enio> C.J., says (p. 591), "The contract was* for the purchase of lands lying in the State of Illinois, but the par- ties arc residents of this State, and sulyect generally to the juris- diction of its courts. The defendant's counsel insists that the Court below had no jurisdiction in such a case to decree a specific performance. It is not denied but that such a jurisdiction existed in the Court of Chancery, nor but that it passed to the Supreme Court by the provisions of the present constitution. That conces- sion could not be avoided consistently with a settled course of ad- judication.^ The cases in the English Court of Chancery will be found referred to by Chancellor Walworth in the last of these cases. The doctrine thus established is, that this Court, having jurisdiction of the person of the defendant, will, by its process of injunction and attachment, compel him to do justice, by the exe- cution of such conveyances and assurances as will affect the title of the property in the jurisdiction within which it is situated." And in a later case it is held, that a defendant who has appeared may be compelled to convey lands situate beyond the jurisdiction of the court.^(a) 5. The precise form, in which a contract for the sale of real property is expressed, is immaterial with reference to the right of specific performance. Thus, though the contract appears only in the condition of a bond witli penalty, or an agreement for liquidated damages ; it will be enforced as an agreement, and the party can- not escape from specific performance by paying the penalty.'^ 1 Newton v. Bronson, 3 Kern. 587. ' Gardner f. OgJen, 22 N.Y. (8 Smith), 2 Massie v. Watts, 6 Cranch, 148; 327. Shattuck V. Cassidy, 3 Edw. Ch. 152; * Dailey v. Litchfiokl, 10 Midi. 29; Ward V. Arredondo, 1 Hopk. Ch. 213; Hull i^. Sturdivant, 4(5 Maine, 34 ; Hooker Mead v. Merritt, 2 Paige, 402 ; Mitchell v. Tynclion, 8 Gray, 550 ; Logan v. Wien- V. Bunch, ib. 606 ; Sutplien v. Fowler, 9 liolt, 7 Bligh, 1 ; Ensign v. Kellogg, 4 ib. 280. Pick. 1. (a) In Ohio, specific performance may State, notwithstanding § 375, making such be liad of a contract to convey lands, in decree operative per se as to lands within anotlier State, if all the parties are within the State. Ibid. the jurisdiction ; otherwise not, unless ju- The last clause of § 46 of the Code, risdiction is by law acquired of absent authorizing suits for specific performance parties. Penn v. Hayward, 14 Ohio, n.s. " in the county where defendants, or any 302. of them, reside," is limited to suits for Where the Court has acquired jurisdic- conveyance of land situate within the tion over the person of the defendant. State; and a service by copy of summons obedience to its decree may be enforced and complaint under § 74, where the suit by attachment for contempt under § 488 is for conveyance of lands without the of the Code, whether the lands ordered State, will not confer jurisdiction over the to be conveyed lie within or without the person so served. Ibid. 436 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. 6. More especially will this rule be adopted, (a) where the bond is accompanied by another absolute agreement. Thus the defendant agreed in writing to convey land to the plaintiff on certain terms, and at the same time, by another writing, to forfeit a certain sum if he should fail so to convey. Held, the plaintiff was entitled to specific performance of the former agreement, upon complying with his own contract. Shaw, C.J., says, " The promise of the defend- ant to pay the plaintiff one hundred dollars, if the defendant should fail to perform his agreement to convey the land, was merely a security for the performance of that agreement. Courts of Equity have long since overruled the doctrine that a bond for the payment of money, conditioned to be void on the conveyance of land, is to be treated as a mere agreement to pay money. When the penalty appears to be intended merely as a security for the performance of the agreement, the principal ol)ject of the parties will be carried out. The agreement between the parties in this case is clearly an alternative agreement. It was an absolute agreement to convey real estate, and may be treated in all respects as such, either in a Court of Law or Equity, without regard to the note." ^ 7. The question of specific performance often arises in connec- tion with other grounds for equitable interference. On the one hand, where specific perfoi'mance is for special reasons refused, some proximate relief may be granted.^ And the defendant may sometimes have equitable relief, where the bill is dismissed. Thus in a suit by a vendor for specific performance, upon an inquiry as to title, and a certificate that a good title had not been deduced ; held, the defendant should have an order for return of the deposit, with four per cent interest, with a lien therefor, and costs, and liberty to apply at Chambers, if necessary to give effect to the lien. And 1 Dooley v. Watson, 1 Gray, 414, 416. 2 Bennett v. Abrams, 41 Barb. 619. («) The jurisdiction of tbe (Tex.) coun- certain land to which he was entitled ty court over the subject-matter of a bill by virtue of his lieudriylit, as a citizen for specific performance is special (Hart, of Texas; on condition, that if, upon the Dig. art. 1102), and can be exercised only running of the boundary line between the wliere there is a bond, or the agreement United States and Texas, it should turn to make title is in writing. out that the obligor did not reside in Any written evidence of the contract, Texas at the Declaration of Independ- which would authorize the district court ence, so that his title to the land would to decree its specific execution, under the fail, he should refund the money. Held, Statute of Frauds, will authorize the coun- though this was not literally a bond for ty court to make a like decree. title, yet it was suflicient to give the A bond recited a previous contract, county court jurisdiction, in a suit against by which the obligor, in consideration the administrator of the obligor for spe- of the payment of money by the obli- cific performance. Peters v. Phillips, 19 gee, had agreed to convey to tlie latter Tex. 70. CHAP. XXVIII.] SPECIFIC PERFORMANCE. 437 the bill was dismissed.^ And, on the other hand, a prayer for other relief sometimes results in a decree for specific performance, Avitli such terms and limitations as the circumstances of the case may require. Thus a bill in equity, praying specific performance of an agreement to convey land, also alleged that the defendant pur- chased the land as his agent and with his money, and therefore held it in trust for him. Held, the bill was not inconsistent in its allegations, and might be supported as a bill for specific pcrform- anco ; it being a rule of equity pleading, that a bill may be framed in alternative form, and facts of a different nature alleged to sup- port it, if in either alternative the title to relief will be the same.2(a) 1 Turner v. Marriott, Law Eep. (Eng.) Eq. May, 1867, p. 742. 2 Gerrish v. Towne, 3 Gray, 82. (a) Tlie plaintiff, being defendant in an execution, permitted the defendant, the plaintiff in the execution, to buy certain lands of his at sheriff's sale, upon wliich the defendant agreed by parol, that the plaintiff might sell the lands, and reap an_v profit on the sale, after paying tlie defendant the sum of §375, due him by the plaintiff. The plaintiff sold the land by parol to A. for $(3-50, of which A. was to pay the defendant 8375, and the residue to the plaintiff. In pursuance of this agreement, A. paid the defendant the §375, but failed to pay the plaintiff the residue, and delivered him up the land in consequence thereof; upon which the plaintiff filed his bill against the de- fendant for a specific performance of his agreement to make title to the land, or else pay tlie money received from A. to him. Held, he was not entitled to specific performance, because the contract was parol ; nor to recover back the money, which could be recovered only by A., if by any one, the contract being held in- valid. Beaman v. Buck, y Sm. & M. 210. A. sold land to B. for 82,000, to be paid shortly, in order to release the land from certain mortgages. B. paid a part of the purchase-money, and then brotight a bill in equity, alleging that his vendor was insolvent, was trying to sell the land to other persons, and was committing waste. He obtained a decree, enjoining A. from selling and from committing waste, and afterwards, having tendered good notes to the full amount of the i)ur- chase-money, and offering to perform his part of the contract, he brought an amended bill to compel a specific per- formance. It appeared that the mortga- gees, to whom B. had tendered good notes to the amount of their lien, iiad re- fused to accept them, and that the land was sold under a decree of foreclosure, and bought in by B., wlio paid cash for it, to this amount. Held, that B. had a right to extinguish the lien in that way, and was entitled to a decree for sjiecific i>er- fornumce. Berry v. "Walker, 'J B. JNlon. 464. Land was sold, to be paid for in instal- ments, a deed to be given on payment of the last instalment. The vendees entered and enjoyed possession, the last instal- ment was paid to the administrator of the vendor, and the vendees brought an action at law to recover back the purchase- money, for a breach of the covenant to convey. Held, on a bill in equity by the heirs of the vendor, to enjoin the judg- ment at law, and to compel specific per- formance, that, as there was no default in the vendor during his life, and the heirs were infants at the time of the judgment, and unable to convey, and as the vendees had not been injured by the want of a con- veyance, having been in possession of the land sold ; the judgment at law should be enjoined, and the heirs, on completing their title, should convey the land to the vendees. Nesbit v. Moore, 'J B. iMon. 508. In New York, under the Code, where specific performance is refused, tlaiiTni/is may be given. Barlow v. Scott, 24 N.Y. (10 Smith), 40. But to justify such relief, the proper pleading and evidence are necessary. Yost V. Devault, ',) Iowa. GO. So where a bill for a specific perform- 438 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. 8. Where one party seeks specific performance of a contract, the other may resist it upon the same grounds on which, as has been seen (chap. 27), equity often interferes, affirmatively, to cancel or rescind svich contract. But the general rule upon this subject is, that chancery requires stronger reasons for setting ance contains a prayer for general relief, and the answer admits payment of part of the purchase-money, and contains an offer to settle ; the Court, althougli it cannot decree specific performance, for want of a sufficient writing, will decree an account and repayment. Capps v. Holt, 5 Jones, Eq. 153. But when the answer to a bill for spe- cific performance of a parol contract to con- vey land, and, in the alternative, for com- pensation for improvements, denies tlie terms of the contract as set out in the bill, and alleges a diiferent one which was not performed on account of the miscon- duct of the complainant, and also insists on the Statute of Frauds ; the complainant is not entitled to eitlier relief sought. Sain V. Dulin, G Jones, Eq. 195. Wliere a bill asked for performance of a contract to convey, and the decree found that the plaintiff had an existing title, and directed her to be quieted therein : held, on error, the discrepancy was formal merely, and no cause for reversal. Thomas v. Brown, 10 Ohio, n.s. 247. Where a purchaser brouglit an action for specific performance witliout alleging defect of title, a decree was ordered by the Court of Appeals to be entered for specific performance on payment of tlie balance of the purchase-money, and tlie Circuit Court tlicn allowed additional pleadings to be filed, alleging defective, &c., title. Held, the vendor's title being of record, it was the plaintiff's duty to investigate it before tlie first trial, and it was now too late to allege defective title ; but, the purcliaser being in possession, payment might be suspended till the adverse title could be investigated. Den- ny V. Wicl Robinson i\ Kettletas, 4 Edw. Ch. 67. See Stevenson v. Buxton, 37 Barb. 13. ^ Myers v. Eorbes, 24 Md. 611. * Fisher v. Kay, 2 Bibb, 434. (a) See p. 436. of the present value of her interest, by (b) See p. 246. the projjer tables. Hazelrig v. llutson, (c) In such case it is proper (where 18 Ind. 481. the vendor is dead) to make the heir and Equity will not award damages, unless executor parties. some covenant or contract is proved, which A decree for specific performance of an authorizes a decree for specific perform- agreement to convey, wliere tlie wife re- ance. This relief is founded upon the fuses to release her dower, should cal- words of the statute, 21 & 22 Vict. ch. culate the amount to be abated on this 27, " in addition to or in substitution for " account, not by estimating the full sum to specific performance. Lewers v. Shattes- which she would then be entitled if her bury, Law Rep. (Eng.) Eq. July, 1866, husband were dead, but by a calculation p. 269. 440 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. at a fixed price, thus concludes : the " times or credits to be given by the lessor to the lessee shall be the subject of arrangement be- tween the parties ; " no such arrangement having been made.^ Nor of a contract " for the sale of the houses in Smithfield Street," without any further designation of the situation, size, material of, and area of ground embraced by the houses, and without disclosing to whom they belonged, at the date of the alleged contract.^ So execution of an agreement for an estate at ,£3,600 was refused, on account of a rent left unsettled, and a doubt whether it was five shillings or one.^ So, upon the ambiguous terms of a contract, as including or excluding the timber, the purchaser's bill for specific performance was dismissed ; and, he having throughout insisted upon his construction, the Court would not compel the vendor to convey, upon the terms originally offered.^ So the terms of a con- tract must be clearly proved,^ more especially if parol.^ And the material terms of the contract must be distinctly set forth. Hence a bill brought by a widow, against her husband's devisees and repre- sentatives, for specific performance of an antenuptial agreement, to settle on her " a plantation and permanent home for life," must distinctly set forth what land, where situate, the number of acres, &c.'^ 11. More especially, equity will not decree specific execution of an uncertain contract, against a party not lawfully competent to execute it. Thus A., tenant for life, with power to make leases for twenty-one years at the best improved rent, made a lease to B., and thereby covenanted " for the term of his life to renew said lease to B., his executors, administrators, and assigns, by giving them a lease for twenty-one years when applied to." B. surren- dered the lease, under a clause empowering him so to do ; and afterwards, upon a new agreement, A. indorsed on the old lease, " I promise and agree to perfect a fresh lease to B. at any time he shall demand the same, at £5 a year less than the within- mentioned rent." It being uncertain whether the agreement was for more than one term of twenty-one years, and an agreement for a further lease (even if clear) being in fraud of the power, a bill for renewal of the lease for a second term of twenty-one years 1 MoKibbin i\ Brown, 1 McCart. 13 ; * Clowes v. Higginson, 1 Ves. & Bea. Hammer v. McEldowney, 46 Penn. 334. 524. 2 Hammer v. McEldowney, 46 Penn. ^ Lokerson v. Stillwell, 2 Beasl. 357. 834 ; ace. Johnson v. Craig, 21 Ark. 533. « Smith v. McVeigli, 3 Stockt. 239. 3 Middleton v. Wilson, Lofft, 801. "? Mallory v. Mallory, 1 Busb. Eq. 80. CHAP. XXVIII.] SPECIFIC PERFORMANCE. 441 was dismissed.^(a) But where, ii])on an agreement to convey fifty- nine acres of a certain section, which contained about eighty acres, without stating definite boundaries, the comphiinant asked for a deed in tlie words of the bond ; the relief was granted, the agree- ment being lield to be sufficiently certain, although under certain circumstances it might require further litigation between him and the owner of the residue to locate their tracts,'^ 12. Specific performance will not be decreed, unless the con- tract is mutual;'^ or where one party only is bound by the agree- ment ;'*(6) or where there is not a quid pro quo.^i^c) Upon this 1 Harnett v. Yeilding, 2 Sclio. & Lef. 549. ■^ Ring V. Ashworth, 3 Clarke, 452. 3 Bodine v. Glading, 21 Penn. 50 ; Ger- man V. Machin, 6 Paige, 288. (a) Uncertainty as to the rule of law applicable to the case has also been held a sufficient objection to a decree of spe- cific performance. Thus, upon a late de- cision of the Court of Exchequer, that a presumption from non-pa3'ment of tithes cannot bar even a lay impropriator, the Lord Chancellor, though holding the con- trary opinion, would not compel a pur- chaser to take a title depending on this question; and dismissed the bill against liim for a specific performance. Rose v. Calland,'5 Ves. 186. See p. 217. The following decision relates to the claim of specific performance in a doubtful case : Receipts of the Comptroller-General for part of the purchase-money were offered as evidence of the sale of lands by the State. On the other hand, the sheriff's certificate and return of sale were not produced nor accounted for ; one witness testified, that to his recollec- tion the alleged purchaser was not present at the sale ; and the answer alleged that the vendee in his lite denied his owner- ship. Held, the balance of evidence was such as to justify the Court in refusing specific performance. Everett v. Towns, 17 Geo. 15. In addition to this main ground of the decision, Benning, J., remarks (p. 29), " Taking tlie bill to be true, the complain- ants need no help from equity. Their lef)cil title, they say, is complete. They Bay tlie legal title vested in Everett, at the time when he paid the purchase- money to the State. If so, what use is tliere for this bill? None. " And I may say for myself, that I know of nothing that gives to ;i. Court of Equity thejmu-er to grant the i)rayer of this bill. Whence did a Court of Equity get 4 Benedict r. Lyncli, 1 Johns. Ch. 373; Boucher v. Vanbuskirk, 2 A. K. Marsh. 346. 5 Shackelford v. Ilandley, 1 A. K. Marsh. 370. the power to nullify an act of one of the departments of government '. If it can nullify a grant made by the Executive Department, why may it not equally nul- lify a commission issued by that depart- ment — a military order made b}' that department — in a word, any act of that dei)artment ? If it can do things of tiiis sort, it must be b_y virtue of some grant of power to it in the Constitution, or in the law. I know of no such grant. Such a power English Courts of Equity do not pretend to have." {/') Equity will not enforce sjiecific performance of a contract in favor of a party who has not actually performed, or cannot be compelled to perform, his part thereof; his mere offer to perform is not sufficient. Cooper v. Pena, 21 Cal. 403. The plaintiff sued to compel convey- ance to him, by the defendant, of certain land, basing his suit on a bond given in 1850, in consideration that the plaintiff should rei)resent him in effecting a par- tition of this and other land, between the defendant and A. Tlie partition was partially eftccted in 1850 ; but dilficulties induced the i)arties to postjjoiie c()iii])le- tion, until the boundaries of the grant could be legally settled. This was not done until 1857, when the plaintiff ofil'rcd to go on and complete the ])artitioii, hut the defendant refused. Held, the jiiaintiff could not be comjielled to perforin ; that his ofler to jjerform was not eciuivalent to lierformance ; that, therefore, he could not have a decree for sjiecific ))crforniance, but must be left to his remedy for dam- ages. Ibid. See p. 454. (c) See p. 03. 442 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. ground it has been held, that an infant cannot sustain a suit for specific performance.! More especially, equity will not enforce a mere voluntary agreement, not valid at law, against a legal claim for a just debt, and where there is no accident or fraud.^ But, although the rule above stated may be considered as well estab- lished, the rights of parties to agreements to enforce specific per- formance are not co-extensive ; for their respective rights depend upon their conduct, and the conduct of one may give him the right to apply to the Court, while the conduct of the other may debar him from that right.^ And the objection of want of mutuality may be waived. Thus the objection to a suit for specific performance brought by a married woman, that she could not have been com- pelled to perform it, comes too late, after she has fully performed, and the objecting party has reaped the full benefit of such per- formance.* So a bill was filed by a railway company, for specific performance of a contract for the purchase of land, entered into by their agent. The defendant objected, that it did not appear that the agent was authorized under the corporate seal, and therefore there was no mutuality. The objection was overruled, on the ground that the company had, before the bill was filed, acted on the contract, by entering into possession of the land and making a railroad over it.^(a) 1 Flight I'. Bolland, 4 Russ. 298. 4 Seager v. Burns, 4 Min. 141. 2 Miiiturn v. Sevmour, 4 Johns. Cli. ^ London, &c. v. Winter, 1 Cra. & Phil. 500 ; Woodcock v. Bennett, 1 Cow. 733. 57. 3 South-eastern, &c. v. Knott, 17 Eng. Law & Eq. 555. (a) Conformably with the prevailing him who signed it not, for the Statute of rule it has heen recently held in New Jer- Frauds and Perjuries, &c., and therefore se}', that specific performance will not be in equity cannot bind the other parly, for decreed, wiiere there is a uHtnt of mutual- both must be bound or neither of them, in ity. Stoutenburg v. Tompkins, 1 Stockt. equity.' But it was decreed contrary. S82. Armingar v. Clarke, Bunbury's Rep. 110. Upon this ground, the assignee of a The bill was dismissed per iotam curiam, bankrupt, or one claiming under him, chiefly upon the principle, that the remedy cannot maintain a bill for specific perform- was not mutual. In Owen v. Davies, 1 ance, unless he affirm the contract and Ves. 82, the bill was for the specific per- make it mutual in reasonable time. Ibid, formance of an agreement with one since The Ohancellor (p. 342) gives the fol- become a lunatic, lor the sale of a rever- lowing view of the decisions upon this sion upon an estate for life. It is appar- subject : "A want of mutuality is an ob- ent from the report of the case, that the jection to a decree for specific perform- defence insisted on was, that the remedy ance in this case. Let us see how far the was not mutual, because the rights of the Court has carried this objection. In the parties were altered on account of this case of Hatton v. Gray, 2 Cha. Ca. 164, change in the condition of one of the par- Hatton sold houses to Gray for two thous- ties. The Lord Chancellor did not deny and pounds. The note of the agreement the principle contended for. He said, ' It was signed by Gray only. The solicitor is certain, that the change of the condi- said in argument, ' The note binds not tion of a person entering into an agree- CHAP. XXVIII.] SPECIFIC PERFORMANCE. 443 13. Where a contract is fiiirly made and witliout mistake, by competent parties, upon good consideration, and unattended with circumstances which make its enforcement inequitable ; a mere ment, liy becoming lunatic, will not alter the rights of tiio parties, which will be the same as before, provided they can come at the remedy. As if the legal estate is vested in trustees, a Court of iMjnity ought to decree a peribniiance ; and the act of God should not change the riglits of the parties ; but if the legal estate be vested in the lunatic himself, that may prevent the remedy in e(iuity, and leave it at law.' In 1 A'tk. 2 (Stapilton v. Sta- pilton) the general rule was admitted. The mutuality was destroyed b}' the act of God. The agreement was such that both parties run this same risk. The Lord Chancellor said, ' The chance was equal, who died first, Henry or Philip.' In 1 Schoales & Lefroy, 18 (Lawrenson r. Butler) Lord Chancellor Redesdale is for adhering to the rule, as to mutuality, most rigidly. He remarks in that case, ' It is said that Courts of Equity have decreed performance in cases where one ])arty only was bound by the agreement. I believe it would be difficult to find a case where that has been done, particu- larly a late case. In the case of Hatton V. Gray, 2 Ch. Cas., it was considered as sufficient that the agreement sliould be signed by the party against whom the performance was sought, because such are the words of the Statute of Frauds ; now, such certainly is the import, that no agreement shall be in force but when it is signed by the party to be charged ; but the statute does not say that every agree- ment so signed shall be enforced ; the statute is in the negative. But this f//c/»m of Lord Redesdale, that an agreement signed by one party only, cannot be en- forced against that party, is not law. Since this case in Schoales & Lefroy, it has frequently been otherwise decided. The Master of the Rolls, in 2 Jacob & Walker, 428 (Martin v. INIitchell) seems to think that the party who had signed, had a locus j)piiilcnli(r, and was at liberty to recede until the other had signed, or in some manner made it binding upon himself. In tlie case of Flight v. I'olland, 4 Kuss. 675, it was decided that an infant cannot sustain a suit for the sj)ccific jier- formance of a contract, because the remedy is not mutual. But in Clayton r. Ash- down, 2 Vin. 393, pi. 1, a specific per- formance (of a contract) made by an in- liuit was decreed on the ground that the infant had attained his fuH age, and had affirmed the contract before the bill was filed. In the cases already referred to, where the suits were maintained on agreements signed only by one party, it was, as was remarked by the Master of the Bolls, in 4 Kussell, first because the Statute of Frauds only recpiires the agree- ment to be signed by the jiarty to be charged ; and ne.xt, it is said that the plaintiff" by the act of filing tlie bill, has made the remcily mutual. From a re- view of all the authorities, it will apjiear to be an olijcction to decreeing a specific performance, tiiat the parties are not mu- tually bound to fulfil it, and that the Court will not enforce such a contract, when the party who is not bound by the agreement, has taken an undue advantage of his posi- tion, to the injury of the other part^'. For instance, if an infant may make a contract mutual by affirming it after he comes of age ; if the property is of a char- acter subject to fluctuation in its value, the Court would not allow him to specu- late upon his position, and take his own time to affirm the contract. A want of diligence might, imder such circum- stances, be sufficient ground for the Court's refusing its aid. To apply the rule to the case before lis. This contract is mutual in its terms, and there is a mu- tuality of reniedy to the parties. Tiie one agrees to sell at a fixed jirice, and the other covenants to give it. If either party had died, the mutuality of remedy would not have been destroyed. The represen- tatives of the deceased party would have been bound to fulfil the contract, or if Wilde had sold and assigned his interest, Tompkins could still have enforced the agreement against Wilde. But the mo- ment Wilde's interest in this contract passed into the hands of his assignee in bankruptcy, all reciprocity as to the reme- dy was destroyed. I am not willing, however, to say that, from the mere fact of the mutuality being destroyed under these circumstances, the Court, on that account should refuse its aid to enforce a specific performance. Such an ai)j)lication of the rule might contravene the policy of the bankrupt law, by dejtriving the creditors of a beneficial interest in a valuable part of the bankrujit's estate. But if the assignee, or a i)erson holding under him, seeks a specific performance, he must affirm the contract and make it mutual, at least within a reasonable time. If he takes advantage of his ])osition to specu- late upon the opposite party, a Court of 444 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. naked hardness of bargain is held no valid objection to its enforce- ment in equity.^ But, specific performance being not a matter of right, but of discretion, -(a) equity will not decree a specific execu- tion of articles, where they appear to be unreasonable or foimded on a fraud.^(b} Nor in a hard case ; more especially where the plaintiff had not complied with the terms.^ Nor where it is practically im- possible for a party to specifically perform a contract. As where the respondent had conveyed the lands to strangers, not made parties, nor charged with notice.^ Nor where great damage would result to one, without equal benefit to. the other party .^ Thus, under circumstances that would have amounted to a breach of trust, inadequacy of consideration, arising from gross negligence of the agent, and a want of due authority ; the bill was dismissed, though tlie plaintiff was unimpeached, without prejudice to his remedy at law.^ So where the purchaser by writing of an infant's See 1 Morrison v. Peay, 21 Ark. 110 p. 445. 2 Blackwilder v. Loveless, 21 Ala. 371 ; Pickering v. Pickering, 38 N.H. 400 ; Young V. Daniels, 2 Clarke, 12G ; Rudolph V. Conell, ib. 525 ; Stone v. Pratt, 25 111. 25. 3 Young V. Clerk, Finch's Prec. 538; Seymour r. Delancey, 6 Johns. Ch. 225 ; Equity will not encourage or aid him in such speculation. By the terms of the agreement in question, Wilde was enti- tled to a conveyance of the property on his paying tlie consideration-money, at any time, on or before the 4th of February, 1846. The assignee came into the posses- sion of the contract July 16, 1842. He took no steps towards assuming its re- sponsibilities, or enforcing its fulfilment, but ten months afterwards sold at public auction all his right, title, and interest in it, to the complainant for three dollars and seventy-five cents. What was the rela- tive situation of the complainant and the defendant all this time 'i Here was an agreement which the defendant could en- force against no one. It related to prop- erty, from its very character fluctuating in its value. Could the complainant rest upon liis oars until February, 1846 ; then, if in the mean time the property doubled in value, demand it at his pleasure of the defendant, or, if it became valueless, be at liberty to cast it a burden upon him, without any means of redress for such a wrong ? And all this without any negli- gence or want of foresight in the defend- ant. The contract was made before the bankrupt law was passed, and of course the defendant could not anticipate, and Clarke v. Rochester, &c. 18 Barb. 350; Torrey v. Buck, 1 Green, Ch. 367. 4 Rugge V. Elhs, 1 Desaus. 161 ; Chambers v. Livermore, 15 Mich. ; Law Reg. Aug. 1867, p. 635. ^ Ferrier v. Buzick, 2 Clarke, 136. 6 Socy, &c. V. Butler, 1 Beasl. 498. T Mortlock V. Buller, 10 Ves. 292. therefore did not provide against such a contingency. Would it be equitable, un- der such circumstances, for this Court to countenance the complainant in taking advantage of his position, and in speculat- ing upon the defendant ; and more espe- cially when he rislcs only three dollars and seventy-five cents in the adventure 1 The complainant waited until the 7th of Octo- ber, 1845, about four months before the time for executing the contract expired, and for more than three years after his purchase, and then formally tendered him- self ready to assume its responsibilities. In the mean time the property increased some fifty per cent in value." A. leases to B. for one year, for a rent of one-tiiird in kind. "If B. shall conclude to purchase, &c., one undivided half, &c., on or before [such a time] he is to have a deed, &c., on payment of a certain sum." Held, not necessarily wanting in mutual- ity. Crawford i\ Paine, 19 Iowa, 172. (a) That discretionary does not mean capricious, see Bowen v. Irish, &c., 6 Bosw. 245. See also Lear ?'. Chouleau, 23 111. 39 ; Huntington v. Rogers, 9 Ohio, N.s. 511 ; Rogers v. Mitchell, 41 N.H. 154. {h) See, as to the point of reasonable time, Smith v. Lawrence, 15 Mich. 499. CHAP. XXVIII.] SPECIFIC PERFORMANCE. 445 land from him brought a bill to compel performance, on the ground that he, in combination with his father, fraudulently represented himself to be of age ; and it appeared that the purchaser had notice that tliere was great doubt as to the seller's age, and also that the bargain was a bad one on the part of the infant, who was under the control of his father ; and that the latter assumed the whole control of the negotiation, and received the benefit of the price. 1 So it is held, that the difference between that degree of unfairness, which will induce a Court of Equity to interfere actively, by setting aside a contract, and that which will induce a Court to withhold its aid, is well settled ;(a) that the plaintiff must come into court ivitli clean hands ^ and that the defendant may resist a bill for specific performance, by showing that, under the circum- stances, the plaintiff is not entitled to the relief he asks. As in case of omission or mistake in the agreement ; or where it is un- conscientious or unreasonable ; or where there has been conceal- ment, misrepresentation, or any unfairness ; and more especially if to any unfairness a great inequality between the price and value be added. ^ So it is held, that, in decreeing specific performance, the Court is bound to see that it really does that complete justice which it aims at, and which is the ground of its jurisdiction. Hence, if the claim for a deed is not just and reasonable, if tlie party has been grossly negligent of his rights, or has abandoned his contract, equity will not afford him relief.^ So where the con- tract appears hard or unreasonable in itself, or where, from a mate- rial change of circumstances since the contract ; the performance would be attended with peculiar hardship to the defendant ; the complainant will be left to his remedy at law.'*(5) 14. 3Ilsreprese7itatio7i, though in a slight degree, is an objection 1 Dibble v. Jones, 5 Jones, Eq. 389. * Perkins v. Wright, 3 Har. & JM'IIen. 2 Best V. Stow, 2 Sandf. Ch. 298. 326 ; Clitherall v. Ogilvie, 1 Desaus. 2-30 ; 3 Iving V. Morford, 1 Saxt. Ch. 274. Edwards v. Ilandley, Hard. (302. (a) See chap. 27. son would not be decreed. Brewer v. {h) Where the sons-in-law and the Church, 4 Jones, Eq. 418. Sec p. 443. only son of a very aged man, witliout the Specific performance of an agreement participation of the wives of the former, to assent to any division of lands held in and without the knowledge of the father, connnon which "the majority of interest entered into a written agreement that they shall decide just and equitable," will not would divide all the property of the fa- be enforced, if the agreement is construed ther equally among them ; held, on the to authorize the majority to set off to any father's afterwards surrendering the per- owner a certain portion of tlie land with- sonal projjerty to the sons-in-law, and out liis assent. Ilarkness v. Remington, conveying the land to the son, a specific 7 K.I. 154. performance of the agreement against the 446 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. to specific performance ; though it might not be sufficient to re- scind the contract.^ So a misrepresentation of the purchaser as to the land.^ So a mere concealment on the part of the vendor.'^Ca) So there shall be no specific performance, in case of any surprise, making it not fair and honest to call for it ; but the plaintiff will be left to law.''^ So in case of accident or mistake ; as where a lot is sold, and supposed by both parties to be of certain dimensions, and found afterwards to be more than as large again. ^(5) So a misrepresentation made by the vendor in a matter of substance, affecting the value of the estate sold, is a good defence to a suit for specific performance, although the vendor, as well as the vendee, was ignorant of its untruth. (c) As in case of an errone- ous statement, that land in a distant State was situated in a par- ticular county, in which the purchaser desired to buy.^(c?) 15. The fraud relied upon as a defence may be a fraud against third persons. Thus, upon an execution against the plaintiff and one A., the plaintiff's dwelling-house was levied on and adver- tised for sale. By request of the plaintiff, the defendant bid off the premises, and took a deed from the sheriff, with the mutual purpose of protecting the property from the creditors of the plain- tiff. Held, the plaintiff could not maintain a bill, to enforce a conveyance from the defendant.'^ So, where the agreement ap- pears to have been made to defeat or defraud a creditor of the plaintiff, or an intervening purchaser at a sheriff's sale, under a judgment and execution against him ; specific performance will not be decreed.^(e) 1 Cadman v. Horner, 18 Ves. 10. 6 Best v. Stow, 2 Sanclf. Ch. 298. 2 Kelley v. Sheldon, 8 Mis. 258. 7 Baldwin v. Campfield, 4 Ilalst. Ch. » Shirley v. Stratton, 1 Bro. 440. 600. See Fackler v. Ford, 24 How. 322. 4 Mortlock V. BuUer, 10 Ves. 292. » St. John v. Benedict, 6 Johns. Ch. ^ Schmidt v. Livingston, 3 Edw. 213 ; 111. Mason v. Armitage, 13 Ves. 25. (a) See chap. 22. but the sale by B. to stand. Whorwood (b) See chap. 21. v. Simpson, 2 Vern. 186. (c) See chap. 22. A. articles with B. for the purchase of (d) A. articles to sell lands to B. for an estate of £180 per annum, for which £15,000, the whole to be paid in money, he is to give thirty-five years' purchase, or in so much land returned as would upon a grant and conveyance to him, and make up what he paid short of the pays £50 in part ; but, discovering that £15,000. A. conveys part of the lands to £30 per annum of the lands were copy- B., and by his persuasion undervalues liold, refuses to go on. On a bill by B., that part. Then B. sells this part to C. equity will not decree specific execution, and would then have returned so much tlie agreement being inequitable ; but of the rest as would make up the £15,000. will order the £50 to be paid back. Hick Upon a bill to set aside the articles, and v. Phillips, Free. Cha. 575. a cross bill to have them performed; tlie (e) As one of the erjnities afl^ecting the articles were set aside as unreasonable ; question of specific performance, may be CHAP. XXVIII.] SPECIFIC PERFORMANCE. 447 16. Specific performance, however, will not l)e refused, merely because the contract is a losing one for the defendant.^ Tiius the 1 London v. Richmond, 2 Vern. 421. further briefly considered the question of tinip, which has alread3' been made tiie subject of a distinct ciiapter. yee cliap. 11. Time is lield material, thougli part of the price has been paid (Steele v. Bigi^s, 22 111. 643), more especially where ex- pressly so stipulated (Davis v. Stevens, 3 Clarke, 158), or where there is an in- crease of value. Green v. Courtland, 10 Cal. 317. So where A. had a claim on public land, was in possession about six years, and then procured B. to intei- the land, and took a lease from him, agreeing therein to quit at the end of the term, and that, if he then paid B. 8100, he should liave a quitclaim deed, and with a stipu- lation that " the above shall be forfeited if either shall not keep all the covenants ; " held, this was not a mortgage, as no loan appeared from B. to A., and no convers- ance from A. to B. ; that, as a contract, time was of its essence, and B., after the day, held nothing to enforce against A., and specific performance was refused. Usher v. Livermore, 2 Clarke, 17. If the plaintiff has been guilty of gross laches, or applies for relief after a long time, no equitable circumstances being shown, or has apparently long held back from an assertion of his rights with a view to speculate on the possibility of favor- able changes by the lapse of time ; spe- cific performance will not be decreed. Pickering v. rickering, 38 N.H. 400. As where sjjecific performance of a contract to convey a reversion was sought after nearly ten years, and after the reversion of dower, as it existed at the date of the contract, had been converted, by the mi- timely death of the widow, into a present estate in fee, and there was no satisfactory explanation of the causes of the delay, lb. A. made a contract with B., under which B. became entitled to a number of acres of land out of one of two different tracts at his "option, or to a certain sum of money with interest. A. died, and after eighteen years B. brought his action on the contract. Held, if it devolved on B. to take the initiative in the execution of the contract, he had lost his rights by laches ; if on A., and the contract was not executed within a reasonable time, it became a moneyed demand, and became stale unless prosecuted within four years after the lapse of such reasonable time. Watson V. Inman, 23 Tex. 531. Even where time is not of the essence of a contract, one seeking specific per- formance after delay in payment must show a good excuse. Young r. Daniels, 2 Clarke, 126. The Court refused to decree perform- ance of an agreement to convey, demanded by the defendants in a suit by tiie vendor to set aside the agreement, because they had slept on their rights for five years after his refusal to execute the deeds. McWilliams r. Long, 32 Barb. 104. So specific performance of an agree- ment to convey land to a railroad corpora- tion, will not be decreed, on a bill in equity filed by them more than three years after the other party has refused to perform it, and after they have located their road over other land, including but a small portion of this, and after this land has greath' increased in value ; without any steps taken by the corporation, mean- time, to enforce the agreement. Boston, &c. V. Bartlett, 10 Gray, 384. A delay of more than three years to pay instalments of an agreed price for land, after a refusal to give any further time, will forfeit all claim to the perform- ance of the contract. Fuller v. Hovey, 2 Allen, 324. The plaintiff buys pine lands of the defendant in October, 1856, and pays the first instalment. §3,800 to be paid in three annual payments. The plaintiff sells §1,200 worth of timber, l)ut, the land becoming unsaleable, neglects to pay as agreed. In 1862 the defendant writes, that the contract was long since forfeited. Till then, he had paid the taxes. In 1863, the defendant sells the land. The plaintifi' notifies the vendees that he claims it. The vendees go on the land, and lumber one season. The lands increase in value greatlj'. In 1865, the plaintiff files a bill for specific performance. Bill dismissed. Smith v. Lawrence, 15 IMich. 400. "Possession," to be given, according to the terms of the contract, by a certain day, involves a good title shown. This is the construction both in equity and at law, though equity will relieve, in refer- ence to time, imless there is something in the contract itself, the nature of the prop- erty, or the circumstances, which renders such interference inetiuitable. The Court dismissed a bill for specific performance, where the defendant agreed to purchase a leasehold house for his own residence, and was to have possession by a day 448 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. defendant treats with the plaintiff for a piece of land, having an intention to build a mill, to which the consent of the corporation is necessary ; but tlie plaintiff i-efuses to treat on condition, and the defendant fails in obtaining consent. This failure in his speculation is no defence against a bill for specific performance.^ So, in an agreement for the purcliase of an estate, one of the stipulations was, that the vendor should be tenant from year to year to the purcliaser. Held, the inability of the vendor to per- form this stipulation, by reason of embarrassments, of which the 1 Adams v. "Weare, 1 Bro. 567. named, but the plaintiff, though he ten- dered possession, failed to sliow a title at the time. Tilley v. Thomas, Law Rep. (Eng.) Eq. January, 1868, p. 60. But, as we have already seen, time is often held not to be essential. See Morris v. Hoyt, 11 Midi. 9; Stewart v. Stokes, 33 Ala. 494 ; Bonner v. Caldwell, 8 Mich. 463 ; Mathews v. Gilliss, 1 Clarke, 242 ; Reed v. Jones, 8 Wis. 392 ; Ashmore i\ Evans, 3 Stoekt. 151 ; Barron v. Eas- ton, 3 Clarke, 76 ; Clark v. Sears, ib. 10. Unless clearly made so by the terms of the contract or the understanding of the parties. Pennock v. Ela, 41 N.H. 189. Or if waived by the parties. Hull v. Sturdi- vant, 46 Maine, 34. A delay of two days in payment is not material, where tlie parties had already waived the delay of one day. Durand i". 11 Wis. 151. So where a vendor extends tlie time of payment for a few days, and afterwards, upon the representations of A., that tlie vendee does not intend to take the land, conveys it to A. at an advanced price ; if B. in time tenders the price and demands a deed, he will be entitled to specific per- formance. Dement v. Bonham, 26 111. 158. Three notes had been given ; and three months after the last one was due the party sought to pay it; but the holder of the notes never demanded payment, nor, when the suit was brougiit, two years after the first and one year after tlie second note was due, offered to return the notes. Specific performance was de- creed, it not appearing tliat the respondent was injured by the delay. Young v. Daniels, 2 Clarke, 126. Where time is not of the essence of a contract, and tliere has been no inequi- table delay on tlie part of the vendor ; he may tender a deed at the time of trial, or have relief by means of a conditional verdict or judgment. Townsend v. Lewis, 35 Penn. 125. A contract for the sale of real estate, after reciting the terms of the contract, provided : " Tiiat if the party of the second part [the vendee] shall fail to make any of the payments pursuant to this agreement, or otherwise break the same, then the said party of the first part [the vendor] shall be at liberty to con- sider the same forfeited on the part of the party of the second part, and the said party of the first part shall then and in sucli case have the right to enter in and upon the said premises in a quiet and peaceable manner." Held, the parties liad not expressly made time of the es- sence of the contract, and something more than mere non-payment by the vendee was required to forfeit the contract. Armstrong v. Pierson, 5 Clarke, 317. In such a case some positive act, which will operate as a notice of the vendor's intention to rescind, is necessary, after which tlie vendee is entitled to a reason- able time within which to comply with the terms of the agreement. Ibid. A suit by the vendor to recover pos- session of the land will ojierate as such notice, but it will have no greater efficacy than actual notice in any other way. Ibid. Notice of the rescission of a contract to sell real estate, however given, unless coupled with an offer to place the vendee in statu quo, is insufficient to rescind the contract, and terminate his rights m the property. Ibid. Although a vendor, who has given a bond for title upon receipt of part of the purchase-money, may by laches and length of time lose his right to enforce a forfeiture of the vendee's claims ; it does not therefore follow tliat the vendee is entitled to specific performance. Walker V. Emerson, 20 Tex. 706. It is held that in an action for specific performance the limitation is the same as that of a real action. Wright v. Leclaire, 3 Clarke, 221. CHAP. XXVIII.] SPECIFIC PERFORMANCE. 449 purchaser must have had some notice, was no bar to the specific performance.^ 17. Specific performance will undoubtedly be refused, of a con- tract against i^uhlic polici/.^(^a') But this ground, in order to be effectual, must be clearly established. Thus the defendant, having a pre-emptive right to certain public land, but being unable to obtain a title from the land commissioners, as the land might be needed for public purj)oscs, entered into an agreement with A., that A. should procure a title for him, at his own expense, and pay half the purchase-money, for which the defendant, when he should receive his deed, would convey to him half the lot. A. fulfilled his contract, and a deed was made to the defendant. Afterwards, A. assigned the contract to the plaintiff, by a trust deed for benefit of creditors. The plaintiff brings a bill for specific performance. Held, the contract was not against public policy, but should be enforced.^ So where an aged person bound himself to dispose of his estate by will in a certain way, in consideration of certain provisions for his support for life ; held, this agreement was not contrary to any rule of policy ; and, in case he should fail to make a will, equity would decree a conveyance, and a jury would give damages to the amount of the value of the property.'^ 18. A contract of sale will not be enforced by specific perform- ance, unless founded on an adequate consider ation.^Qi) Mere 1 Lear v. Chouteau, 23 III. 39; Lord 3 Sedgwick u. Stanton, 18 Barb. 473. V. Stephens, 1 Y. & Coll. 'I'l'l. 4 Logan v. McGinnis, 12 Ponn. 27. 2 Evans v. Kitirell, 33 Ala. 449. 5 Mead v. Eandolph, 8 Tex. 191. (a) The defendants, a railway, agreed nor on the damage caused to property by Avitii the plaintiff", a land-owner, to execute failure of a sale; therefore the specific certain accommodation works, and, having performance of an agreement of lioredita- made the road at a level which rendered ments, where the consideration-money is the fulfilment of this contract impossible, ^50, is not too small a matter for the juris- executed the works in such way as to ob- diction of the Court. Bennett v. Smith, struct access to his house. The road hav- 10 Eng. Law & Eq. 272. ing been opened, the plaintiff' files a bill So the nature of the principal consider- for specific performance, and also moves ation is immaterial, if the contract relate for an injunction, which motion was or- to land. Thus specific performance will dered to stand over upon an undertak- be decreed, though the land contracted for ing by the defendants to comply with any is chiefly valuable on account of its timber. direction of the Court ; after which Equity adopts this principle, not because the works were completed and the road the land is fertile, or rich in minerals, opened. Held, as a change of the level but because it is land. Kitchen v. Herring, would interfere with the public safety or 7 Ired. Eq. 190. convenience, specific performance should A. made a parol contract for the pur- not be decreed. Raphael v. Thames, &c. cliase of land from B., for which he paid Law Rep. (Eng.) Eq. June, 18GG, p. 37. by delivering a horse, and also a bond of {h) It is said, the Court cannot, specu- C, which he caused to be made payable late on the damages which a jury might to B. C. died insolvent, the liond not have given for breach of an agreement, having been collected. Held, on a bill for 29 450 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. diflference in value, though considerahle, is not of itself a sufficient ground for refusing a specific performance.^ So it has been held, that inadequacy of price, in order to have this effect, must amount in itself to conclusive and decisive evidence of fraud.^ But on the other hand it has been decided, and this is the prevailing doctrine, that, though mere inadequacy of price is not, of itself, sufficient to set aside a sale of land, yet it is sufficient to induce the Court to refuse to decree a specific performance, and to leave the party to his remedy at law ; especially where the inadequacy of price is so great (being half the value), as to give to the contract the character of unreasonableness, inequality, and hardship.^ It is held that the consideration must be explicit ; and not parol ; ^ and valuable, as dis- tinguished from good,^ And more especially will this principle be applied, where the contract is not in its terms certain and explicit. Thus A. and B., owning adjoining lands, entered into an agree- ment in writing, by which they mutually stipulated, each to lay out a road of a certain width through his own land, and B. agreed to convey to A. twenty feet of land, describing it. On a bill in chan- cery, brought by A. against B., for specific performance of B.'s agreement to convey the land ; held, it did not appear, that the laying out of the road was, in any way, the inducement to such agreement of B., or that it was such a special benefit to B., or injury to A., as to constitute a legal consideration ; and that a Court of Equity will not compel specific performance of an agree- ment, though fairly made, and upon such a legal consideration as would be sufficient to support it in an action at common law, if the agreement be not explicit, or the consideration inadequate. *^(a) 1 Emery y. Wase, 8 Ves. 505. 20 Tex. 694; Smith v. Wood, 12 AVis. 2 Coles V. Trecothick, Ves. 234; 382. Harrison v. Town, 17 Mis. 237. 4 Wright v. Weeks, 8 Bosw. 372. 3 Seymour v. Delancey, 6 Johns. Ch. ^ Allen v. Davison, 16 Ind. 416. 222; 3 Cow. 445; Tomlinson v. York, « Dodd z;. Seymour, 21 Conn. 476. specific performance or compensation, to relief prayed for. Chambers v. Massey, which B. pleaded the Statute of Frauds, 7 Ired. Eq. 286. that A. was entitled to compensation; (a) It is held that, upon a bill for spe- that, so far as related to the horse, if that cific performance, inadequctcy of considera- had been the only subject of controversy, tlon is no defence, unless so great as to A. would have had no claim to relief, as raise a conclusive presumption of fraud. he could have had complete redress at Viele v. Troy, &c. 21 Barb. 381. It is law, upon the rescission of the contract; said by the Court (p. 38'J) : "When an but, as he had no legal redress as to the agreement in relation to real estate is in bond, that equity would entertain juris- its nature and circumstances unobjection- diction of that matter ; and thus, taking able, and the contract is in writing, is jurisdiction of part of the case, would take certain and fair in all its parts, is for an jurisdiction of the whole, and grant the adequate consideration, and capable of CHAP. XXVIII.] SPECIFIC PERFORMANCE. 451 19. On the other hand it lias been held, that specific performance of an extravagant pnrchasc might be decreed ; ^ and that excess of price over value, if the contract be free from imposition, is not 1 Keen v. Stuckely, Gilb. Eq. 155. being performed, it is as mucli a matter of course for a Court of I*>quity to decree a specific performance, as for a Court of Law to give damages for a breacli of it. Indeed, the cases are numerous where equity has enforced contracts for the breach of whicli no action for damages could be maintained at law. The case of Seymour v. Delan- cey, 3 Cow. 445, is in point. In that case the vendor's remedy at law was gone, by reason of there being a mortgage on the estate, so that he could not convey a good title at the day fixed upon by the contract, yet a bill for specific performance was sustained. In equity, tlie leading inquiry is, whether in conscience the contract should be enforced ; and mere technical objections that would defeat an action at law for dam- ages are not allowed to produce inequita- ble and oppressive results." In the same case it is further remarked (p. 394) : " Whether a Court of Equity shall decree the specific performance of an agreement, or not, is a matter resting in its discretion ; but this is a sound legal discretion. It will not lend its aid to en- force an unconscientious contract. The case presented must be fair, just, and rea- sonable ; the contract, free from fraud, misrepresentation, or surprise ; and not hard, unconscionable, or unequal. It must also be entered into upon adequate con- sideration ; and where the inadequacy of price in a contract to sell, is so great as to be conclusive evidence of fraud, as where it would shock the moral sense of an in- different man, a Court of Equity should not carry it into efl^ect. But inadequacy of price merely, ^vithout being such as to prove fraud conclusively, the contract being entered into deliberately and fair in all its parts, is not an objection to its be- ing executed. The consideration to be paid for the land was not definitely fixed in the contract, but the sum submitted to men indifierently chosen by the parties. A majority of tliose men fixed the price to be paid for tlie land, and that sum is to be regarded and treated as the considera- tion, as though it were named in the agreement. It seems a disproportionate compensation. But is there enough in the case to show that the price was so inade- quate as to shock the moral sense, and be conclusive evidence of fraud 1 We may surmise, from the disproportion between the value of the whole farm, and the price fixed as the consideration for the' small jKU't in acres taken for tlie jnirpo-ses of the road, that the defendants were made to pay pretty dearly ; but the price does not shock the moral sense, as it may be that that i)art of the farm taken was worth the sum of the appraisal." An antecedent debt of the husband is not a sufficient consideration for tlie wife's agreement to convey. Bayler v. Commonwealth, 40 Penn. 37. ]\lore es- pecially, a Court of Equity will not en- force a i/ratnitoiis undertaking on the part of a wife to subject her sei)arate estate to the payment of her husband's debts. In such case, the legal title will not be allowed to iirevail in equity over the equitable right ; it is only where the equities are equal that the law prevails. White's, &c. 3G Penn. 134. P. agreed to sell lands to D. for four thousand dollars, and assigned the agree- ment as collateral for his own conti'act to pay one thousand dollars as stip- ulated damages to A., with authority to sell the same at auction in case of breach. S. purchased of D. part of the premises, and afterward bought for one thousand dollars the contract assigned to A., as collateral, and then brought a bill for specific performance of P.'s contract, as to the part purchased of him. Held, the defendant had received no considera- tion, and that S. had no equity which entitled him to a conveyance. Stone v. Pratt, 25 111. 25. It is held that specific performance may be decreed, though the entire con- sideration is not expressed. And the part omitted need not be alleged in the bill. Park V. Johnson, 4 Allen, 259. Specific performance of an exchange of land will not be refused, on account of the inferior value of the land which the plaintiff" agreed to convey to the defend- ant, where the parties have fixed their own estimate of the value of the respective lands, and there has been no fraud, and the difference in value does not appear to have been unconscionable. Ibid. A father, having conveyed his entire estate to his children, on their stipulation to support anil maintain their [parents conifortai)ly, suitaiily to tlieir condition, and wherever they might choose to re- side, had a decree for specific performance in his fiivor, though the conveyed prop- 452 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. of itself sufficient to prevent such decree. But still it is an ingre- dient which, associated with others, will contribute to prevent the interference of a Court of Equity. ^ So it has been doubted, whether it be consistent with the rules of equity, to decree performance of so extravagant and unreasonable a bargain, as a sale of land at forty years' purchase.^ And it has been held, that, where an agreement is entered into for the purchase of an estate, at a price far beyond its value, though without any circumstances of fraud or surprise ; the Court will not decree specific performance, but on the other hand will not rescind.^ 20. Equity will enforce an award of arbitrators upon a contract of sale and purchase. Thus the vendor and purchaser of a copy- hold estate covenant, for themselves and their representatives, to fulfil the contract, and to refer the question of value, under a pen- alty. One of the parties dying, his representatives cannot annul the decision of the referee, by showing an error in his estimate, or compel the acceptance of the penalty, in satisfaction of their breach of contract.^ 21. But it is held, that, according to the Roma;n and the English law, as administered both in Courts of Law and Equity, a fixed price is an essential ingredient in a contract of sale. A contract, therefore, that does not settle the price, is valid and complete, only when and if the party to whom it is referred shall fix it ; and is otherwise totally inoperative.^ So a decree was made for specific performance of an agreement to grant a lease, rejecting one of the terms ; viz., for such conditions, &c., as shall be judged proper by (a third person named) ; and substituting a reference to the Master ; 1 Best V. Stow, 2 Sandf. Ch. 298. 4 Belchier v. Reynolds, 2 Keny. 2d 2 Lewis V. Lechmere, 10 Mod. 503. part, 91. 3 Day V. Newman, 2 Cox, 77. ^ Milnes v. Grey, 14 Ves. 400 ; Gour- lay V. Somerset, 19 Ves. 429. erty was wholly inadequate to such sup- decreed. Watson v. Mahan, 20 Ind. port. Chubb v. Peckham, 2 Beasl. 207. 223. An old bachelor, in poor health, prom- A father verbally agreed with his son, ised the plaintiffs, a physician and wife, that, if the latter would remain on his that, if they would live in a certain house, farm and maintain him during his life, the and give himself and his nurse lodging farm should go to him (tlie son) on his therein, and board, and would take care death. The son did this for fifteen years, of him till his death, he would convey the at the end of which the father, becoming house to the wife. The plaintiffs accepted displeased with him, conveyed the farm the ofler, spent i?200 in repairing the to his two other sons, in consideration of house, and fulfilled their agreement till maintenance for life. Held, the agreement his death, nine months afterwards ; they was not gratuitous, but was valid at law, then sued his heirs for specific perform- and part-performance took the case out of ance. Held, the consideration was ade- the Statute of Frauds. Davison v. Davi- quate, and specific performance should be son, 2 Beasl. 246. CHAP. XXVIII.] SPECIFIC PERFORMANCE. 453 the agency of such person not being of the essence of tlie contract.^ So execution of a contract was refused ; the vahiation of an arbi- trator, who settled the price, not being properly and discreetly made.^ So, though referees may take the opinion of a third person as evidence, they cannot previously agree to be bound by it.^ So, though a person may agree to sell at a price to be fixed by arbitra- tion, and the award can be impeached only upon the grounds affecting all awards, as fraud or gross mistake ; yet, upon such an agreement, where some of the persons to be bound were married women, of whom also one had not executed, the Court refused a specific performance, and dismissed the bill ; leaving the plaintiff to law. Upon an appeal, the decree was affirmed, on the ground that the evidence did not prove satisfactorily, as it ouglit, especially in the case of married women, that the valuation was made with due attention and care.* So where two surveyors, who, it had been agreed, should fix the price of an estate, stated in their valuation the sum to be paid and the quantity of land, and that, if it proved to be less, either X84 or X42 should be deducted, according to the parts of the estate in which the deficiency occurred, but did not state the quantity contained in each part ; held, the valuation was uncertain, and a specific performance could not be enforced. ^ 22. Upon an agreement for sale, according to the valuation of two persons, one chosen by each party, or -of an umpire, to be appointed by those two in case of disagreement ; a bill for specific performance, praying that tlie Court appoint a person to make the valuation, or otherwise ascertain it, was dismissed. ^(a) 1 Gourlay v. Somerset, 19 Ves. 429. * Emery v. Wase, 5 Ves. 846. 2 Ibid. 5 Hopcraft v. Hickman, 2 Sim. & Stu. 3 Hopcraft v. Hickman, 2 Sim. & Stu. 130. 130. See Emery v. Wase, 5 Ves. 846. ^ Milnes v. Grey, 14 Ves. 400. (a) In a verj' late case it has been de- taking of the land, and an agreement to cided, thougli the circumstances were said submit the estimate of the value and the to try the princuple to the utmost, that, damages to arbitrators. The bond of A. where the price of property sold was to be provided, that he should execute and de- valued " in the usual vv.iy," by two valuers, liver to B. a deed, on tender of the amount and after their appointment one of the par- of the one-half in stock of C, a railro.id ties refused to allow his valuer to proceed ; connected with E., at par, and the other half equity could not specifically enforce the in cash or in such stock, at his option, contract. Vickers v. Vickers, Law Kep. and in all respects abide by and perform (Eng.) Eq. Decemljer, 1867, p. 528; ace. the award; and the bond of IJ. provided, Milnes v. Gery, 14 Ves. 400 ; Wilks v. that tliey should pay to A. the amount of Davis, 3 Meri. 507. the award, in the manner above stated, After the taking of land for a railroad, and in all respects abide hy and perform A., the owner of the land, and B., the tiie award. The arbitrators made and company, mutually entered into' bonds, publisheil their award; and B. tendered each to the other, each bond reciting the performance, and requested A. to elect 454 LAW OP VENDORS AND PUECHASERS. [CHAP. XXVIII. 23. The plaintiff in a bill for specific performance must show substantial compliance with the contract on his own part ; ^ or his own readiness, and a demand on the other party uncomplied witli.^ Thus a vendor, seeking specific performance, must, if required by the defendant, exhibit the title contracted for.^ So a decree for specific performance of a contract to purchase was refused, in con- sequence of delay and a defect of title.'* So it is said, the aid of a Court of Chancery will be given to either party who claims specific performance of a contract, if it appear that, in good faith, and witliin the proper time, he has performed the obligations which devolved upon him.^ So a vendor cannot have a decree for specific perform- ance, unless unquestionably able to give a title, which will secure full and unembarrassed enjoyment of the property.^ More espe- cially, where the complainant, who seeks specific performance of a sale, has not performed his own contract, the Court will not decree specific performance, if any injury has resulted to the defendant from such non-performance.'^ And a vendee's objections to the title need not be confined to cases of a doubtful title ; but may be extended to incumbrances of every description, which may embar- rass him in the full enjoyment of his purchase.^(a) 24. A decree in chancery, declaring the Court's opinion, that an 1 Hoe V. Simmons, 1 Cal. 119 ; Beck- 4 Watts v. Waddle, 6 Pet. 389. with V. Kouns, 6 B. Mon. 222 ; Garnett v. 5 Ibid. Macon, 6 Call, 308 ; M'Clure v. King, 15 6 st. Mary's, &c. v. Stockton, 4 Halst. La. An. 220; Pliillips v. Soule, 9 Gray, Ch. 520 ; Garnett v. Macon, 6 Call, 308. 233 ; Jones v. Alley, 4 Greene, 181 ; Beli "^ Eamsay i-. Brailsford, 2 Desaus. 582 ; V. Thompson, 34 Ala. 633 ; Satterfield v. Beckwith v. Kouns, 6 B. Mon. 222. Keller, 14 La. An. 606; Earl v. Halsey, » Garnett r. Mason, 6 Call, 308 ; Butler 1 McCarter (N.J.) 332. See p. 441, n. v. O'Hear, 1 Desaus. 382; Keed v. Noe, 2 Beli V. Thompson, 34 Ala. 633. 9 Yerg. 283. See p. 456, n. 3 Tomlin v. M'Chord, 5 J. J. Marsh. 136. the method of payment, which he declined title to one-half of the minerals discov- then to do. He prepared no deed and ered, and the lessees permitted other per- made no election, and did not request sons (claiming a riglit) to make explora- performance for many years, and then tions and discoveries, wliicli added greatly brought an action upon the bond. Held, to the value of the property, without of- the bonds were mutual and dependent, fering to assist, it not appearing that they and the action could not be maintained ; were ready or able to do the necessary although B. subsequently to their tender work; held, they were not entitled to cancelled the certificates of stock tendered specific performance. Cabe v. Dickson, to him, and, in pursuance of an act of the 4 Jones, Eq. 436. legislature passed after the award, united A principal, who merely ratifies a con- with C. Smith v. Boston, &c. 6 Allen, tract made by his agent, is not thereby 262. entitled to specific performance, unless he (a) Where, on a contract to lease a also performs the undertaking to which mine for twelve months, in order that the agent has bound him. Haldeman v. search might be made for minerals, it was Chambers, 19 Tex. 1. agreed that the lessor should make a good CHAP. XXVIII.] SPECIFIC PERFORMANCE. 455 agreement for the sale of land should be specifically performed by both the parties, and directing tlie vendee to execute a mortgage of tlie same land to secure the purchase-money, is to be understood as requiring the vendor, in the first place, to make a title to him.^ 25. The same duty is exacted from a purchaser, as from a ven- dor, in performing his own part of the contract, before he can maintain a bill for specific performance. Thus, where a trustee's sale is made for cash, the purchaser, unless he tenders the money in reasonable time, cannot demand specific performance against the debtor, who has paid the debt and costs, especially if tlie purcbase was obtained through the inadvertence of the debtor.^ So specific performance of a sale, being within the discretion of the Court, will not be enforced against a subsequent purchaser, for valuable con- sideration, without notice ; especially in favor of a vendee, who has failed to comply with his own contract, within the time limited. ^ 26. Questions have often arisen as to the right of specific per- formance, where the vendor is able to make a title to the property only in jJ^rt. Tbus, where an entire tract of land was sold, and the complainant, the vendor, at the time he filed his bill, had no legal title to a part ; held, he had no right to enforce specific per- formance.^ So the Court will not decree performance of a sale, where there is a failure of title to an undivided portion of tlie land, which the vendee has not agreed to take at his own risk ; although, if the vendor has executed a conveyance, with warranty, chancery will not rescind the sale, but leave the grantee to his legal remedy upon the covenants.^(a) 27. But equity will compel a vendor to a specific performance of a contract for the sale of land, for a part of tbe land, where he has incapacitated himself from conveying the whole. And where the land contracted to be sold was held in common, and the vendor, 1 Mayo V. Purcell, 3 Munf. 243. * Reed v. Noe, 9 Yerg. 283. 2 Heuer v. Rutkowski, 18 Mis. 216. ^ Bates v. Delavan, 5 Paige, 300. 3 Doar V. Gibbes, 1 Bai. Eq. 371. (a) In case of a contract to purchase a party wlio had received tlie notes as lots, to two of whicli a title could not be collateral surrendered them on jtayment made, and in others there had been a de- of a much less sum than was due upon terioration in value ; if the value of the them. Daniel v. Hill, 23 Tex. 571. remainin<^ lots is not affected by that de- It is said, tlie power of Courts of Equi- terioration, a specific performance shrdl be ty to enforce partial i)erforniance is to be decreed as to all but two. Poole v. Slier- exercised with great caution in this coun- gold, 2 Bro. 118. try, where the value of real estate is so A vendee, entitled to a deed on pay- fluctuating, lest it be an instrument of ment of notes for the i)rice, cannot claim injustice to vendors. Mills v. Van Voor- specific performance, upon the ground that hies, 20 N. Y. (0 Smith), 412. 456 LAW OF VENDORS AND PURCHASERS. [CHAP. XXVIII. after the agreement, divided with the other tenants in common, and executed a deed of partition ; it was held, that the partition was no objection to a specific performance, if the party was capable of per- forming the whole ; but that there is a distinction in this respect, between the case where the vendee seeks to compel the vendor to a specific performance, and where the vendor resorts to equity to compel a specific performance on the part of the vendee. But a conveyance for a valuable consideration, made bond fide to a third person, without notice of the previous contract of sale, before it has been carried into execution, will transfer the legal title to such third person. 1 28. Upon a bill for specific performance, if the vendor's title to a part of the land sold is doubtful, the Court cannot compel him to make good that part, by a conveyance of land out of the same survey, to which he has an undoubted title ; but will give a com- pensation in money. In such case, the vendor having acted in good faith in the sale, the measure of compensation is the price given, with interest, not the present value of the land.2(a) 1 Waters v. Travis, 9 Johns. 450. v. Smith, 1 Head, 251 ; Wright v. Young, 2 Kelly V. Bradford, 3 Bibb, 317. See 6 Wis. 127. Bell V. Thompson, 84 Ala. 633; Collins (a) It is the general rule, as we have already seen (chap. 13), that specific per- formance of a contract for the sale of land (more especially with warranty) will not be enforced, unless the vendor can make the vendee a good marketable and indefeasible title. Starnes v. Allison, 2 Head, 221; Collins v. Smith, 1 Head, 251. As where the point on which it depends is too doubtful to be settled without haz- ard of litigation. Luckett v. Williamson, 31 Mis. 54 ; Richmond v. Gray, 3 Allen, 25 ; 1 Head, 251 ; Nicol v. Carr, 35 Penn. 381. Or unless it is so free from difficul- ty, as to law and fact, that, on a resale, an unwilling purchaser shall be unal>le to raise any question, which may appear to a judge sitting in equity so doubtful, that a title involving it ought not to be en- forced. 35 Penn. 381. More especially, if the vendee has shown an intention to rescind the contract, and if, pending the defect in title which might subsequentlj' have been perfected, the property has de- preciated greatly. MuUin v. Bloomer, 11 Iowa, 360. Or if the vendor could not make a good title when he was to deliver a deed, or for more than six months after the vendee declined to accept a deed on account of a defect in the title ; although lie may be able to do so at the time when the decree is sought for, or the bill filed. 3 Allen, 25. Even though the purchaser enters into possession by consent of the vendor, and makes changes b}' removing a cellar wall, cutting trees, and exercising other acts of ownership, before delivery of a deed ; if he abandons the possession as soon as he learns of the defect. Ibid. A vendee, complainant in a bill for per- formance, may refuse payment, until the vendor cause those who have the right, and who are bound to him, or through him to the vendee, to make proper assur- ances. And the vendee may enforce specific performance against him and his obligor. Shreck v. Pierce, 3 Clarke, 350. The doctrine, that specific performance may be enforced where the vendor is able to perfect title at the rendition of the de- cree, does not excuse a party from dili- gence in fulfilling his contract, or from tendering a deed made a condition of a right to sue. It ai)plies, where a deed has been tendered and possession given, but a secret defect in the title, previously unknown, perhaps, to either party, is discovered. Cook v. Bean, 17 Ind. 504. Land descended to A., B., and C, CHAP, XXVIII.] SPECIFIC PERFORMANCE. 457 29. Questions have also arisen, as to the eiTect, upon the claim for specific performance, of a part-payment of the purchase-money. Thus, on a contract between the plaintiff and defendant for the heirs of F., tlccoasecl, ami to the cliiklrcn of a fourth cliihi, D., deceased; A., E., ami C, takiiifj each one-fourth, aiul D.'s ciiildren takiu tion taken liy the purchaser, deemed the title doubtful ; an order was made, dismissing the bill without costs, but neither allowing nor disallowing the exception.^ So, on dismissing a bill by tlie heir and executor of a purchaser, to have a good title made by the vendor, and to restrain collection of the purchase-money till such title be made ; costs should not be decreed against the plaintiffs jointly, nor against the executor de bonis jjrojjriis.^ 24. Where a sale was vacated, on account of the negligence of 1 Hinder v. Streeter, 12 Eng. Law & * Wliite v. Foljambe, 11 Ves. 337. Eq. 345. 5 Wilcox v. Bellaers, Turn. & R. 4U1. '^ Young V. McClung, 9 Gratt. 336. 6 Long v. Israel, 9 Leigh, 65G. 3 Rose V. CaUand, 5 Ves. 186. 556 LAW OF VENDORS AND PURCHASERS. [CHAP. XXXVI. tlie solicitor and Master in describing the property, costs were re- fused to them on the motion to discharge the purchasers, and for a resale. The Vice-Chancellor said, " The infants, to whom the money in this case belongs, have been seriously prejudiced by the resale. The Court was obliged to relieve the former purchaser, because of the loose manner in which the property had been put up and sold. This was the fault of both solicitor and Master. The description of the property, as given in the mortgage and in the decree, speaking as it does of a party wall, was sufficient to have put them on inquiry as to how the property should be sold with reference to party walls or other circumstances which might affect the sale ; and yet no inquiries were made and no heed taken of the fact, leaving the purchasers in the dark and to find out afterwards that they had been misled. Under these circumstances, I think the solicitor for the complainant must forego his costs on the motion to discharge the purchasers, and of the order for a resale ; and that the Master must, also, be content to receive the costs and expenses of only once advertising and selling the prop- erty."i 25. The costs of suit are in some cases divided between the parties. Thus, in a case of specific performance, the Court in New York remark, " Although the complainants succeed in this suit, it does not necessarily follow that they are entitled to costs against the defendants. They furnished no abstract of title pre- vious to filing the bill. At that time too there was a judgment outstanding, which was apparently an incumbrance, and which they took no steps to remove, though they offered to leave enough of the purchase-money to cover tlie amount. The defendants were excusable in standing out until the title could be investigated, and under the circumstances they ought not to be made to pay the costs of the suit. Nor do I think the defendants are entitled to costs against the complainants. The fairest ground on which to put it is that both parties have, in some degree, been in the wrong ; and as to the costs of the suit generally, each party should hear their own. The defendants, however, should not have taken exception to the Master's report, and the costs consequent on this step the defendants must pay." ^ So, in a suit for specific per- formance by vendor against purchaser, the Master reported, that a 1 Walworth v. Anderson, 4 Edw. Ch. 2 gcott v. Thorp, 4 Edw. Ch. 1, 4. 281. CHAP. XXXVI.] COSTS. 557 good title was first shown pending the reference, except as to a small portion, which the Court regarded as a subject for compen- sation. Held, the defendant sh(^iild have costs to the time of amending the bill, and the plaintiff afterwards. ^ 26. In a late English case,^ the Master of the Rolls said, " With respect to the costs of the suit, I must look to the general conduct of the parties ; and I cannot consider this as a suit occa- sioned simply by a question respecting the payment of interest, or decide, because the amount of interest has been determined to be less than the plaintiffs claimed on the one hand, but larger than the defendant contended ought to be given on the other, that I ought to divide the costs of the suit. The contract was entered into on the 30th of November, 1843, and no deposit was paid ; it was waived, and the contract under which the parties acted may be said to bear date the 30th of January, 1844. It is impossible to look at the proceedings of Mr. Mousley throughout this business without seeing (whatever may have been the cause) that there have been a fighting and fencing off the completion of this con- tract ; and my conviction upon the evidence is, that if this bill had not been filed, it would not have been completed up to this time. The delay without doubt has been occasioned by the con- duct of the defendant's adviser ; the plaintiffs therefore ought not to bear the expense, and, consequently, they must necessarily be borne by the defendant." 27. In a late case,^ the costs were divided, in consideration of the nature of the several objections made by the defendant to the plaintiff's claim ; the character of which appears from the opinion of the Court. Wood, V.C., says, "The contest in some degree arose upon the question of conveyance, which was still unsettled ; and there was reason to suppose that this question might possibly have been settled. But when the claim was filed, other objections were raised by the defendant to the specific performance of the agreement, and the defendant objected to complete at all, and contended that he was not bound to take the plaintiffs title. The question of title had then passed, and the only question was, as to the conveyance to be made by the plaintiff. If at the hearing the defendant had said that he only objected to the form of the con- veyance, a decree might have been made to settle the conveyance, 1 Freern v. Hesse, 17 Eng. Law & Eq. 2 Slierwin v. Shakspeare, 23 Eng. 206. 154. 3 Abbot V. Caltoii, I'J Eng. G02. 558 LAW OF VENDORS AND PURCHASERS. [CHAP. XXXVI. and the costs of the suit would have followed the result. But the question now raised was, in fact, that there was not any contract. This question was paramount to that of title, and if a question was raised prior to the question of title, the vendor would not he called upon to perfect his title, and the costs of establishing the prior question would fall upon the party who failed. The defend- ant has taken his chance of success upon the prior ground, and, liaving failetl, must pay the costs of the suit, except the costs of the exceptions and of the affidavits adduced by the plaintiff in support of his title." 28. The question of costs has often arisen in connection with an inquiry into the title, upon a reference to the blaster. (a) 29. The fact, that a title has been perfected in the Master's office, does not determine the question of costs in a suit for specific performance. This depends upon the consideration, whether the defects removed there were the occasion of the suit. The Master of the Rolls says, " The purchaser takes a reference to the Master to inquire into the title, and then raises all possible objections to the title, most of which, however, were overruled ; one of them related to a mortgage mentioned -in a deed of upwards of one hundred years old, which had not since been heard of; the vendor contended that the mortgage term must be presumed to have been satisfied, but, upon search, an old deed of reconveyance was found. This fact was relied on by the defendant, as showing that a good title had not been previously made out ; but, because new evidence was brought forward in the Master's office by the vendor, must it necessarily be taken for granted that a good title had not previously been made out, and must the vendor, on that account, pay the costs ? To establish such a rule would be most prejudicial, not only to a vendor but to a purchaser ; for the vendor would thereby be deterred from bringing forward any new evidence in the Mas- ter's office in confirmation of his title, for fear of rendering him- self liable to pay the costs of the suit." ^ 30. A purchaser declined to perform the contract, on the ground 1 Scoones v. Morrell, 1 Beav. 251, 257. (a) The Master's decision on questions Master to disallow the charge made in re- ef taxation* is final as to matters of fact, spect of such proceeding. Alsop v. Ox- and amount of charges, and is only re- ford, 1 Myl. & Kee. 564. viewed by tlie Court, wlien he acts upon Where a Master's report is against the a mistaken principle ; and, if the solicitor title, a vendor's bill may be dismissed with negligently or ignorantly takes some un- costs upon motion. Beunet College v. necessary proceeding, it is the duty of the Carey, '6 Bro. C. C. 390. CHAP. XXXVI.] COSTS. 559 of inadequacy of value. In a suit by the vendor for specific per- formance, by a decree, dated April, 1851, it was declared that he was entitled to such performance, and a reference was made to the Master, to inquire whether the plaintiff could make a good title, and, if so, to state when such good title was first shown ; and costs were reserved. The Master found that a good title was made, and that it was first shown in April, 1852. Held, the plaintiff was entitled to the costs of reference. Parker, V.C., says, " The investigation of the title seems to have proceeded up to a certain point, and then the defendant insisted that the contract was not binding on him for a certain reason ; and, thereupon, the further investigation of the title stopped, and the plaintiff filed his bill to enforce specific performance of the contract, and obtained a decree. I entertain no doubt that a plaintiff, getting a decree for specific performance, is entitled to the general costs of the suit ; and the only question is, as to the costs of the reference as to title. The rule of the Court is very clear as to this. When the parties have a dispute as to the title, and the question of specific perform- ance turns on it, the Court, if it finds that the plaintiff was in the wrong when he filed the bill, -considers that fact in disposing of the costs of the suit, and sometimes makes a decree for specific performance only on the terms of his paying the costs, because he was in the wrong when the bill was filed. This case, however, does not belong to that class. Here the reason for refusing to complete was a question on the validity of the contract. Accord- ing to the case of Croome v. Lediard, the general rule would entitle the plaintiff to the costs of the reference as well as to the general costs of the suit. The plaintiff was under a condition to make out a good title, which he would have done at his own expense if there had been no suit instituted. I think that the defendant has brought upon himself the costs occasioned by having the title investigated in the Master's office. The only doubt which I have is occasioned by the direction in the decree, which seems to be in some degree inconsistent with that view. By the decree it was referred to the Master to inquire when a good title was first shown. I think, however, that I am not bound by the form of the decree in this case to depart from the general rule that, where the purchaser's conduct had led to the institution of the suit, he is to pay the costs before the Master." ^ 1 Abbott V. Sworder, 15 Eng. Law & Eq. 446. 560 LAW OF VENDORS AND PURCHASERS. [CHAP. XXXVI. 31. A vendor filed a bill for specific performance, alleging that the defendant had accepted the title ; but the defendant resisted it, on the ground that the bankruptcy under which the plaintiff claimed was invalid. Neither allegation turned out correct ; and, though a good title was first shown in the Master's office, a decree for specific performance was made, without costs. The Master of the Rolls says, " If the plaintiff in this bill had proceeded on this allegation : ' I have entered into a contract, and am ready to per- form it, and you refuse,' and the defendant had answered, ' I admit the contract and am willing to perform it, but you cannot make a good title without the concurrence of the assignee of the insol- vency, which you refuse to obtain ; ' if that had been the only question in litigation, and a goQd title, i.e., in the case supposed, the concurrence of the assignee, had been first shown in the Master's office, then the plaintiff would have had to pay the costs of the suit. That is the general rule, but it is not a rule applica- ble to every case whatever ; it is subject to a variety of modifica- tions arising out of the particular circumstances of each case. Here both parties made erroneous allegations: the plaintiff alleged that the defendant had accepted the title ; the defendant, that a good title could not be made because the fiat was invalid. The real question never occurred to either party until a very late period in the cause, I think, under the circumstances, I cannot give costs to either side." ^ 32. By the same instrument, the plaintiff agreed to sell an estate to the defendant, and the defendant another estate to the plaintiff. The defendant, being unable to make a good title, unsuccessfully resisted performance of his agreement to purchase the plaintiff's estate, on the ground that the agreement was in- tended to take effect, only on the basis of a mutual exchange. On a reference of the plaintiff's title, the Master found that the plaintiff could make a good title, but not that he could make such title before the filing of the bill, the consideration of time having been expressly excluded, at the hearing, from the terms of refer- ence. Held, the defendant was liable to the costs of investigating the title in the Master's office.^ 33. A bill prayed specific performance, " if a good title could be made." At the hearing, it was declared that the agreement ought 1 Sidebotham v. Barrington, 5 Beav. 2 Crooiue v. Lediard, 2 My. & Kee. 261, 262. 293. CHAP. XXXVI.] COSTS. 5G1 to be specifically performed, and referred to the Master to inquire, whether a good title could be made. The ]\Iaster reported in the negative. The plaintiff, on further directions, waived all ol)jcctions to the title, and proposed to take the property ; but this was resisted by the vendor. Held, the plaintiff was entitled to the property, but, being aware at the first hearing of the objections to the title, he ought to pay the costs of the investigation in the Master's office.^ 34. In a suit for specific performance by a vendor, the costs will be thrown upon the purchaser, though the Master reports that a good title was not shown till after the filing of the bill, if that finding proceeded on the ground, that certain evidence had not been previously furnished, which the vendor had offered to produce, but which had not been actually produced, before the institution of the suit, in consequence of the purchaser's insisting upon other unsubstantial objections.^ 35. The question sometimes arises, as to the right of a party who has been compelled to pay costs to recover them back from other parties. 36. Where an auctioneer has sold an estate, the title of which being objected to, and he refusing to return the deposit, an action is brought, in which he afterwards pays the costs ; the auctioneer cannot recover these costs against the principal in an action for money paid to his use, but must declare specially .^ 37. A bill for specific performance was made necessary, by a trustee's refusing to join in the conveyance. The Court being of opinion, tliat the trustee ought to pay all the costs of the suit, the decree was, that the plaintiff should pay the costs of all the other defendants (although he had a decree against them), and recover over the whole costs from the defendant, the trustee.^ 38. In connection with the subject of this chapter, may be con- sidered the mutual claims of vendor and vendee for incidental expenses connected with the sale, not strictly coming under the denomination of costs. 39. An act, which enabled a company to purchase and take land for making a railway, provided that the costs of the " con- tracts, sales, and conveyances " should be borne by the purchasers. 1 Bennett v. Fowler, 2 Beav. 302. 3 Spurrier v. Elderton, 5 Esp. Ca. 1. 2 Long V. Collier, 4 Kuss. 209. * Jones v. Lewis, 1 Cox, I'JU. 36 562 LAW OF VENDORS AND PURCHASEES. [CHAP. XXXVI. Held, the vendors of land were, under these words, entitled to be reimbursed the costs of making out their title. ^(a) 40. Construction of a contract, that a reference of the expenses was confined to the expense of the conveyance, but the evidence of the attorney was admitted for the defendant, to prove the intention of both parties, according to verbal instructions, that the plaintiff, tlie purchaser, should also pay the expense of making out the defendant's title.^ 41. Where title-deeds are in the hands of persons residing in different parts of the country, the vendor must bear the expense of the purchaser's sending a clerk to compare tlie abstract with the deeds.^ 42. A purchaser at auction cannot recover from the vendor the expenses of preparing the deeds, after he has refused to complete the purchase, on account of the non-production of certain title- deeds ; though his attorney prepared the conveyances, on the faith of a note written in tlie margin of the abstract by the vendor's solicitors, stating that all the title-deeds were examined by them on the original purchase, and that, if it shouM be required, they would apply to the solicitor for the original seller in whose custody they were.^ 1 Addies Charity, 3 Hare, 22. ^ Hughes v. Wynne, 8 Sim. 85. 2 Ramsbottom v. Gosdon, 1 Ves. & ■* Jarraain v. Egelstone, 5 Carr. & Pay. Beam. 165. 172. (a) So, where the company are made money in the funds, previously to its being liable to the expenses of "all purchases " laid out in lands, to be settled to the like to be made by virtue of the act, this will uses as the land purchased. Bishop of include the expenses of investing the Durham, 3 You. & Coll. (590. CHAP. XXXVII.] PARTIES TO ACTIONS. 563 CHAPTER XXXVII. PARTIES TO ACTIONS. 1. We have already (ch. 5) considered the necessity, and the respective rights and liabilities, of 2>arties to the contract of sale and purchase. The same subject has been particularly noticed in the chapter relating to specific performance. Having now completed our view of the remedies in equity and law for breach of such con- tract, and the measure and amount of compensation to be recov- ered ; we proceed to some further inquiries connected with the same general subject, but more particularly relating to the forms of pro- ceeding. Among the most important points of this nature is that of the proper parties to a suit, brought in law or equity by either the vendor or the vendee upon the contract of sale. (a) 2. To a common bill for specific performance of a sale, the par- ties to the contract are the only proper parties. Upon this subject Lord Cottenham remarked, " The contract is in the usual form, between John Wood, the vendor, and Thomas White, the pur- chaser ; and they alone ought to have been parties to the suit ; instead of which, the trustees of Mr. Lucas's settlement, and she and her husband are made parties co-plaintiffs with the vendor, John Wood. If their concurrence had been necessary to give security to the purchaser, it was for John Wood to bring them forward to assist in giving effect to his contract ; but as plaintiffs they have no title to sue. If the infant children of William had (a) Upon the point, who may be con- tion, he had brought forward this claim as sidered a party to the suit, it lias been to the deposit, and it appeared to have held, with reference to a claim concerning been just, the Court would have enforced a deposit, that a defendant is not a party it ; not in tlie nature of relief to him, but seeking the aid of the Court, and therefore is as a condition annexed to the relief given not entitled to an interlocutory order for to tiie plaintiff. And although the defend- his own relief or security, as to the sub- ant has neglected the convenient oppor- ject-matter of a suit, unless as a condition tunity for the apijlication, yet I think it of an order applied tor by the plaintiff, still open to him, and that I may consider The Vice-Chancellor says, " Though a it in principle as a motion to dissolve the defendant cannot primarily move for any injunction, unless the plaintitt" pay the order for his security, because he is not a money into court." Wynne v. Griffith, party seeking the aid of the Court ; yet 1 Sim. & Stu. 147, 149. if, at the time of continuing the injunc- 564 LAW OF VENDORS AND PURCHASERS. [CHAP. XXXVII. been made co-plaintiffs, or if there had been children of Mr. and Mrs. Lucas, and they had been made co-plaintiffs, I should have refused to make any decree in a cause so constituted, because I should have supposed that the object was to attempt to bind the infants in a suit, by the proceedings of which they ought not to be bound ; but as all the plaintiffs are adults, and the objection has not been taken by the defendant, I do not think it necessary to do more than to observe upon the frame of the suit, that it may not be supposed, by my making a decree in it, to have received any sanction from me." ^ And in a very late case it is said, " A mere stranger, claiming under an adverse title, cannot be made a party to a suit for specific performance. There is no equity against him independently of the agreement ; and the agreement to which he was not a party cannot create such an equity." ^ 3. But thougli, in general, none but the signers of the contract ought to be parties to a bill for specific performance ; yet a pur- chaser may, under special circumstances, make other persons interested in the estate defendants. ^ 4. Separate purchasers of different parcels of the same lot can- not join in a bill against the former owner, to compel the perform- ance of a prior contract for the sale and purchase of such lot, between the former owner and another person, upon the ground that such prior contract has been assigned to one of the complain- ants, as well in his own behalf, as to protect the interests of his co-complainants ; where there is nothing beyond the averment in the bill, to show that the purchase or transfer of such contract was for the benefit of all the complainants, or was made at their re- quest, or with their assent. The Court remark, in substance, that persons having distinct claims against another, arising upon sep- arate and independent contracts, cannot join in a bill to enforce such claims, where there is no proof of a common interest in the subject-matter. To allow persons having distinct claims against the same individual to maintain a joint suit against him, merely because the act of one may, if valid, incidentally prove beneficial to the others, might be productive of great oppression and injus- tice.4 5. Upon the same ground, a demurrer by a defendant for multi- 1 Wood V. White, 4 Myl. & Cra. 460. p. 169 ; ace. Tasker v. Small, 3 Myl. & 2 Per Sir G. J. Turner, De Hoghton v. Cr. 63. Morey, Law Rep. (Eng.) Eq. March, 1867, 3 Tasker v. Small, 6 Sim. 683. * Wood V. Perry, 1 Barb. 114. CHAP. XXXVII.] PARTIES TO ACTIONS. 5G5 fariousness, the bill being against several purchasers and others, was allowed. The Vice-Chancellor says, " The estate was vested in the plaintiffs, for the purpose of selling the same ; and that part of the estate was accordingly sold in six different lots, to six different purchasers, who, with several other persons, are made defendants to this bill. A separate agreement had been entered into with each purchaser. Some of the purchasers have not de- murred. The Court is always averse to a multiplicity of suits ; but, certainly, a defendant has a right to insist that he is not bound to answer a bill containing several distinct and separate matters relating to individuals with whom he has no concern. A decisive objection to this bill is, that the purchases of the different lots are made by distinct persons, each agreement being separate and distinct. The circumstances attending the sale of one lot may be very different from those relating to other lots ; one may have objections, another has not." ^ 6. Two houses held under one lease were sold in separate lots, and it was stipulated that the purchasers should be parties to each other's assignment. Held, the purchaser of one lot was not a necessary party to a suit for specific performance against the pur- chaser of the other. The Master of the Rolls says, " If there is to. be a specific performance of the contract, the purchaser of lot 2 will be bound to concur in the' assignment; but is it necessary that he should be a party to all the litigation between the vendor and the purchaser of lot 1 ? I think not ; besides this, the bill alleges that he is ready to concur. Althougli it might by possibility become necessary hereafter to compel him to join in the assignment, still I see no reason for making him a party to a suit until that necessity arises." ^(a) 1 Brookes v. Whitwortli, 1 Madd. 86, 2 Paterson v. Long, 5 Beav. 18G, 187. 88. See Reyner v. Julian, 2 Dick. 677 ; Wall V. Northumberland, 2 Anstr. 469. (a) It has been lield, that a demurrer a bubble called the Penns3dvania Bubble, will not lie to a bill for being multitkrious. and to have his money repaid, which he But upon the general subject the Court had paid to the defendants for sliares sold remark, " Each party's case would be by them respectively ; and charges that distinct, and would depend upon its own the defendants had formed tlieniselves peculiar circumstances ; and there must into a society to carry on the fraud. The have been a distinct bill upon each con- defendants demurred, because the bill con- tract." liayner v. Julian, 2 Dick. 677. tained several and distinct charges against The case of Bull v. Allen (Bunb. 69) several and distinct defendants; and tlie was a " bill to be relieved agamst several demurrer was allowed. Xo/ut, if there has been no particular, the plaintiff may rely upon a breach never before mentioned to the defendant.^ 11. In assumpsit for the breach of an agreement to sell an estate, the Court refused to allow the defendant to select certain of several allegations of damage contained in a single count, and pay money into court on those particular allegations, the whole count taken together being in substance a demand of unliquidated damages. It was said, as the seller had broken his contract, the Court would not help him so as to compel the plaintiff to go to trial at his own risk.'^ 12. In assumpsit upon a contract for the sale of a house, with counts to recover back the deposit, the plaintiff, having in his first count alleged that the defendant, who was to make a good title, had delivered an abstract which was " insufficient, defective, and objectionable ; " the Court obliged the plaintiff to give a particular of all objections to the abstract arising upon matters of fact.* So, in an action for money had and received, brought to recover back the deposit paid to the auctioneer upon the sale of an estate, on the ground of objections to the title, the defendant is entitled to particulars of the objections arising upon matters of fact, but not of objections in point of law. The latter, as Mr. Baron Parke observed, " must find out themselves." ^ 13. The allegations in the declaration may determine the amount of damages to be recovered by the plaintiff. Thus, in an action by a purchaser against the vendor, the declaration stated, that by articles the defendant, in consideration of £2,115, agreed that he would, on or before the twenty-fifth day of March next, well and effectually convey the estate to the plaintiff, &c., with a 1 Retallick v. Hawkes, 1 Mees. & * Collett v. Thompson, 3 Bos. & Pull. Wels. 573. 246. 2 Squire v. Tod, 1 Camp. Cas. 293. 5 Roberts v. Rowlands, 3 Mees. & 3 Hodges V. Litchfield, 9 Bing. 713. Wels. 543. 576 LAW OF VENDORS AND PURCHASERS. [CHAP, XXXVIII. good title ; and the plaintiff agreed, that on the said twenty-fifth day of March, on having such conveyance, he would pay the defendant the purchase-money ; and, in case the purcliase sliould not be completed on that day, would pay interest on the purchase- money before it was completed. Breach, that, although the plain- tiff was always, from the making the agreement until and upon the said twenty-fifth day of March, ready and willing to accept a conveyance and to pay the purchase-money, whereof the defendant had notice, &g., yet the defendant did not on the day and year last aforesaid, or at any other time whatsoever, make a good title to the plaintiff of the estate, nor had he at any time any such title, &c. ; alleging damage by expenses incurred in investigating the title, and loss of interest on the purchase-money while lying at a banker's. Held, that, upon this declaration, time was clearly of the essence of the contract ; that the plaintiff was under no necessity of keeping his money at the banker's after the 25th of March ; and that the plaintiff could not recover for any expenses or loss of interest subsequent to that time.^ 14. A suit in equity, between a vendee and an adverse claimant of the land sold, often gives rise to questions as to the form of pleading the vendor's title. Upon this subject it is held, that the plea of a purchase for valuable consideration must allege seisin and possession in tlie vendor.^ So a plea of title derived from one having only a particular estate, and not in possession, must set out how the person became entitled.^ 15. To a bill brought by an heir, the defendant pleaded, that he was a purchaser for valuable consideration. Held bad, because he did not plead a purchase from one of the plaintiff's ancestors ; and a pvirchase from a stranger, who might have no title, was held no good plea, and the defendant was ordered to answer.* 16. A plea of a bare title only, without setting forth any con- sideration, will not protect a defendanjt from giving an answer to the title set up by the plaintiff.^ 17. Wliere a defendant, by his answer, insists that he is a pur- chaser for valuable consideration, and without notice, proof of payment of the purchase-money is an essential part of the defence ; and, if the defendant fails at the hearing to prove this, the Court 1 Metcalfe v. Fowler, 6 Mees. & W. * Seymour v. Nosworth, 2 Freem. 830, 834. 128 ; 5 Ch. R. 23 ; Nelson, Ch. R. 135. 2 Trevanian v. Mosse, 1 Vern. 246. ^ Brereton v. Gamul, 2 Atk. 241. 3 Hughes V. Garth, Ambl. 421. CHAP. XXXVIII.] PLEADING. 577 will not allow the cause to stand over, in order to supply such defect.^ 18. Plea to a bill for possession, a purchase for a valuable con- sideration, and that the money was bond fide secured to be paid. Held, that, being only secured, it might never be paid, and the plea was therefore overruled.^ 19. A purchaser, if he denies notice, need only set forth the purchase-deed, and plead his purchase in bar to the discovery of the title-deeds.^ 20. On a plea of purchase for valuable consideration, without notice of the plaintiff's title, it is sufficient to aver, that the person who conveyed was seised, or pretended to be seised, when he exe- cuted the purchase-deeds ; but, where a purchaser sets up a fine and non-claim as a bar, he must aver that the seller was actually seised.^ 21. A defendant cannot, by ansiver, protect himself from an- swering fully, on the ground of his being a purchaser for valuable consideration.^ 22. Questions of pleading have arisen in connection with alleged illegality and fraud. 22 a. To a declaration in covenant the defendant pleaded, that, before making the covenant, it was unlawfully agreed between the plaintiff and defendant, that the plaintiff should sell and convey to the defendant land, at a certain price, for the purpose (as the plaintiff then well knew) that the said land should be exposed to sale by lottery, contrary to the 12 Geo. II., c. 28 ; that afterwards, in pursuance of the said illegal agreement, the said land was sold and transferred to the defendant, and, a part of the purchase- money being unpaid, the defendant, to secure the payment thereof to the plaintiff, entered into the covenant declared upon. Issue having been taken on this plea and found for the defendant, it was held, after verdict, that the plea disclosed no answer to the action, as it did not show that the covenant was entered into for the purpose of carrying out the prior illegal ol)Ject, or in pursuance of the illegal contract. Lord Campbell, C.J., says, " Tlie plea discloses nothing wliicli shows that the deed or covenant is illegal. 1 Molony v. Kernan, 2 Dru. & War. v. Egerton, 3 P. Wins. 279 ; Jackson v. 31. Roe, 4 Russ. 514. 2 Hardingham v. Nicliolls, 3 Atk. 304. 5 Qvey v. Leighton, 2 Sim. & Stu. 3 Aston V. Aston, 3 Atk. 302. 234 ; Portarlington v. Soul by, Sim. 4 Story V. Windsor, 2 Atk. 630 ; Head 356. 37 578 LAW OF VENDORS AND PURCHASERS. [CHAP. XXXVIII. We must take it that after the transfer of the premises had been completed, there was a new agreement come to between the par- ties, under which tlie defendant gave this security for part of the purchase-money. In that I see no illegality ; it is not against either of the statutes, nor is it for the purpose of carrying on a lottery. For aught that appears, the illegal purpose may have been abandoned, and the defendant, being in possession of the premises and using them for a perfectly lawful purpose, may have thought himself bound to pay the price, and therefore entered into this covenant. There is no infraction of the statutes or of the rules of morality in this. Where a security is given for the price of that which is absolutely illegal, as for a murder, although given after the crime has been committed, it would no doubt be bad, because there would be no consideration of any kind to support it. But here there is a good moral consideration that the vendor should receive the recompense stipulated for." ^ 23. The declaration stated, tliat one B. had agreed with the plaintiff for the purchase of the lease and good-will of a public house ; that, before and at the time of making the agreement, the defendant falsely, fraudulently, and deceitfully represented to B., that the trade of the house was of a certain extent ; that B. had not been able to complete the purchase, and it was afterwards agreed between the plaintiff, B., and the defendant, that the plaintiff should become the purchaser in the room of B-., and at and before the making of the last-mentioned agreement, B. communicated to the plaintiff the representation the defendant had made to him ; of all ivliich the defendant then had notice ; that the plaintiff, confiding in the representation so made by the defend- ant, agreed to become the purchaser, and paid the purchase-money ; that the representation was false, as the defendant well knew ; and that the plaintiff sustained damage. The defendant pleaded, that he did not authorize B. to communicate to the plaintiff the representation he, the defendant, had made to B. Held, that the declaration disclosed a good cause of action, and that the plea was no answer to it. Tindal, C.J., says, in substance, as to the declaration, " The plaintiff took upon himself the fulfilment of Bowmer's contract in all its parts. Bowmer had contracted and agreed with the defendant for the purchase of the lease and good-will of the premises for the sum of Xl,175, and, being 1 Fisher v. Bridges, 18 Eng. Law & Eq. 358, 361. CHAP. XXXVIII.] PLEADING. 579 unable to complete the purchase, it was agreed that the plaintiff should become the purchaser in the room and stead of Bownier. I can only understand this as a transferring to the j)laintiff of the contract of Bowmcr, with its price and all other incidents. The defendant, after he has had notice that the misrc])resentation he made to Bowmer has been communicated by him to the plaintiff, permits the latter to go on with the contract, takes his money, and executes a conveyance of the premises to him. The defendant's motive would be the same whether one party or the other became eventually the purchaser ; the means employed would be the same, the end the same, — the obtaining for the house a larger sum of money than he was conscious it was worth." ^ Yaughan, J., says, " The defendant has been guilty of a fraud, from which has resulted a damage to the plaintiff, and these are sufficiently averred, and I can hardly conceive a grosser fraud than that disclosed upon this declaration." Coltman, J., says, "The only doubt that has suggested itself to me has been whether the mere general averment of notice, without a specific averment that the defendant knew or supposed the plaintiff to have been acting upon the faith of the representation made by him, would suffice. But, upon consideration, I think it must be assumed that he had such knowledge." ^ 1 Ace. Langridge v. Leroy, 2 Mees. & 2 Pilmore v. Hood, 6 Scott, 827, 838, W. 532; Hill v. Gray, 1 Stark. 434. 839, 840, 841. 580 LAW OF VENDORS AND PURCHASERS. [CHAP. XXXIX. CHAPTER XXXIX. SALES BY ORDER OF COURT. 1. General jurisdiction of equity. 7. Sales at auction; when voidable. lb. Caveat emptor, whether applicable. 9 a. Irregularities in the order of sale; re- 3. Necessity of confirmation ; efl'ect of a scinding of sale, decree. 31. Aliscellaneous points. 1. Courts of Equity have a general supervision over sales de- creed by them, to be exercised by bill, petition, or motion. ^ 1 a. The purchaser of property, sold under a decree of chancery, becomes a quasi party to the cause, so far as relates to the rights and duties properly appertaining to such purchase. Hence, if he fails to pay the purchase-money, or any part of it, when due, the Court may, on motion and without notice, enter judgment and award execution against him for that amount.^ 1 h. It has been sometimes held, that to all sales under the orders and decrees of the Court of Chancery(a) the rule caveat emptor is to be applied.^ (See p. 584.) 2. But, on the other hand, this rule has been held not to apply to sales by the Master in Chancery ; for, he being the agent of the parties for whose benefit the sale was made, they are as much bound by his representations as they would have been by their own. Thus, where a tract of land has been sold by the Master in Equity, and represented upon a map as containing more acres than it was discovered upon a resurvey to have, an abatement will be allowed for the deficiency in the qviantity, according to the nature and extent of the defect.* 3. A contract of sale, made between the Court as the vendor, 1 Coffey V. Coffey, 16 111. 141. » Anderson v. Foulke, 2 Harr. & Gill, '!■ Blackmore v. Barker, 2 Swan, 340. 346 ; Farmers', &c. v. Martin, 7 Md. 342. 4 Tunno v. Flood, 1 M'Cord, 121. (a) A contract to make title to real es- by judicial sale, provided it did not sell at tateby a judicial sale contemplates no time more than a certain sum, is not cancelled for its completion inconsistent with the by a sale at a higher price, provided the due course of the process of the law. bid is not made good, and the property Moorhead v. Gibson, 3 Grant, 157. returned unsold for want of buyers. Ibid. A contract to make title to real estate CHAP. XXXIX.] SALES BY ORDER OF COURT. 581 tlirough the agency of a trustee, and the purchaser, is never regarded as consummated, until it has received the sanction and ratification of the Court.^ So tlie sale of land by the Master, under a chancery decree, is not complete, till confirmation of his report of the sale. Before such confirmation ; on petition of a creditor, i)roof of sale at an undervalue for the benefit of the debtor, and an agreement by the creditor to make a reasonable advance upon the sum bid ; the Court may open the biddings.^ 3 a. And a confirmation may be recalled or modified upon suffi- cient cause shown. Thus under a license, on petition, to sell 172 acres owned in common, in part by married women and infants, for division, the sale took place and was confirmed, and the last pay- ment made, but afterwards, prior to the final decree, it was dis- covered that the tract contained about twenty acres more than both parties supposed. Upon petition for payment for the surplus, or to set aside the sale at the option of the purchaser ; held, he should be required to pay for the surplus at the same rate as for the 172 acres.^ 4. The purchaser under a decree is considered as owner, only from the time he pays in his purchase-money, not from the confir- mation of the report, by which he is declared the best purchaser, he having taken objections to the title.^ 5. A party interested in the proceeds of property decreed to be sold, although his right in the property is merged in the decree, retains such an interest as will enable him to apply to the Court, to preserve the estate from injury and waste.^ 6. Where a vendee had purchased land of a person, who held title under a void decree in equity, no decretal sale having been made ; it was held, that the vendee was presumed to have known his title, and that his title failed by a reversal of the decree.*^ 7. We have already (ch. 6) considered the subject of sales at auction^ and the circumstances which avoid such sales ;(a) 1 Wagner v. Cohen, 6 Gill, 97. * Mackrell v. Hunt, 2 Madd. 34, n. 2 Childress v. Hurt, 2 Swan, 487. 5 "Wagner ;;. Colien, IJ Gill, 07. 3 Horn V. Denton, 2 Sneed, 125. •> Madeira v. Hopkins, V2 B. Mon. 595. (o) See Slater v. Maxwell, 6 Wall. A reasonable notice of the sale is suffi- Leg. Intell. With regard to the proceed- cient ; and it may be ordered, in the dis- ings iirior to the sale, which may affect its cretion of the Court, for cash or credit, validity, it is held that an advertisement Darrington v. Borland, 3 Port. 12. of sale by the Master need not be signed A sale was advertised, to take place with his own proper signature, but may between the hours of \'l ami 5 o'clock in the be printed or signed by another. Coxe aflernoon. Held, alth(;ugli not so precise V. Halsted, 1 Green, Ch. 301. as convenience required, the sale should 582 LAW OF VENDORS AND PURCHASERS. [CHAP. XXXIX. more especially the act of piiffing or hy-bidding, by which the price is unduly enhanced, and which the law treats as a fraud upon the fair purcliaser. Sales at auction by order of Court have been subjected to similar restriction. Thus it is held to be the policy of the Court of Chancery to encourage a fair competition at a Master's sale ; and, to effect this object, it will not allow any deception whatever to be practised upon bidders. ^ But, at a sale by order of Court, a reserved bidding was allowed, to be made one of the conditions, the Master to fix the amount, and to use his discretion in communicating it to the parties or their solicitors.^ 8. One of several defendants having purchased an estate sold under the decree, without having obtained leave to bid ; another defendant moved, that the estate might be again put up at the price bid, and, if it should bring more, that the sale might be set aside, and tlie purchaser pay the expenses of the resale, and the costs of the motion. The Court refused the application, but with- out costs. ^ 8 a. An estate was sold at auction at the suit of a mort- gagee, with liberty to all parties to bid, the auctioneer also stating tliat the sale was without reserve. The plaintiff bid, and ran up the purchaser from £14,000 to X 19,000, no other person bidding. Held, no ground for a petition in equity to release the purchaser from his bargain.'* 8 h. In England, at a Master's sale, the biddings are kept open till a final confirmation of the sale, upon his report. New bids may be made. But in Illinois, except in case of fraud, mistake or other illegality, the sale is completed by the fall of the hammer, and the purchaser entitled to a deed on payment of the price. But the sale may be set aside for gross inadequacy of price.^ 9. The parties interested in the property have a right to expect, that it will be put up and sold in the usual manner, and in a way to produce a fair competition among the persons attending to bid. And where the property has been sacrificed, by the neglect or mistake of the Master in this behalf, or by his having improperly 1 Veeder v. Fonda, 3 Paige, 94. * Dimmock v. Hallett,Law Rep. (Eng.) 2 Jervoise v. Clarke, 1 Jac. & W. 389. Eq. January, 1867, p. 21. 3 Elworthy v. Billing, 10 Sim. 98. 5 Jackson v. Warren, 32 111. 331. not be set aside on this ground. Coxe v. house, but fifteen or twenty yards from Halsted, 1 Green, Ch. 311. the boundary line. Held, the sale should A sale was advertised to be made on not be set aside for this cause. Eerguson the premises, and actually took place within v. Franklin, 6 Munf. 305. eighty yards, and in view of the dwelling- CHAP. XXXIX.] SALES BY ORDER OF COURT. 583 put up for sale several lots together, which should have been sold separately ; the parties injured are entitled to a resale, or to such other relief as can be given, without doing injustice to a hond-jide purchaser.^ Where the pro])erty consists of separate and distinct parcels, which can be enjoyed separately without diminishing their value, it is the duty of the officer to sell in parcels, except in very special cases."(a) 9 a. A decree for sale should give at least 90 days for payment of the debt, if there is no riglit of redemption. ^ 9 b. Where a statute orders on what credit land shall be sold judicially, a time cannot be fixed either shorter or longer. Such sale was set aside on appeal, upon the ground of being too short and operating unfavorably to the debtor, though not excepted to in the court below."^ 9 c. Where a trustee has the power of sale at auction, after a certain notice, advertises and sells, he cannot resell on the same day upon non-fulfilment of the first bargain. And the difference in price is not the measure of damages.^ 9 c?. If a commissioner does not advertise as ordered by the judgment, an undersale will not be confirmed.*^ 10. In New York, all sales of mortgaged premises, under a decree of the Court, must be made by a Master, or under his im- mediate direction. A sale by a person deputed for the purpose by a Master, in his absence, is irregular, and will be set aside. ''^ 11. Sale by assignees under a bankruptcy, by auction, to one of the creditors, previously consvilted as to the mode of the sale, and contrary to an order that a receiver should be appointed to sell. Another sale was directed ; the estate to be put up at the aggregate amount of the purchase-money, and tlie sum laid out in substantial improvements and repairs ; which were to be allowed in case of a sale at an advance ; but, if no further bidding, the purchaser to be held to his purchase.^ 1 American, &c. v. Oakly, 9 Paige, 259. 6 AVilliams v. Woodruff, 1 Duv. 257. 2 Ibid. 7 Heyer v. Deaves, 2 Joliiis. Ch. 154. 3 Mills V. Heeney, 35 111. 173. 8 Hughes ex parte, Lyon ex parte, 6 4 Dunn V. Salter, 1 Duv. 342. Ves. 622. 5 Barnard v. Duncan, 38 Mis. 170. (a) The last clause of the 138th rule ble if owned by one person, or where, in was only intended to provide for special consequence of some prior incumbrance cases ; where it is evident that several upon all the parcels, purchasers will not parcels, from their peculiar location in ref- be likely to bid ujion a jtortion only. erence to each other, will be more valua- American, &c. v. Oakly, 9 Taige, 259. 584 LAW OF VENDORS AND PURCHASERS. [CHAP. XXXIX. 12. By an order for the resale of mortgaged premises, the Master was directed to put them up at a particular sum, and resell, if that amount or more was bid. The premises were struck off for the sum specified, and thereupon the Master, acting under direction of the complainant's solicitor, and without any previous intimation to that effect, insisted upon the immediate payment of the bid in specie, although the purchaser offered to pay in good current bank-bills, or drafts on specie-paying banks, or to pay specie as soon as it could be obtained from the banks. The Mas- ter immediately put up the property again, upon the terms that specie should be paid down, and, no person purchasing on these terms, he reported that the terms upon which the resale was directed had not been complied with. Held, the conduct of the Master was improper and unjustifiable, and the purchaser entitled to a deed upon payment of the amount of his bid ; and the report of the Master was set aside, and he was directed to execute to the purchaser a deed upon such resale.^ 13. A motion to open biddings for several lots, purchased by different purchasers, on an advance of a certain sum for each lot, is irregular.^ 14. An announcement by the Master, after the property has been struck off, at a sale made by him, that, if the purchaser does not comply with the terms of the sale, the property will be resold at his expense, does not discharge the purchaser from his bid.^ 14 a. Where land is sold by a Master under a decree, the fact that the price was but about two-tliirds of the value of the land, though not of itself sufficient to defeat the sale, will be a proper ground, with others, of objection to its approval.^ 15. Biddings will not be opened because the price is too high or too low, if the sale has been regularly conducted and fairly made.^ But, where several lots have been purchased by the same person, and the biddings are ordered to be opened as to those first purchased, the purchaser will be allowed to open them as to the remainder.^ And if there should be made to appear, either before or after a sale has been ratified, any injurious mistake, misrepresentation, or fraud, the biddings will be opened, the sale rejected, or ratification rescinded, and the property resold.'^ It is 1 Baring v. Moore, 5 Paige, 48. 5 Gordon v. Sims, 2 M'C. Cli. 159. 2 Goodall V. Pickford, 6 ISira. 379. 6 Pnce v. Price, 1 Sim. & Stu. 386. 3 National, &c. I'. Loomis, 11 Paige, 431. '' Anderson v. Foulke, 2 Harr. & G. 4 Sowards v. Pritcliett, 37 111. 617. 346. See p. 580. CHAP. XXXIX.] SALES BY ORDER OF COURT. 585 held, that tlie Master wljo sells property should insert nothing in his description in the notice of sale which may unduly enhance the value of the property or mislead the purchaser. Tlius, where land sold under a decree was descril)ed in the Master's notice as containing about twenty acres, when in fact it contained but thir- teen, and one of the complainants, who was present at the sale, knew of the deficiency, but concealed it from the Master and the bidders, and encouraged them to bid ; the sale was set aside on application of the purchaser.^ So where a memorandum, not authorized by the Master, was read at a Master's sale, describing the dimensions of the dwelling-houses sold, and which turned out to be incorrect by several feet, the sale was vacated.^ So, it is said, in Lowndes's case, the sale was set aside at the instance of the purchaser on account of a serious mistake in the representa- tion of the lands ; in Roper's case, because the land was knocked off to the purchaser prematurely by mistake of the auctioneer, who did not hear a higher bid.'^ 16. A purchaser, defendant in a suit for specific performance, did not in his answer mention any warranty or representation made by the vendor, and insisted merely that a good title was not shown. A reference of title was ordered ; the Master reported in favor of the title, and a decree for specific performance was pro- nounced. After the order of reference, the- defendant discovered that the timber on the estate, which constituted its principal value, was much less in quantity than it had been represented to be in a statement, the accuracy of which was alleged to have been war- ranted at the sale ; but the fact of such warranty was strongly controverted. Under these circumstances, leave was given to file a supplemental bill, in the nature of a bill of review, in order that the defendant might have the same benefit of the alleged warranty, as if he had originally insisted on it in his answer. And, after such leave, he has a right to file the bill, without having previously paid the purchase-money which the decree commands him to pay, if the time at which the adverse party, in the due execution of the decree, can compel payment, has not yet arrived.^ 17. A purchaser under a decree agreed to sell to A., and died, his heir being abroad. Ordered, that A. should be substituted for 1 Veeder v. Fonda, 3 Paig:e,. 94. 3 Gordon v. Sims, 2 M'Cord, Ch. 195. 2 Laight V. Pell, 1 Edw. 577. * Partridge v. Usborne, 5 Kuss. 195. 586 LAW OF VENDORS AND PURCHASERS. [CHAP. XXXIX. him as purchaser, be at liberty to pay the purchase-money into court, and be let into possession.^ 18. Under a decretal order of the Court, certain lands were sold by the Master, and the purchaser, in conformity with a further decretal order, gave security to the Master, by a covenant with a surety to pay the purchase-money within fifteen days ; but the money was not thus paid. Held, that a remedy at common law would be impracticable and inadequate ; that no proper dam- ages could be given upon such covenant ; that whoever makes himself party to the proceedings of a Court of Equity, and under- takes to do a particular act under its decretal orders, may be compelled to perform what he has undertaken ; and that equity may by attachment compel a purchaser at a sale by the Master or his surety to pay the purchase-money. So, although the surety was not aware that he subjected himself to the summary process of the Court ; nor that the plaintiff had a right, on the default, to resell the lands. Nor can the surety take any exception to the title, if the purchaser, his principal, has failed to do so.^ 19. A purchaser of estates sold under a decree was discharged on motion from his purchase, upon proof of error in the decree, though the parties were proceeding to rectify it. In this case, Lord Eldon remarked, that he would not extend the rule which the Court had adopted, of compelling the purchaser to take the estate where a title is not made till after the contract, to any case to which it had not already been applied.^ 20. The Court of Chancery has power, even after enrolment, to open a regular decree obtained by default, and to discharge the enrolment, for the purpose of a defence upon the merits, where the party has been deprived of such defence either by mistake or accident, or by the negligence of his solicitor. So, after a sale by a Master under the decree, where the complainant himself became the purchaser, and has not reconveyed to a bond-fide purchaser or mortgagee.* 21. An appeal lies from the decretal order of the chancellor, refusing to open the sale of mortgaged premises and grant a resale, on application of a defendant, although he has permitted the bill to be taken against him pro confesso. 22. A resale will be ordered, where mortgaged premises have 1 Pearce v. Pearce, 7 Sim. 138. 3 Lechmere v. Brasier, 2 Jac. & W. 287. 2 Wood V. Mann, 3 Sumn. 318. * Millspaugli v. McBride, 7 Paige, 509. CHAP. XXXIX.] SALES BY ORDER OF COURT. 587 been sold greatly below their value, and bought in by the mort- gagee, if the mortgagor, or those standing in his place, have been misled by the mortgagee, or even by a third person, in reference to the foreclosure, and in consequence thereof do not attend the sale.i 23. Land was sold under a decree, and the sale, after opi)Osition by the purchaser, was ratified ; but the trustee received neither notes nor bonds for the purchase-money. Tlie period for payment having expired, the chancellor ordered the purchaser to pay to the trustee, or bring into court, the amount of the purchase-money and interest before a given day, or show good cause to the con- trary. The purchaser having failed to comply, the chancellor then ordered an attachment against him, to enforce obedience to his first order. On appeal, held, that the proceeding was valid.^ 24. Where sales of estates had fraudulently taken place, under decrees of the Court of Exchequer in Ireland, obtained by collusion between the tenant for life, the mortgagee, the person in whose favor a charge had been created, and the purchaser ; and where the interests of the tenant in remainder had not been protected in such suits : the Court of Chancery in Ireland, on his coming into possession, granted him relief on a bill filed to redeem ; and that decree was afl&rmed by the Lords.^ 25. A purchase under a decree, though affected by irregularity and notice, will not be set aside in favor of a subsequent remainder- man ; a prior tenant in. tail having been a party.* 26. The Court will not discharge a purchaser and substitute another, even upon paying in the money, without an affidavit that there is no under-bargain ; for the new purchaser may give the other a sum of money to stand in his place and so deceive the Court.5 27. A trustee having sold lands by order of the Court of Chan- cery, and reported his proceedings to that tribunal, where, after objections by the purchaser, they were ratified, and the ratification sanctioned by the Appellate Court ; it is no longer competent for such purchaser to contest that sale, nor to object that he was not reported in the usual way, as the purchaser.^ 28. An original bill in chancery cannot be filed by a party to a 1 Tripp V. Cook, 26 Wend. 143. * Lloyd v. Johnes, 9 Ves. 37. 2 Anderson v. Foulke, 2 Harr. & G. ^ Rigby r. Macnaniara, 6 Ves. 515. 346. •» Anderson v. Foulke, 2 ilarr. & G. 3 Bandon v. Becher, 3 Clark & Fin. 479. 346. 588 LAW OF VENDORS AND PURCHASERS. [CHAP. XXXIX. foreclosure suit, to set aside a Master's sale under a decree, where relief could have been obtained by a summary application to the Court, in the foreclosure suit.^ 29. A vendor obtained a decree for specific performance, with a declaration that, if the purchase-money was not paid by a given day, the estate should be sold, the proceeds paid to the vendor, and the purchaser be made personally liable for any deficiency. The Master fixed the day of payment, but the purchaser died before that day, insolvent ; and a creditor's suit was instituted for the administration of his assets. Upon a bill of revivor and sup- plement, filed by the vendor, praying to have the benefit of the creditor's suit, as well as his own ; held, he was not entitled to prove against the general assets of the testator, and at the same time to reserve his lien on the estate contracted to be sold, in case of a deficiency in the general assets,^ 30. A purchaser under a decree is not affected by irregularities and defects in the decree, by which the application of the money may not have been properly secured.^ . 31. A sale will not be reversed on appeal, unless it effected wrong or injustice.* 31 a. If either a mortgagor, or one purchasing from him pending a suit for foreclosure or after a sale of the land, withholds the land from the purchaser under the decree ; the Court on motion may treat tlie purchaser as a party to the decree, and order that pos- session be delivered. If disobeyed, an injunction may issue, and afterwards an attachment or writ of assistance.^ 32. On an application to refuse confirmation of a Master's sale, and to order a resale, — a case where speedy relief may be neces- sary, — the Court may properly hear the application, and act on ex parte affidavits on both sides.^ 33. A purchaser at a sale under a decree in a suit for partition will not be attached for refusal to pay the purchase-money, until after an order to pay it.'^ 1 Brown v. Frost, 10 Paige, 243. 5 Jackson v. Warren, 32 111. 331. 2 Rome V. Young, 3 Y. & Coll. 199. 6 Savery v. Sypher, 6 Wall. 157. 3 Curtis V. Price, 12 Ves. 89. ■? Cowell v. Lippitt, 3 R.I. 92. 4 Sowards v. Pritchett, 37 111. 517. CHAP. XL.] MISCELLANEOUS POINTS OF PRACTICE. 589 CHAPTER XL. MISCELLANEOUS POINTS OF PRACTICE. 1. Payment of purchase -money into 14. Ne. exent regno. court, and the disposal thereof. " 21. Production of deeds, &c. 6. Security for purchase-money. 24. Arbitration and award. 10. Injunctions. 1. Questions sometimes arise, in reference to the exercise of the authority of the Court over purchase-money paid to the vendor, or the disposition of purchase-money paid into court, (a) 2. The Court will not compel a vendor to pay the deposit-money into court, though he retains possession of the estate, if the delay ill the completion of the contract is occasioned by the purchaser.^ 2 a. The defendants, a railroad, having purchased the plaintiff's estate, which was let and underlet, entered and ejected the weekly subtenants ; and thereupon third persons entered, and did great damage to the houses. Held, on motion, the .defendants must pay the purchase-money into court, without the option of surrendering possession.^ 2 h. Where a railway company, by agreement with an owner of land required for their road, entered thereupon, giving bond for the price ; held, on default of payment, he could not enjoin their continuing in possession till payment, though he might perhaps be entitled to a receiver, or to have the money paid into court.^ 2 c. The plaintiff agreed to sell land to the defendants, a railroad company, at a sum to be paid on completion, with 4 per cent interest from the time of the contract ; the defendants to have the right of taking possession on making a certain deposit. If from any cause, other than the plaintiffs default, the purchase should not be completed in six months, the interest, from the end of that period, 1 "Wynne v. Griffith, 1 Sim. & St. 147. 3 Pell v. Nortiiampton, &c. Law Rep. 2 Pope V. Great, &c. Law Rep. (Eng.) (Eng.) Eq. February, 18G7, p. 99. Eq. February, 1867, p. 170. (ft) See Specific Peiformance. 590 LAW OF VENDORS AND PURCHASERS. [CHAP. XL. to be 5 per cent. The deposit haying been made and possession taken, the defendants, more than three years from the date of the contract, were urged to complete the transaction, but relied on a want of funds as the reason for not doing it. The plaintiff then files a bill for specific performance, and praying, that in default of payment he might either enforce or rescind the agreement, and, in the latter case, the deposit be declared forfeited, delivery of pos- session ordered, and the defendants enjoined from remaining in possession, or using the land. The plaintiff" also moved that the balance of the purchase-money be paid into court. Held, as the defendants were using the land for the designed purpose, and as the agreement provided for an increased interest in case of delay ; the motion was rightly overruled, and the plaintiff" must proceed to a decree in the cause.^ 3. In a suit for payment of creditors, the real estates of the testator were ordered to be sold. The party reported purchaser of one of the estates entered into possession, and accepted the title, and proper conveyances were executed. On application by the creditors to have the purchase-money paid out, the purchaser stated, that the tenants had been served with a writ of right by a person who was claimant of the whole estate under an adverse title. Held, the Court could do no more than give possession, and a conveyance under a title satisfactory to the purchaser himself; and after this he had no right to object to the application of the purchase-money ; and the Court ordered accordingly .^ 4. An estate sold under a decree was described as of a certain annual value, and, by the conditions, compensation was to be made for any error in the particular. The purchaser paid his money into court, was let into possession, and took a conveyance. After he got into possession, he discovered that the rent was overstated in the particular. Held, he was entitled to a compensation out of his purchase-money.^ 5. A vendor, resisting an application by the purchaser for pay- ment into court of the deposit, in the hands of the vendor's agent, was charged with a loss by the agent's failure.^ 6. Equity may also act upon the question of security for the purchase-money of land sold. 1 Pryse v. Cambrian, &c. Law Rep. ^ rnnn v. Cann, 3 Sim. 447. (Eng.) Eq. May, 1867, p. 443. ■* Eenton v. Browne, 14 Ves. 144. ■i Thomas v. PoweU, 2 Cox, 894. CHAP. XL.] MISCELLANEOUS POINTS OP PRACTICE. 591 7. Upon a motion for an injunction to stay proceedings at law, it appeared that the defendant had agreed to purchase an estate from the plaintiff for XlOO, and for an annuity for her life ; but it was n(5t specified what security should be given for the annuity. The defendant offered his bond and judgment. Held, the annuity should be secured by charge upon the estate, as well as by the bond and judgment.^ 8. An agreement to purchase land for an annuity for the life of the vendor, to be a charge on the land, and to be paid quarterly, entitles the vendor not only to the charge, but to the covenant of the purchaser for payment of the annuity.^ 9. A vendor, having lost his title-deeds, agreed to give the vendee a real security against such loss. On a bill for specific performance, he stated that he had not real property sufficient for such security, but offered ample personal security. Held, he was bound to procure a sufficient real security.^ 10. The equity power of injunction is sometimes exercised as between vendor and purchaser. 11. Where the defendant is in Maryland, but the land in con- troversy in Virginia, and it is sought to vacate a decree of a Court in Virginia ; though this cannot be done, yet tlie defendant, seeking to enforce such decree, may be enjoined from accepting a convey- ance of lands purchased by him under it, or, if he has inequitably obtained title, may be decreed to reconvey.* 12. After dismissal of a bill for specific execution of an agree- ment, the plaintiff being unable to make a good title, an injunction to restrain him from proceeding at law was granted on motion ;. the defendant undertaking forthwith to file a bill.^ 13. A vendor covenanted that no building except tombs should be erected on any part of his land, opposite to the land sold. Subsequently, he sold part of the opposite land, and the purchaser built on it, without objection by the former purchaser. Afterwards, the vendor sold a further part of the oi)posite land, and the new purchaser commenced building. The original purchaser filed a bill for an injunction, to restrain the defendant from building on any part of the land of the original vendor, or the opposite land ; but it was dismissed, the Court holding, that the covenant extended 1 Remington v. Deverall, 2 An«tr. 550. * Buchanan v. Lornian, 3 Gill, 52. 2 Bower v. Cooper, 2 Hare, 408. 5 McNamara v. Arthur, 2 Ball & B. 3 Walker v. Barnes, 3 Madd. 247. 349. 592 LAW OF VENDORS AND PURCHASERS. [CHAP. XL. only to the lands of the original vendor exactly opposite to the land sold to the plaintiff'.^ 14. An injunction will lie against a purchaser, on behalf of creditors, to restrain payment to the heir.^ • 15. The chancery process of ne exeat regno is sometimes ap- plied between vendor and purchaser. 16. Bill to have a specific performance of an agreement, and that the defendant miglit pay X 1,900, the remainder of the pur- chase-money, .£100 having been paid. The defendant threatening to go abroad, a writ ne exeat regno was granted, to be marked in the sum of X300.^ 17. The Court refused to discharge a writ of ne exeat regno issued against the purchaser, and marked for the full amount of the purchase-money though the abatement (which it clearly appeared would be less than the interest) had not been ascertained by the Master, and no steps had been taken towards the execution of the conveyances. The sheriff, having taken the defendant under the writ, refused to release him until the whole sum, for which the writ was marked, was paid into his hands, and the Court did not disapprove of his conduct.^ 18. But, to entitle the complainant to a writ of ne exeat, upon a bill for specific performance of a contract, against the vendee, he must show a debt actually due ; and must therefore show affirma- tively that he is able to make a good title.^ 19. In a suit for specific performance by a vendor, a writ of ne exeat regno ought not to issue, unless the Court deems it quite clear that there must be a decree for specific performance. Thus it was refused, though the purchaser had taken possession and received the rents after delivery of the abstracts.^ 20. Where a covenant in an agreement for a lease was broken, and a verdict obtained for X500 as damages for the breach, but the plaintiff in tlie action died before the judgment was perfected, so that the damages were lost at law ; the Court, on a bill by his representatives for specific performance of the agreement, refused a writ of ne exeat regno for the amount.'' 21. The production of title-deeds and other papers is sometimes 1 Patching v. Dubbins, 23 Eng. Law & < Boehm v. Wood, Turn. & R. 332. Eq. 609. 5 Brown v. Haff, 5 Paige, 235. 'i Green v. Lowes, 8 Bro. C.C. 217. « Morris v. McNeil, 2 Russ. 604. 3 Goodwin v. Clarke, 2 Dick. 497. '' Jenkins v. Parkinson, 2 Myl. & Kee. 5. CHAP. XL.] MISCELLANEOUS POINTS OF PRACTICE. 593 required by the Court, as a condition of enforcing specific perform- ance. (See cli. 18.) 22. A reversion having been put up to sale by auction, describ- ing the estate as leased, with a covenant on tlic part -of the tenant to repair ; and the purchaser objecting to the title, because no counterpart of the lease was in possession of tlie vendors, it being stated to be in the hands of a party under a partition made some time before ; the Court thought that such counterpart ought to be deposited for the benefit of all parties, before it could compel the purchaser to take.^ 23. Specific marriage articles limited a joint estate to the intended husband and wife, and after the death of the survivor to the use of the heirs of the body of the husband begotten on the wife ; and the settlement after marriage pursued the words of the articles. The husband and wife levy a fine and first mortgage, and then agree to sell. The articles not being produced, the Court would not decree them to be carried into execution by a strict settlement, against the purchaser, who had no notice of them. 2 24. We have already had occasion to speak of the effect of an arbitration and award, in reference to the rights* and obligations of vendor and purchaser, (a) A few additional points remain to be noticed in the present connection. 25. A bill lies, to compel specific performance of an award to convey an estate, where the party has received the consideration.^ 26. Stipulation, that the title to lands sold should be made out to the satisfaction of a third person. A dispute as to the title was referred to an arbitrator, with power to settle all questions arising out of the agreement, who awarded that the title should be taken, with a bond of indemnity in case of eviction. Held, the award was bad, because the arbitrator had exceeded his authority in ordering a bond, and had not decided upon the validity of the title.4 27. Under a contract for sale, at a price to be fixed by an award within a limited time during the lives of the parties, the death of one is not an accident against which tlie Court will relieve.^ 1 Shore v. Collett, Coop. 234. 4 xjoss v. Boards, 3 Nev. & Per. 382. 2 Cordwell v. Mackrill, Arabl. 515. & Blundell v. Brettargh, 17 Ves. 232. 3 HaU V. Hardy, 3 P. Wms. 187. (a) See Specific Performance, Arbitration. 38 594 LAW OF VENDORS AND PURCHASERS. [CHAP. XL. 28. If the terms of an agreement are to be ascertained by an award, being so ascertained, it shall be specifically performed if any thing is to be done in specie ; such as a conveyance, &c. But not if the acts done towards executing it by an award are not valid at law, as to the time, manner, or other circumstances ; un- less there has been acquiescence, notwithstanding the variation of circumstances, or part-performance.^(«) 1 Ibid. (a) It is said, there is no case at law or medium of arbitration for settling the in equity, that, if an award is not made at terms of a contract having failed, this the time and in the manner stipulated, the Court has assumed jurisdiction to deter- Court have substituted themselves for the mine, that there is a contract, though not arbitrators, and made the award ; even at law, in equity ; which, though the where the substantial thing to be done parties never agreed to it, shall be specif- was agreed by the parties, but the time and ically executed. Blimdell v. Brettargh, manner left to others to prescribe. So also, 17 Ves. 232. that there is no instance where, the ; INDEX. INDEX. ABANDONMENT OF SALE, by vendor, 95. ABSTRACT OF TITLE, 291. time of delivering, 204, 206, 291. defect of title apjieariug on, 218, 227, note. duty of vendor as to, 227, 228, note. verification of, 240. Master in Chancery proceeds on, 283, 291. reference of title founded on, 283, 291. who is entitled to, 291. how verified, 291. what sufficient, 291. ACCEPTANCE, of offer, contract by, 13. when necessary under the Statute of Frauds, 117. ACCIDENT, what, 594. ACCOUNT OF RENTS AND PROFITS, 464, note. ACKNOWLEDGMENT OF DEED, form of, 30, 31. ACT OF PARLIAMENT, title under, 240. ACTUAL NOTICE, 408, 411, note. ADEQUATE CONSIDERATION, specific performance requires, 449 and note. ADMINISTRATOR, bond of, for conveyance, 64. purchase by, a trust, 415. and heir, respective rights and liabilities of, 567. 598 INDEX. ADMISSION OF CONTRACT, whether sufficient under the Statute of Frauds, 111. ADVERSE POSSESSION, title founded on, 215, 239, 290. what sufficient to prevent a sale, 411, note. ADVERTISEMENT OF AUCTIONEER, whether evidence, 92. AFFIRMATION AND WARRANTY, distinction, 363. AFTER-ACQUIRED PROPERTY, in reference to a devise, what is, 7. AGENCY, and trust compared, 386. ratification of, 413. AGENT, may contract by letter, 16. whether authorized to receive payment, 32. of husband, when the wife is, 56, note. for sale or purchase, 65. deed of, must be authorized by deed, 66, note. lease by, 66, note. an auctioneer is an, 73. mode of sale by, 73, note. who is an, under the Statute of Frauds, 89. the receiver of a deposit is not an, 92. suit for deposit against, 94. whether a license may be executed by an, 129, note. signing or execution by, whether sufficient under the Statute of Frauds, 303. fraud of, 354. misrepresentations by, 354. ratification of sale by, 355. duties of, in relation to the property of the principal, 384, 386 and note. notice to, 413. lease to, from principal, 416. whether a proper party to a suit, 567, 569. AGREEMENT, (See Contract.) to devise, 1, note, 449. and conveyance, distinction between, 1. executed and executory, 1. between husband and wife, 56, note. INDEX. 599 AGREEMENT — continued. meaning of the term in the Statute of Frauds, 98, note. for lease, whctlier valid under the Statute of Frauds, 113,110, note. cannot be i)artly verbal and partly written, 115, IIG, 117. for lease, and lease, distinction, 293. how enforced, 293. AIR, license in connection with, 137. ALIEN PURCHASER, G5. ALIENAGE, effect of, upon title, 239. ALTERNATIVE CONTRACT, as to price, 22. AMENDS, in case of revocation of license, 135. ANCILLARY, claim for compensation in equity is, 423. ANNUITY, time essential in case of, 184. ANSWER, denying mistake, 11. in case of parol contract, 117, 464. effect of, upon costs, 547. of purchase for valuable consideration, 577. APPEAL, in case of judicial sale, 58G, 587. ARBITRATION, price fixed by, 22, note, 196, 198. damages fixed by, 540. specific performance in connection with, 541. ASSIGNEE, of vendee, liability of, for price, 52. bankrupt, purchase by, 404. covenant in deed, defence against, 500, note. ASSIGNMENT, license, whether subject to, 177, 221 and note, 223 and note. of lease, when presumed, 290. parties in case of, 564. ASSUMPSIT, for price paid, by vendee, 479. to try title, 479, and note. ATTACHING OFFICER, is not a trustee, 397, note. 600 INDEX. ATTESTED COPIES OF DEEDS, when required, 289, 290. ATTORNEY, liability of, for deposit, 94. purchase by, from principal, 403. AUCTION, 73. agency, in case of, 72, 73. what is an, 73. when a sale at, is completed, 75. sale of distinct lots, 76. lease by, 76. -duty, in case of leases, 76. puffing in case of, 77. agreement to prevent competition in case of, 80. whether within the Statute of Frauds, 86. parol evidence as to an, 90. deposit in case of, 92. whether Statute of Frauds applies to, 95. -duty, payment of, not a part-performance, 151. sale, to trustee, 400. by order of Court, 581. AUCTIONEER, whether an agent, 72, 87. whether an owner may act as, 85. purchase by, 85. authority of, whether it must be written, 85. whether he may delegate his authority, 85. whether he may receive payment, 85. clerk of, signing by, 89. declarations of, at sale, 90, 91, 92, 172. is a stakeholder, 92. liability of, 92, note. action by, against vendor, 92, note. advertisement of, whether evidence, 92. receiving a deposit, liability of, 92, 95. writing of, whether sufficient under the Statute of Frauds, 116, note. recovery of deposit from, 485, note. AUTHORITY, of agent, verbal, 65, 66, and note. auctioneer, whether it must be written, 85. AWARD, specific performance of, 452, 594. INDEX. 601 B. BANKRUPT, assignee of, is a trustee, 404. purchase by, 404. mortgagee of, may purchase, 405. BANKRUPTCY, effect of, upon the title of a vendor, 235. BEXWELL V. CHRISTIE, 77, note. BIDDING AT AUCTION, what 73 and note. opening of, 584. BILL, &c., for deposit, defence against, 95. of particulars in suit, when required, 574. BOND, for title, claim of heirs upon, 62. whether the Statute of Frauds applies to the sale of, 107. when sufficient under the Statute of Frauds, 112. specific performance in case of, 435. for price, defence to, 490, note. liquidated damages in case of, 531, note. BOOK, entry in, whether a sufficient signing, 116. BRIDGE, license to build, 135, 136. BUILDING, when personal property, 3, 137. BURDEN OF PROOF, as to title, 218. BURNING OF PROPERTY SOLD, effect on the contract, 489. BY-BIDDERS, 77. at sale by order of Court, 582. C. CALENDAR AND LUNAR MONTHS, 205. CANCELLING OF CONTRACT, interest in case of, 48. remedy in equity by, 428, note. 602 INDEX. CASH, consideration need not be, 19. CATCHING BARGAINS, with heirs, &c., 378. GA VEAT EMPTOR, 351, 352, note, 580. venditor, 362. CERTAINTY, necessary to contract by letters, 16. in case of part-performance, 148. of contract, 165. specific performance requires, 439, 452, 453. CESTUI, may purchase trust estate, 400, note. CHOSE IN ACTION, article for purchase is not a mere, 7. CHURCH TRUST, sale in violation of, 397. CIVIL AND COMMON LAW, as to sales, 362. CLERK OF AUCTIONEER, signing by, 89. CLOUD ON TITLE, effect of, 255, note. COLLATERAL CIRCUMSTANCES, parol proof of, 176. COMMON, license as to, 128. and civil law as to sales, 362. COMPENSATION, in case of part-performance, 158. doubtful title, 212. deficiency of title or quantity, 273, 281, 330, 423. the sale of a lease, 298, 299, 304. misdescription, 309-312. fraud, 353. equity, 423, 545, 566. and rescinding compared, 426, note. in connection with specific performance, 439, 449 and note, 456. case of notice, 501. COMPETITION, agreement to prevent, at auction, 80. COMPROMISE, fraud avoids, 345. INDEX. COS CONCEALMENT, by vendee, 357. general effect of, 361, note. prevents specific performance, 445. CONCURRENT, when conveyance and payment must be, 24. (See Covenants. Mutuality?) CONDITIONAL, tender of deed, 474, 489. CONDITIONS, of auction, parol evidence as to, 90, 92. precedent and subsequent, time in connection with, 184. CONFIDENTIAL RELATIONS, sale in violation of, 384. what are, 384. CONNECTED WRITINGS, may be construed together, 16. CONSIDERATION, of contract, 18. to whom paid, 51, 52, 56. in case of husband and wife, 56, 57. under Statute of Frauds, 98, note. of covenants, making them dependent or independent, 262, note, 265. mutuality a sufficient, 314. inadequate, 369, 370. (See Inadequate Consideration.) excess of, 375. connection of, with notice, 412, note. specific performance requires, 449 and note. nature of, 449, note. whether covenants are, for a note, &c., 497. CONSPIRACY, as to sale at auction, 81. CONSTRUCTION, of power of attorney, 67. Statute of Frauds, 98, note. 111. of contract, 162. as to price, 22. general rules of, 162. certainty required in, 1.65. in case of separate, connected writings, 167. by map or plan, 168. 604 INDEX. CONSTRUCTION — continued. by parol evidence, 170. (See Parol Evidence.) of contract in reference to time, 205. covenants, 262 and note. CONSTRUCTIVE, fraud, 366. notice, 408, 409, 410, note, 413, note. CONTINGENT REMAINDER, title by destruction of, 222. CONTRACT, (See Agreement.) and conveyance, distinction between, 1. to devise, 1, note. and offer, distinction, 13. when entire, 104, note. sale of, whether Statute of Frauds applies to, 107. construction of, 162. by separate, connected writings, 167. time of performing, 180. and representation, distinction, (See Frand.) CONVEYANCE, and contract, distinction between, 1, 62. whether contract is extinguished by, 5. to third person, effect on contract, 29 by agent, authority for, 66, note. terminates a license, 130. COPIES OF TITLE-DEEDS, when required, 289, 290. CORN, sale of, whether Statute of Frauds applies to, 105, CORPORATION, suit by agent of, 71. CORRESPONDENCE, contract by, 15. COSTS, 160. of conveyance, by whom paid, 31. security for, when required, 94. recovered against auctioneer, how he may recover, 96. against trustee, in case of purchase by him, 405. against purchaser jpewrfew^e lite, 418. in equity and at law, 547 and note, 550, 553. effect of answer upon, 547. INDEX. G05 COSTS — co7i(ini(ed. when allowed to vendee, 548. in case of doubtful title, 548 and note, 555, 558. as depending upon the fliirness of the transaction, 548, note. in case of delay as to the title, 549. imperfect abstract, 549. refusal to convey, 550. the death of the vendee, 550. vendor, 550. liability of vendee for, 551. in case of possession, 551. when not allowed to either party, 553. of Master's sale, 556. when divided, 55G. upon reference to a Master, 558. right to recover back, 560. incidental, 561. COURT, lease by order of, 76. sales, (See Sale by order of Court.') COVENANT, omission of, in deed, corrected, 10. to produce title-deeds, 240. for good and s^ifficient deed, good and valid deed, deed, warranty deed, good and perfect deed, proper deed, lawful title^ S^c, 266, 267, 269. for further assurance, 289. COVENANTS, when required of vendor's heirs, 62. what shall be inserted in a lease, 232. in lease, effect of upon a purchaser of the lease, 233. mutuality of, 242, 262, note, 474. whether dependent, 243 and note, and seq. independent, 262 and note, 476. note in case of, 492. in deed, do not bar an action for fraud, 351. of title, equity remedies in case of, 422, note, 423, note, 427, note. of warranty, action upon note in case of, 497. in deed, damages upon, 520 and note. CREDITOR, in trust deed, purchase by, 400, note. CROPS, sale of. Statute of Frauds as to, 101. 606 INDEX. D. DAM, license in connection with, (See License.) DAMAGES, or penalty, whether a contract is for, 22, note, in equity, 29, note, 273, 423, 518. and specific performance, 431, 432, 439. of vendor, 518. vendee, 48, 520. upon covenants in deed, 520, note. sale of personal property, 520, note, in case of fraud, 524. exchange, 526. where the plaintiff has been in fault, 527. not recovered after commencement of suit, 529. tender of, 529. liquidated, 530. to be settled by arbitration, (See Arbitration.) DATE, day of, when excluded, 206. DEATH, of party to contract, effect of, 60. DEBT, sale in payment of — interest, 44. DECLARATIONS, of agent, 71. auctioneer, 90-92, 172. DECREE, against a trustee, in case of purchase by him, 405. whether notice to a purchaser, 417. DEED, tender of, 29, 246, 288, 470, 489. demand for, 31, 473. of agent, how authorized, 66, note. undelivered, whether sufficient evidence of contract, 112. defectively executed, „ „ „ 112. insufficient, may be a good license, 128. title by, validity of, 221. inaccuracy of, an objection to the vendor's title, 221. giving of, when sufficient, 245, 254. of third person, whether sufficient, 246. INDEX. GOT 'DEED — contimied. a good title does not always require a, 290. tender of, whether it may be conditional, 474. DEFEASANCE, notice of, 412, note. DELAY, in completing a sale, effect on interest, 36. specific performance, (See Time.) DEMAND, for deed, 30, 473. DEMURRER, in case of parol contract, 118. for multifariousness, 565 and note. DEPENDENT, contract, 28. covenant, 243, 247, 474. DEPOSIT, of purchase-money, interest in case of, 44, 46. suit for, in case of agency, 70. in auction sale, 92. definition of, 92. party receiving, is a stake-holder, 92. is a conditional payment, 92. recovery of, 92, 485. evidence to sustain an action for, 92, note. bill or note for, defence against, 95. forfeiture of, 95. claim for, against vendor, 96. payment of, into court, 96. whether a jDcnalty, 536. DESCENT, of estate contracted for, 10. license, whether subject to, 128. DESCRIPTION, of property, under Statute of Frauds, 111, note. DETERIORATION, of property, effect on price and sale, 205. interest in case of, 42, note, 44. DEVISE, contract for, 1, note, 449. by a purchaser, effect of, 7, 140. revocation of, by sale, 9, 10. of estate previously sold, 10. 608 INDEX. DEVISE — ■ continued. license, whether subject to, 128. title by, 222. parties to suit in case of, 567. DISABILITY, of party to perform, effect on contract, 29 and note, 250, 483, note. DISCRETION, specific performance is matter of, 443. DITCH, license to dig, 125, note. DOLUS MALUS, as connected with notice, 407. DOMINANT A'ND SERVIENT TENEMENTS, license in connection with, 125 and note. DOUBTFUL, title, whether sufficient, 210, 211, 222, 224, 255 and note, 309, 441, note, 454, 456. what is a, 210. costs in case of, 548, 558. DOWER, deduction on account of, 62. vendor bound to furnish a release of, 267, note. DRAIN, license for, 125, note. DRUNKENNESS, effect of, upon a sale, 368. DUTCH AUCTION, 77, note. DUTY, auction, when recoverable, 76. to what applicable, 76. E. EASEMENT, and license, distinction between, 124, 127, 132. ELECTION, as to devise, applies to a purchaser, 9. right of, as to price, 22. of remedy by vendee, 482. ENTAILMENT, sale of remainder in case of, 334. ENTIRE, when a sale is, 103, 142, 271, 272, note, 279. INDEX. 609 ENTRY, in a book, whether a sufficient signing, 116. EQUITABLE TITLE, whether contract gives, 6. sufficient, 219, 259. EQUITY, title of purchaser in, 6. and law, jurisdiction of, as to mistake, 12. in case of part-performance, 29, note, 138. doctrine of, as to agency, 69. damages in, 273. remedies in, 421, 422. (See Law and Equity.) costs in, 547, 553. ESTATE, at will, sale of, not within the Statute of Frauds, 106. ESTOPPEL, and license, connection between, 137. EVICTION, whether a defence to a mortgage, 500. EVIDENCE, of agency, 66, note. what required for reforming an instrument, 341. of fraud, 359. EXCEPTION, (See Title.) EXCESSIVE CONSIDERATION, 375. EXCHANGE, damages in case of, 526. EXECUTED, and executory contract, distinction, 2, 244. distinction, as to tender, 312. in connection with mistake, 323. conveyances, remedies in equity in case of, 422, note, and executory agreements, remedies in equity, 422, note, 426, note. EXECUTORY, and executed contract, distinction, 2, 244. in connection with mistake, 323. in connection Avith remedies in equity 422, note, 426, note, contract, effiict of, on title, 2, 244, 462, note. 39 610 INDEX. EXECUTOR, of vendor, rights and duties of, 157. when a party, 439, note. EXECUTION, of heense, revocation after, 130. -sales, part-performance in case of, 149. (See Trust.) no warranty in, 216, note. EXPECTANCIES, sale of, 377. for inadequate consideration, 377. of heirs, remainder-men, &c., 377. requires proof of consideration, 378, 380. when valid, 380. mode of relief for, 382. effect of time upon, 382. ratification of, 383. EXPENSES, liability of vendor or vendee for, 561. EXPRESS, consideration need not be, 20. EXTINGUISHMENT, of contract by conveyance, 5 and note. EXTRAVAGANT PURCHASE, specific performance of, 452. F. FEE,' purchase of, and lease, distinction, 294. FEME COVERT, whether bound by contract, 55. FIRE, destruction by, effect on sale, 489. FIXTURES, interest in case of, 42, note. FLOWING, contract for, whether within the Statute of Frauds, 104. right of, when implied, 122. FORPXLOSURE SALE, bidding at, 81, note. FORFEITURE OF DEPOSIT, 95, 536. whether in the nature of liquidated damages, 536. INDEX. 611 FORM, of sale, 73, 97. decree against trustee in case of pui'chase by liini, 405. FRAUD, consisting in inadequacy of consideration, 18. (See Inadequate, Sfc.) in auction sales, 77. parol evidence in case of, 91, 172, 359. Statute of Frauds, in case of, 118. doctrine of part-performance founded on, 144 and note, 148, 150. in sale of leasehold, 299. avoiding of sale foi', 342. whether it may consist in unintentional misrepresentation, 343, 353. may be suppressio veri or suggestio falsi, 345, 362. consist of representations out of the written contract, 345, 359. avoids a compromise, 345. does not avoid a sale, unless it misleads, 346, 361, note, 373, note. renders a sale voidable, not void, 349. action lies for, notwithstanding covenants, 349. time of rescinding for, 349, 429. as to any part of the property, avoids the whole sale, 351. maxim of caveat emptor does not apply in case of, 351. whether compensation may be claimed in case of, 353. party responsible for, 354. of agent, 354. vendee, 356, 364. remedy for, 358. concurrent jurisdiction of, in law and equity, 358, 423. evidence of, 359. implied or constructive, 366. (See Implied Fraud, Incapacity, Lunatic, Mental Inability, Drunk- enness, Inadequacy of Consideration, Excess of Consideration^ Non compotes; Heirs, contract by; Expectancies, sale of; Trustees, purchase by.) as connected with notice, 407, note. equity relieves in case of, 428, note, 501. prevents specific performance, 443, 446. of vendor, effect of, upon a note for the price, 492. measure of damages in case of, 524. parties to suit in case of, 566. FRAUDS, Statute of, (See Statute of Frauds.) 612 INDEX. FRAUDULENT CONVEYANCE, title under, 222. FUND, for payment of purchase-money, 8. G. GOOD, and sufficient deed, covenant to give, (See Covenant.) -will purchase of, 186. GOODS AND LANDS, sale of, distinction between, 105, note. GRANT, and license, distinction, 124. public license, distinction, 127. GRASS, sale of, Statute of Frauds as to, 101, 105. GROSS, mistake, 334, 356, note, 375, note. inadequacy of consideration, 372. GROWING PRODUCTS, whether Statute of Frauds applies to, 100. GUARDIAN, of heir of vendor, liability of, 62. sale to, of ward's estate, 396. H. HEIR, election of, in case of devise, 9. sale by, 377. when a party, 439, note. HEIRS, whether an estate contracted for passes to, 10. of parties to contract, rights and duties of, 60, 62. whether parties to suit, 62. of vendor, suit against, 567. and executors, respective rights and liabilities of, 567. HERBAGE, sale of, whether within the Statute of Frauds, 105, note. HEREDITAMENT, what, 104. HIGHEST BIDDER, auction is a sale to, 73. INDEX. 613 HOUSE, when personal property, 3, note, license to erect, 130. HUSBAND, and wife, rights and duties of, in case of sale, 55. when the wife is agent of, 58, GO. and wife, title in case of, 237. action in case of, 570. I. • IGNORANTIA LEG IS, 8^c. connected with notice, 407. IMPLIED, revocation of will in reference to land contracted for, 8. consideration may be, 20. license, 122. fraud, 366. and express notice, 406 and seq. (See Notice.) notice to agent, 413. IMPROVEMENTS, by a purchaser under an illegal contract, 6. upon land sold, interest in case of, 48. sale of, whether within the Statute of Frauds, 108. promise to pay for, whether within the Statute of Frauds, 108. by trustee, after purchasing trust estate, 399. claim for in equity, 424, note. IMPROVIDENT CONTRACT, 375, note. IN REM, and in personam, jurisdiction, 434. INADEQUACY OF CONSIDERATION, 18, 370. whether evidence of fraud, 370. connected with other grounds of objection to a sale, 370. mistake and surprise, 370, note. must be gross, 372. whether ground for rescinding or refusing specific performance, 374. INCAPACITY, to contract, 366. INCORPOREAL HEREDITAMENT, and license, distinction, 128. 614 INDEX. INCUMBRANCE, parol agreement to pay, 108. whether an objection to performance of contract, 273. (See Title. Partial Failure, ^c.) INDEMNITY, contract of, 20. INDEPENDENT COVENANTS, 26, 247, 262, and note, 476. promissory note in case of, 493 and note. INDORSEE, of note, whether failure of title is a defence against, 497. INFANCY, whether an objection to title, 237. INFANT, heirs of vendor, liability of, 62. conveyance by, 62. claim for specific performance by, 63 and note, 441. auction sale of property of, 78. title under, 237. parties to sale and action, (^See Parties.) trustees, conveyance by, (/See Parties.) INJUNCTION, against cutting timber, 10. remedy of, in case of sale, 591. INSOLVENCY, effect of, upon title, 235, note. INTENTION, whether construction of covenants depends on, 262, 263, note. INTEREST, 35. claim of vendor for, 35. when recoverable, 35. when a purchaser is not required to pay, 37. question of, when for the jury, 38. agreement not to allow, 38. in case of investment of the purchase-money, 40. in case of reversions, 42. whether tender of deed is necessary to recover, 43. in case of vacant land, 43. claim of vendee for, 44. in case of fraud, 45. on money paid into court, 47. on deposit, 93. none, upon money had and received, 529. INDEX. 615 INTERPLEADER, in case of deposit, 94, 96. INVESTMENT, of purchase-money, interest in case of, 40. J. JOINDER, of parties, 564, 565, 569, 570. JOINT, parties, rights of, as to price, 32. vendors, form of deed of, 53. JUDGMENT, against vendee, effect of, 7, 10. against vendor, effect on the title, 233, 269, 491. notice of, 409. JUDICIAL SALE, what is, 466. JURISDICTION, for specific performance, 434. L. LACHES, (See Lapse of Time. Time. Limitation.^ a bar to specific performance, 181, note. LANDLORD, and tenant, notice in case of, 423. LANDS, what are, under the Statute of Frauds, 100, 105, note, and goods, distinction between sales of, 105, note. LAPSE OF TIME, (See Limitation. Time.) effect of, upon auction sale, 80. title by, 236. LAW, and equity, jurisdiction of, as to mistake, 12. as to agent, 69. and fact, mistake of, 323. equity, concurrent suits in, 421, note, remedies in, 422. LAWFUL TITLE, contract for, (See Title. Covenant.) 616 INDEX. LEASE, by agent, GG, note. agreement for, whether valid within the Statute of Frauds, 116. and license, distinction between, 128. assignment of, when presumed, 290. title in case of, 293. and agreement for, distinction, 293. purchase of the fee, distinction, 294. agreement for, requires a good title, 296. covenant in, for conveyance of the fee, 296. agreement for, when complete, 296. uncertainty avoids, 294. what title shall be made by a vendor of a, 296. title to, in part, effect on a sale, 297. whether avoided by mistake, 297. compensation, in case of the sale of a, 298, 303. rescinding, „ „ 299 and note. notice to purchaser of a, 300. waiver of title, upon sale of, 301. parol evidence concerning, 301. waiver in case of, 301. Statute of Frauds as to, 302. part-performance in case of, 304. renewal of, by trustee, 397. to trustee, by cestui, (See Trust.) notice of, 409, 415. to agent, by principal, 416. specific performance in case of, 439, 441. LEASEHOLD, interest, whether Statute of Frauds applies to, 105. title to, 226. LEGAL, title, whether vendor must make, 219. LEGISLATIVE, grant, and license, distinction between, 127. LETTERS, contract by, 15. whether a sufficient memorandum within the Statute of Frauds, 112. LICENSE, 120. and part-performance, connection of, 120. whether it passes an estate, 104, 120. INDEX. G17 LICENSE — continued. is a mere authority, 120, 128. whether assignable, 120, 128 and note, 130, note. is a mere remitter oi damages, 120. will not sustain trespass, 120. plea of, doe§ not involve the title, 120. may be implied, 122. in reference to mill, 122, 128, 134. wharf, 122. light and air, 124, 137. ^ navigation, 124. drain, 125, note. dam, 125, note, 128, 132, 134, 135. ditch, 125, note, 134. timber, 128, 130. sluice, 134. perpetual, 124. in connection with dominant and servient tenements, 124. revocation of, 125, 130. for a way, 127, 136. and grant of incorporeal hereditament, distinction, 127. public grant, distinction, 127. lease, distinction, 128, 318. easement, distinction, 128, 132. deed valid as a, 128. is 2i personal 2i\ii\\oviiy, 128. whether descendible, 128, 130, note. devisable, 128. as to right of common, 128. whether agent may exercise, 128, note. o^ profit and personal, distinction, 128, note, time of executing, 130. limited by the life of the licenser, 130 and note, terminated by a conveyance, 130. to erect a house, 130. revocation of, after execution, 130. to cut trees, 132. by parol, and under seal, 132. in case of permanent erections, &c., 132. for a bridge, 135, 136. and tenancy at sufferance, distinction, 135. estoppel, connection of, 137. 618 INDEX. LIEN, for price, 5, 52. of juflgment, upon estate purchased, 10. vendor as against an assignee, 52. vendee, by payment of purchase-money, 430 and note. LIFE, -annuity, time essential in case of, 184. -estate, sale of, when void, 334. LIGHT, license in connection with, 134, 135. LIMITATION, 204. ' (See Time. Lapse of Time.) title by, 236. in case of the sale of expectancies, 383. LINE, agreement to straighten, whether within the Statute of Frauds, 107. LIQUIDATED, damages, 530. or penalty, whether a contract is for, 22. LIS PENDENS, 416. LOSING CONTRACT, may be specifically performed, 447. LUNACY, effect of, on deed, 428, note. LUNAR AND CALENDAR MONTHS, 206. LUNATIC, contract by, 366. M. MAP, construction of contract by, 168. MARKETABLE TITLE, 456, note. MARRIED WOMAN, contract of, whether enforced, 55. title under, 237. award in case of, 453. MASTER, sale by, bidding at, (See Auction. Sale hy Order, ^c.) proceeds on the abstract, 291. sale by, 580. confirmation of, 580. INDEX. 619 MEMORANDUM, (See Statute of Frauds. Signing.) what is a sufficient, as to a lease, 303. under Statute of Frauds, 387, note. MENTAL INABILITY, .to contract, 366. in connection with inadequacy of consideration, 370. MERGER, of contract in conveyance, 5, 14-i. in case of mistake, 10. does not prevent an action for fraud, 351. MILL, implied right to flow in case of, 122. MINE, how far real estate, within the Statute of Frauds, 103. concealment of, by vendee, 357. MISREPRESENTATION, (See Fraud.) in sale of leasehold, 299. partial, effect of, 311. avoids a sale, 342. whether it must be intentional, 343. ill a plat exhibited, 345. does not avoid, unless relied on, 346. prevents specific performance, 445. in judicial sale, 584. MISTAKE, equity corrects, 10. parol evidence of, 12, 15, note, 92, 172, 341, 359. and fraud, distinction between, as to interest, 149. whether a lease is avoided by, 297. rescinding for, 309, 310, 333, 590. in case of destruction of the property before sale, 334. in sale, 322. definition of, 323. of title, 323. law and fact, 323, 341. and surprise, 323, note, of fact, 326. mode of relief for, 326. prevents specific performance, 327. 620 INDEX: MISTAKE — continued. specific performance refused for, 327. must be strictly proved, 327. and promptly taken advantage of, 327. as to quantity, &c., effect of, 328. in partial want of title, 330. compensation in case of, 331. (See Title. Partial Failure, ^c. Compensation.) vendor as well as vendee may be relieved for, 335. waiver of right to rescind for, 337. reforming of agreement, &c., for parol proof of, 341. in representation, whether it avoids a sale, 343. and fraud compared, 350, note. and fraud in part, different effect of, 351. in case of agency, 356. in connection with want of consideration, 370. gross, 375, note. money paid by, action to recover, 480. MONEY, had and received, action for, 480. in case of deposit, 95. (See Deposit.) paid, action for, by auctioneer, 92, note, 96, 99. had and received, whether interest may be recovered in suit for, 93, 529. MONTHS, meaning of the term, 206. MORTGAGE, by a vendee, effect of, 7. agreement to pay, whether within the Statute of Frauds, 108. liability of a trustee in connection with, 395, 403, note. whether eviction or want of title is a defence to, 500. MORTGAGEE, and mortgagor, whether parties to sale are, 4 and note. purchase by, 400, note, 404. MORE OR LESS, effect of the terms, 271, 328, 332, 335, 336, 353. MOTION, in equity, what may be tried on, 278. reference of title on, 283. MUTUAL COVENANTS, 262, note. (See Covenant.) INDEX. G21 MUTUALITY, of contract, 18, 24, 28, 242, 281. specific perfoi'maiice requires, 242, 441. a sufficient cousideratiou, 314. N. NEGLIGENCE, an objection to specific performance, 443, 445. NON COMPOTES MENTIS, 36G. NON-USER, title depending on, 239. NOTE, for price, 31. defence to, 486. averment of consideration of, 486, note, tender of deed, whether necessary to suit on, 486. want of title, whether a defence to, 489. destruction of property sold, a defence to, 489. judgment against vendor, „ „ 491. partial failure of title, whether a defence to, 491, 495. fraud of vendor, „ „ 492. incumbrances, „ „ 492. in case of the vendee's possession, 493. indorsed, whether want of title is a defence to, 497. effect upon, of covenants of warranty, 497. NOTICE, to purchaser, 1, note, 7, 228, 406. when insufficient for rescinding, 31. by purchaser, whether necessary to stop interest, 40. of revocation of license, 130. (See License.) to purchaser, in case of part-performance, 155. materiality of time, how affected by, 202, 204. of defect of title, eff"ect of, 228, 501. to purchaser of leasehold, what is, 228. avoids the effect of misrepresentation, 345. English and American cases relating to, 406, note. and registration, connection of, 406, note, 407, 412. fraud, connection of, 406, 407 and note. rules of, to what parties applicable, 407, note. as connected with dolus mabts, 407, note. before payment, 407, note. 622 INDEX. NOTICE — continued. of a parol agreement to sell, 407, 410, 411. purchaser wiih, from one without, 408. without, from one with, 408. express or implied, 408, 413, note, constructive, 411, 413, note. actual, 408, 411, note. sufficient for inquiry, 408 and note, 410, note, suspicion of, 408. of judgment, 409. lease, 409, 413, 415. deed, 406, note, 407, 409, 412. arising from possession, 410. of defeasance, 412, note, to agent, 412 and note, 413. of unacknowledged deed, 412, note, as connected with consideration, 412, note, to solicitor, 413, note. agent of both parties, 413, 414. whether it must be confined to the same transaction, 414. from whom, 414, 415. reports not sufficient, 415 and note, in case of landlord and tenant, 410, 415, 416. 'pendente lite, 416. decree, whether, 417. of unregistered judgment, 416, note, 417, note, pleading of, 420, note, effect of, as to parties to suit, 568. NURSERY, products of, whether the Statute of Frauds applies to, 105. O. OFFER AND CONTRACT, distinction, 13. OPENING OF BIDDINGS, 584. P. PAPER SECURITIES, sale of, whether Statute of Frauds applies to, 107. PARENT, and cliild, part-performance in case of, (See Part, SfC.) INDEX. 623 TAROL, contract, part-performance of, (See Part-performance.) evidence of mistake, 12, 341, 359. surprise, 359. price, 23. contract of party deceased, 60. contract, not binding upon heir of vendor, G2. whether agency may be by, Go. evidence, to connect different instruments, 70. as to sale by auction, 90, 92. in case of fraud, 91, 359. general admissibility of, 98, note. agreement to pay incumbrances, 109. taxes, 13. cannot be in part, and in part written, 115, 117. pleading in case of, 117, 464. sale, only voidable, 118. license, (See License^ and sealed license, revocable, 132. evidence, 170. of part-performance, 141 and note. not admissible, «fec., to explain, &c., a writing, 170. as to lease, &c., 170. to resist specific performance, 172. of subsequent agreement, whether valid, 172. waiver or variation of conti'act, 172, 316, 501, 504. collateral circumstances, 176. agreement, wai^-er, or extension of time by, 197, 202. evidence as to leaseholds, 301. waiver of tender, 476. sale, action by vendee for price in case of, 483. effect of vendee's possession upon, 493. trust, 388. PART, title, effect of, 25, note, 330, 491, 495, 497. to leasehold, effect of, on the sale, (See Lease.) performance, effect of, upon remedy, 29, note. of parol agreement, 56, note, 100, note, 391. by heir, 63. payment of auction-duty is not, 92, 151. and license, connection of, 120, 138. effect of, in law and equity, 138. 624 INDEX. PART — continued. performance, effect of, upon claim for price, 138, 139. takes a contract out of the Statute of Frauds, 141. may be proved by parol evidence, 141. is founded on fraud, 144, 148, 150. acts merely introductory are not, 144. whether binding upon representative of one de- ceased, 144, note, 145, note. certainty required in case of, 148, 152. in case of trust, 148. execution sales, 149. payment of money, whether, 150. what possession constitutes, 152. in case of lease, 152, 303, 304. acts of, must be solely referable to the contract, 152. effect of, upon a purchaser without notice, 155. doctrine of, in the United States, 155. compensation in case of, 158. payment, effect on specific performance, 457. PARTIAL, failure of title, 270, 423. (See Title. Compensation.) fraud, effect of, 351. title, specific performance in case of, 455. PARTICULAR, tenants, rights, «&c., of, 54. whether sufficient under the Statute of Frauds, 117. of objections, to title, 485, note. PARTICULARS, bill of, when required, 574. PARTIES, joint, rights of, as to price, 32. to contracts, 51. particular tenants, 54. tenants in tail, 54. for life, 54. to suit, whether heirs must be, 62. heir and executor, 388, 439, note. for rescinding, 320. for specific performance, 467, note, lunatics, 63. principal and agent, 65. INDEX. G25 PARTIES — continued. infants, 63, note. to whom the Statute of Frauds applies, 99. to sale and suit, 570, note, actions, 563. whether parties to the contract, 407, 563, 560. who are, seeking the aid of the court, 563, note, in case of assignment, 564. joint, 564, 569, 570. multifariousness as to, 565. in case of a fraudulent conveyance, 566. the death of a party to the contract, 566. devise, 567. whether agents are proper, 568, 569. tenants „ 568. in case of mortgage, 568. notice to third persons, 568. partnership, 569. husband and wife, 570. PARTNERS, suit by, to rescind, 320. PARTNERSHIP, parties to suit in case of, 569. PATENT, defects in property sold, 363. (See Concealment.) PAYMENT, into court, of purchascrmoney, 47, 459, 463, 589. deposit, 95. to auctioneer, 85. whether a pai't-performance, 150. and conveyance, mutuality of, 242. whether agent can receive, 323. PEARS, sale of, whether valid under Statute of Frauds, 101. PENALTY, or stipulated damages, whether a contract is for, 19, 22, note, 530. whether a deposit is a, 536. PENDENTE LITE, 388. notice to purchaser, 416. nil innovetur, 416, 417 and note. 40 626 INDEX. PERFORMANCE, what is, 27, 572. of contract, passes estate in equity, 140. by vendor, form of averring, 477. substantial, sufficient, 502. PERMANENT ERECTIONS, &c. license for, 132. PERSONAL, property, when building is, 3. estate, application of, for purchase-money, 8. to the party, when a contract is, 23, note. liability of agent, 71. authority, license is a, 128, 130, note. license and of pro jit, distinction, 128, note. representatives, when parties, 388. PEW, sale of, whether Statute of Frauds applies to, 105. PLACE, specific performance as depending on, 434. (See Jurisdiction.^ PLAN, construction of contract by, 168. PLAT, misrepresentation by, 345. PLEADING, 572. in action for deposit, 94. under Statute of Frauds, 117, 464. of notice, 420, note. in relation to specific performance, 4G4. POLES, sale of, whether Statute of Frauds applies to, 106, note. POSSESSION, does not give validity to an illegal purchase, 6. of vendee, when a waiver of his rights, 255, 258, 463, note, 502, 504. suit for, before payment, 29. interest in case of, (See Interest.) effect of, under Statute of Frauds, 141, 492. what, necessary to part-performanee, 144. whether title may be founded on, 290, 291, notice of title, 410, 415. defeasance, 412, note. INDEX. G27 POSSESSION — conthiued. mixed, is uot notice, 412. payment in case of, 459. effect of, upon an action by the vendee, 523, note, costs, 551, 552. lapse of time in case of, (See Time.) POTATOES, sale of, whether the Statute of Frauds applies to, lOG. POWER, of attorney, construction of, G7. PRACTICE, in relation to specific performance, 467. PRESCRIPTION, none in case of license, 124. PRESUMPTION, of title, in sale of leaseholds, 227, note, title, 236. assignment of lease, 290. rescinding, 314. PRICE, of land sold, 22. to whom paid, 51, 52. in case of husband and wife, 57. whether auctioneer may receive, 85. agreement concerning, whether Statute of Frauds applies to, 107 and note, 138, 139. necessary to sale, 108, parol evidence of, 109.. may be fixed by arbitration, 110. liability for, as depending on title, (See Title. Covenant.) must be fixed, 452. suit to recover back, 479. tender of, (See Tender.) notes, &c., for, (See Tender. Notes.) PRINCIPAL AND AGENT, 64, 569. (See Agent.) PRINTING OF NAME, whether sufficient under the Statute of Frauds, 111, note. PRIVATE AND PUBLIC SALES, 73. PRODUCTS OF THE SOIL, whether the Statute of Frauds applies to, 100. PROFITS, account of, in case of rescinding, 320. 628 INDEX. PROPOSAL AND CONTRACT, distinction, (See Contract.^ PUBLIC, and private sales, 73. grant, and license, distinction, 127. trust, sale cannot be in violation of, 397. policy, contract against, 449. PUFFING, 77, 580. PURCHASE, -money, payment of, into court, 47, 459, 463, 589. and lease, distinction, 294. for valuable consideration, pleading, 576. -money, security for, 590. PURCHASER, when bound to pay interest, (See Interest.') may claim interest, when, (See Interest.) Q. QUANTITY, deficiency in, effect on sale, 271. (See Notes, erformance, 252, 255, 444, note. (See Time.) sale to trustee must be disaffirmed in, 401. INDEX. 629 READINESS TO CONVEY, eflfect of, 474, 475, 572. (See Tender.) RECEIPT FOR TRICE, whether evidence of coutract, 109. sufficient, under the Statute of Frauds, 117. RECOVERY, title by, 222. REFERENCE, by one instrument to another, whether sufficient under the Stat- ute of Frauds, 112, 115. of title, 248. when made, 283. upon what founded, 283. whether made on motio7i, 283. general practice as to, 284. costs of, 558 and note. REFORMING, of deed or agreement for mistake, 10, 338. fraud, 361. REGISTRATION, American practice of, 288. and notice, connection of, 406, note, 407 and note, 412, note, whether the maxim ignorantia legis, &c., applies to, 407, note. REMAINDER, sale of, 334, 377. (See Expectancies.) REMAINDER-MAN, purchase by, a trust, 397. REMEDY, in case of fraud, 358. sale by trustee, 402. REMEDIES, 421. and rights, 421. in equity, 421. law and equity, 421, note, 422 and note, case of executed conveyances, 422 and note, 423. equitable, by way of comjjensation, 423. in case of fraud, 423 and note, 42 G, note, 427, 428, note, by rescinding a sale, 427. cancellation, 428, note, specific performance, 431. 630 INDEX. RENEWAL, covenant for, must be certain, 226. of lease by trustee, 397. EENT, specific performance in case of, 44, 439. parol evidence as to, 170. RENTS, and profits, when vendor is liable for, 35. vendee „ 44. how far an incumbrance, 273. false affirmation concerning, 360. and profits, account of, 464, note, and interest, mutual claim for, (See Interest.') REPUBLICATION OF WILL, effect on equitable title, 7. lands contracted for, 10. REPRESENTATIVES, when contract passes to, 23, note, suit by or against, 567. REPRESENTATION AND CONTRACT, distinction, (See Contract. Fraud.') REPRESENTATIONS OF AGENT, (See Agent.) RESALE, of property bought by trustee, 399, 405. by Master in Chancery, 582, 587. RESCINDING, 307. (See Mistake. Fraud. Partial Title.) of sale, for want of title, 29, 255. when notice is insufficient for, 31. interest in case of, 44. whether for failure to convey, 309. misdescription of property, 309-312. distinction between, and affirmance, 316, note, what constitutes, 317. of auction sale, time of, (See Auction. Time.) of sale of leasehold, 299. when presumed, 314. right of, when waived, 315, 349. right of, may be lost by a new contract, 316. mode of, 317. what payment necessary to, 318. which party has the right of, 319. INDEX. G31 RESCINDING — continued. profits and improvements in case of, 320. for mistake, 334. (See Mistake.) fraud, (See Fraud.) destruction of property before sale, 334. and specific performance, compared, 374, 37.5. compensation, compared, 426, note, 438, 443, 445, 452, 455. in equity, 427. action by vendee in case of, 482. in case of recovery by tenant in tail, 490. bond for price given up in case of, 491, note, after judgment for the jirice, 500, note, must be total, 505. interest in case of, (See Interest.) whether vendee is liable as lessee in case of, (See Use, &c.) RESERVED BIDDING, 78. RESTS OF INTEREST, 47. RESIGNATION OF TRUSTEE, sale after, 396. RETURN OF SHERIFF, whether a signing within the Statute of Frauds, 87, note. REVOCATION, of devise of land contracted for, 8. will by sale, 9, 10. will of purchaser, Avhether the conveyance is, 9. license, 104, 122, 130. REVERSION, purchase of, interest in case of, 42. sale of, 377. (See Expectancies.) RIGHTS AND REMEDIES, 421. S. SALE. ' private and auction, compared, 73. auction, of distinct lots, whether separate, 76. need not be in writing, at common law, 97. by order of Court, 580. caveat emp)tor in case of, 580. confirmation of, 581. effect of, upon the title, 581. 632 INDEX. SALE — continued. by order of Court, advertisement and notice of, 581, note, resale in case of, 582, 583, 587. when in parcels, 582. by whom made, 583. opening of biddings, 584. misrepresentation in, 584. mistake in, 584. remedy or surety for the price, 586. under erroneoxis decree, 586. opening of decree in case of, 586. appeal in case of, 586. SEAL, sale does not require, 97, note. SEALED INSTRUMENT, of agent, how executed, 69. SECURITY, for price, what sufficient, 23, note, 24. costs, when required of auctioneer, 94. purchase-money, 590. SEPARATE LOTS, deed of, 30. SHERIFF'S SALE, puffing at, 79. SIGNING, in sale by auction, 87 and note. what sufficient under the Statute of Frauds, 111, 115, 303. by agent, 303. one party, under Statute of Frauds, (See Statute, »fec.) SLUICE, license as to, 134. SOLICITOR, liability of, for deposit, 94. notice to, 413, 414. SPECIFIC PERFORMANCE, 422, 423, 501. whether infant can claim, 63, note, in case of a lunatic, 63. husband and wife, 57. distinction as to evidence for enforcing or resisting, 90, 172. parol evidence in suit for, 172. laches a bar to, (See Time.) history of, 431. and claim for damages, compared, 432, 518. INDEX. 633 SPECIFIC PERFORMANCE — continued. right of, in relation to real property, 432. jurisdiction for, as depending on want of remedy at law, 433. of contract in what form, 435. as connected with other grounds of relief, 436. refusal of, and rescinding, compared, 374, 37o, 438, 443, 445, 452. in part, 439. requires certainty in the contract, 439 and note, 452. mutuality, 63, note, 441. is matter of discretion, 443. does not lie, in case of a hard or unreasonable contract, 443, 445. nor in case of fraud, 443, 463. ' mistake, 443. negligence, 443. abandonment of contract, 445. surprise, 449. misrepresentation, 445. may be had, of a losing contract, 447. whether of contract against public policy, 449. requires adequate consideration, 449. of extravagant purchase, 452. in favor of the vendor, 454. requires performance by plaintiff, 454. . title in the plaintiff, 211, 454. barred by delay, 454. in favor of vendee, 455. in case of partial title, 455. compensation in connection with, 418, 449, note, 45 G. in case of part-payment, 457. ' -performance, 458, 461. disability, (See Disahility.) pleadings and practice in relation to, 464. executed agreements, 422, note, liquidated damages, 535. arbitration, (See Price. Arhitration.) or damages, bill for, 432, 436. decree for, is not a judicial sale, 466. STAKEHOLDER, auctioneer is a, (See Auctioneer.) and agent, distinction, 70. STAMP, necessity and effect of, 97, note. 634 INDEX. STATE, of facts upon reference of title, 283. -jurisdiction for specific performance, 434. STATUTE OF FRAUDS, 97. whether applicable in case of mistake, 11. contract by letters under, 15. part-performance under, 56, note, 458, 461. (See Part-performance.) effect of, as to agency, 69. ■whether applicable to auctions, 86, 90. application of, to action for deposit, 95. changes the common law as to verbal sales, 97. English and American, 98. effect of in United States, 97, note, construction and policy of, 98, note, to what parties applicable, 99. words of, 100. whether it requires that the consideration be expressed, 98, note. Avhat are lands, within the, 100. whether growing products are within the, 100, 105 and note. trees, 100. timber, 100, 105. pears, 101. grass, 101, 105. turnips, 101. wood, 101, note, 104, note, 105. crops, 101, 102, 105. ore, 104. flowing, 104. pew, 105. leasehold, 105. potatoes, 105, 106. mulberry trees, 105. trees to be transplanted, 105. corn, 105. herbage, 105, note. poles, 106, note. improvements, 106, 109. tenancy at will, 106. paper securities, 107. • bond, 107. whether it applies to the price, 107. a contract to pay incumbrances, 108. INDEX. 635 STATUTE OF FJlAimS — continued. in case of part-performance, 108. whether strictly or liberally construed, 111. written admission sufficient under, 111. desci'iption of property sold under, 111, note. memorandum, what is a sufficient under, 387, note. signing, what is a sufficient under. 111, 115. by party to be charged under. 111. in what part of an instrument, 111, 116. whether a deed undelivered or defectively executed is a sufficient compliance with, 111, 112 and note. bond, when a compliance with, 112. execution by agent, when a compliance with, 112. reference by one instrument to another, whether a compliance with, 112, 115. letters, whether a compliance with, 112. agreement for lease, whether valid under, IIG, 119. requires certainty in the statement of the agreement, 115, IIG. writing of auctioneer, whether sufficient under, 116. whether a receipt is sufficient under, 117. particidar „ „ 117. acceptance of proposal, when necessary under, 117. pleading under, 117, 464. license in connection with, (See License.) does not prevent a subsequent parol contract, (See Parol, &c.) does not dispense with consideration, 409, note. distinction between, and rule as to parol evidence, 409, note, 411, note. STATUTE OF LIMITATIONS, title by, 290. STIPULATED DAMAGES, 530. or penalty, whether a contract is for, 22. STOCK, payment by, whether fraudulent, 364. STULTIFY HIMSELF, whether a party can, 366, note, 369, note. SUBSTANTIAL PERFORMANCE, 27, 199, 270, 273, 502. SUBSCRIBING WITNESS, proof by, 96. SUFFERANCE, tenancy at, and license, distinction, 135. SUFFICIENT SECURITY, for price, what is, 24. SUGGESTIO FALSI, 345, 361, note. 636 INDEX. SUPPRESSIO VERI, 345, 3G1, note. SURETY FOR PRICE, remedy in equity against, 226. SURPRISE, 370, note. parol evidence of, 172, 359. prevents specific performance, 445. SUSPICION OF NOTICE, 408. T. TAXES, sale for, implied trust, 398. TENANCY AND LICENSE, distinction, 135. TENANT, in tail, contract of, 54. for life, „ „ 54. whether a proper party to a suit, 568. TENDER, of deed, 25, 29, 486. (See Covenants, 3futual, <^c. Tide.) conditional, 474. waiver of, 476, 502. purchase-money, 484. effect on interest, 39. deed, necessary to action on note for the price, 486. damages, by vendor, 529. deed, whether necessary to recover interest, 43. TIMBER, whether purchaser may cut, 10. interest in case of, 42, note, sale of. Statute of Frauds as to, 100, 105, 106. TIME, of valuation as to jorice, 23, note. completing sale, effect on interest, (See Interest.) rescinding auction sale, 80. executing license, 130. performing contracts of sale, 180. showing a good title, 251, when of the essence of the contract, 181, 202, 251, 447, note, when not essential, 252, 298, 448, note. of hearing, decree, &c., title at, is sufficient, 195, 222, 253. though originally essential, may be waived, 197, 204, 253. INDEX. C37 TIIME — contimced. parol extension of, (See Parol, d;r.) materiality of, how affected by notice, 202, 204. of delivering abstract of title, 204, 206. deterioration of property arising from lapse of, 205. construction of contract in reference to, 200. reasonable, allowed for performing contract, 222. rescinding presumed from lapse of, 314. of avoiding sale for fraud, 349, 429. effect of, upon the sale of expectancies, 382. of disaffirming sale to trustee, 401, 403. in reference to specific performance, 453. of performance, as affecting construction of covenants, 262, note. action by vendee, 484. whether a question of law, or fact, 180. TITLE, 208. conveyance of, in connection with the price, (See Covenants. Price.) rescinding for want of, 29. want of, effect on interest, (See Interest.) in case of husband and wife, 60, 237. bond for, claim of heirs upon, (See Bond. Heirs.) not involved in plea of license, 120. mutuality of contract as to, 208. time of showing, 251. (See Time.) waiver of objection to, 253, 255, 258. equitable, whether sufficient, 219, 235, 258. abstract of, duty of vendor as to, 227. (See Abstract.) partial failure of, 270, 330, 495, 497. when not an objection, 270. compensation for, 273. when it avoids the sale, 277. whether vendor can avail himself of, 281. reference of, 283. (See Reference, &c.) of vendor must, in general, be good, 205, 270. child on, effect of, 304. douUfid, 210, 222, 224, 254, 441, note, costs in case of, 548, 558. what is, 210. . a good, marketable, whether sufficient, 214, 552. 638 INDEX. TITLE — continued. a good marketable, when not necessai'y, 215. vendor's obligation as to, when fulfilled by giving a deed, 215, 219, 262. paper title, whether the law requires, 215. requisites and elements of, 217. burden of proof as to, 218. parol, whether sufficient, 218. whether a contract for a deed requires a, 219, 265. (See Covenant.) legal, whether a vendor must make, 219. by deed, objections to, 222, recovery, 222. destruction of contingent remainder, 222. devise, 222. in case of destruction of the property, (See Burning.) grounds of exception to, 222. derived from an heir, 224. derived from personal rejjresentatives, 224. to leaseholds and rents, 226. as affected by a judgment against the vendor, 233. (See Judgment.) suit, 233, note, bankruptcy, 235. insolvency, 235, note, decree of, in another State, effect of, 234. founded on long possession, whether sufficient, 236. (See Time. Possession.) presumption of, 236. by lapse of time and limitation, 236. infancy, whether an objection to, 237. alienage, whether an objection to, 239. (See Alien.) depending on non-user, (See Non-user.) miscellaneous objections to, 239. under act of Parliament, 240. abstract of, how verified, 240. how verified by title-deeds, 240. coming from a third person, Avhether sufficient, 246 and note, plaintiff seeking specific performance must prove, 454. effect of executory contract upon, 1, 462, note, in connection with remedies, 1. assumpsit to try, 479 and note. INDEX. G39 TITLE — continued. whether a veudor must show, in an action on a note for the price, 489. want of, whether a defence to a mortgage, 500, note. vendor cannot object his own want of, oOl. TITLE-DEEDS, 288. English and American practice as to, 288. production of, 288. facts stated in, must be proved, 288, 289. covenant for production of, 289. copies of, when required, 289. destruction of, vendor's duty in case of, 290. not always necessary, 290. TRAP-AUCTION, 77, note. TREES, sale of, whether within the Statute of Frauds, 100, 106. license to take, 130, 132. TRESPASS, action of, not sustained by a license, 120. TRUST, part-performance in case of, 148, 391. public, sale in violation of, 397. claim for specific performance in case of, 436. sale, &c., in violation of, 384. purchases in, exception of, from Statute of Frauds, 388. parol, 388. arising from agency, 384. violation of, in connection with other reasons for avoidins a sale, 385. and agency compared, 386, 388. effect of i^art-performance in case of, 390. TRUSTEE, for purchaser, vendor is, 7. infant, conveyance by, 63. rights and liabilities of, 64. purchase of incumbrance by, 382. cannot purchase the trust property, 388. renewal of lease by, 393. remainder-man, purchasing, is a, 393. sale to, after resignation, 396. party holding an office in Church or State is a, 397. attaching officer is not a, 397, note. administrator is a, 397. 640 INDEX. TBJJSTE^ — continued. purchase by, is only voidable, 398, 399, note, may be ratified, 399, 401, 402. improvements made by, after purchasing, 399. purchase by, strangers cannot avoid, 399 note, 400. resale of property sold to, 399. cannot himself avoid the purchase, 400. purchase by, at auction, 400. whether one can purchase from another, 400, note, may occupy the estate, 400. sale to, at what time disaffirmed, 401, 403. is good, in favor of a hond-jide purchaser, 40i remedy in case of, 402. general disabilities of, in connection with mortgages, 403, note, 405. may purchase after the trust has ceased, 404. or under proceedings, prior to the trust, 404. whether one partner is a, for another, 404. purchase by, may be valid, if the cestui has consulted a third person, 404. or if the property is not really the cestui's, 404. assignee of bankrupt is a, 404. for creditors, purchase by, 405. costs against, in case of purchase by him, 405. decree, „ „ „ „ 405. in case of attorney and client, 406. representatives of parties deceased, 395, 397. TURNIPS, sale of. Statute of Frauds as to, 101. U. UNCERTAINTY, as to parties, 51. in agreement, under Statute of Frauds, 115, 116. prevents specific performance, 439, 450, 452. UNCONSCIONABLE CONTRACT, 374, 389. UNDERWOOD, sale of, Statute of Frauds as to, 101. UNDUE INFLUENCE, what, 391, note. UNREASONABLE CONTRACT, no specific performance of, 443. INDEX. 641 UNREGISTERED DEED, and executory contract, compared, 410. UNWILLING, construction of term, 261 note. UPSET PRICE, 74, note. USE AND OCCUPATION, action for, between vendor and vendee, 507. by vendor against vendee, 100, 505. purchaser against a third person, 509. vendor, 509. USUAL COVENANTS, what, 232. USURY, 47. V. VACANT LAND, purchase of, interest in case of, 39. VENDOR, devise by, 9. when liable for interest, 44. liability of, for deposit, (See Deposit.) abandonment of contract by, evidence of, 95. VENDEE, recovery of purchase-money by, 479. VERBAL AUTHORITY OF AGENT, (See Agent.) VOIDABLE, parol sale is only, 118. purchase by trustee is only, 398. W. WAIVER, of vendee's rights by possession, (See Possessio7i.) condition, 28. tender of deed, 31. parol, 173, 501, 505. of time of performance, 197, 202, 204, 206. objection to title, 253, 255. of title to leasehold, by purchaser, 231. parol, in case of lease, 302, 303. of right to rescind, 3l5, 349, 429. for mistake, 337. 41 642 INDEX. WAIVER — continued. want of mutuality, 441, 443. tender, 476. right of vendor and vendee, 502. WARRANTY, by auctioneer, parol evidence of, 91. whether a plan is a, 168. -deed, covenant for, 267 and note. and affirmation, distinction, 363. covenants of, note in case of, 497. WAY, license for, 136. WIFE, (See Husband, S^e.) when agent of the husband, 60. WILD LANDS, contract concerning, time of performing, 184. WILL, title under, 222. WOOD, sale of, Statute of Frauds as to, 101, note, 106. 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