^^^l•lIBRARYQ^ CAllF0/?4^ "^^^Aavax ^\\\[UNIVtRy/^ ^lOSANCElfj-^ ^^i i ^C.ILIBRARYO/: ^^UIBRAR' ^^,0F CAilfOfti -CALIf( ^^AHvaar iSANCElf/^ "V/iajAINllJWV ^IIIBRARYO/C, <-5 ^ ^ ^,a^ ^ ^.OFCAllfO%. I'NIVfRS//, THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY ^lOSANCE o "^/^aJAINiT "^/SaJAINO lIBRARYQr ^^IIIBRAR JirDNVMJV r^ojiTvjjo'^ ^^m\m aFCAllFO% ^OFCAIIF i 'M5 I 1 S F iAlNn-3^V ■VANCflfj> -< <\\l LI iiKAH r 0/ ^ s>,\lilKKAK T U/ ■31 »i? ^<;,OFCAIIFO% ^OF CAllFOff^^ - — ^- ^ • y^— ^ '^ "^ — IV I ..^ % o ^W.riMv'ERS/^ ^lOSANC! AWFUNIVERS/^ ^lOSANC I i ^itm 'j'ilJONVSOl^ '^/5a3AINn-3WV^ '^tfOJITVJJO^ "^.{fOJIlVDJO-^ AWE UNIVERS//, o ^lOSANCElfj> O '^aaAifv'fiiuv .>V;OfCAllF0% ^>;,0F CAIIFO/?^ ^^AJivHnnaS^"^ ^' ,>NlllBRARYac A^tllBRARYQr ^^ ^iHOjnvjjo'^ XWEUNIVERi/A v^lOSANCElfj> 09 "^/^ajAiNn 3WV ^ >\;OFCA1IFO% ^^;OFCAIIFO% ^CAHVuani^ >&Aavaan# |1 ^r...r nNIUBRARYQ^ vNNtllBRARYQr vOfCAllFOfiV^ ^(ffOJIlVOJO' «V0F CAIIFOW-^ •'^Aavaaiiis^^ ^OMnmi"^ \WEUNIVERS/A o .^WEUNIVER% vvlOSANCElfT> ■^/sajAiNn-iW'" ^lOSANCElfj^ ^?UDNVS01 vaBAINiTJU'^ 4JN^-^' ( > ^ s^^' l^ yo; A PRACTICAL TREATISE OF THE LAW VENDORS AND PURCHASERS ESTATES. BY THE RIGHT HON. SIR EDWARD SUGDEN. IN TWO VOLUMES. voisJJTan I. BONJE FIDE! VENDITOREM, NEC COMMODORUM SPEM AUGERE, NEC INCOMMODORXJM COGNITIONEM OBSCURARE OPORTET. Valerim Maximus, 1. vii. c. 11. "Witli notes and R«ference8 of American Decisions on tbe IJa'w ofVendors ' and Pnrcbasers, to tbe present time. BY J. C. PERKINS, ESQ. SEVENTH AMERICAN FROM THE ELEVENTH LONDON EDITION. SPRINGFIELD, MASS. PUBLISHED BY GEO. AND CHAS MERRIAM. 1851. T 5u3Uv \«5| Entebed accobding to the Act of Conobess, in the teab 1851, BY G. & C. MERRIAM, m the Clerk's Office of the District Court of Massachusetts. H. S. TAYLOR, PRINTER, SFBlNOFIEIiD, »1A88. ADVERTISEMENT SEVENTH AMERICAN EDITION The following work of Sir Edward Sugden, contains an elaborate statement and a thorough discussion of all the points relating to Contracts for the sale of Real Estate. The formation of the Contract — its validity — the evidence that may be introduced to affect it — the mode of rescinding or enforcing it, and the remedy on a breach of it, have each been treated by the author with great amplitude and clearness. No treatise con- tains so much rehable and practical learning on the subject of specific performance. Not only has the author most fully stated the law as derived from Reports and other books of authority on the subject matters of the work, but he has infused into it a large amount of his own various, practical and accurate learning, extremely useful to the profession, but not to be found in the Reports or other books. The editor of this American edition has endeavored to adapt the work to the most convenient use of the profession in the United States. The notes to this edition are entirely new. The editor has prepared them without any regard to former editions. Such was found to be the most useful course, although it has c:^^'^ AiZf^ IV ADVERTISEMENT TO THIS AMERICAN EDITION. required more labor and involves more responsibility. Indeed the change of editors has rendered this mode of proceeding almost necessary. It is hoped that the edition will prove acceptable and satisfactory to those, whose studies or business may lead them to consult it. Salem, July, 1851. J. C P. ADVERTISEMENT SIXTH AMERICAN EDITION The work of Sir Edward Sugden on the Subject of Vendors and Purchasers, has long been regarded as a standard Elementary Trea- tise. The well known reputation of the author as a lawyer, is a sufficient guaranty for the accuracy with which the work is executed. In his Advertisement to this his tenth and last English edition, he observes ' that the alterations and additions are very extensive : the former adapt the Work to the law as it now stands, and the latter comprise every head which properly belongs to the general subject, together with a full view of all the New Laws of Property, and an explanation of their operation on Titles.' Again, he adds : — ' The writer has bestowed more time and labor upon this than any former production. He has not presumed upon the kindness with which previous editions have been received, but he has endeavored to merit a continuance of it by making this edition as perfect as his opportunities would permit.' It has been well observed by a late eminent Judge, that the rules of property should be so certain, that generally men may know their titles, without having recourse to expensive law suits. And when gentlemen learned in the law are consulted^ they should have guides to direct them in their advice. The importance of adhering to a course of decisions in the construction of Contracts relating to Real Property, is manifest ; for their authority has established a Rule of Property on which many estates depend ; and to overturn them, would introduce perplexing uncertainty, and might shake many titles resting on the faith of them. When a person has become the legal owner of Real Property, he cannot transfer it or part with his title, except in some of the forms prescribed by law. The transfer has its effect from the provisions of law, and unless these provisions are conformed to, the convey- ance is not good. In a country like this, where not only sovereign States, but Cor- porations of various powers are daily sustaining the relation of either ▼I ADVERTISEMENT TO THE SIXTH AMERICA!* EDITION. vendor or purchaser, the subject derives additional importance. Although a grant of land is a contract within the meaning of the Con- stitution in reference to impairing the obligation of Contracts, which even the Legislature cannot revoke ; yet, there can be no doubt, that land granted by the government of a State, as well as any othes land, may be taken by the Legislature in the exercise of the right of eminent domain on payment of an equivalent. Such an appropria- tion therefore is not a violation of the Contract by which property, or rights in the nature of property, and which may be compensated for in damages, are granted by the government to individuals. Thus, in the late case of the Boston Water Power Company v. Boston and Worcester Rail Road Corporation, 23 Pick. 361, it was held, that the right of the plaintiffs, in the land of the full and receiving basins, were not of such a character as to exclude the authority of the Legislature, from taking a small portion of it for laying out a Rail Road, it being for another and distinct public use, not interfering with the franchise of the plaintiffs, in any other way than by occu- pying such portion of this land. The latier grant was another, and distinct public use, growing up after the former appropriation, and which might be reached, without defeating or essentially impairing the public uses, to which it had already been applied. There being nothing in the nature of the plaintiff's public works, or in the public use to which they were applied, and the extent to which that use would be impaired or diminished, by the taking of such part of the land as might be necessary for the location of the Rail Road, from which the power of locating the Rail Road over it, may be presum- ed to have been restrained by the Legislature. Both uses might well stand together, with some interference of the latier with the earlier, which may be compensated for by damages. This edition of Mr. Sugden is valuable from the fact, that it has undergone the learned author's thorough revision ; but its value to the Profession is enhanced from the consideration that the new laws of property in England having made great and essential alterations in the old laws, are contrasted. By such contrast, the defects in the old Laws are manifest, while it points out the reasons and advanta- ges resulting from the new. The author also has at every step freely stated his own opinions as materials to assist the practitioner in arriving at a safe conclusion. Important as such a work is in England, it is if possible doubly important here, where our laws relating to real property remain to be perfected. E. H. May, 1833. ADVERTISEMENT ELEVENTH ENGLISH EDITION The Work has been printed in its present form in order to comply with the general desire to have a Treatise, of which such frequent editions are required, pubUshed at a moderate price. The Book may be divided into two volumes, for which purpose a sepeirate Title-page for the second volume has been printed, but the three Indexes to the last Edition have been consol- idated, and there is, therefore, once more only one Index. The Cases reported and the Statutes passed since the last Edition have been incorporated into this Edition. Stephen's Green, May 1, 1846. TABLE OF ENGLISH AND AMERICAN CASES CITED. tt^^ The numerals i. ii. denote the Volumes. l^ The figures refer to the original paging of the English edition, as numbered at the bottom. ^^ The n. after the figures signifies that the Case is found in an American Note, on the page indicated. Abbe V, Goodwin Abbot V. Gibbs Abbott V. Allen V. Draper V. Hurd Abdy V. Loveday Abeel v. Radcliffe Aberdeen v. Watlin Abraham v. Georg^e Acherley v. Acherley Acker v. Phoenix Ackley v. Elwell Acland v. Gainsford V. Gaisford Acton V. Pierce Adams v. Broke V. Cuddy V. Fairbain V. Frothingham V. McMnian i V. Paige i V. Smith V. Taunton V, Townsend V. Weare V. Wheeler V. Williams Adamson v. Evitt Adderley v. Dixon Addington v. AUen Addis V. Campbell i. 158n ii. 834 370n, ii. 681n, 686n i. 2o6n ii. 885n ii. 1020 i. 115n, 116n i. 70 Li. 947 ii. 909 i. 23on i. 201n i. 51 ii. 806, 816 i. 24.5 i. 241 ii. 984n i. 174 i. 178n Hon, 116n, 117n 5] [120n, 425n, i. 99n i. 515n, 850 i. 140n i. 310 ii..982n i. 260n i. 234 i. 5 i. 277n, 3l5n, 472n, ii. 1022 Addison, by Committee t?. Dawson ii. 885 Addy V. Grix Aicken v. Macklin Aiken v. Kilburne V. Sanford AJam V. Jourdan Albca r. Griffin Aldborough v. Trye Vol. T. i. 312 ii. 671, 1027 ii. 10r,2n ii. 702n ii. 10'^i4 i. 140n, ii. lOJSn i. 315, 31711, 323, 324, ii. 937 ! B Aldrich v. Cooper ii. 874, 875n Aldridge v. Dunn ii. 879n Alexander v. Crosbie i. 79, 82, 175, 182, 183, 447, 523, ii. 658 i. 8 On V. Newton Ex parte Allan V. Bower Allen V. Anthony V. Anderson V. Bennet V. Booker V. Cameron V. Chambers V. Cooper V. Culver V. Hammond V. Kolton V. Kingsbury V. Little V. Humph V. Sayward V. Smith V. Winston V. Wooley Allen's Charities, in re ii. 887 i. 148 ii. 1052 i. 424n 112, 113, 120, 126, 132, ii. 857n i. 146n i. 479 .. 138n, 140n, 147n i. 28 3u ii. 708n i. 32n ii. 755n i. I78n ii. 564n i. 84n ii. 650n, 689n i. 423n i. 9 ii. 709n i. 66 Estate i. 140n, 141n, 142n, 147n Alender v. Ritson Alley V. Deschamps AUeyn v. Alleyn Alna V. Plummer Alpass V. Watkins Alsager v. Rowley Alsop V. Lord Oxford ALsopp V. Patlin Alston V. Mumford i\ Outerbridge Altham's Case I Altham, Lord r. Earl of Angleica ii. 911 I Alvcn 0. liond i. 87 ii. 853n i. 288, 289, 291, 302n, 357 i. 194, 198, 212 i. 131n, 132n i. 529, 532 ii. 931 i. 449 i. 144 ii. 875n i. 1 i. 175 CASES CITED. Ambler o. Norton i. 178n, ii. 542n, 543n, o44n Ambrose v. Ambrose i. 48, 66, ii. 909, 1104 Amcourt v. Elever i. 261 American Ins. Co. v. Oakley i. 84n, 87n, 9 On An caster v, Meyer Anderson v. Chick V. Fox V. Foulke V. Harold V. Lincoln V. Maltby V. Roberts V. Wallace Anderton v. Arrowsmith Andrew i\ Andrew V. AVrigley ii. 852, 853, 854, 855, 1037 Andrews Case Andrews c. Andrews V. Emerson i. 21Gn i. 131n, 132n, UOn, 14 In ii. 89 In i. 84n i. 116n, 117n ii. 68 In ii. 901 ii. 937ii i. 327 ii. 765 i. 411 i. 374 ii. 544n i. 84n, 85 tJ.Euunott ii. 1123 V. Este i- 53n V. Jones ii. 909n V. Paradise ii 764 V. Sparhawk ii. 637n, 834n, 836n, S39n r. Turner Androscoggin Bridge v. Bragg Angier v. Stannard Anglesea Earl oiv. Annesley Annan v. Merritt Anon i. 312, 342, 370, 417, 422, 519, ii. 608n, 655, 679, 680, 726, 745, 909, 913,919,947, 1016, 1045, 1049, 1052, 1062, 1064, 1068n, 1069, 1070, 1134 Anon (2 Yes. 487; (1 Ves. jun. 45) (1 Haves & J. 719) (6 Ves. 513) (1 Ves. jun. 286) (1 Ventr. 361) (1 Ves. jun. 420) (8 Mass. 370) (1 Lord Ravmond 182) (5 Viri. Abr. 523, pi. 40) (Dougl. 384) (2 Freem. 155) (2 Freeman) (2 Cha. Ca. 19) (2 Cha. Ca. 53) (Mosc. 96) Anson Lord v. Hodges Anson v. Lee V. Towgood i. 22, 26, 71, 74, 331 Anstice v. Brown ii. 884n Anthony v. Loftwick i. UOn, 142n, 147n Appleton V. Binks i. 53 T. Bird ii. 902n V, Chase i. 256n ii. 560n i. 96n i. 62 i. 172 i. 704n 1. 8o i. 85, 87 i. 87 i. 87 i. 87 i. 94, 98 i. 84n ii. 1062n i. 101 i. 140 i. 180 i. 224 i. 106, ii. 684 ii. 684 i. 231 ii, 834, 838 ii. 814 i. 422 Appleton V. Horton ii. 1063n Appowel V, Monnow ii. 717 Arden v. Patterson ii. 889n Ardglasse, Earl of v. Muschamp i. 314 Argenbright y. Campbell i. 126n, 138n, ii. 937n, 1040n Armfield t-. Tate ii. 885n Armiger v. Clarke i. 241, 248 Arms V.Ashley i. 152n Armstrong v. Campbell ii. 610n, 807n Arnald v. Arnald i. 200 Arnell v. Bean ii. 946n Arnolds. Brown ii. 887n, 890n Arnot V. Biscoe ii. 1064, 1065 ArroAvsniith v. Van Harlington ii. 887n Arundell t- Arundell ii. 696 V, Phipps ii. 885n Ascam v. bmith i. 373n Ascough V. Johnson ii. 689 Ashenlmrst ». James ii. 1031 AshlcY V Baillie ii. 1041, 1043 Ex parte ii. 88a Aspinall i\ Kempson ii. 1148 Assay v. Hoover ii. 564n Aston i\ Aston ii. 1068 V. Curzon ii. 1070 Astor V. Miller ii. 708n, 743n 1-. Wells ii. 937n, 1041n Atchcrley v. Vernon i. 191, 194, 195 Atchison v. Dickson i. 331n Atherstone v. Bostock i. 260 Athowe V. Heming ii. 715 Atkins V. Chilson ii. 643n, 737n V. Rowe ii. 906 V. Sa-\\^er ii. 65on Attorney General v. Andrew ii. 662 c. Blackhouse ii. 899n, 1055, 1058, 106S <•. Bagg ii 914 I. Boston i. 782 V. Christ Church ii. 796, 945 V. Commissionei*s of AVoods and Forests i, 181 V. Corporation of Newark i. 76 V. Day i. 78, 135, 213, V. Lord Dudley ii. 891, 897n, 898n V. Ellison i. 472 V. Flint ii. 635 r. Forster i. 179 i:. Gower i. 345, ii. 1041, 1069 t'. Lord Gower ii. 945 r. Green i. 343 V. Griffith ii. 899n V. Hird ii. 787 r. Lockley ii. 1104, 1105 V.Parker i. 179 V. Perse ii. 613 V. Potter ii. 855 V. Purmont ii. 760n V. Sands ii, 772, 779, 787, 790, 791 V. Scott ii. 78 In r.'Sitwell i. 403 V. The Cast Plate Glass Co. i. 176 v. Taylor i. 12ii CASES CITED. XI Attorney General v. Vigor i. 200, 213 Attwood V. Small i. 267, 268, 271, 273, 275, 401, ii. 687, 900 Attwood V. Taylor ii. 813, 814, 818 Atwood y. Cobb i. 11.5n, ll7n, 164n V. Vincent ii. 8o7n Aubrey v. Denny i. 86 V. Fisher " i. 37 Austen v. Halsey ii. 856, 862, 875 Austin V. Cambridgeport Parish ii. o62n V. Chambers ii. 890 V. Croome i. 454 V, Sa'wyer i. 37n, 99n Aveling v. Knipe ii. 901 Averall v. Wadeii. 654, 729, 1023, 1028, 1057 Averill v. Guthrie ii. 982n Avcrv V. Chappel i. I80n V. Kellogg i. 168n, 287n, 290n, 299n V. Street ii. 925n Awbry v. Keen * ii. 680 Aycr V. Hawks i. 264n Ayers v. Pease i. 246n Aylesford's Case i. 140 Aylett V. Ashton i. 230n, 502 Aj'liffe r. Murray ii. 895 Babcock v. Smith i. 156n, 180n, 18 In 182n, 184n r. Wilson i. 261n, ii. 702n Back V. Andrews ii. 917 V. Kett i. 199 Backus V. McCoy ii. 709n, 765n Backwell's Alderman, Case i. 153 Bacon v, Mclntyre ii. 612n V. Simpson i. 330 Badcock Ex parte ii. 887 Baden V. Earl of Pembroke i. 192, ii. 786, 791 Badlam v. Tucker ii. 982n Bage Ex parte ii. 887, 984 Baglehole v. Walters i. 384 Bagley v. Bailey ii. 655n Baikie I'. Chandless ii. 677 Bailey v. Appleyard ii. 643, 647 V. Bailey i. 180n V. Ekins ii. 839 V. Greenleaf ii. 85 7n V. Johnson i. 167n, 17ln Ogden i. 115n Kobinson ii. 897n v. Snyder i. 3 7 On Bailiffs of Tewksbury I'. Br icknell i. 179 Baillie v Chaigneau i. 85 Baird v. Blairgrove i. 154n Baker v. Bent i. 325 V. Bulstrode ii. 767 V. Carter ii. 898 V. Child i. 230 V. Dibbin i. 523 V. Harris ii. 749 V. Henderson i. 455 !'. Morgan i. 67 Baker v. Payne i. 188 V. Whiting i. 423n, ii. 610n, 887n, 888n, 895n, 897n, 899n Balch V. Smith i. 260n Balch V. Symes i. 472 Balcom v. New York Life Ins. and Trust Company ii. 1070n Baldey v. Parker i, 361 Baldwin v. Belcher i. 194, ii. 957 V, Boulter 336 i. 424n i. 326 i. 242n, 293n, 302n ii. 837, 841 ii. 919 ii. 935 ii. 895n ii. 839 ii. 571n i. 29 i. 468 r. Munn I'. Rochfort V. Salter Balfour r. Welland Balgney v. Hamilton Ball V, Bumford r, Carew V. Harris Ballard v. Ballard r. Way Balls V. Margrave Bally r. WeUs ii. 708, 716, 725, 729 Balmano v. Lumley i. 348, 354, 416, 501 Baltimore v. McKim ii. 1029n Bamfordi). Shuttleworth i. 50n, 257, 263 v. W' atts ii. 831 Banbury Lord v. Briscoe i. 467, 468 Bandon, Eai'l of v. Becher ii. 855 Bank v. Woodward i. 168n Banks v. Sutton ii. 781 and note V. Brown ii. 936n V. Judah ii. 887u Bank of Alexandria v. Patton ii. 929n Columbia v. Hagner i. 261n Kentucky v. Vance ii. 875n U. States V. Carrington ii. 908n V. Daniell ii. 61 In Utica ?;..Messereau ii. 689n, 1062n, 1067n V. Finch ii. 982n Bannatyne v. Leader i. 472 Baptist Church in Ithaca v. Bigelow i. 112n, 115n, 132n Barber v. Gamson ii. 1089, 1091 V. Morris i. 221 Barclay v. Raine i. 478, 479, 480, 515 Barliam v. Lord Thanet i. 216 Barickman v. Kuykendall i. 115n, 140n, 146n Baring r. Moore i. 65n Barker v. Damer ii. 715 V. Duke of Devonshire ii. 835 v. Greenwood i. 47 V. Hai-per i. 73 V. HiU i. 192 r. Holford i. 71 V. Roe ii. 1030 V. SmaU u. 871 r. Vansomraer i. 315 Barkhamstead v. Case i. 370n, ii. 68 In Barksdale v. Morgan i. 374 V. Toomv i. 36 In Barlow v. Bell i. 279n, ii. 1029n Barnabv v. Barnabv ii. 885n xu CASES CITED. Barnard v. Darling i. I71n Bayley v. Greenleaf ii. 857n, 859n V. Pope ii. 623n Baylis v. Manning i. 485n Barnardiston Sir John v. Lingood i. 314 V. Newton ii. 915 Barnes r. Backster ii. 1028 Bayly v, Schofield ii. 947 V. Barnes i. 96n Baynham v. Guy's Hospital i. 178 V. Crowe i. 199 Beable v. Dodd ii. 1123 Bamett r. Gaines i. 399n, 403n, 747 Beach v. Manchester ii. 5e4n V. Grimes i. 298n V. Steele ii. 702n V. Mason ii. 857n Beacham v. Eckford i. 178n V. Weston ii. 1017 Beal V. McKiernan ii. 887n Barnewell v. Harris i. 353, 485, 502, Beale v. Sanders i. 39 620, 528 V. Seiveley i. 242n, 293n, 370n Barnfather v. Jordan ii. 885 Beam v. Blanton ii. 857n Barns t\ Canning ii. 1044 Beaman v. Buck i. 140n, 256n Barr r. Gibson i. 422n Bean Ex parte ii. 920 Barrand r. Archer i. 8, 29 V. Burbank i. 117n Barrett r. Birmingham i. 69, ii. 638, 661 V. Herrick i. 5 V. Bhike i. 69 V. Quimby ii. 1062n V. Bro^vning i. 262n V. Smith ii. 925n, 937n, 1037n r. Buxton i. 236n Bear v. Whisler ii. 857n V. Gomeserra i. 140, 311 Bearce v. Jackson ii. 747n V. Kemp i. 518n Beard V. Campbell i. 311n v. Thorndike i. 173n V. Kirk ii. 993 Barrington Ex parte i. 400, 418 V. AVescott ii. 1109, 1110 V. Home i. 231 Beardsley v. Knight i. 180n Barrow v. Richard ii. 708n, 737n Beaseley v. Clark ii, 645, 646 Barrusco v. Madan i. 260n Beatnift't'. Smith ii. 984 Bany v. Lord Barrymore i. 130 Beatson v. Beatson ii. 937 Barstow v. Gray i. 112n Beaumout v. Bramley i. 185 i\ Kilvington i. 181, 184 V. Dukes i. 27 Barter v. JeukLis i. 80 Ex parte i. 59 Bartholomew v. Candee ii. 709n V. Mountain i. 440 Bartlett v. Blanton i. 453n, 506n Bechinall v. Arnold ii. 1019 V. Downes ii. 1146 Beckett v. Cordley ii. 1060 V. PickersgiU i. 138, ii. 909, 912 Beckford v. Beckford ii. 913 r. PurncU i. 23, 133 V. Wade ii. 608 V. Tuchin i. 295 V. Wildman i. 472 Barton r. Fitzgerald ii. 755, 759 Beckwith v. Kouns i. 242n, 605n V. Ix)rd Downes i. 79, 82, 343, 519 V. Marryman ii. 747n V. Hush ton i. 94n Beddoe v. Wadsworth ii. 708n, 709n Bascawen v. Cook ii. 724, 727 Bedford v. Backhouse ii. 982 Bascoi V. Serra ii. 1058 V. Bradford ii. 624n Bassett r. Nosworthy ii. 1013, 1069 V. Forbes ii. 663 Bassford i\ Blakeslcy i, 472 V. Gibson ii. 1028 Bassler v. Niesley i. 146n Duke of V. Marq. of Abercorn i.l84 Bastard's Case i. 432 Duke of V. Trustees of the British Bateman v. Phillips i. 112,259,472 Museum ii. 734 , 736, 1113, 1114, v. Shore ii. 903n 1115 Bates V. Bonner i 73, 85, 87, 89 Beebee v. Swartwout i. 180n. 268n, V. Dandy i. 263 ii. 74on, 1021n 1-. Del a van i. 357n Beere v. Head ii. 964n, 982n Bath & ^lontague's Case i. 177, ii. 1041, Beers t\ Howley ii. 966n 1064 Beeson v. Beeson ii. 900n, l062n Bath Earl of v. Sherwin i. 245 Beevor v. Simpson i. 396 Battersbee r. Farrington ii. 935 Begbie v. Crook u. 850 Baugh V. Price i. 276, 314,326, 1028 Belch V. Harvey ii. 611, 1097 V. Ramsay i. 182n Bclchier v. Butler ii. 1017 Bawtree v. Watson i. 315, 326 V. Renlorth ii. 1017 Baxter r. Bradbury ii. 764n, 765n V. Reynolds i. 246, 327, 329 V. Brand ii. 793n, 797n Belden v. Seymour i. 153n V. Conolly i. 392 Bell V. Andrews i. 146n i. 262 V. Bell ii. 1036 V. Smith ii. 885n V. Cundall ii. 1019 Bay V. Coddington ii. 926n V. Dogan i. 258n CASKS CITED. Xlll BeU V. Ellis i. 264n V. Hallenback ii. 916n V. Howard i. 172, 291 V. Huggins ii. 68 In V. Phyn ii. 903 V. Webb d. 829n, 887n Bellamy v. Liversidge i. 464 Bellasis Lady v. Compton ii. 911 Bellew V. Russell ii. 889 Bellows & Peck in re ii. 663n BeltontJ. Briggs ii. 88on Beltzhoover v. Blackstock ii. 1063n Belworth v. Hassell i. 340 Bender v. Fromberger Li. 764n, 76on Benedict v. Lynch i. 153b , 234n, 289n, 29 3n Benfield Ex parte ii. 1060 Bengough. v. Edridge ii. 1110 Benham v. Bishop ii. 885n Benjamin v. Coventry ^ ii. 1062n tu Porteus i. 50 Bennet v. Aburrow ii. 1123 Ex parte ii. 887, 890, 898 V. Jenkins ii. 765n V. May hew ii. 919 V. Musgrove ii. 939 V. Pixley i. 284n Bennet's Case ii. 727, 768 Bennet College v. Carey i. 51, 242, 420, ii. 822 Bennett v. Carter i. 132n Ex parte i. 239, ii. 897n V. Fowler i. 415, ii. 822 V. Glossop i. 471 V. Hamill i. 77 V. Harnell i. 67 V, Ingoldsby i. 460 V. Oliver i. 2 3 On V. Rees i. 417, 446 V. Lord Tankerville i. 202 V. Wheeler i. 67 V. Wornack i. 28 Bensley v. Burdon i. 421 Benson v. Glastonbury i. 251 V. Peebles i. 164n Benton v. Pratt i. 5 Benyon v. Collins ii. 835 Benzien v. Lenoir ii. 79 2n Bergen v. Bennett i. 523n, ii. 899n Berkeley v. Dank i. 419 Berkhamstead Free School Ex parte i. 507 Bernal v. Donegal i. 316, 326 Bernard v. Drought i. 442, 455 Berney v. Harvey i. 515 V. Pitt i. 314 Berrington v. Evans ii. 636, 637 Bcrristbrd v. MQward ii. 1022 Berry v. Armistead i. 8, 267 V. Johnson i. 76 V, Mutual Lis. Co. ii . 881n 930n, 982n , 984n, 1052n V. Van Wmkle i. 253n Berry u. Young i. 38, 48,283, 289, 475, 477 Bessonetv. Robins i. 65 Best V. Stamford ii 787 V. Stow i. 157n, 236n Betesworth, Dr. v. Dean and Chapter of St Paul's i. 245 Bethune v. Farebrother, i. 257 Betts V. Union Bank of Mary land ii. 93 In Bevant v. Pope ii. 542 Beverly v. Lawson i. 358n, 41 On, 506n BevUl's case ii. 609 Bexwell v Christie i. 14, 18 Bickerton v. Burrell i. 257 Bickford v. Page ii. 709n Biddle v. Perkins i. 518 Biddlecomb v. Bond ii. 947 Biddulphv. St. John ii. 984, 1060, 1064 Bidlake v. Arundell ii. 864n Biederman v. Seymour ii. 552 Biern v. Erskine i. 369n Bigelow V. Bigelow ii. 61 On V. Kinney ii. 885n Biggs V. Rowe i. 88 Biggus V. Bradley ii. 745n Bignold, Sam, Ex parte i. 61 Billinghurst v. Walker i. 2 1 6n Billington «7. Welsh i. 146n, ii. 1052n Bingham v. Bingham i. 269, 4'2l V. Clanmorris ii. 850 V. Weiderwax ii. 765n Binks V. Lord Rokeby i. 366, 398, ii. 796, 797, 819 Binnion, Sir George v. Stone ii. 914 Binstead v. Coleman i. 140, 153 Birce v. Bletcliley i. 125 Birch ». Blairgrove ii. 915 V, Dawson i. 37 V. Haynes i. 417 V. Podmore ii. 807 W.Wright i. 219 Bird V. Bass ii. 672 V. Benton ii. 1022 V. Boulter i. 134 V. Odem i. 141n Ex parte i. 226n Bisco V. Earle of Banbury ii. 1056 Biscoe V. Brett i. 416 V. Perkins i. 509, ii. 1031 V. Wilks i. 609, ii. 825, 1031 Bishop V. Church ii. 1068 Bissell V, Erwin ii. 765n Bitner v. Bough i. 424n, 425n, 427n Blachford v . Kirkpatrick i. 400 V. Preston i. 17 Black V. Gillilland i. 235n Blackbeard v. Lendrigon i. 72 Blackburn v. Gregson ii. 864, 870, 880 V. SchoUs i. 47 V. Stace i. 249 Blacket v. Langlands ii. 1067 Blackford r. Christian i. 3r2n Blacklaw v. Laws i. 67, 398 Blackwell v. Lawrence Co. i. 425u XIV GASES CITF.D. Blagden v. Bradbear i. 114, 117, 119, 121, 122, 131, 13o, 138 Blair v. Bass ii. fl08n V. Harding ii. 7o(Jii v. Owen ii. 103Gn Blake v. Attersoll ii. 1090 V. Foster ii. 612 V. Hyland ii. 927 V. ?hinn i. 50in r. Sir Edward Ilungerford ii. 78.3, 1010 V. Tucker ii. lOoGn Blake's Case ii. (>12 Blakcly v. Brady ii. 937 Blakeiiey v. Bagott i. 3U,ii. 1034 i\ Fcrg^isou i 140n Blakcsly v. Wheildon i 219 Blakcy v. Porter i. 259 Blanciiard v. Bridges i. 27 V. Iiigersoll ii. 985n V. Keaton i. 158n V. Moore i. 139n, 189n. Blanklev v. Winstanley i. 179 Blann i". Smith i. 29 In, 295n Blatchtbrd v. Mayor of Plymouth ii. 758 Bleakley v. Smith Blenerhasset v. Day V. McNamara V. Pierson Blcwett r. Tregonin Bligh V. Brent Blight I'. Banks V. Hoc h ester Bliss V. Collins Blodgett V. Hobart Blood V. Blood V. Hardy V. Hayman V. Goodricli Blore V. Sutton i i. 117, 126 ii. 890, 900 i. 81, ii. 806 i. 171 ; ii. 9»6 ii. 903n ii. 879n, 863n ii. 62on i. 502 i, 18 On ii. 966n, 973n, 98-tn i. 131n, 17 In ii. 887n, 897n i. 154n, 168n . 118, 127, 131, 254 Blosse 1-. Lord Clanniorris i. 506, 510, 516, ii. 825 Blount r. Blount ii. 795, 800, 816 r. Pearman ii. 699 Blundell V. Brettargh i. 328, 329 Blundcu V. Desart i. 455 Blyth {!. Elmherst i. 416 Boar r. McCorraick i. 369n Boardnian r. Mostyn i. 148, 149 Bodine V. Edwards ii. 910n Bodmiu Lady c. Yeudebendy ii. 1069 Bodwell V. Webster i. 158n Boebnc. Wood i. 241, 205, 305, 416, 445 Bogart V. Perry ii 912n Boggs V. Yarner ii. 984n, 1056n Bohn t'. lleadly ii. 936n Boldry v. Parrish ii. 565n Boling V. Ewing ii. 906n Bolingbrokcs, Lord, Case i. 352 Bolivar Man. Co. v. Neponset Man. Co. ii. 4G2n Bolton V. Corp. of Liverpool ii. 1002 Lord V. Tomlin i. 94 Duke oft'. Williams ii. 692, 1023 Bondr. Hopkins ii. 612 v. Jackson i. 17 In, 309n r. Kent ii. 802 t'. (iuattlebaum ii. 765n Bone c. Cook i. 59 Bonner v. Johnston i. 250 V. Ware ii. 1050n Bounett v. Sadler i. 243 Bonney v. Ridyard ii. 853, 854 Boody V. McKinney ii. 884n Boone f. Chiles ii. 610n, 625n, 7S5n, lOlon, 1037n, 1052n, 1067n V. Eyre i- 284n, 285 r. Mitchell ii. 698 Boothbv r. Hathawav ii. 745n, 747n, 764n i. 250 i. 56, 311 ii. 1036n i. 520, 523 i. 379n i. 228 r. ^\'alker Borell V. Dann Boswell r. Buchanan V. Mendham Bostwick V. Sewis Boteler r. Allington Eotsford V. Burr i. 171n, 908n, 910n c. Morehouse Botterill, Ex parte Bottomley v. Fairfax Botts V. Cozine Boucher v. Yanbuskirk Boughtou f. Jewell Bourn c. Bourn Bourne c. Gatliffe Bovey v. Smith Bovie's, Sir Ralph, Case Bowen v. Bell V. Evans V. Kirwan V. Morris Bower v. Cooper Bowcrbank r. Wallace Bowers ». Cator Bowes et als v. Bowes et als V. Heap Bowles V. Atkinson V. Craig V. Roundy i. 17.3u ii. 909 ii. 1105 i. 3 In i. 234n i. 477 i. 85 i. 178n ii. 1036 ii. 935 i. 153n i. 08, ii. 1016, 1072 i. 313, 326 i. 53, 113 i. 24, 217, 311 ii. 693n V. Rogers V. Waller Bowman v. Bates Bowyer v. Bright Box V. Stanford Boyce v. Britchett V. Dudley r. Green Boyd V. Cook V. Dunlap V. Higginson V. McLean i. 140 i. 198 i. 320 i. 387 i. 373n i. 16n, 30u i. 42, 191, 302, ii. 880 i. 353, 502 i. 311n i. 357 i. 139n, 140n, 189n ii. 796n ii. 625n i. Ill, 117, 121 iL 565n i. 326n ii. 630 ii. 908n, 910n, 919n Boydell I'. Drummond i. 121 Boyer i-. Blackwell i. 85, 88, 363, 365 V. Porter i, 429n Boyes v. Liddell i. 410 Boykin v. Smith i. 36n Boyle V. Rowand ii. 793n Boyman r. Gutch i. 529, 531 GASES CITED. XV Boyutoii V. Hubbard V. Rawson V. Rees Boys V. Ancell V. Ayerst V. Williams i. 31411, 32611 ii. lOlon ii. 1037n, 10o2n i. 40 i. 11(J i. 175 Brace v. Duchess of Marlborough ii. 600, 1017, 113-1 r. Duke of Marlborough ii. 1070 Bracebridge v. Cook V. Heald Bracken v. Miller Brackett v. Waite Bradbury v. White Bradford v. Grey Bradish v. Gibbs 11. / ( 2 i. 92ii i. 7, ii. 1037n ii. 084n, lOoSii i. loon i. 26 In ii. 93 In Bradleer. Boston Manuf. Co. i. 53n Bradley v. Bosley i. 2o3n, 382n y.'Bradley ii. fiOOn V. Catron ii. b57ii V. Westcott ii. 1123 Bradshaw v. Bennett i. 22, 23, 2G0, ii. 813 V. Bradshaw i. 17o, 250, 251 V. Midgeley ii. S16 Bradstreet v. Supervisors, &c ii. 884ii Braithwaite v. Britain Brakespear v. Innes Branby v. Teal Bramly v. Ait Brampton v. Barker Bramwell v. Lucas Brandy. Ackerman Brandling v. Ord Brewster v. McCall ii. o62n V. Power ii. 9l6n Brice v, Stokes i. 59 Bridger v. Rice i. 57, 240 Bridges v. Carhart ii. 1017n V. PurceU i. 96n, 97n V. Robinson ii. 809 Brig's Case i. 242, 420, 424, ii. 680 Brig Sarah Ann ii. 102 In Briggs V. Hill ii. 866n Brigham v. Shattuck ii. o62n Bright w. Boyd i. 9n, ii. 1022n, 1028n Wall Brindley v. Woodhouse Bringloe v. Goodson Brinkerholf v. Brown 6'. Lansing V. Marvin Brinley v. Mann Bristow V. Wood Britton v. Johnson Brock V. Sturdivant Brocken v. Miller Brockenborough t'. Blvthe u. 645 i. 460 i. 460 i. S7n ii. 105 On ii. 962n ii. 97 In 516, ii. 734 ii. 887n i. 154n ii. 984n, 1043n Brandt v. Kline. Branuan v. Oliver Brasier v. Fortune V. Hudson Brashier v. Gratz ii. 840 ii. 1009 i. 250 i. Ion, ISn ii. 10(i9 ii. 1003 ii. 1062 ii. 1037 ii. 1062n ii. 887n ii. 1062n ii. 850 26 In, 287n, 293n, 302n Bratt V. Ellis i. 45, 257, 424, 427, ii. 1077 Bratton's ajipeal ii. 96(Jn Braybroke Lord v. Liskip i. 445, 516, 519, 539, ii. 691,850, 1021 Breadalbane, Marquis of r. Marquis of Chandos i. 88, 186 Brealcyi'. Collins i. 236, 312,341 Breckcnridge c. Hoke ii. 793n 880n V. Holland ii. 887n, 89(;n,898ii Brect;. Holbech ii. 680, 6S4, (kSO Breedlove v. Stump ii lOoln Breedon v. Breedon ii, 836 Breithau])! v. Thurmond i. 530ii, ii. 730n Brodie v. St. Paul Brograve r. Winder Brook V. Biggs Earl V. hlulkeley Brooke v. V. Hewitt Brooke et ali v. Chainpcrnowiie et ali ii. 803 Urookes c. Lord Whitworth i. 251, 252 Brooktield c. Bradlcv i. 85 n. 793n, 794n, 796n i. 117, 253 i. 227 i. 219 ii. 1031 i. 413 191 Brennan v. Bolton Brent V. Green Bret V. Sawbridge Brett V. Beales V. Marsh Brewer v. Craig V. HiU V. Thomas • V. Yandersdale Brewster v. Countryman V. Kidgell ii. ~rl i. 142 i. 132u ii. 1106, 1107, 1108, 1109 i. 440 ii. 688 i. 264n ii. 725 ii 6l2n ii. 54()n i. loin 1,727, 728, 731 Brook V. Rothschild ii. 888 Brooks V. Byam ii. 822n c. Day ii. 677 '-. Fowle ii. 908n V. Maltbie i. 152n V. Moody ii. 765n c. Suaith i. 85 c. Stoddcr i. 267ii V. ^Vhpelock i. 140n, lo7n Broom v. Broom ii. 903 Broome v. Beei-s ii. 1022n V. Moiick i. 105, 211, 212, 213, 214 Brothers c. Bence ii. 1059 V. Porter ii . 912n, 1021n Brothertou c. Hatt ii. 1041 V, Livingston ii. 96611 Broughton v. Genway ii. 757 Brown i'. Anderson ii. 10o2n f. Balridge ii. 966n f. Bellows i. 327n V. Brown ii. 755 905n, 1028, 10(;4n f. Burkcmeyer i. lion V. Carter ii. 937n, 938 Brown c. Dewey i. 222n V. Dowdali i. 81 r. Fellows i. 123n V. Fenton i 3, 5 0, 343, ii. 816 r. Frost i. 9 On 248, ii. 980n r. Gibbs ii. 781 XVI CASES CITED. Brown v. Gilliland V. Gilman V. Haft" V. Hart V. Haven V. Jones V. Kelly V. Lynch V. Maltbie V Maine Bank V. McDonald V. McCormick V. Newall V. Parrish V. I'ayson V. Raindle V. Staples V. Stead V. Storey V. Vanlier V. Wallace V. Wheeler v. Witter V. Woods Browne v. Amyot V. Bishop of Cork V. Blake V. Odea V. Southouse Browning in re V. Wright i. 183, ii. 702, 744, 755, 756, 759, 761, 762, 763 i. 500n ii 820n i. 248n, 389n, 506n i. 2(5 2n i. 155n, I75n ii. 931, 935 i. 250, 251 i. 82 ii. 153n ii. 984n ii. 916n ii. 689n i. 280 i. 370n ii. 1062 i. 229 ii. 708n, 709n, 710n ii. 1030 i. 220 ii. 880n i. 7 In, 72n, ii. 835n ii. 1021n i. 486n ii. 623n i. 230 ii. 612, 636 ii. 982n ii. 1028 ii. 810 i.71n Bruce v. Bainbridge V. Nowlan V. Rogers Brumfield v. Palmer Brush V. Brush V. Kinsley V. Ware ii. 824 ii. 640 ii. 813 ii. 866n ii. 568n ii. 866n ii. 1041n, 1056n Bruyn's Sir John, Case i. 374 Bryan v. Ilinman ii. 609n V. Lewis i. 241 V. Keed i. 242n, 293n, 525n, 527n Bryant v. Busk i. 333, 451, 4G0, ii. 823 — ^ ?;. Packett ii. 610n U.Russell ii. 821n Brydges i;. Duchess of Chandos i. 196, 198,200,201 Bubb's case i. 192 Bubicr v. Bubier i. 140n Buchanan v. Deshon ii. 884n V. Lorman i. 404n, ii. 793n Buck V. Lodge i. 250 r. McCoughtry i. 367 V. Pike ii. 968n V. Sherman i. 268n V. Waddle i. 256n Backhouse «. Cro.ssby i. 112, 115 Buckhurst's Lord Case i. 453, ii. 703 Buckland v. Barton ii. 1123 V. PockneU ii. 870 Buckle V. Mitchell ii. 930, 939 liiukles V. Lafi'erty ii. 887n, 897n Buckley v. Beardsley i. 11 7n Buckley v. Lanauze Buckmastcr v. Grundy V. Harrop Budd V. Busti Bulbrd V. McKee Bugden v. Bignold Bulkley V. Wilford HuU V. Allen V. Price Bullard v. Briggs V. Walker Bullen V. Runnels Buller V. Buller V. Fletcher V. Waterhouse Bullock V. Beemiss V. Bullock Ex parte V. Sadlier V. Thorn e ii. 1056 i. 25 6n, 263u 424n, ii. 765i) i. 21, 132, 135, 147, 154, 2U ii. 857n ii. 941n ii. 1028, 1059 ii. 896 i. 252 i. 46 i. 153n i. 171n i. 173n i. 216 i. 198 ii. 948 i. 327n i. 527 ii. 947 ii. 926, 1069 ii. 943 Bumpus V. Platner ii. 68 In, 684n, ]037n Bunbury v. Bunbury ii. 1062, 1063 Bunco V. Vandergrift i. 230n V. Wolcott ii. 608n, 625n Bunch V. Hirst i. 311n 312n Bunker v. Shad i. 9n Bunn V. Winthrop ii. 941n Bunney V. Poyntz ii. 866 Burchard v. Hubbard ii. 689n Burdett, Doe on demise of v. Wright ii. 1 140 Burdon v. Browning i. 138 V. Kennedy ii. 655, 661, 959 Burgess v. Wheate i. 336 Burgh V. Francis ii. 1023, 1134 V. Kenney ii. 822n V. Wolf ii. 1020 Burg's, Lady, case ii. 937 Burke v. Crosbie i. 67 V. Dawson ii. 939 V. Gray ii. 863n V. Greene i. 194, 423 V. Haley i. 132n Burkett v. Randall i. 151 Burlace, Sir John v. Cook ii. 1019. 1071 Burlinghame v. Burlinghame i. 143n Burnaby v. Griffin Burne v. Robinson Burnell v. Brown i. 228, ii. 825 ii. 635, 639, 641 i. 9, 344, 352, 379n, 408, ii. 818, 829 i. 314n i. 39 ii. 90ln, 902n i. 390 V. Donegall Burnett v. Lynch V. Pratt V. Wheeler Bums V. Southerland i. 47n Burnside v. Wightman i. 37n Burr V. Sim ii. 609n Burrell's case ii. 927 r. Brown i. 399 r. Crutchlcy i. 156 0. Lord Egremont ii. 637 Burroughs's case ii. 917 CASES CITED. XVll Burroughs v. Elton ii. 904 V. Martin i. 9n V. McCroight ii. 623 V. Oakley i. 249, 398, 399, 400, 401, 402, 418, 505 Burrowes v. Lock i. 5, 7, 10, 31 1, ii. 829, 1023 ii. 1052n ii. 852 i.468 ii. 663ii ii. 806,824, 1111, 1112 ii, 1042, 1056, 1127 ii. 984x1 ii. 689n, 1023n ii. 982n, 984, 1048 i. 14.5, 177n i. 140, ii. 1040 i. 216n ii. 1090 i, 156 I 31Gn, 311n, 312n, 314n, ii. 887n, S99n i. 235n i. 242n, 293n, 357n, • 506n, ii. 822ii V. Stevens ii. 9S4n, 1040n, 10o2n Butterfield v. Marshall ii. 753 V. Cooper i. 370n Butts V, Chiim ii. 1044n Buxton V. Cooper i. 4, 238, 310 Ex parte i. 59, ii. 887 V. Lister and Cooper i. 235 Byrne v. Frere i. 422 V. Romaine i. 14 In Bvwater v. Richardson i. 24, 384 Burt V. Cassety Burting v Stoniiard Burton v. Neville V. Smith V. Todd Bury V. Bury Bush V. Golden V. Marshall Bushell V. Bushell Butcher v. Butcher V. Stapely Butler V. Butler V. Capel V. Cooke V. Haskell — — V. Hicks V. O'Hear Cadell V. Palmer Cadman v. Horner Cage V. Acton Caines ;;. Grant V. Jones V. Marley Galcraft v. Roebuck ii. 1110 i. 235, 269, 312 ii. 771, 772 ii. 902n i. 9n, 299n ii. 935n i. 9, 25, 135, 13G, 140, 147, 227, 343, 344, 368, 399, 405, ii. 793, 794, 816, 828 Caldwell v. Black V. Thorp V. Williams Calhoun v. Snider Callaghan v. Pepper Callaway v. Ward CallLs V. Rideout Calthorpe v. Hayton Colton V. Bragg Calverley v, Williams ii. 609n, 624n ii. 608n ii. 94 In ii. G50n i, 130 L 191 ii, 887n ii. 746 iL 812 i, 25, 238, 355, 373, ii. 825 Calvert v. Godfrey i. 77 Doc dcm V. Benson i. 76 Camfield v. Gilbert i. 424, 427 Cammeyer r. United German Lutheran Churches i. 112u Camp V. Forrest ii. 1046n Vol. I. C Campbell v. Baker i, 53n V. Baldwin ii. 857n, 863n V. Fleming i, 275, 388 V. Hay i«65 V. Home i. 520 V. Ketcham i. 236u V. Johnston ii. 887n, 897n V. Lewis u. 708, 709 V. Pennsylvania Life Ins. Co. ii. 887n V. Lewis ii. 708, 709 V, Sandford ii. 638 V. Walker i. 55, ii. 887, 891, 894, 896, 897n, 898, 899. Campion v. Cotton ii. 918 Cane v. Allen ii. 688 V. Lord Allen ii, 890, 896 V. Baldwin i. 523, 535 Canham v. Rust ii. 725, 727 Canni). Cann i. 277, 404, 516, 523, 526, ii. 686 Cannan v. Denew ii. 952 Cannel v. Buckle i. 245 Cannon v. Alsbury i, 234n V. Kelly i. 46 V. Mitchell i. 23n Canover v. Warren ii. 863n Cant V. Lord Beauclerk ii. 1036 Capel V. Gii-cUer i. 195, 196 Capp V, Topham i. 12 Capper v. Spottiswood ii. 863 Card V. Jaffii-ay i. 117 Carey v. Callan ii. 91 On Carleton v. Leighton i. 421, ii. 1023 Carlisle v. Fleming i. 140n, 146n, 147n Carll V. Butman ii. 546n Carmon v. Mitchell i. 154n Carnes v. Hubbard ii. 879u Carpenter v. Brown i. 262n 263n V. Bailey ii. 702n V. Blanford i. 286 V. CressweU i. 261 V. Schermerhom iL 625n, 689n V, 1st Parish in Sutton ii. 655n Carr v. Duval i. 235n V. Foster ii. 642 V. Moulds i. 472 Carrington v. Roots i. 97, 99, 167 Carrol v. Norwood ii. 562n Carroll ». Cowell i. 119 Carson v. Blakey i. 522n Carter t). Boehm i. 141 V. Carter i. 256n V. Champion ii. 984n V. Dean& Chapter of Ely i. 292 V. Ex parte i. 217 V. Harris ii. 887n V. Home ii, 904, 908 V. Palmer ii- 887, 904n V. Wame i. 60 Caruthers v. Caruthers ii. 544, 1022 Carver v. Astor ii. 689n Cary v. Cary ii. 894 XVIII CASES CITED. Casamajor v. Strode i. 78, 315, 361, 363, 364, 432, 499, -503, 516,525 Casbard v. Attorney General ii. 675 — » r. Ward CasDorne v. Barsham Case r. Ahecl Case of an Hostler Casey r. Inloes Cass V. Martyn V. Kudele V. Waterhouse Caswall Ex ]5arte Caswell V. Wendell Cathcart v. Bowman V. Robinson i. ii. 675, 882 ii. 890 ii. 887n ii. 857n ii. 1021n ii. 546n i. 330 119, 124, 373 ii. 1123 ii. 765n ii. 702n 709n 157n, 234n, 235n, 236n, 248n, 311n, 312n, ii. 925n, 929n Catlin V. Harned V. Hurlburt V. Ware Cator V. Bolingbroke V. Charlton V. Earl of Pembroke ii. 822n ii. 747n, 763n ii. 543n, 966n ii. 856, 880 i. 217 ii. 687 Chaplain v. Southgate ii. 746 Chapline v. Chaplme i. 73n V. McAfee ii. 909n Chapman v. Bond ii. 791 V. Brown i. 180 V. Emery ii. 931, 938 V. Fowler i. 88 V. Gibson ii. 1020 V. Holmes ii. 709n r. Tanner 856, 881 Charles r. Andrews i. 310, ii. 543, 856 Charlewood v. Duke of Bedford i. 94n, 121, 131 Charlton v. Low ii. 782, 785, 791, 1010 V. Earl of Pembroke and others ii 919 CatteU V. Corrall i. 36, 391, 395 Cattle r. Gamble i. Ill Causton v. Macklew ii. 661 Cavan, Lady, v. Pultency ii. 750, 751 Cavendish v. Worsley i. 227 Central Bank v. WiUard i. 168n Central Turnpike Co. v. Valentine i. 26 In Chadwick v. Broadwood ii. 623 Chalmers v. Bradley ii. 899n Chambers v. Chambers ii. 023n V. Le Compt i. 147n Chamberlain v. Blue i. 235n V. Ewer ii. 764n V. Gorham ii. 1024n V. Lee i. 242, 297, 355 V. Thompson ii. 984n Chamberlaine v. Chamberlaine i. 176 Chambers v. Gold win i. 277 V. Griffiths etalt. i. 357 V. Griffiths i. 362, 364, 365 V. Waters ii. 888, 895 Chamley v. Lord Dunsany ii. 982n Canipcrnowne v. Brooke ii. 803, 805 Champion v. Plummer i. 117 V, Brown i. 9 In, 238n, ii. 857n, 874n, 879n, 103ln V. Rigby ii. 890, 899 Champlin v. Haight ii. 847n V. Laytin u 7n, 180n, 267n, 278n ii. 1041n V. Parish i. 112n, 131n Chandelor r. Lopus i. 3 V. Marsh ii. 68 In Chandler v. Beard i. 525 Chandos, Duke of, v. Talbot i. 37 Chapel V. Bull ii. TtJln Chapin v. Pease ii. 939n V. Weed ii. 887n 485n ii. 890, 900 ii. 954n ii. 10l7n ii. 68 In, 708n i. Ill ii. 1044n, 1045n ii. 1056n ii. 102 In ii. 933 ii. 1089 ii. 875n 173, ii. 773 ii. 932n ii. 885n i. 173u ii. 773 Charlwood v. Morgan Charter v. Trevelyan Chase r. Gilman V. McDonald V. Weston Chater v. Beckett Chaudron v. Magee Chautauque Bank v. Risley V. White Chayton v. Lord Wilton Cheek v. Jefries Cheesborough v.'Millard Cheney's case i V, Watkins Cheshire v. Barrett Chesley v. Frost Chesney's Case Chester v. Gorges i. 88 V. Piatt i. 232, ii. 885 Chesterfield v. Janssen i. 275, 315n, 3l7n 31 8n, 326 Chesterman v. Gardner i. 370 Chcston i\ Gibbs ii. 952 Chetham r. Grugeon i. 84n, 86 Chetwood v. Brittain i. 13-9n, I55n, 180n 182n Child V. Lord Abingdon ii. 802, 816 r. Godolphin i. 136 Childress v. Ford i. 178n C'hillingworth v. Chillingworth i. 71 Chinn v. Heale i. 340n Chii-ack v. lieineicker ii. 1063n Chivall V. Nicholls ii. 984 Cholmondeley v. Clinton i. 495, ii. 610 I'. Clinton and others i. 270, ii. 610, 612 Cholmondlcy v. Clinton ii. 1147, 1148 V. Orford ii. 1026 Chomloy's case ii. 929 Christ V. Diffinback i. 158n, 180n Christ College v. Widdington ii. 1065 Chri-st's Hospital v. Budgin ii. 917, 1117 Christian r. Devereux ii. 637 Church V. Church i. 155n V. Marine Ins. Co. ii. 887n V. Ihown ii. 702 V. Edwards ii. 583 V. Legeyt i. 424 Churchill, ex parte ii. 887 [ V. Grove ii. 655, 1048 CASES CITED. XIX Churchill v. Small i. 468 Churchman v. Harvey ii. 1 1 24 V. Ireland i. 199 City of London v. Dias i. 21 V. Richmond i. 309 Clatlin V. Car^^enter i. 96n, 99n Clagett V. Salmon ii. 98 2n Clamorgan v. Lane ii. 1048n Cla^jham v. Shillito i. 4 ClajDp V. Day i. 53n V. Leatherbee ii. 926n, 927n, 928n Clare v. Earl of Bedford ii. 1022 Clare V. Clare Clare V. Maynard Clark V. Clark Clark V. Courtney V. Bell V. Flint V. Gellerson V. Hackwell V. Henry V. Hunt in re. V. Jenkins V. McAnulty V. Parr V. Redman V. Reed V. Smith V. Swaile V. Swift V. Upton Clarke v. Elliott V. Faux V. Grant V Royle i ii. 1108n i. 424 i. 59, ii. lOfjB i. 53n i. 370n i. 235n, ii. 926n ii. 973n i. 142, 151 i. 158n ii. 863n, 867n, 880n ii. 565n ii. 973n ii. 745ii « ii. 765n ii. 543n 702n 708n ii. 82 In, 822n i. 256n, ii. 708n • ii. 895n ii. 709n, 764n i. 54 i. 249, 250 i. 393 i. 157, 158, 188 518, ii. 858, 859, 800, 870 i. 115 i. 249 ii. 1064n ii. 1046n 112n, 126n, 12Sn ii. 875n ii. 708n i. 327n ii. 64 i, 645 i. 523, ii. 1090 ii. 643 i. 101, ii. 700 ii. 644 ii. 573 i. 176 i. 156n, I80n ii. 1017n i. 370 ii. 890n 97n, 154n, 16Sn i. 2 -Jon V. Terrell V. Wilson Clarkson ii. Morgan Clary v. Marshall Clason V. Bailey i. V. Morrps Claunch v. Allen Clay V. MUler V. Shackeray V. Sharpe V. Thackrah Clayton v. Burtonshaw V. Corby Ex parte V. Gregson Cleavcland v. Burton V. Clark V. Rogers Cloavinger v. Reimar Clement v. Durgin i. V. Reid Clementson v. Williams i. 142n Clerk V. Ncttleship ii. 935 V. Rutland ii. 927 V. Wright i. 117, 140, by Committee v. Clerk ii. 885 Clermont, Lord v. Tasburgh i, 235, 238, 252 Cleverly v. Williams i. 340n Clifford V. Laughton i. 373 V. Turrill i. 153n Clifton V. Walmsley i. 178 Clinan v. Cooke i. 117, 119, 120, 130, 146, 147, 148, 149, 163, 164, 373 Clitherall v. Ogilvie i. 235n, 237n, 311n, 313n Clopton V. Martin i. 180n Close V. Wnberforce i. 39 Clough», Horsford i. 264n Clower V. RaAvlins ii. 857n, 8 6 On Clowes V. Higginson i. 160, 238, 253 Clute V. Robinson i. 293n, ii. 702n Clymer v. Dawkins ii. 623n Clynn v. Littler i. 201 Coates V. Birch ii. 1062n V. Cotter i. 83 Coble V. Wellborn ii. 764n Cochrane v. Cochrane i. 85 V. Cummings i. 53n Cockv. Richards i. 181 V. St. Bartholomew's Hospital i. 487 Cockburne v. Wright ii. 662 Cocker v. Cowper i. 96 V. FrankUn H & F Man. Co i. 286n Cockerell v. Cholmeley i. 277, ii. 900 Cockes V. Sherman ii. 1037 Cocks V. Nash i. 472 Codrington v. Codrington i. 472 Coe V. Talcott 689n V. Turner i. 267n Cofen V. Thiermond ii. 609n Coffin V. Cooper i. 296 V. Ray ii. 966n, 984n, 1037n, 104ln Coke's Sir Edward case ii. 1100, 1101, 1103 Coke V. Wilcocks ii. 1070 Coker v. Guy ii. 720 Colburn v. Mason ii. 623n Colby V. Kenniston iL 1052 Colclough V. Sterum i. 68 Colcord V. Swan i. 230n V. Seamonds ii. 882n Colcott, Dr , V. Hide or Hill, i. 182 r. Hill ii. 763 Cole V. Gibbons V. Hawes V. Scott V. White Colegrave v. Dios Santos Coleman v. Cocke V. Moore V. Upcot Coles V. Brown v. Kinder I'. Trecothick i. 114, 115, 118,. 127, 130, 131, 132, 135, 145, 173, 235n, 239, 311, 3l3n, 314^335, 337, ii. 887, 890, 893, 896 V. Wendell i. I75n V. Whitman i. 235n Collard v. Groom i. 357n Collet V. Thomson i. 258, 428 i 275, 314, 315, 326 ii. 755n ii. 85 6n i. 140, 141 i. 37, 101 ii. 1037n ii. 822n ii. 112, 115 i. 18 In ii. 769 XX CASES CITED. CoUett V. WooUaston V. Dc Gols ii. 778, i. 311 1019, lOSO, 10.31 _ i. 217 ii 765n i. 213, 346 i. 180n, 182n i. Sin, 86n ii. 826 ii. 553 ii. 1072 ii. G55n ii. 734 ii. 612n ii. 937 ii. 734 ii.811 ii. 1060, 1125 1069 i. 178n i. 516 i. I75n i. 147n i. 242n i. 464 i. 931,935 i. 239, 349 ii. 1062 i. 330n i. 424n 203n, ii. 794, 809, 816, 866, 870 ii. 7&5n Comm'rs of Charitable Donations v. V. Munden Collier v. Gamble V. Jenkins — — V. Lanier V. "Whipple Collinge's case ColUngAvood V. Pace Collins V. Archer V. Gibson V. Plumb V. Torrey Collins V. Pattrich Collison V. Lettsom Collyer v. Willock Colman t\ Sarrel V. The Duke of St Albans V. Winslow Colmorc v. Tindall Colpoys V. Colpoys Colson V. Thompson Colton V. Ward V. Wilson et al Colvilc V. Parker i Colyer v. Clay Combe v. Mayor of London Combs V. FLsher V. Tarlton Comer i'. Walkley Comings v. Little Winants Commonwealth v. Dudley V. Heirs of Andre V. Rhodes i Compton V. Richards Comstock v. Smith Conable v. Bucklin Conant v. Jackson Conard c. Atlantic Ins. Co Conie's Case Connecticut v. Bradish Connell v. Ilardie Connnelly v. Pierce Connor v. Lewis Connolly v. Parsons Conor or v. Warren Conrad r. Barry Const V. Barr Conway v. Alexander V. Shrimpton Cooch V. Goodman Cood V. Pollard Cook V. Lord Arundell V. Booth r. Hall I'. IleriB r. Stearns r. Williams V. in re Cooke V. Bertohaell ii. 613 i. 173n ii. 884n i. 97 In, 984n i.27 ii. 6S9n ii. 822n i. 236n 9S2n ii. 771 ii. 984n i. 85 i. 262n, 263n ii. 908n i 14n. 18n ii. 857n i. 85n i. 460, ii. 691 i. 22 In i. 310 i. 94 ii. <<60 ii. 727, 728 i. 178 ii. 96Gn ii. 727 i. 96n ii. 61 On ii. 663n, 670n i. 324 Cooke V. Clayworth ii. 1064 r. Cooke i. 196, ii. 787 V. Fowndos ii. 755 V, Soltau i. 528 V. Tombs i. Ill, 120, 122, 124, 140 Cookson V. Cookson i. 205n Coombs V, Jordon ii. 655n, 836n Cooper V. Dcnne i. 242n, 293n, 357n, 410n, 496n, 506, 507n, 515, 519n V. Emery i. 475, 477, 479, 487 in re ii- 667n r. Smith i. 117, 121, 126 V. Stower i. 264n V. Tynman ii. 1025 V. Wliitney ii. 542n Coote V. Coote i. 90, 237 V. Mammon ii. 1042 Cooth V. Jackson i. 123, 138, 140, 312, 328, ii. 1064 Copeland D. Mercantile Ins. Co. i. 53n, ii. 8S7n V. Stephens i. 60 Copenheaver v. Huffaker ii. 1044n Coppin 15. ii. 1024 V. Coppin i. 212, ii. 864n, 872, 875, • 876, 877 V. Fernyhough i. 495, ii. 1056 Corbet i;. Corbet ii. 544 Corbett v. Brown i. 5 V. Baiker ii. 612 Corbini'. Healey ii. 57 In Cordage v. Cole i. 146 Corder v Drakeford i. 1 11 V. Morgan i. 523 Cordwell r. Macki-ill ii. 1060 Corliss V. Corliss • ii. 984n Cormick v. Trapaud ii. 934 Cornburv, Lordu. Middleton ii. 728 Cornish v. Rowley i. 286, 295 Cornwall v. Williams i. 242, 420 Cornwallis's ca.'ie ii. 1040 Corporation of Ludlow r. Greenhouse et ali i. 502 Corrall v. Cattell i. 395 Corry v. Gerteken ii. 1022 Cortelyou t\ Van Brunt i. 178n Coryton v. Hellior i. 180 Cosack I'. Descondres i. 115n Coslake v. Tilt i. 292 Coscr V. Collinge i. 238 Coster V. Murray ii. 610n V. Munroe Manuf Co ii. OS In, 685n Turner ! Costigan r. Hastier ] Cothay v. Sydenham Cotter V, Saver Cotterell v, button V, Ilampson I Cottington v. Fletcher I Cottle V. Warrington Cotton V. Cotton V. EveraU V. King r. Lee i. 297 237, 242, 410 ii, 1058 i. 200, 201 ii. 608, 609 ii. 834 i. ]37,ii. 909 ii. 968 i. 515 ii. 834u ii. 931 i. 112 CASES CITED. XXI Cotton V. Ward i. 293n, 506n Cottrell V. Watkiiis i. 460, 503 Couch V. Ingersoll i. 260n, 262n V. Statton ii. 543 Coughlin V. Knowles i. 143n Coussmaker v. Sewell i. 460, 480, ii. 1095 Coventry Earl o£v. Coventry i. 214 Coveney v. Tannahill ii. 1062n Coverley v. Burrell i. 29, 340 Coward V. Odingsale i. 291 Cowell V. Simpson ii. 862 Cowgill V. Lord Oxmantoun i. 298, 515 Cowles V. Whitman ii. 822n Cox V. Bateman ii. 919 V. Bennett i. 154n V. Chamberlain ii. 825 V. Fenwick ii. 857n, 862n V. King i. 525 V. Osborn i. 191n, ii. 1031n V. Paxton ii. 919 V. Strode i. 424n Coxe V. Halsted i. 65n Cozine v. Graham i. 138n Crabb v. Crabb ii. 915 CraddocktJ. Shirley i. 242n, 370n, 37ln, 506n, ii. 08 In Crafts V. Tritton i. 218 Cragg V. Holme i. 236 Craig V. Hopkins ii. 683n V, Leiper ii. 1068n V. Leslie i. 19 In, 192n, 194n, 203n, ii. 884n V. Martin i. 327n, ii. 1029n V. Radford ii. 884n Cram v. Mitchell ii. 887n Crane v. BonneU i. 22 In V. Deming ii. 982 V. Drake ii. 854 Crary v. Smith i. 263n Cravrford v. Bertholf, i. 191n Crawler. Crawle ii. 781 Crawley v. Timberlake ii. 857n 880u Crawshay v. Maule ii. 903n Craven v. Tickell i. 340n Crayford v. Crayford ii. 762 Creed v. Creed i. 80 Crenshaw v. Smith ii. 765n Crespigny v. Wittenoom ii. 1087 Cresson w. Stout i. 37n Cresswell v. Byron ii. 543 Crewe ». Dicken i. 506, 515, ii. 841, 849 Criffin t'. Heermance i. 289n, 305n, ii. 822n, 826n ii. 911 ii. 680, 684 ii. 1063n ii. 40, 221 ii. 655 ii. 917 ii. 1063u ii. 89 7n Cripps V. Jce V. Reade Crisler v. Garland Crisdee v. Bolton Crisp V. Heath v. Pratt V. Platel Crispin v. Taylor Crocker v, Franklin Hemj) & Flax Manuf Co i. 164n Crockett v. Maguire ii. 1048n Crockford v. Alexander i, 193, 248 V. Winter ii. 812 Croft V. Slee ii. 1123 Crofton, in re i. 203 V. Ormsby i. 292, ii. 938, 1031, 1033, 1052 Crofts V. Wilkinson ii. 1032 Croly V. Callaghan ii. 864n Crompton v. Lord Melbourne ii. 688 Crooker v. Jewell ii. 708n Croome v. Lediardi. 160, 161, 300, ii. 827 Crop v. Norton i. 242, 410, 420, ii. 906, 910, 912 Crosbie v. Tooke, i. 244 Crosby v. Berger ii. 1062n V. Chase ii. 1056n V. Middleton i. 188 V. Percy i. 462, 463 V. Wadsworth i. 93, 95, 97, 99, 103 109, 111 Cross V. Faustenditch, Cross V, Peters Crosse v. Young Crosskey v. Mills Crossley v. Arkwright Crouch V. Fowle ii. 942 i. 3 ii. 745, 746 i. 50 ii. 1087 ii. 756n ii. 655u i. 471 i. 17 194, 277, ii. 895 i. 135 i. 180n i. 313n Crow V. Tinsley V. TjTrreU Crowder v. Austin Crowe V. Ballard i Croyston v. Banes Crozier v. Acer Cruise v. Christopher Crutchley v. Jerningham i. 51, 250, 251 Cubbidger v. Boatwright ii. 853 Cuff V. Penn i. 153, 168 Cuffeet'. Milk ii. 57 In CuUam V. Branch Bank ii. 680n. 686n, 796n Culley V. Taylerson ii. 623, 624, 627 Culpepper v. Aston ii. 834, 1044, 1045 Culpepper's case ii. 1020 Cumberland V. Codrington i. 216n Cummings v. Arnold V. Dennett Cunningham v. Freeborn V, Morrill V, Williams Curling v. Shuttleworth Curre v, Bowyer Currens v. Hart Currer v. Walkley Currie v. Nind Curtis V. Marquis of Buckingham i. 248 V. Greated i. 260 V. Perry ii. 1023 V. Price i. 67 V. Mundy ii. 663n, 784n, 1040n, 1052n V. Lunn ii. 1037n Curwin v. Milncr i. 314 Gushing v. Aylwin i. 206, ii. 663n 154n, 157n, 163n, 171n i. 117n, 153n ii. 1064n i. 262n i. 71 i. 529, 531, ii. 810 i. 206 ii. 1040n ii. 845 ii. 926, 931 xxu CASES CITED. Cushing V. Blanchard ii. 705n Davis V. Cook ii. 608n V. llurd ii. fioon.QGGn, 984n, 10o8n Ex parte ii. 889 Cuthbcrt )'. IJakcr i. 354, ii. 844 V. Davis i. 519 V. Purrier ii. 609u V. Hone i. 237, 238 Cutler V. Tope i. 99n V. Lane ii. 693n V. Simons i. 250 V. Lewis i. 424n Gutts, ex parte i. 223 V. Logan ii. 546n V. Thordey i. 25 V. Lyman ii. 709n V. Thodcy i. 275, 301, 307 V. Meeker i. 3 Cuyler v. Brandt ii. 1056n V. Shields i. 112n V. Simpson ii. 887n D V. Smith' ii 745n, 765n Dabney v. Green i. 178n V. Earl of Strathmore ii. C62 Dadson r. Simpson ii. 853n V. Symonds i. 154, 156, 157, 172, Dailey v. Buck ii. 708n 235, 243n, ii. 829, 904 Dakin r. Cope ii. 808, 825 V. Thomas i. 177, 221, r. "Williams i. 22 In V. Tingle ii. 1021n Dally r. PuUeu i. 297, 345, 357n V. Waters ii. 1062n Dale V. Harrison ii. 939n Davison v. Waite ii. 103 In V. Livingston ii. 1062n Davoue v. Fanning ii. 887n, 888n, 891n, ex parte ii. 880 895n 896n, 897n V. Lister i. 347 Davy V. Barber ii. 793, 800 V. Sollet i. 257 Davys v. How^ard ii. 921 Dalton r. Hammond ii. 692 Dawes v. King i. 3 Daly r. Duggan i. 328 Dawson v. Baldwin ii. 727 I'. Osborn i. 417 V. Dawson i. 200 Damon v. Daniels i. 311n V. Dyer i. 200 Dana v. Coombs ii. 885n V. Ellis i. 126n Dance and others v. Girdler and V. Massey ii. 892, 1064 others i. 178 V. Yates i. 275 Daniel v. Adams and wife and others Day V. Arundel ii. 10G8n i. 46 V. Arundell ii. 1069 V. Adams i. 56, L31, 230, 232, 239 V. Finn i. 370 V. Mitchell i. 4, 53n, 189n, 267n, V. Newman i. 268, 310 279n V. Perlcins i. 37n Daniels v. Davison, i . 203, 254, 344, Da-\Tie V. King i. 369n ii. 1022, 1052, 1056 Deacon v. Smith ii. 920, 921, 922 D'Arcy v. Blake ii, 781, 782n Dcaltie v. Murphy ii. 908n V. D'Arcy i. 276 Dean v. Dean ii. 908n Darcy r. Hall ii. 688 Dcane v. Bastron i. 311 Dare v. Tucker i. 38, 475, 477 Dearborn v. Cross i. 153n , 154n, 171n Darkin v. Marye i. 72 Doardon v. Lord Byron ii. 1147 Darley v. Singleton i. 313 Dearie v. HaU ii. 1025 Darrington v, Borland i. 65n Dearman v. Kadcliife ii. 939n Darris's case i. 194 V. Wyche ii. 626, 637 Darwin v. Lincoln ii. 1089, 1092 Deas t;. Horry ii. 562n Dashwood v. Lord Bulkeley ii. 782 De BeU v. Thomson i. 131 Davenport r. Bishopp ii. 940 De Bernales v. Fuller i. 258n, ii. 812 V. Haubury i. 229 V. Wood ii. 812 r. Farrar ii. 540n Deboe v. Lowen ii. 571n r. Tilton ii. 663n De Caters v. Le Boyde Chaumont Da^idson v. Ernest i. 264n ii. 887n, 896 V. Gardner i. 230, ii. 890 De Chaumont v. Forsythe ii. 708n Davie v. Beardsham i. 191, 195, 198 Decouchc v. Lavetier ii. 610n V, Sacheverell ii. 746 Deg V. Deg ii. 910, 919 Davies v. Austen ii. 1024, 1026 D'Espard v. Head i. 81 V. Davies ii. 1060 De Graves v. Smith i. 5n V. Jones i. 232 De HavUand v. Bowerbank i. 258n, r. Lowndes i. 443n ii. 812 V. I'enton i. 246 Deibler v. Barwick ii. 857n 1-. Thomas ii. 1056 De La Croix v. Bulkley i. 171n Davis's case i. 219 Dclatield v. Anderson i. 311n Davis V. Adams i. 145n Dclane v. Dclane ii. 909 V. Austin ii. 1024n 1 Delavergne v. Norris ii. 765n V. Blunt ii. 984n j De Long v. Hooper i. 177n CASES CITED. xxm Deloraine v. Brown i. 278n Demaree v. Driskoll ii. 91Gn Demarest v. "Willard ii. 708n V. Wyacoop i. 522n, ii. 608n, 61 In, 612n, 62on, 823n, 1037n. Deming v. BuUett i. o3n Dc Moleyn's, Sir John, case ii. 660 Den V. Carson ii. 663n V. Kelebum ii. 663n V. Manners ii. 562n V. Richards ii. 608n 62on V. Richman ii. 96Gn V. Small ii. 571n V. Van Ness ii. 787n V. Zabriskie ii. 57 In Denchfield v. Strong ii. 612 Denew v. Deverall i. 38, 45 Denn t'. Cartwright ii. 1031 V. Kemeys ii. 773 V. McKnight ii. 887n dem. WLlkins v. Kemeys ii. 770 I,. Wright ii. 887n Denning v. Smith ii. 1070n Dennis v. Heath ii. 68 In Dennison v. Goehring ii. 913n, 941n V. Robbinett i. 192n Denston v. Morris i. 370n, ii. 68 In, 686n Denton v. Davies ii. 920 V. McKenzie i. 115n, ii. 90Sn V. Stewart i. 140, 253 Deoney v. Hutchinson ii. 902n Derby Canal Co. v. WUmot ii. 957 Desart, Lord, t'. Goddard i. 141 De Sewhanbergh v. Buchanan i. 368 D'Espard ». Head i. 81 Despatch Line of Packets v. Bellamy Manufacturing Co. i. 37n, 53n De Tasket v. La Tavernier ii. 947 Devaux v. Steinkeller i. 6 Deverell?;. Lord Bolton i. 403, 408, 428, 491, 496 Dew V. Clarke i. 224 Dewdncy ex parte ii. 611 Dewey v. Field ii. 1022n De Witt r. Moulton ii. 966n, 984n DeWolf V. Rabaud i. Il7n Dews V. Brandt i. 312, 316, 318 Dexter V. Arnold ii. 611n, 612n V. Harris ii. 1052n Day V. Dunham ii. 984n, 104 In, 1052n Digs V. Boys ii. 1044 Dike V. Ricks ii. 847 Dillingham v. Runnels i. 140n Dillon V. Byrn ii. 959n V. Coffin ii. 941n Lord V. CosteUoe ii. 1020 V. Cruise ii. 635, 637 V. Leman ii. 608 Dimmock v. Lockwood ii. 765n DLxon V. Astley i. 249, 250, 401 V. Doe ii. 10o2n Doar V. Matthews i. 302n, 305n Dobell w. Hutchinson i. 32, 114, 120, 258, 295 V. Stevens i. 273 Dobson V. Leadbeater ii. 1068 V. Racey ii. 887n, 888n, 896n, 899n Dias V. Glover Dick V. Donald Dickenson v. Dickenson V. Heron i. 301, ii. V. Lockyer V. Shaw Dicker v. Jackson Dickerson v. Tillinghast Dickinson v. Adams Dickson v. Doe Digby V. Brown V. Irvine Dighton V. Grcen^il ii. 793n i. 24, 392 i. 496, 506, ii. 836 797, 816, 824 ii. 852 u. 913 i. 262n ii. 926n i. 145 ii. 984n i. 82, 86n, 87 ii. 057 ii. 610, 611 Dodd V. Acklom Dodge V, Lear V. Perkins Dodsley v. Yarley Doe V. Abel V. AUsop V. Andrews V. Archer V. Barksdale V. Barton V. Benson V. Blackburn V. Bland V. Bottriell V. Boulton V. Bramston V. Breach V. Bright wen V. Brooks V. Brydges V. Burdett V. Calvert V. Chamberlaine c. Cochran a. Cooke V. Craiger V. Creed V. Danvers V. Davies V. Edgar V. Edmonds V. Edwards V. Evans I'. Ewart V. Flanagan V. Ford V. Gilbert V. Gray V. Greenhill v. Harrow V. Hayley V. Heldcr V. Hellard V. HUder r. Hogg V. Hopkins V Horde i. 96 i. 116n i. 25 8n ii. 85 7n i. 206 ii. 984 ii. 1063 ii. 1033 ii. 608n 609n, "■25n i. 21. i. 155 ii. 551 • i. 176 ii. 926 i. 264 ii. 625, 626 i. 264 i. 528 i. 459, u. 773 i. 477 ii. 1060 i. 528 22 i. 264n ii. 1147 ii. 57 In ii. 662 ii. 612 i. 517, 528 i. 264, 525, ii. 627 ii. 620, 624 ii. 699 i. 66, ii. 655, 659, 672 ii. 570 ii. 609n ii. 1092 ii. 1062n ii. 700 ii. 657 u. 627 ii. 722n ii. 659 i. 525 ii. 1140, 1148, 1149 ii. 971 ii. 930 ii. 609 XXIV CASES CITED. ii. 884n ii. 623 ii. 93711 i. l7on, 264 i. 473, 926 ii. 609 ii. 608, 660 i. 264 i. 155 ii. 1032, 1055 i. 343n ii. 930 ii. 942 ii. 930 i. 180 i. 264 ii. 62111 ii. 925 i. 524, 525 ii. 609 i. 175 ii. 1136 ii. 984n, 104 In, 1052n ii. 771 ii. 1005, 1008, 1087 ii. 699 i. 343n ii. 1149 i. 19711 ii. 700 i. 264 ii. 1146 i. 128, 129 ii. 966n ii. 722n ii. 884n ii. 622 ii. 935 ii. 926, 937 ii. 700, 923, 926, 931 i. 468 i. 524 i. 264 u. 1129, 1134,1138 ii. 693, 1062 i. 264 ii. 850 ii. 1140 i. 264 ii. 1129, 1136, 1137 ii. 1129, 1137 I'. Thompson ii. 616, 622, 624, 626 Doe V. Honiblca V. Horrotks V. Howland V. Jackson V. Jiimes — — V. Josson V. Jones V. Lawder V. Lea V, Luffkin V. Lyncs V. Manning V. Miirtin r. Martyr r. Mieklem V. Miller V. Moore I'. ^Morris V. Neeld V. Nepean V. Oxendon V. Pegge V. Perkins V. Pett V. Philips V. Phillips V. Pitt V. Plowman V. Pott V. Preston V. Pullen V. Putland V. Ildgriph V, Iledden V, Ileid V. Robertson V. Hock r. Polfe V. Iloutledgc V. liowe V. Samples V. Saunders — — V. Saver V. Scott V. Seaton V. Smith V. Smyth V. Stace r. Stanion V. Staple V. Svbourn V. Waller "Watkins "Webber "SVeston Wheeler Williams WUH.s i. 264 ii. 1064 ii. 926 ii. 699 ii. 700 ii. G16, 624, 626 i. 524 Doggctt V. Emerson i. 4, 53n, 90n 267n 277n, 279n, 327n, ii. 815n Dolin V. Coltman ii. 936 Doloret v. Rothschild i. 235, 292 Dolton i;. Hevven ii. 839 Domville v. Berrington i. 66, 85 Donahoe v. Emery ii . 7, 65n Donald.son ti. McRoy i. 14n Donncll u. King ii. 1067n, 1068n, 1069n Donovan v. Fricker i. 278, 279, ii. 815 Doolin V. Ward Doolittle V. Lewis Doran v. Wiltshire Dormer v. Parkhurst Dorr V. Shaw Dorrow v. Keeley Dorsey v. Campbell V. Clark Doswell V. Buchanan Dougherty v. Jack Douglas V. Ward V. Whitrong V. Yallop Douglass V. Dunlap V. Howland — '■ — V. Spears Douglassc V. Waad Dow V. Warren Dowell V. Drew i. 141, 150, V. Warren Dowlcy V. Wiiijfield, Dowling V. Maguire Downe Lord v. Morris Downer v. Brackett DoAmes v, Glazebrook Downing v. Brown V. Ford Downman v. Rust Dowse V. Derivall Dox V. Day Doyle V. Sleeper V. Teas Doyley v. Countess of Powis Drant v. Vance Drapers' Company v. Yardley Drayson v. Pocock Drayton v. Draj-ton Dienmere v. Bowyer Drewe v. Corp V. Hanson i. 357, Driggs V. Dwight Drinkwater v. Drinkwater Driver v. Cholmondeley Drought V. Eustace V. Jones Druramond v. Churchill Drurv r. Conner i. 19n i.522n ii. 837 ii. 612 ii. 875n ii. 10l7n i. 3 ii. 908n, 909n ii. G89n ii. 929n ii. 931 i. 203 ii. 678 ii. 939n i. 117n i. 112n ii. 939 ii. 608n 1033 1064 ii. 608n ii, 609n 252, ii, 885 ii. 790 ii. 663n ii. 889 i. 19u ii. 608n ii. 845n ii. 786, 787 i. 262n 908n, 92on ii. 966n . 50, 66 i. 204 ii. 1056 ii. 851 ii. 891n i. 262n, 263n i. 343, 520 361, 363, 365, 366, 404 i. 424n, 525n ii. 939n i. 45 . 312, 325 66, ii- 639 i. 262n i. 141n V. Drury, or Earl of Bucks v. Drury '. , or Williams v. 543 Chitty ii. 544n ii. 692 1041, 1054 V. Man Drydcn v. Frost i. 7, ii. Dubois V. Del. & Hudson Can. Co. i. I78n Du ('ane, ex parte ii. 889 Duck V. Braddyll ii. 698 Ducklc V. Baines i. 214 CASES CITED. XXV Dudley v. Dudley V. Folliott I. Grayson V. Little DuffelU'. Wilson Dutt'y V. Ins. Co. Dugan V. Carlton V. Gittings Du Hourmelin v. Sheldon Duignan v. Mangle Dumbell, Ex parte Dunbar v. Tredeiinick Duncan v. Baii-d V. Cafe V. Charles V. Dodd I'. Tanner Dunch V. Kent Duncombe v. Mayor Dunham v. Day V Gates v. Minard Dunlap r. Burnett V. Mitchell V. Stetson D unman Ex parte Dunn V. Moore V. White Dunne v. Ferguson Dunnica v. Sharpe Dupree v. McDonald ii. 781 ii. 74o ii. 884n i. 19n i 340 ii. 936n i. 378n ii. 608n, 624n, lOiUn ii. 884 i. 81 ii. 887 i. 277, ii. 897n, 898n, 900, 1031 i. U3n i. 48, 401 i. 262n, o30n i. 84n i. 424n ii. 834 i. 438 ii. 984n ii. 1064n i. 71n Earle v. Browne ii. 1092 V. McDowell ii. 624n V. Middleton ii. Toon. Early v. Garrett i. 274, 384, 388, ii. 680, 686 East Greenstead's case ii. 945, 1041 East India Company v. Clavell ii. 937 V. Donald "i. 245, ii. 1064, 1035 V. Hensley i. 46 Eastman v. Mc Alpine ii. 1064n Eaton V. Lyon i. 178, 305 V. Sanxter i. 192, ii. 660, 693, 849 V. Whitaker i. 140n, 146n I'. Whiting i. o22n Ebner v. Grundie ii. 96un Ebrand v. Dancer ii. 917 Echliff V. Baldwin i. 248 Edden v. Read i. 2-57 Eden, Sir John, v. the Earl of Bute i. 178 Egarton v. Peckham Edington v. Harper Edlin V. Batalay Edman v. Allen ii. 879n, 880n Edmonds v. Crenshaw i. 230n i. 19 In i. 56 i. 140n ii 702n ii. 100, 107 i. 424n i. loon, 17on, i82n ii. 5G7n ii. 765n i. 222 i. 369n ii. 1030 i. 45n Durant v. Ashinore Durbin r. Garrard Durham, Bishop of. Ex parte Durrett v. Simpson Durslcy, Lord, v. Fitzharding Dusenbury r. Ellis Dustin V. Newcomer i. 424n, ii. 822n Dutch i;. Warren i. 256 Dutcli Church &c. v Mott i. 242n, 293n Duval r. Bibb ii. 880n Duvall V. Craig ii. 745n DuvaUs V. Ross i- 37 In Du Vigier v. Lee ii- 637, 641 Dwiifht V. I'omerov i- 140n, loon, lo6n, 157n, 180n Dwiggins V. Shaw i. 260n Dver 1-. Dver ii. 908, 911, 913, 915 — — c. nargrave i. 291, 342, 344, 380, 383, ii. 805 Edsell V. Buchanan Edwards v. Bohannon V. Brinker v. Kd wards V. Ex parte V. Handley V. Harvey V. Heather v. Hodding V. Jones V. Llewellyn V. McLeay i. 19 In i. 221n, 233n ii. 102r5 i. 286 59n, ii. 1044n ii. 612n ii. 836n ii. 984n ii. 911 ii. 1019 i. 237n . 63, 539, ii. 821, 823 i. 3L0 i. 48 ii. 937 i. 271 i. 268, 271, 272, 279, ii. 687 V. Homer ii. 939n V. Martin ii. 8o7n V. Potter ii. 822n V. Pulteney i. 194 Dyct (-. Pendleton ii. 7 4 On Dyke r. Sylvester i. 519 Dykes v. Blake i. 26 , 34, 362 V. Meyriek iL 896 V. Morris ii. 103 In V. University ii. 61 On Edwin V. Saunders i. 17 In Egerton c. Jones i. 412 1-. Matthews i. 112 Eggington v. Flavel i. 71 Egremont, Lord, v. Hamilton ii. 611 Eichelberger t. Burnitz ii. 57 In Ekins V. Tresham i. 4 Ela y. Card i. 765n Eland v. Eland ii. 841, 1056 Eider v. Elder i. 156n, 180n Eldridge 1-. Potter i. 416 Eliason v Henshaw i. 116n Ellard v. Lord Landaff i. 235, 237, 238, 377, 420 Elliot V. Brown V, Edwards V. Elliot Elliott V. Armstrong T. Geise Eager v. Commonwealth ii. 608n, 02on Eames r. Savage i. 263n Earl V. Baxter i. 459 Vo.,. T. D r. Merryman V. PcarsoU V. Thompson Ellis V. Ai-nison ii. 903 i. 632, iL 860, 879 ii. 913, 914, 915 ii. 908n i. 15;'n. ii. 836, 838,. 840, 841n, 852, 855 ii. 57 In ii. 68 In, 76.5n i. 624 XXVI CASES CITED. Ellis t". Burden I'. Deadman V. Ellis V. IT; .skins V. Molloy V. Nimmo V. Tousley r. Welch Ellison i'. Ellison Elmore c. Kingscote Ehvcll V. Shaw Ehvorthy v. Billing Ely i\ Adams Emanuel i\ Dane Emery v. Chase V Grocock 157n, 237n, 3Iln i. lion i. 14( L, 141n i. 79 ii. 94 In ii. 1036n ii. 74:5n ii. 929n, 1125 i. 117 i. 53n i. 66 i. 175n i. 189 i. 153n 517, 528, 536, ii. 826, 1149 r. Wase i. 230, 231,232n312, 327n Emmerson v. Heelis i. 43, 100, 103, 121, 128, 129, 130, 132, 133, 361 Eunis i\ Leach i. 6 In Eiios r. Hunter ii. 909n Enraught r. Fitzgerald ii. 793 Ensley v. Balentuie ii. 912n Entz V. MiUs i. 132n Epis. Church of Macon v. Wiley i. 13 In 132n Errington v, Annesley i. 234 Erskine v, Phunmer i. 99n i\ Townsend i. 158n Esdaile r. Oxonham ii, 691, G93, 695 V. Stephens i. 269, 353, 412, ii. 806 Eskridge v. McClure Essex V. Baugh Estcourt V. Estcourt Estolte V. Vaughn Etty V. Bridges Eubank v Hampton V. Poston Evans's Estate ii. 863n,879n ii. 970 ii. 543 i, 464 ii. 1025 i. 3G9n ii 866n, 8S0u ii. 90«n V. Bicknell ii. 925, 1022, 1064,1139 Brown V. Elliot V. Goodlett V. Griffith V. Jones V. Kingsbury V. Luellyn V. Roberts v. Tweedy V. Vouirhan V. Wells Evelth V. Seribner V. Wilkinson V. Wilson Eveleyn v. Evelyn V. Templar Everson v. Kirtland Evcrtson v. Booth V. Tappen Ewer V. Corbett Ewing V. Teas Ewings V. Hundley i. 313 i. 219 ii. 883n i. 315 ii. 982n, 1048n i. 341n, 358n i. 313 i. 99, lOOn, 103, 105 ii. 856 ii. 748 i. 53n i. 26 2n i. 155n i. 175n i. 216 ii. 929, 930, 931, 936 Exeter, Marquis of, v. Marchicness cl Exeter i. 1S4 Eyleo V. Ellis i. 47 Eyre v. Dolphin ii. 984, 1070 V. Ireson * i. 137 — V. Popham i. 243n Eyston v. Simonds i. 242, 293 Evton V. Dicken i. 521 ii. 702n ii. 875n ii. 887n ii. 705, 852, 854 i. 13 In ii. 1028n Fagan v. Newson i. 3 Fagg's Case ii. 1019 Fagg V. Dobie i. 39 Fain v. Ayers i. 461, 468 , 480, 481, ii. 767 i. 237 V. Browu Fairbanks v. Dow i. 262n V. Williams ii 689n, 708n Fairclair v. Newland ii 998 Faircloth v. Gurney ii. 1090, 1094 Fairfax v. Hvmter ii. 884n Fairfield u. Birch ii .934, 1118 Fallon, Ex parte ii. 1087 Falls V. Carpenter i. 289n, 305n, 310n V. Gaither i. 46n Falmouth, Lord, v. Thomas i. Ill Fane v. Spencer i. 493 Farebrother v. Prattent i. 48 V. Simmons i. 134 Farguson v. Maitland i. 313 Farley v. Briant ii. 766 Farlow v. Woldon i. 85 Farmer, dem, Earl v. Rogers i 185 V. Robinson i. 131 V. Wardell i. 315 Farmer's & Mechanic's Bank t . Galbraith i. 370n Farnham v. Ross i. 468n Farnsworth v. Childs ii. 9S4n, 1052n Farnum r. Brooks i. 313n, ii. 610n,88Sn Farquhar v. Farley ii. 810, 812 Farr v. Newman ii. 854 Farrar v. Farrar i. 73n V. Stackpole i. 37n, 178n t'. Lord Winterton i. 210, ii. 830 Farrell v. Irwin i. 83 Farrer r. Billing i. 524 V. Hutchinson i. 471 V. Nightingale i. 256, 340 Farris v. AValker i. 37n Farrow v. Rces i. 470, ii. 1030, 1053 Fawsctt V. Carpenter ii. 1022 Fawell r. Heelis Fay V. A'alentine Featherstonhaugh Fector, Ex parte V. Phillpott Feely r. Kilkenny ii. 863, 880 ii. 1021n Fen-nick i. 243, ii. 904 i. 60 ii. 675, 882 80, 82 Feemaster v. May i. 272n, ii. 68 In, 702n Fell V. Chamberlain i. 138, 155, ii. 912 FeUoAves v. Clay ii. 647 V. Lord GwydjT i. 243, 244 Fellows V. Fellows i. 249n CASES CITED. xxvn Fencott v. Clarke i. 472 Fleetwood, Ex parte ii. 673 Fenner v. Taylor ii. 932 V. Green i. 39S , 418, ii. 673 Fenton v. Brown, i. 30, 50, 236, 342, 379 Fleming v. Gilbert i. 154n, 168n, 17 In Fenwick v. Macey ii. 612n V. Griswold ii. 608n Feoifees of Addles' Charity Ex parte Flemings v. Willis i. 184n i. 222 Flitcher v. Button i. 424n, 425n Feoffees, the, of Addies' Chaiity, V. Robinson ii. 1105 Ex parte, in re. London, Lon- V. Lidley ii. 917 don and Greenwich Railway V. Toilet i. 228 Company i. 263 V, Peck ii. 937n Fereday v. Wightwick ii. 903n V. Wilson » i. 293n Fergus v Gore i. 86 Flight V. Barton i. 228 Ferguson c. Franklin i. 65n V. Bentley i. 220 V. T a dm an ii. 819 V. BoUand i. 234, 241 Feme v. Bullock i. 142, 151 V. Booth i. 24, 25, 28, 32, 34, 36, Ferrall v. Boyle i. 217 404, 407 Ferrars v. Cherry ii. 1037, lOoG V. Lord Lake ii. 1089 Ferrors v. Fermor u. 773 V. Thomas ii. 644 Ferson v. Sanger i. 254n, 267n, 27 7n, Flinn v- Calow i. 220 278n Flint V. Brandon i. 158 Few V, Backhouse ii. 1090 V. Sheldon i. 234 Fewd V. Collins ii. 608n Flood V. Finlay i. 158n Field V. Arrowsmith ii L. 854n, 887n Flower v. Hartopp i. 28 V. Boland i. 114, 1031 Floyd V. Aldridge i. 195 V. Dickenson ii. 624n r. BethiU i. 374 V SchiefFellin L I. 85 2n, 85 3n v. Buckland i. 141 V. Wilson ii. 612n V. Massie ii. 892n Fielder v. Higginson i. 76, ii. 824 Floyer v. Sherard i. 313 V. Studley i . 183, ii. 763 Fludger v. Cocker i. 398 , 404, ii. 796, Fife I'. Clayton i. 23, 154, 253 797, 825 Filder v. Bellingham i. 88 Flureau v. Thornhill i. 258, 424 Fildes t\ Hooker i. 411, 190, 501, 504 Flvnt v. Arnold ii. 966n, 984n, 1037n Filliugham v. Bromley i. 538 Foley V. Hill ii. 1070 Finch's, Sir Moyle, case i. 374 V. Percival i. 192, 203n Finch V. Finch u. 913, 914 FoUiard v. Wallace ii. 745n V. Newnham ii. 1046 Foord V. Wilson ii. 758 V. Resbridges ii. 780 Foot V. Salway i. 155 V. Earl of Winchelsea ii. 653 Foote V. Burnit ii. 709n Findley v. Cooley ii. 939n V. West i. 262n Finley v. Lynch I. 24 2n, 29 3 n Forbes, Lord, v. Deniston ii. 984 Finucane v. Kearney i. 115 n, 14 In, 146n V. Peacock ii. 824, 840, 841 Fish V. Fish ii. 546n Ford r. Camplield i. 171n V. Howland ii. 863n r. Compton i. 115 V. Hubbard i. 175n V. Hitchcock i. 236n V. Miller ii. 887n y. Peering i. 453n, 469 Fishe V. liogers ii. 692 V. Philpot ii. 655n Fisher v. Fields ii. 905n V. Yates i. 155 V. Barry i. 506, 514 Fordice v. Ford i. 288, 290, 344, 404 V. Hill ii. 571n Forrester v. Lord Leigh ii. 904 V. Kay i. 347n Forsliall i\ Coles ii. 661 662 677, 965 V. Tucker ii. 61 On V. Coles and Sliort ii. 1110 V. Warrall i. 236n Forster v. Forster ii. 923 Fisk V. Sarber ii. 887n V. Hale L 120, 149 ii. 205 Fitch v. Fitch i. 314n, 317n V, Thompson ii. 636 Fitzgerald v. Fauconberge i . 186, ii. 1046 Forsythe v. Clarke ii. 909n V. Forster i. 17n Fort V. Birch ii. 1042n V. Lane i. 69 V. Clarke i. 443, 515 Fitzhugh V. Bennington ii. 768 Forte V. Vine ii. 746 Fitzsimmons «. Ogden ii. 10G7n Forteblow v. Shirley i. 353 ii. 797 Flagg V. Mann i. 138n, 221n, ii. 1040n, Fortcscue v, M'Kone ii. 637 1052n, 1053n Forth V. the Duke of Norfolk ii. 654, V. Mason ii. 1053n 658, 959 Fleaureau v. Thornhill i. 242, 420, ii. 812 Fosbrooke v. Balguy ii. 619 Fleeger v. Poole u. 676n Foss V. Crisp u. 884n Fleet i<. Hawkins i. 370n ' Foster, Ex parte ii. 663n ixnn CASES CITK0* Foster v. Athenaeum ii. 863n, 908n V. Blackstone ii. 6.58, 1025 V. BrigRS ii. 1021n V. Charles i. 5 et all, V. Cockerell ii. 1025 r. Deacon i. 460, ii. 818 r. Foster i. 456 V. Hale ii. 904n V. HaU ii. 1062n, 1063n V. Hargreaves ii. 1025n I', Manstield i. 515n V. Mapes ii. 746 Fothergill y. Fothergill ii. 1124 Fountain r. Cook ii. 773 i- Young ii. 1063 Fourdriu ;-. Gowdry ii. 884 Fournier v. Edwards i. 250 Fowle V. Freeman i. 112, 124 t;. Welsh ii 746 Fowler V. Lewis i. 138n V. Poling ii. 709n, 745n, 765n, 766n V. Porter ii. 708n I'. Rust ii. 867n — — V. Shearer i. 53n, 230n, ii. o43n V. Willoughby i. 211 Fowlowe V. Amcoats i. 307 Fox t'. Birch i. 250 V. Mackreth i. 269, 311, ii. 887, 895, 898 V. South ack V. Wright Foxcraft v. Lister Frailty v. Langford Francis v. Church V. Hazlerigg V. "Wigzcll Franchot v. Leach Fiank v. Frank V. Mainwaring Franklin v. Lord Brownlow V. Miller t'. Moore Frozier v. Hull Fredrick i-. Campbell Freebody v. Perry Freeman i'. Baker V. Eastman V. Kelly V. Taylor Freeport v. Bartol Freme v. Wright French v. Grey V. Sturdivant Frere v. Moore Frewen v. Relfe Frink v. McKeaun Frijjp V. Fripp Frisuie v. Hott'nagle ii. 884n i 324 L 141 i. 19 In i. 87n ii. 863n ii. ti85 i. 168n, 262n i. 168n, 262n i. 227 i. 191, ii. 523, 536 i. 285 i. 154n i. 184n i. 370n i. 250 i. 5,386 ii. 929n ii. 908n, 910n, 919n ii. 655n i. lion, 120u, 140n, 143n i. 390, 391, 393 ii. 966n, 984n i. 158n ii. 783, 881, 1018 i. 229 i. 327n i. 269n, GlOn, 313n ii. 68 In Frost V. Everett V. Raymond ii Fruhling v. Schroeder i, Fry V. Penn V. Porter Fryer v. Flood FuUagar v. Clark Fuller r. Abrahams V. Benett ii V. Hubbard i. 8n, 2o6n V. Williiims V. "Wilson Fury V. Smith V, Fydell, Ex parte i. 168' . 681n, 756n 258, ii. 810 ii. 683 ii. 1047 ii. 916 i. 416 i. 19 . 1043, 1044 , 262n, 263n, ii. 70211 i. 262n i. 4, 53, 273 ii. 978, 981 ii. 1046 Gaby r. Driver i. 45, 53, ii. 810 Gaffield v. Hapgood i. 37n Gage or Gray v. Acton ii. 772 Gaillard v. Porcher i, 184n Gainsfordr. Griffith ii. 759, 763 Galatian v. Erwin ii. 1070n Galbraith v. Galbraith i. 370n Gale V. Nixon i. Hon V. Tappan ii. 693n V. Ward i. 37n Gallatiant). Cunningham ii. 887n, 1067n Gallion v. McCaslin Galloway v. Barr V. Hamilton Gait V. Galloway Galton V. Hancock Gamble v. Johnson Gann v. Chester Gans V. Renshaw Gape V. Handley Garber v. Hen:y Garbrand v, A'len Gardiner v. Co sl n V. Morse Gardner Ex parte V. Gardner u. 1036n ii. 822n ii. 85 7 n ii. 693n i. 196 ii. 1064n, 1065n ii. 880n i. 407n, 497n, 506n, 537n i. 179 ii. 982n ii. 885 i. 260n i. 19n i. 112 ii. 834n, 836n, 839n, 84 lu v. liOrd Townsnend V. Niles i.-. Schermerhorn Gardner Bank v. Wheaton Gaidom Lx parte Garhcld v. Williams Garnett v. Macon Frost V. Beekman i. 192n, ii. 984n, 1016n 10l7n, 103111, 1036n, 1048n, 1056n, 10G9n, 1070n. V. Brunson i. 470n V. Stockton Garnous v. Swift Garrard v. Giiiing Garret c. Noble Garrett v. Lord Besborough Garrick v. Earl Camden i. 73 Garrison v. Sandlord ii. 7 09n, 764n Garro v. Thompson ii, 655n Garrion v. Greene ii. 857n, 863n, S76n, 879n ii. 921 ii. 765n 84n, 85n, 87n, 89n ii. 909n i. 112 ii. 747n i. 289n, 293n, 310n, 506n, 530n, ii. •841n ii. 96fin i. 260 i. 158 i. 58 7 72,309 CASES CITED. XXIX Garstone v. Edwards Garter v. Chandler Garth «. Ward Garthshore r. Chalie Gartside v. Isherwood Garwood r. Garwood Gascoign v. t tut Gascoigne v. Thwing Gaskarth v. Lord Lowther Gaskell v. Durdin Gassett v. Grout Gates V. Caldwell V. Jacob Gathorne in re Gause v. Hale Gay f. Hunt Gazley v. Price i. Gebzor v. Gebzer Gell V, Vermedum V. Watson Gennor v. Macmahon George's Lady, case V. Kimball V. Milbank V- Pritcliard V. Richardson German v. Machin i i. 85 i. 18 In ii. 1045 ii. 920, 921 i. 313 ii. 9 8 -in ii. 9o9n ii. 909, 910 i. 115, 214, ii. 817 ii. 1046 ii. 931n, 93Cn ii. 756n ii. 612n i 226n i. 84n i. 17811 i. 261n, ii. 702n ii. 54 3n i. 224 i. 372, ii. 813 i. 187 ii. 913, 916, 918 ii. 937n ii. 937n, 1026 i. 492 i. 313n 14 In, 142n, 147n, 235n i. 247 ii. 542 i. 112n, 293n i. 181n ii. 908n ii. 863, 864 i. 80 i. 287n ii. 1046n 249, 250, 416, 417 ii. 546n i. 271 Gervais v. Edwards Gervoyes's case Getchell v. Jewett Getman v. Beardsley V. Getman Gibbons v. Baddall V. Berry Gibbs V. Champion Gibler o. Trimble Gibson v. Clarke i V. Crehore V. D'Este V. Jeyes ii. 896 V. Lord Moutfort i. 195 V. Paterson i. 288 V. Ku.ssell i. 326 V. Smith i. 373 V. Spurrier i. 353, 362, 539, ii. 1041 V. Vaughn i. 37n V. Watts i. 18 On Giddings v. Smith ii. 57 In Gitlbrd v. Hart i. 671, ii. 1036 Gilbert v. Bulkley i. 174n, ii. 709n, 765n Gilchrist v. Bine ii. 70iii Giles V. Baremore ii. 6r2n Gill V. Wat.son i. 250 Gillespie v. Gillespie ii. 939n V. Moon i. 156n, 158n, 180n, 182n, ii. 1029n V. Reed ii. 984n Gillett V. Abbott i, 433, 459 f. Maynard i. 143, 256n, 340n V. reppercorne ii. 888 GUman v. Brown ^ ii. 857n, 863n, 880n Gilmore v. Morgan, i. 373n Gilpin V. Smith Ginder v. Farnuji Ginger v. Bayley Girdler v. Graham Gist V. Cattel V. Frazier V. Gist V, Robinson Givens v. Colder V. Tidmore Glaister v. Hewer Glaze V. Drayton Glazebrook v. Wedrow Gleason v. Dodd Glen V. Glen Glengal, Lord v. Barnard Glidden v. Hunt Gloss V. Acra Glover v. Payne V. Smith V, Speudlove Goddard v. Chase V. Mitchell GofFe V. Mitchill Golden v. Maupin Golson V. Gardiner Goleborn v. Alcock Gompertz v. Gooch's case Goodale v. Wheeler Goodallv. Pickford Gooday v. Butcher Goodell V. Field Goodhue v. Barnwell Goodinge v. Gooding( Goodisson v. Nunn Goodman v. Grierson Goodrich v. Jones V. Pendleton Goodright v. Glazier V. Hodges V. Jones V. Moses V. Sales V. Swymmer Goodtitle v. Jones V. Merideth ii. 681n ii. 565n i. 260 ii. 939n ii. 610n i. 89n, 31 On, 31.3n ii. 1021 ii. 562n i. 115u, 122n, 124n, 138n, 14 In ii. 1064n ii. 916, 917 i. 224n i. 261 ii. 69 3n i. 370n i. 133 ii. 926n 937n, 1037n i. 374 i. 221n i. 369n ii. 562 i. 37n 256n, 257n i. 82 i. 370n ii. 1045 ii. 1013 i. 416 ii. 929 i. 59n i. 89 i. 145 i. 180n i. 140n 147n ! i. 177 i. 260 i. 221, ii. 900 i. 37n ii. 610n i. 202 ii. 911 ii. 612 ii. 931 ii. 787 i. 528 ii. 610, 1129, 1137 i. 199 Morgan i. 272, 422, ii. 684, 1136, 1137 V. Pope r. Saville Goodwin c. Clark V. Lightbody V. Gilbert V. Lister V. I^vnn i. 216 i. 20on, 206 i. 265 191, 192, 295 i. 153n i. 224 i. 260n 1-. Lyon i. 289n, 305n, ii. 1028n t;. Richardson ii. 902n Goom c. Affalo i- 128 Gordm v. Ball i. 416 V. Brown i 246n V. Crawford i. 313 XXX CASES CITED. Gordon Lord William v. Marquis of Hertford i. lo8 V. Ilayward ii. 937n r Linos i. 70ii V. Sims i. 8-4n, Son, 87n, 90n, I32n 1'. Trevelyan i. 118 Gore V. Brazier ii. 76on V. Stackpoole i. 67 V. Wiglesworth ii. 1031 Goring Ex parte i. 50 V. Nash ii. 933, 1125 V. Shrceve ii. 65on Gorman v. Salisbury i. 172 Gorton v. Sir T. Champncys i. 519 Gosbell V. Archer i. 121, 127, 134, 258, 427 Gross V. Lord Nugent i. 154, 166, 167, 173 Gough V. Stedman ii. 1067 Gould V. Gould ii. 1064n V. Okenden i. 313 V. Shoyer ii. 951 V. Thompson i. 264n V. Williamson ii. 1064u Gourdiuc v. Tlieus ii. 609n Gourlay v. Duke of Somerset i. 327, 328 Gouverncrv. Elmendorf ii. 684n, 686n V. Lvnch ii. 1036n, 1052n Governor v. Freeman Govett r. lliehmond GoAvan v. Tighe Gowen v. Emery Gower v. Sterner Gowland v. De Faria ii. 1022n ii. 1022 i. 73, 80 ii. 1063n i. 156n, 158n 315, 317, 319, 320, 321, 322, 326 Graff y. Castleman ii. 853n Grafton liank v. Woodward i. 17 In Grafton, Duke of v. London & Bu-ming- ham Railway Co. ii. 581 Graham v. Graham ii. 1019 V, Ilendren i. 3 In, ii. 350n V. liackwith i. 42 In, ii. 689n V. Musson i. 117, 130, 134 V. Oliver i. 240, 350 V. Sime ii. 692 V. Yeates i. 147n Granger v. Warrmgton ii. 1062n V. Worms i. 27 Grant v. Combs i. 3C9n V. Ellis ii. 614n, 039, C40 V. Craigmiles i lo^On V. Hook ii. 834n, 83Gn V. jSIills ii. 865 V. Muut i. 380, 381, 38 7 f. Naylor i. 142n r. United States Bank ii. 1017n V. Yee ii. 585 Grantland v. Wright i. 22n V. Wight i. 370n Gravenor v. Ilallam ii. 610 Graves v. Boston Marine Ins. Co. i. 180n c. Durgan i. 908n V. Graves ii. 1056n V. McCall ii. 879n V. Weld i. 108 Graves v. Wright Gray v. Bartlett V. Briscoe V. Cuthbertson V. Gray V. Guttcridge V. Handkinson V. Holdship doe d. V. Stanion V. Patton V. Wood Grayme v. Grayme Gi'eaves v, Ashlin Green v. Annstrong V. Bateman V. Bonn ell V. Brauton V. Biddle V. Crockett V. Darling V. First Parish in Maiden V. Froud V. Green V. Jackson V. Lowes V. Pulsford V. Smith V, Suasso V. McDonald V. Tanner V. Slayter V. Winter V. White V. Wood V. lloynolds Greenaway v. Adams Greenby v. Wilcocks Greene v. Lambert Grcenhill v. Greenhill Greenlaw v. King ii. 894, 1062n, 1063 1.51 ii. 1021n ii. 764 ii. 722 i. 72 i. 48, 53 i. 358n, ii. 68 In i. 37n i. 24 i. 95n, ii. 905n i. 181n i. 228 i. 40, 153 i. 99n i. 237n i. 158n i. 230n ii. 1020n ii. 850n, 866n ii. 1024n i. 37n ii. 773 8, 256n, 261n, 262n ii. 546n ii. 677 ii. 834 i. 520 i. 191, 213, 234 i. 175 ii. 681n ii. 937n, 1017n ii. 1044n, 1052n ii. 1029n ii. 1044n i. 291 i. 261n i. 253 ii. 745n, 764n ii. 786 i. 195 Greenleaf v. Cook Greenvault v. Davis Greenwood v. Ligon V. Titterington Gregg V. Glover V. Harllee V, Mighell Gregor v. Duncan ii. 68 In ii. 745n, 766n ii. 702n i. 323 i. b9 i. 310n i. 140, 328 i. 311n Gregory v. Gregory ii. 898n, 899 & note. V. ISIiglicll Gregson v. Kiddle Grenfell v. Girdlestone G res wold i'. Marsham Grcville v. Da Costa Grey, Lord v. Lady Grey Grider v. Payne Gridlcy v. Tucker Griti'eth v. Depew 1-. Grifl'eth i. 7n, Griffin v. Stanhope V. Taylor V. Heermance V, Fairbrother i. MO, 328 i. 303, 305 ii. 612 ii. 655, 1048 i. 257, 273 ii. 913 ii. S87n ii. 765n i. 327n, ii. 857n ii. 1040n, 1041n, 1070n ii. 935, 942 i. 231 i. 289n ii. 708n, 747n CASES CITED. XXX Griffiths «. Gales ii. 571n V. Heaton ii. 805 V. Puleston i. 99n Griggs V. Austin i. 56n Grimstone v. Carter ii. lOSijn Grist V. Hodges ii. 745ii 764n Gris-\vold f. Messenger i. 140n lo3n V. Smith i. ISOn Grout V. Hapgood ii. 887n Grove v. Hugell ii. 89i Groves v. Gordon ii. 884rn V. Groves ii. 909 Growsock v. Smith i. 262, ii. 805 Grubbs v. Wiley i. 53n Grundy v. Jackson ii. 68Sn Guerrant v. Anderson ii. 984n Guest v. Homfrey i. 289, 300, 400 Guinness v. Burr i. 219 Guion V. Bradley Academy ii. 608n Gulick V.Ward i. 19n Gully V. Bishop of Exeter ii. 930, 936 Gunn V. Butler ii. 930n Gunnis v. Erhart i, 22, 23, 154 Gunter v. Halsey i. 124, 140 V. Thomas i. 187n Guthrie v. Gardner ii. 909n, 916n, 917n V. Pugsley ii. 765n Gurley v. Hiteshue i. 236n Gwilliumj;. Stone i. 253n,255, 429, 488, 489 Gwynne, Ex parte i. 51, 857n V. Heaton i. 275n, 313, 314, 316, 317, 326 Gyde, Ex parte i. 42 Hacker v. Storer Hackett tj. Huson Hackney v. Jones Haddix v. Haddix Haddock v. Wilmarth Haddon's case Hagodorn v. liaing Hageman v. Sx "■■•'" Hagthorp V. Hook Haigh r. Ue La Cour Halcomhe v. Hay Halcot r. Markant Haldenby v. Spoit'orth Hale's case V. Click V. Jewell Hall V. Adkinsson V. Ashby » Betty V. Cazenove — — V. Dean V. Ex parte V. Guthrie V. Hall V. Hallet V. Hardy ■ V. Jenkinson ' V. Layer ii. 763n ■ 262n, 263n i. 46n ii. 887n ii. 562n i. 231 i. 42, 286 i. 262n ii. 937n, 1037n i. 189 ii. 937n ii. 919 i. 58 i. 228, ii. 1125 ii. 886n i. 158n ii 1019 ii. 670n i. 399 i. 2e4 ii. 765n ii. 931 ii. 1064n i. 147n ii. 897n, 898 i. 231, 245 i. 249 i. 400 Hall V. Noyes ii. 887, 898 V. Heed i. 180n, ii. 102 In V. Boss i. 237n V. Smith i. 8, 291, ii. 1056 V. Sprigg ii. 908n V. Simmons ii. I022n Hallen v. Render i. 100, 101 Hallet V. Middleton i. 461, ii. 767 Hallewell v. Morrell i. 262, 429 Hallings v. Conard ii. 767 Hallock V. Smith ii. 863n, 879n, 880n Halloway v. Davis i. 261n Halsey v. Grant i. 291, 340, 343, 357, 378, 497, 498, 500 Hamil v. Stokes ii. 1056 Hamilton v. Ball i. 67 V. Cawood i. 176n V. Clements i. 312 V. Cutts ii. 745n, 766n V. Denny ii. 905 V, Grant i. 214 V. Jones i. 14 On V. Hamilton i. 19n V. Pike ii. 709n V. Royse ii. 1043, 1057 V. Wilson ii. 709n V. Worley i. 216 V. Wright ii. 888 Hammatt v. Emerson ii. 26Sn Hammond?;. Allen i. 272n i\ Hill ii. 749 V. Toulmin ii. 766 Hami^sen?;. Edelen i.. 1044n Hampton t'. Edelen i. 191n V. Eubank i. 3 7 On H anbury v. Litchfield i. 347 Hancock v. Beverly ii. 966n V. Byrne ii. 09 3n Hanfordf. Moseley ii. 871 Hanger v. Eygles i. 309, 340 Hanning v. Terrers ii. 1022 Hannay v. Ferrers ii. 1022 t'.'Eve i. 237n Hannum v. Spear ii. 834n Hanson v. Beveiiy ii. 848 Ex parte ii. 880 V. Buckncr ii. 765n V. Gardiirer i. 248n V. Lake ■ ii. 830 11. Roberdean i. 50, 51 Harcourt v. Knowel ii. 1019 V. Ramsbottom i. 329 Hardeman v. Burge i. 269n, 31 On, 312n, 313n Harden r. Miller ii. 876n Harder v. Harder ii. !i09n Hardin v. Major i. 283n Harding v. Ambler ii. 820 V. Crethorn, ii- 1060 V. Harding i. 72 V. Handy i. 313n V. Middleton i. 82 V. Nelthorpe ii. 686 v. Pollock i. 615 XXXil CASES CITED. Harding v. SuHolk i. 175 I Hardiaiihnm v. XichoUs ii. 1009 HurdiiKin v. Ellamcs i. 471, 472, ii. 1070 Harihvicke r. Mynd i. 835, 850 Lord V. Lord Sandys ii. 793 ' Lord, ti. Vernon Hardy v. Nelson V. Reeves V. Summer.'? Hare r. Horton V. Sherwood Harell, Ex parte Harl'ord v. Furrier ii. 895, 897 ii. 765n ii. 1060, 1071 ii. 1053n i. 37 i. 181, 18G ii. 624, 625 i. 331, 334 Harford and others v. Purrier ii. 819 820 Hargrave r. Dver i- 344 V. Holland - i. 81 rLc Breton i. 423, ii. 1041, 1049 Har^rcaves v. Bothwell i. 7, ii. 1044 Harlan i'. Ecastland ii 765n Harlow r. Thomas ii. 702n, 765n Hfirman v. Forster ii. 1030 Harmood v. Oglander i. 196, 198, ii. 610 Harnett v. Yielding i. 235, 237, 238, 242, 349,420 Harper r. Little ii. C93n V. Rend ii. 688n V. Williams ii. 880n Harrington r. Brown ii. 887n v. Harrington i. 18 In V. Sir John, v. Garroway ii. 659 V. Hoggart ii. 810, 811 V Long i. 423 V Frice 455, ii. 882 V. Rydear ii. 764 V. Wheeler i. 290, 291 Harris r. Coulbourn ii. 708n V. Dinkins i. 177n V. Hill i. 473 r. Ingledew ii. 1070 r. Konible i. 6 V. Knickerbocker i. 138n V. Miller i. 97n r. Fugh ii. 65 G Doe d. r. Saunders i. 524 Harri-sburg Bank v. Tyler ii 918n Harrison c. Chilton i. 25 6n V. Carroll ii. 936n 1-. Coppard i. 461, 463, 467, ii. 830 V. Duignan ii. 636 r. Elvin ii. 565 7'. Forth ii. 1037 Ex parte ii. 8d7 V. Harrison i. 192 T. Marshall ii. 1024 n, 1026n V. Mock ii. 887n V. Fhillips' Academy i. I73n V. Talbot i. 155n, 369n, 370n, 373n y. Southcote and Mor eland ii. 679, 1068 V. Southcote r. Wright Hart V. Durand V. Blight ' V. Brand ii. 862, 863, 999 i. 246 i. 176 i. y9n ii. 793n Hart V. Middleton i. 283n t). Woods i, 132n Hartley v. Mc Anulty i. 153n V. Fehnll i. 516, 629, ii. 722n r. Smith i. 536 V. Wilkinson i. 136 Hartly v. OTlaherty ii. 671, 1016, 1027 Hartshorne v. Hartshorne ii. 546n, 655n Ilartwright v. Fereday ii. 699 Harvey v. Alexander i. 153n V. Grabham i. 154n 170 V. Ashley ii. 1058 V. Harvey i. 186 Sir Thomas, v. Montague ii. 1047 V. Parker i. 228 V. Phillips i. 460 V. Young i. 3 Harvy v. Woodhouse ii. 1019 Harwood v. Bland i. 364, 402, 403, 404 V. Wallis i. 182 Hasbrouck v. Tappen i. 168n, 22 In Hasell Ex parte ii. 61 On Hasker V. Sutton i. 517 Hastings v. Dickinson ii. o43n, 54 In V. Wilson i 60 Hatch 1-. liarr ii971n V. Cobb i. 253n ?;. Ilaskins ii. 966n V. Hatch i. I73n, 234n, ii. 889, 892n V. Kimball ii. 1021n Hatchell v. Cremorne ii. 1022 Hatcher v. Hatcher i. I40n, 146n, 147n Hatfield v. Montgomery ii. 612n V. Fryme ii. 57 In Hatton V. Gray i. 112 r. Jones ii. 926 V. Waddy ii. 728 ILitton's Sir Christopher, case ii. 674 Haughton v Eustis ii. 663n Havclock i\ Geddes i. 260, 284 Haven v. F oster i. 199n Hawcs V. Humphrey ii. 56dn Hawkins v. Chase i. 112n V. Holmes i. 12rt, 147 V. Kemp i. 261, 262, ii. 850 V. Obeen i 224 V. Perkins i. 257 V. Rutt i. 47 Hawley v. Cramer ii. 887n, 890n, 8y7n, 898n, 899n V. Mancius ii. 875n V Northampton i. 514n Haycroft y. Creasy i. 5, ii. 1022 ILiydcn V Stoughton ii. 562n IlavHon )' Bell i. 402 Haves v. Bailey i. 503, ii. 774, 814, 823, 1147 V. Bickerstaff, ii. 746, 747 r CarA'll ii. 291 V. Foorde ^ , ii. 1123 r. Kingdome ii. 902 I". Richardson i 97n V. ^\'ard ii. 875n Haynes v. Crutchiield i. 19n — '- V. Hare i. 53, 181, 186 CASKS CITED. XXSIW Hayst!. Hall i. 289n, 305n Hertford, Marquis of, w. Boore i. 242, V. Kershow ii. 941n 300, 302 V. McGuire ii. 966n Hervey v. Hervey ii. 1124 Hayward v. Ellis ii. 887n, 891n, 897n Hesse v. Stevenson i . 183, ii. 750, 766, V. Loraax u. 688 760, 763, 1044 Hazard v. Irwin i. 53n, 268n Hester v. Hooker 1. 235n Head v. Eaierton ii. 1068 Heth V. Wooldridge i. 140n Headen ^rHosher i. 319, 320, 321, 322 Hewes v, WisweU ii. 1052n Headley v. Roadhead ii. 875, 879 Hewitt, ex parte u. 897 Healeu. Botelera ii. 864 Hewlett V. Davies i. 72n Heane v. Rogers ii. 1022n Hewlens v. Shipdam i. 97n' Heaphy v. Hill i.307 Heylyn v. Heylyn i. 200 Heard v. HaU ii. 1021n Heyer v. Pruyn ii. 103 in V, Wadham i. 261, 262 Heytle v. Logan ii. 81511 Hearle v. Botelers ii. 863, 879 Hibbert v. Shee i. 340 V. Greenbank i. 378 Hick, Sir Harry, v. Philips i. 343, 343li Hearne v. James i. 115 Hickford v. Machin ii. 660 V, Tenant i. 287, 305 Hickman v. Grimes i, 246n V. Tomlin i. 2G4, 340 Hicks V. Hankin i. 46 Heath v. Heath i. 506, 514 V. Hicks i. 469 V. Newman ii. 681n V. Philips i. 309 V. Whidden ii. 708n, 709n, 764n V. Morant i. 8n Heathcote v. Paignon i. 313 V. Minturn i. 46tt Heatley v. Jones ii. 1045n Hickson v. Aylward i. 9ti Heilbron v. Bissell ii. 102 In V. Collis ii. 653n, 660 Heister v. Fortner ii. 984n, 1048n Hiern v. Mill i. 7, ii 1052, 1054, 1055 Heffernan v. Adams i. 53n Higdon V, Thomas i . 112n, 126n 153a Hegan v. Johnson i. 264 Higgins and Dowler ii. 1108 Helms V. Franciscus i. 230n V. Shaw ii. 1047 Helsham v. Langley i. 239 V. The York Buildings Company Henderson v. Dodd i. 153n ii. 656 V. Hoke ii. 908n Higginson v. Clowes i. 23, 24, 37, 117, V. Hudson ii. 905n 135, 154, 156, 158, 238, 253, 255 V, Lowry i. 84n High V. Batte ii. 857n, 876n, 879n, V. Overton ii. 1021n 1067n, 1009n r. Wild ii. 864n Hightower v. Smith ii. 822n Hendricks v. Robinson ii. 880n, 889n, Hildreth v. Sands H. 926n 982n HiU 17. Adams or Swannock v. Lyford Hcnkle v. The Royal Exchange Assu- ii. 781 rance Office i. 180, 187 V. Bishop of Exeter ii. 926, 930, Henley v. Brown i. 95n, ii. 905n 936 Hem-y v. Smith ii. 641 V. Buckley i. 61, 239, 240, 360, Hepburn v. Auld i. 234n, 242n, 253n, 369, 370, 372 261n, 293n 340n, 347n, 363n V. Carr i. 227 V. Dundas i. 302n V. Gomme ii. 913 V. Dunlap i. 234n, 242n V. Gray i. 244 V. Snyder ii. 857n V. Hobart i. 256n, 263n, 424n Herbert's, Sir "William case ii. 671 ii. 702n Herbert's case ii. 1045 V. Kirwan i. 80, 82 Herbert, ex parte ii. 1050 r. Morgan ii. 821 Hercy v. Ballard ii. 610 V. Paul ii. 1037n V. Ferrers i. 468, 472 V. School District No. 2, in Mil- Herming v. Withers ii. 765n burn i. 283n Herndon v. Venable i. 424n V. Simpson ii. 853 Heme v. Heme ■ ii. 1116 V. Stawell ii. 637 V. Meers i. 313 V, West ii. 689n, 936n Heron v. Heron i. 315, ii. 919 V, Worsley ii. 1046 V. Treyne ii. 7G7 Hillary v. Waller i. 459, 517 and note, Herons, minors, in the matter ol u. 543 619, 528, ii . 612n, 1122, 1129 Herrick v. Grew i. 237n Hilliard v. Gambel i. 326 Herries v. Jenkins i. 511 Hilton V. Barrow i. 419 Herring v. Clobery ii. 1064 Hiiicksipan v. Smith i. 319, 322 V. Polley ii. 9d4n Hinde v. Whitehouse L 117t 119, 132, Hershey v. Keemborts i. 370n Its Vol. I. E XXXIV CASES CITED. Hindle o. Dakens i. 73 Holmes v. Aitsbie i, 459 Hine v. Dodd ii. 984, < )85, 1045 V. Baddeley ii 1062, 1063 Hinning v. Withers ii. 765n V. Blogg ii. 885 Hinton v. Hinton i. 229 V. Buckley ii. 727 Hipwell V. Knight i. 283, 292, 299, 306 V. Coghill u. 1124 Hitchcock v. Giddinga i. 272 & note. V. Chapman ii. 766n 421, 422, ii. 684 i;. distance ii 1022, 1060 Hitchins v. Lander i. 422 V. Grant i. 221n Hitchman v. Walton i. 37 V. Newlands ii. 624, 626 Hithcox V. Sedgwick ii. 778, 1016, 1049, V. Simons i. 155n 1061 V. Tremper i. 37n Hoadley v. McLain i. 120 Holt's case ii. 725 Hoagland i'. Latourette i. 191n V. Holt ii. 787 Hoare v. Parker ii. 106« Holwood V. Bailey ii. 826 Hobart v. Frisbie ii. 055n Honeycomb v. Waldron ii. 973 Hobby V. Finch i. r24n Honorc v. Bakewell ii. 863n 866n, 879n Hobhouse v. Hamilton i. 79, ii. 970 Hood V. Bowman i. 140n, 146n Hobbs V. Norton ii. 1022 V. Fahnstock i. 7,ii. 337n, 1043n Hobson V. Bell i. 67, 59, 61, 307, 398, V. Huff ii. 793n 412, 444 , ii. 1026 Hooper, Ex parte i. 140, 145 V. Mellond i. 465 V. Eyles ii. 910 V. Middleton ii. 751, 752 V. Goodwin i. 88 Hoby V. Roebuck i. 97 V. Ramsbottom i. 454, ii. 882 Hockenburg v. Carlisle ii. 890n Hoover v. DonaUy ii. 1036n Hockiu V. Cooke i. 374 Hopcraft v. Hickman i. 327 Hocking v. Acram£in ii. 953 Hope V. Atkins i. 153 Hodder v. Ruffin i. 89 V. Booth i. 42, 265 Hodges V. Croydon Canal Co . ii. 639, Hopkins v. Garrard ii. 879n 649 V. Grazebrook i. 258n, 425 V. Horsfall i. 175 V. Lee i. 256n, 424n V. Jones i. 85 V. McLaren ii. 1044n V. Lord Litchfield i. 258, 259, 420, V. Yowell i. 424n 427, 428, 451, 669 Hopkirk v. Randolph ii. 930n, 937n V. Saunders ii. 708n Horford v. Wilson i. 54 V. Templar ii. 956 Horn V. Horn i. 835, 1087 Hodgson V. Butts ii. 984n Home's case ii. 720 V. Dean ii. 1048 Home V. Wingfield i. 168, 431 V. Le Bret i. 128 Horniblow v. Shirley i. 353, 497, 500 Hoes V. Van Hoesen i. 177n Horton v. Horner ii. 866n Hoffman v. Johnson i. 369n, 370n Hosier v. Reed i. 162 V. Skinner ii. 822n Hostler in re. ii. 857n Hogan V. Delaware Ins. Co. i. 180n Hough v. Birge i. 264n Hogg V. Smith i. 153 V. Hunt i. 312n Hoggatt V. Cutts i. 48 V. Richardson i. 53n, 90n, 267n, V. Scott i. 299 268n, 277 n, ii. 1064n V. Wade ii. 863n, 879n Houghton, Ex parte ii. 908, 913 Holbrook v. Baker ii. 982n V. Hapgood ii. 887n V. Tirrell i. 173n V. Houghton ii. 903 V. Wright i. 50n V. Rushley ii. 958. Holcroft, Lady, r. Smith i. 476 Houlditch V. Lord Donegal ii. 1027 Holdfast V. Clapham i. 191 Et all. V. Wallace et ali . ii. 1048 Holdsworth v. Holdsworth ii. 874 Houston V. Stanton ii. 879n Holforth V. Hankinson ii. 645 Hovenden v. Lord Anneslcy ii. 610, Holland v. Clark ii. 639 611, 612 V. Evre i. 116 Hovey v. Magill i. 53n V. Hill i. 527 V. Smith i. 37n Holliday v. Franklin Bank ii. 960n Hovil V. Browning ii. 1049 V. Marshall i. 126n How V. Stiles ii. 773 Hollis V. Edwards i. 92n, 95n, 245 V. Weldon ii. 1019 V. ^Vhiting, or Edwards i. 139 Howard v. Braithwaite i. 131 HoUoway v. Headington ii. 941n V. Castle L 14n, 15n, 18n Holman, Ex parte i. 628 , ii. 1149 V. Ducanc i. 618, ii. 894 j;. Perry ii. 564n V. Hopkins i. 6, 238, 246 Holme V. Low i. dl4n CASES CITED. XXXV Howard v. Wilmington and Susq. R. R. i Hunt V. Coles ii. 656, 1145 Co. i. 154n v. Danvers ii. 746 • V. Williams ii. 929n V. Lewin ii. 822n V. Witham ii. 68 In r. Livermore i. 26 In Howarth v. Deem ii. 855, 1056 V. iVloore i. 313n V, Powell ii. 854, 1056 V. Peake i. 234n V. Smith ii. 538 V. Rousmanier i. 48n, 156n, 180n, et ali. V, Smith i. 511 ii. 693n, 1064n, 1021n Howe V. Howe ii. 909 V. Silk i. 256 T. Logwood ii. 1029n Hunter, Ex parte i. 40, 42 Howell V. Baker ii. 887n V. Daniel i. 305n V. George i. 231, 237, 242 V. Hunter ii. 65 5 n V. HoweU ii. 1066 V. Marlboro ii. 610n, 821n V. Jones ii. 1199 V. MUlei i. 53n V. Richards ii. 757 V. O'Neal i. 262n Howes V. Barker i. 153n, 370n V. Seton i. 287, 290, 357 V. Brushfield ii. 1150 V. WaUis i. 191n Howland v. Leach i. 260n V. Simrall ii. 1036n V, Morris ii. 794 V. Wilson i. 331 V. Morris i. 353, 354, 357, 366 | Huntington, Lord v. Mildmay i. 464 V. ShurtlefF ii. 612n Hurd«. Curtis ii. 713n, 715n, 717n Howlett V. Thompson ii. 679n V. Cushing ii. 1021n Hoxie V. Carr ii. 908n V. Moring ii. 1063n Hoy V. Hasborough i. 235n Hurst V. Rodney ii. 708n V. Talliaferro ii. 68 In Huston V. Cautril ii 693n, 937n Hubbard v. Cummings ii. 884n Hutchins v. Hutchins i. 85 V. Norton ii. 702n, 764n V. Sprague ii. 937n V. Savage ii. 982n Hutchinson v. Bell i. 5 Hubert v. Treherne i. 129 -• — V. Brown i. 236n, 378n V, Turner i. 128 V. Cathcart i. 79, 80 Huddleston v. Briscoe i. 112, 115, 116 Ex parte i. 61 Hudson V. Bartram i. 305 V. Johnson ii. 959 V. Hudson i. 18n, ii. 89 In V. Morley i. 53 V. Swift i. 211n, 262n, 263n i. 519 Hudnall v. Wilder ii. 929n, 936n V. Sinclair i. 153n,ii. 1064n Hughes V. Bennett ii. 762 Hutton V. Lewis ii. 1087 Ex parte i. 56, 77 ii. 887, 897, 898, V. Mansell i. 73 1028 Hyde v. DaUaway i. 249, 636 V. Edwards ii. 612n, 1048n, V. Price ii. 813 V. Gamer ii. 1064, 1070 V. Wrench i. 116 V. Garth ii. 1069 V. Wroughton i.4l7 V. Kearney ii. 809, 862, 865 Hyer v. Deaves i. 65n V. Kelly ii. 637, 639 V. Shobe ii. 562n V. Parker i. 339 Hylliard, Ex parte i. 262 V. Robotham ii. 772 Hylton V. Hylton i. 326 V. Worley ii. 982n Hyne v. Campbell i. 151n ii. 684n V. Wynne i. 449 Hulm V. Sandys ii. 1025 z Hulme V. Heygate i. 199 Ibbotson V. Rhodes ii. 1065 Hull V. Cunningham i. 370n Icely V. Grew i.40 V. Click ii. 857n Iddeston r. Rhodes i. 9 Humble v. Bill ii. 835, 852, 855 Ide V. Stanton i. 115n, 116n, 117n Humes v. McFarlane ii. 562n Iggulden V, May i. 178 Humphreys v. Hollis i. 23 In Ilchester, The Earl of. Ex parte i. 201 V. Pensan ii. 926 Illinois V. Delalield i. 46n Humphries v. Home ii. 813, 814 Inches a. Leonard ii. 612n Hundley v. Lyons i. 373n, ii. 793n Incorporated Society v . Richards ii. 613n Hungate v. Hungate ii. 909 Inge ». Lippmgwell i. 173 Hungerford v. Earle ii. 942 IngcrsoU v. Sawyer iL 650n Hunn V. Norton ii. 821n Ingraham v. Hutchinson ii. 643n Hunt V. Amidon ii. 708n Inglohart v. Arminger ii. S57n, 866n, V. Bass ii. 887n 877n V. Booth ii. 916n Innes v. Jackson i. 231 t). Bourne ii. G08 Innis !'. Camjjbell ii. 609n ran CASES cms. Inrda v. MoCrummin i. 370n Jackson v. Mills ii. 909n Inskoe v. Proctor i . 156n, 180n, 182n V. Moore i. 370n, ii, 908n, 910n Ipswich Manuf. Co. v . Cogswell ii. 973n V. McVey ii. I062n Ireland v. Bircham ii762 V. Neely ii. 984n 1056n Ireson v. Denn i. 216, 983 V. Page ii 984n il. 677 V. Petrie i. 265 Imham, Lord v. Child i. 153n, 156n, V. Pierce i. 140n 158n, 181, 242 t;. Peek ii. 931n Irons V. Kidwell ii. 986 V. Pratt ii 612n Irvin V, Smith ii. 966n, 1044n V. RoAve ii. 1068, 1071 Irvine v. Campbell ii. 879n, 1066n V. Gill ii. 175n V. Thompson i. 129n V. Sharpe ii 984n, 104 In Irwin V. Campbell ii% 1056n V. Schoonmaker ii. 62 In, 623n V. Morrcll ii. 102 In V. Scllick ii. 62 In Isham V. Bennington Iron Co. ii. 984n V Seeley ii. 909n Ithel t'. Potter i. 128 V. Stevens ii. 689n, 756n Ivie V. Ivie i. 4G9 W.Titus i. 126n Ives V. Ogelsby i. 37n V. Tibbetts ii. 623n V. Towne ii. 929n J V. Updegraffe ii. 84 In Jaboe V. McAteo ii. 824n V. Vanderheyden i. 230n Jack V. Annstrong ii. 970, 977 V. Varick ii. .5fi2n Jackman v. Hallock ii. 866n V. Van Deusen ii. 564n V. Ringland ii. 908n V. Vandalfsen ii. 837n, 898n Jackson's Case ii. 1031 v. Wass i. 8 Jackson v. Adams ii. 884n r. Wood ii. 612n V. Andrews ii 1044n V. Winslow ii. 689n, 104 In r. Blodgctt i. 217n V. Walsh ii. 887n, 898n, 97 In — — V. Bard i. 2fi4ti V. West ii. 966n V, Barringer i. 369n V. Woolsey ii. 887n V. Burgott ii. 9r)Gn, 984n, 104 In Jacob t>. Kirk 119, 128 V. Burtis ii. 1062n James, Ex parte ii. 887, 890, 891, 894, V. Bull ii. 689n 895, 897, 898, 899, 1028 V. Beach ii. 884n V. Bird ii. 857n, 939n V. Bateman ii, 910n, 912n V. Breraar ii. 845n i. 187 V, Dubois ii. 67 In i. 136 V. Johnson i. 158, ii. 926n, 973, V. Cutright i. 143n 982n, 983n i. 264n V. Moore i. 217n V. Cadwell ii. 934n V. James ii. 1090, 1092 V. Belancy i. 516n V. Morgan i. 310 V, Douglass i.274 V. Salter ii. 617, 618, 619, 620 V. Dutton ii. 939n V. Shore i. 361 V. Edwards i. 7ln Jameson t>. Farrer i. 80 V. Elston ii. 1041n Janaway, Ex parte i, 224 V. Feller ii. 911n, 9l7n Jane v. Hunter i. 232n V. Given ii. 1037n, 1040n, 104 In January v. Martin i. 311n, ii. 793n ii. 884n Jaques v. Huntley ii. 1023 V. Garnesey ii. 939n Jarmain v. Eglestone i. 427, 450, ii. 691, V. Henry i. 622n, ii. 937n 692 - V. Hoffman ii. 689n Jarvis v. Palmer i. 187n V. Hartwoll ii. 884 V. Rogers ii. 982n — — V. Hubble ii 689n Jason V. Jervis ii. 931 1>. Innes i. 231 Jeanes v. Wilkins ii. 959 V. Jackson ii. 901n Jebb V. Abbot ii. 835 V. Jacob i. 263 Jeffercys v. Small ii. 902, 1116 f. Johnson i. 264n, ii. 62in Jeffreys v. Jeffreys ii. 94 In V. Kingsley i. 260n Jencks v. Alexander ii. 917n V. Ligon i. 238n Jendwine v. Alcock i. 411 V. Leek ii. 980n V. Slade i. 255 332, 335, 336, 337 Jenkins v. Atkins ii. 693n i;. McCoimell i. 370n V. Eldridgc i. 125n, 188n, 139n, r. Matsford ii. C89n, 913n 189n,ii. 91 On, 912n — — V. Mar3h ii. 766n V. Hogg i. 18n, 132n, 235n CASES OITED. XXXVH JenkinH v. Hemes i. «8, 511, 616 Jones V. Edney i. 22, 25, 27, 33n, 48, 165 V. Hiles i. 293. 41 1 Ex parte ii. 623 V. Keymis ii. 932, 942 V. Flint i. lOOn, 108, 110 V. Parkinson i. 264 V. Gardiner i. 26 In, ii. 702n ■ V. Portman i. 222 V. Gibbons i. 217 V. Reynolds i. 112 V. Groobham ii. 927 Jenkinson v. Pepys i. 23, 156 V. Ham i. 527 0. The State ii. 1062n V. Hubbard i. 326n V. Watts i. 196, 197n V. Jones i. 471, ii. 700, 1026 Jenkyns v. Keymes i. 227 V. Kearney 1044 Jenner v. Tracey ii. 611 V. Keene i. 7, 267 Jemiess v. Parker ii. 68 In V. King ii. 708 Jennings v. Hopton i. 416 V. LcAvis ii. 829 V. Moore ii. 1042 V. Littledale i. 50, 54 V. Selleck ii. 1019 V. Marsh ii. 935 Jennison v. Graves ii. 908n V. Mason ii. 822n V. Hapgood ii. 887n, 897n, 899n V. Mathie i. 522n Jepson V. Minton i. 83 V. Mudd ii. 806 Jerdon v. Forster i. 224 V. Nanney i. 20, 45 Jerningham v. Grlass ii. 937 V. Newman i. 175 Jerrard v. Saunders ii. 1016, 1019, 1070, V. Peterman i. 141n 1071 V, Phelps ii. 966n Jerritt ». Weare ii. 747 V. Plater i. 370n Jerrise v. Smith i. 141n, 253n V. Powles ii. 1016 Jervoise v. Clarke i. 18, 65 V. Price i. 290 V. Duke of Northumberland i. 50G, V. Pugh ii. 1064 507, 508, 514 V. Purefoy i. 928 Jewell V. Schroeppel i. 168n V. Ryde ii. 680, 684 Jewett V. Palmer ii. 1067n , 1069n, 1070n V. Sasser i. 153n Jinkins v. Noel ii. 884n V. Snelson i. 37n Johns V. French i. 69, ii. 656,657, 661, V. Shackleford i. 347n 708n V. Sheriif i. 188 Johnson v. Brown i. 144 V. Sluby i. 158n V. Churchwardens of St. Peter V. Smith i. 170, 210, ii. 1052, 1053, i. 220 1054, 1055 , 1057, 1058 V. Blackman i. 152n, ii. 887n V. Stanley ii. 1036 V. Cawthorne ii. 857n, 880n V. Thomas ii. 890, 1070 V. Daverne ii. 1063n V. Tifton i. 264n V. Eicke i. 258n V. Tuberville ii. 61 In V. Gere ii. 68 In V. Whittaker ii. 928 V, Glancy i. 140n, 142n doe dem, v. Williams ii. 637 V. Johnson i. 242, 356, 359, 420, v. Williams ii. 663 424, 533, ii 571, 680, 925 Jordan v. Black ii. 1024n V. Kennett ii. 840 V. Savage ii. 663 V. Legard ii. 934 V. Sawkins i. I56n, 165, 173 V. Mason ii. 693 V. Wilson ii. 708n V. Nott ii. 767 Jourdain v. Wilson ii. 722n V. Proctor ii. 756 Joy V. Adams ii. 612n V. Rear don i. 80 V, Birch ii. 722n V. Ronald i. 117n, ii. 905n V. Joy i. 469 V. Stagg ii. 930n , 982n, 1048n, Joynes v. Statham i. 157 1052n Judson V. Wass ii. 702n V. Wygant i. 261n, 262n Julian V. Reynolds ii. 887n Johnston v. Gwathraey ii. 866n Jumpson V. Pitchers i .412, 445, ii. 630 JoUand v. Stainbridge ii. 676, 984, 985, Juzan V. Toulmin ii. 102 In 1040, 1041n, 1065 Jones V. Agnew ii. 745n E V. Barkley i. 261 Kane v. Bloodgood ii. 610n, 612n V. Belt i. 358n Kauffelt V. Bower ii. 857n V. Caswell i. 19n Kay V. Curd i . 115n 116n V. Cooprider i. 260n Kaye v. Bank of Louisville ii. 822n V. Croucher ii. 936 V. Wagliorn i. 171 V. Dyke i. 45 257, 424, 427 Kean v. Roe ii. 562n V. Dyke and others ii. 1078 Keane v. Roberts ii. 854 xxxvni CASES CITED. Keating v. Price i. 168n, 171n Kidder v. Hunt i. 140, 143 Keatinge v. Keatinge i. 75 V. West ii. 764 Keats V. Hector i. 140n, 141n, 146n Killian v. Watt ii. 624n Keech v. Hall i. 488, u. 925 Kilpin V. Kilpin ii. 914 V. Sanford ii. 891 Kimball v. Blaisdell ii. 689n Keeler v. Vantuyle ii. 1023n j Kino V. Balfe i. 140 Keen v. Stukely i. 309 Kuig I'. Bardeau i. 30n, 340u Keene v. Doardon i. 528, ii. 610, 1138 V. Baldwin ii. 875n Keissclbrack v. Livingston i. 156n, 180n The V. Boston i. 138, ii. 912 Kellick I'. Flexny ii. 887 V. Brewer ii. 936 Kelley r. Bradford i. 242n, 293n, 357n, V. Consei-vators of Bedford Level, 506n i. 429 Kellogg V. IngersoU ii. 702n, 764n The V. Dalby ii. 912 V. Wood ii. 708n, 709n V. Denison ii. 914 Kelly V. Beers ii. 655n V, Ex parte i. 217 V. Burnham ii. 655n The V. Gregory i. 77 V. Dutch Church ii. 746n, 764n V. Hamlet i. 315, ii. 1084 V. Low ii. 765n V. Hamilton i. 167n, 302n, 373n, v.. Powlett ii. 887 The V. HoUand ii. 884 Kelsack v. Nicholson i. 469 The V. Hungerford Market Co. Kelsallv. Bennett ii. 1069 i. 222. Kelsey v. Hanmer i. 453n V. Jones ii. 708, 722, 764, 765 Kemp V. McPherson ii. 1024n V. Kerr ii. 708n, 766n Kempshall v. Stone i. 234n, 253n V. King i. 176n, 259, 418, 420, Kemys v. Proctor i. 133 u. 829 Kenbold v. Roadknig tt i. 200 V. Lane ii. 624n Kendall v. Almy i. lo7n, 235n V. Leach i. 225 V. Beckett i. 254, 315 V, Moody i. 433 Ex parte i. 56 V. ilorford i. 236n Kendar v. Mihvard ii. 919 V. Newman i. 158n Kendxay v. Ilodson i. 53 V. Paddock ii. 609n Kenn v. Corbet i. 517 The V. Pedley i. 54 Kennedy v, Daly i . 67, ii. 654, 1036, V. Fyle i. 258n 1037 V. Riddle i. 142n V. Green i. 437, 472, ii. 1021,1042, V. Smith ii. 778, 779, 780 1044, 1057 The i>. Smith ii. 1098, 1099, 1100, V. Kennedy i . 139n, 189n, 313n 1101, 1102, 1103 V. Wenham i. 248, 337 V. Turner i. 224, 527 V. Wood ii. 884n V. Whitely i. 216n Kenney v. Wexham i. 311, ii. 805 V. AVightman i. 342 Kennon v. McRoberts i. 178n V. Wilson i. 307, 372 Kenny v, Browne ii. 1029, 1058 Kingdome v. Boakes ii. 1064 V. Collins ii. 866n V. Bridges ii. 917 V. Wrenham i. 311, ii. 805n Kingdon v. Nottle ii. 708, 709 Kent V. Welch ii. 650n 745n Kingsley v. Young i. 623, 524 Kentucky, Bank of, i . Vance ii. S75n Kinloch v. Nevile u. 645 Keuworthy v. Schofield i. 118, 119, 122, Kinnaird v. Lord Dean i. 4 128, 133, 135 Kinsey v. Grimes ii. 1065n Kenyon v. Sutton i. 198 Kinsley v. Abbott ii. 902n Keon V. Magawley u. 836 V. Ames i. 61n, 522n Keppell V. Bailey ii. 717, 721, 722, 733, Kinsman v. Kinsman ii. 1045, 1047 734, 736, 737, 738, 740, 741 V. Loomis ii. 689n Ker V. Clobery i. 217, 366, 367 Kinzic v. Penrose i. 153n V. Lord Dungannon ii. 890 Kirk i. Clark ii. 937 Kerr v. Love i. 138n Ex parte i. 404 V. Shaw ii. 764n V. Dean ii. 543n Kerrison v. Dorrien ii. 930 Kirkham v. Smith i. 228 Korrus v. Swope ii. 982n Kirtland v. Pounsett i. 10, 264, 427 Kester v. llockell ii. 793n Kirwan v. Blake i. 78,. 80, 83, 298 Ketcham v. Evertson i. 256n ii. 702n I'. Latour i. 37n Ketsey's case i. 211nii. 885 Kisler v. Kisler ii. 908n Key V. Parnham i. 53u Kitchin v. Bartch i. 179 Keys t'. Williams ii. 1064 V. Lee ii. 885n Kidd V. Dennison i.. 191n,ii. 793n Kittridge r. Bellows ii. 655n CASES CITED. XXXIX Kittridge v. Emerson V. Warren Kleiser v. Scott Kline v. Beebe Klinitz V. Surry Knapp V. Lee ii. 663n ii. 663n ii, 863n ii. 885n i. 48 ii. 681n KnatehbuU v. Gnieber i. 237, 357, 402, 404, 405, 406, 411, 505 ij-iuv,^ ■'^icker v. Harris ii. 1064n Knight V. vJrockford i. 116, 126, 262, 263, ii, 692 V. Ellis ii. 1108 V. Marquis of Waterford ii. 1062, 1063 V. Yarborough ii. 85 3n Knollys v. Alcock i. 201 V. Shepherd i. 203 Knott, Ex parte ii. 783, 1016, 1017, 1049, 1051 V. Wise i. 469 Knox V. Kelly ii. 637, 662, 964n V. fcUloway i. 453n, ii. 623n Kortz V. Carpenter ii. 745n, 764n Lacy, Ex parte i. 18, ii. 887, 888, 891n, 894, 895, 896, 897 V. Wilson ii. 1037n Lacon v. Mertins i. 137, 140, 213, ii. 80G, 857 Lade v. Holford ii. 1129 V. Lade ii. 909 La Farge v. Rickett i. 16-4n Lagow V. Badollet ii. 863n, 866n Laliey v. Bell i. 67 Laidler v. Young ii. 571n Laight V. Pell i. 87n, 90n Laird v. Pirn i. 259, 261, 263 Lake v. Craddock ii. 902 V. Gibson ii. 902 Lamar v. Jones ii. 612n, 823n Lamas v. BaUey ii. 905, 906 Lambert v. Bainton ii. 890 V. Rogers i. 468 Lamberton v. Smith ii. 892n Lamplugh v. Hebden i. 252 r. Lamplugh ii. 913, 914 Lampon v. Corke ii. 864n Lanca.ster v. Dolan ii. 926n, 929n Landon v. Morris ii. 1046 Lane v. Dighton ii. 919 V, Goudge i. 180 V. Shackford i. 143n, 25 6n Lanesborough, Lady, v Lord Kilmaine ii. 1068n, 1069 Lang V. Gale i. 283 Langdon v, Keith i. 156n, LSOn V. Woodfolk i. 191n Langfielde v. Hodges ii. 911 Langford v. Pitt i. 198, 212, 293 Langham t'. Nenny ii. 1122 Langley v. Brown i. 188 V. Lord Oxford ii. 834n V. Earl of Oxford ii. 855 Langstroth v. Toulmin Langton v. Horton V, Tracey Lansdown v. Elderton V. Lansdown Lansdowne v. Beauman Lansing v. McPherson Lant V, Peace Lanyon v. Toogood Lapsley v. Lapsley Large v. Penn Larkins v Rhodes Larrowe v. Beam Lassell v. Bamett La.ssels v. Catterton Latey, Ex parte Latham, Ex parte V. Morrow Lathrop v. Bank ©f Scioto i. 46 ii. 654 ii. 829 i. 72 ii. 270, 421 i. 67 i. 84n n. 706 i. Ill u. 571n i. 37 On ii. 909n, 912n ii. 1070n ii. 1048n ii. 769 ii. 863 i. 311 i. 17, 18n ii. 884 n Latouchet;. Lord Dunsany ii. 982n, 984 Lattimore v. Harson i. 154n, 171ii Laurens v. Jenny ii. 884n Lautour, Ex parte ii. 1019 Lavender v. Blackstone ii. 936, 942 V. Stanton ii. 836 Law V. Bagwell ii. 635 Lawcs V. Bennett i. 203, 204 Lawless v. Mansfield ii. 890 Lawrences. Halliday, i. 85 V. Dole i. 164n, I71n, 260n, 275n, 403n, ii. 702n V. Knowles i. 60, 287 V. Lawrence ii. 10fi4n V. Taylor i. 53n, 13 In V. Tucker ii. 104 In, 104.3n, 1052n Lawrenson v. Butler i. 112, 241, 349 Lawry v. Williams ii. 689n Lawson v. Lov^ejoy ii. 885n V. Langley ii. 643, 646 V. Laude i. 155 Laythoarp v. Byrant i. 120, 462 i^azarus v. Bryson ii. 887n, 898n LazaU v. LazaU i. 153n Lea V. Barber i. Ill Leach v. Leach cr Elkins v. Trcsham i. 156n, 180n V. Dean ii. 939 V. Mullett i. 31 Leacroft v. Maj'nard i. 235 Leaf and another v. Tuton i. 373 Leake v. Leake ii. 654 V. Morrice i. 139, 143 I^eakins v. Clisscl i. 3 Leavitt v Tiamprey ii. 543n Lechnicre v. Brasier i. 77, 297 V. Earl of Carlisle i. 211, ii- 921,922 V. Lechmere ii. 1117 Ledyard v. Butler ii. 926n, 937u '■ V. Manning i. 24 In, 26 In liCe's, Vincent, case ii. 771 liCe and Hemingway, in re i. 329 Lee V. Arnold i. 171 V. Dean i. 427n V. Markham ii, 1062 xl CASCB CJTEO. Lee V. Morehead i. 81 Lewis V. Madocks ii920 V. Munn i. 427, ii. 810 V. McLemore i. 4, 267n V. Payne ii. 57 In V. Mew ii. 1044n r. Porter i. 9m V. Owen i. 158n V. Risden i. 101, 108 V. Paine i. 173n V. Stone ii. 1017n V, Thomas ii. 635 Leech v. Leech ii. 777, 929 V. Woods i. 237n Leeds v. Cameron ii. 982n Liber v. Parsons ii. 765n Lees V. Nuttall i. 46, ii. 9I2n Lichden v. Winsmore u. 770 Le Fevre v. Le Fevre i. 154n, 171n Lidbetter v. Smith i. 71 Leffingwell r. Elliot ii. 765n Liddel v. Sims ii. 68 In Lefroy v. Lee i. 219 Lili'ord's case i. 483 V. Lciroy 1. 85, 88 Liggett V. Wall i. 191n, ii. 1031n Legal V. Miller i.l69 Lightburne v. Swift i. 67 Legate v. Sewell i. 228 Lightfoot V. Heron i. 236 Legge u. Croker i. 377, 384, 387 Lightner v. Mooney ii. 966n Lcggett V. Dubois ii. 908n Ligon V. Alexander ii. 857n, 880n V. Edwards i. 287n Lillard v. Kuckers ii. 984n Leicestet's, Earl of, case ii. 1 124 Lill V, Robinson ii. 824 Leigh V. Winter ii. 942 Lilly V. Osborn ii. 917 Leiscnring v. Black ii. 887n, 888n Lincoln, Lord v. Arcedeckne i. 506 Leland f. Stone ii. 765n Linden, Ex parte ii. 857n V. Gassett i. 97 Lindsay v. Lynch i. 117, 142, 147 V. Griffith i. 82, 85 T. Talbot u. 1062 Leman, Ex parte ii. 1019 V. Rankin ii. 1037n V. Whitley ii. 905, 911 Line t;. Stephenson ii. 756n Lemater v. Buckhart i. 158n Lingan v. Henderson i. 153n, I80n Lemon v. Staats ii. 966n Lining v. Peyton ii. 836n, 837n, 842n Lempster, Lord, v. Lord Pomfret i. 470 Linscott V. Mclntire i. 140n, 153n Leach v. Lench ii. 90J ), 910, 911, 919, Linwood, Ex parte ii. 887 921 Lister v. Lister ii. 897, 900 Lenehan v. M'Cabe i. 7, ii. 985, 1041, Litchfield v. Cudworth ii. 887n, 895n, 1043 897n V. McCole i. 7 Lithgow V. Kavanagh ii. 643n, 571n Le Neve v. Le Neve ii. 984, 1041, 1064, Little, Ex parte i. 38- 1128 V. Martin i. 143n Lenham v. May i. 275 ii. 687 V. Padelford ii. 702n Lennon r. Napper i. 237, 246, 287 V. Pearson i. 264n Leonard v. Leonard i. 270,421 Livermore v, Herschell i. 5 V. Vredenburgh i. 117n, 153n Livesey v. Harding i. 473 Lesley's case ii. 891 Livingston v. Byrne i. 164n Lesturgeon v. Martin i. 403 V. Dean ii. 1024n Lessassier v. DashicU i. 370n V. Hubbs ii. 1024n Letcher v. Letcher ii. 908n V. Livingston ii. 909n V. Woodson i. 424n V. McInJay ii. 982n Lett V. Homer i. 75n V. Newkirk i. 192n, 195n Lever, Sir Darcy, v. Andrews ii. 909 V. Peru Iron Co. i . 6, 236n, 238n Levers t-. Van Buskirk ii. 1063n V, Ten Broeck i. 178n Levy V. Haw i. 256 Llewellyn v. Badeley i. 471 V. Lindo i. 305 V. Mackworth ii. 610, 612 V. Merrill i. Il7n Lloyd V. Baldwin ii. 834, 836 V. Pendcrgrass i. 21 V. CoUett L 288, 290, 299, 304, Lewes v. Hill ii. 921 ii. 816 Lewin v. Guest i. 364, 446, ii. 826, 828 V. Crispe i. 390, 495 Lewis V. Baird ii. 689n Ex parte i. 37, ii. 1026 V. Campbell ii. 708, 709, 765 V. Griffith L 75. ii. 704 Ex parte i. 69, ii. 887n, 1090 V. Gordon ii. 623n V. Fielding ii. 1071 r. Jewell ii. 68 In V. Herndon i. 242n, 293n, 506n V. Johnes i. 67 V. Lane ii. 908 V. Jones ii. 806 ■ V. Love ii. 926n, 929n V. Lloyd i. 285, 542 V. Lord Lechmere i. 248, 291, 305, V. Read U.915, 917 310 V. Ripjjingale i. 305 t'. Loxham ii. 822 V. Spillet u. 909 CASES CITED. xli Lloyd V. Tomkies ii. 746 Loaring, Ex parte ii. 866 Lobb V. Stanley i. 12G, 129, 153 Lockey v. Lockey i. 140 Lockington's case ii. 574 Lockwoocl V. Barnes i. 143n V. Sturdevant ii. 747n, 748u Lodge V. Lysley n. 657 Logan p. Moore ii. 689n — ^ V. Moulder ii. 709n, 764n, 765u London, Bishop of, v. Fytche i. 243 London and Birmingham Railway Company v. Winter i. 147, 241 London Bridge Acts, in re ii. 692, 706 Long V. Clopton ii. 688 V. ColUer i. 373, 521, ii. 826 V. Fletcher i. 341 V. White i. 230n, ii. 164n Longchamps v. Fawcett i. 175 Longstaff v. Meagoe i. 36 Longworth v. Taylor i. 305n Lonsdale, Earl of, v. Church ii. 810 Loomis r. Bedel i. 453n, ii. 745n, 75on, 765n, 766n V. Ncwhall i. 11 In Lord V. Belknap i. 262n V. Lord i. 91 V, Stephens i. 338, ii. 818 V. Underdunck i. 14 In Loring t>. Cook ii. 1017n V. Stednman ii. 608n Lot V. Thomas ii. 764n Lott V. Wyckoff ii. o71n Lougher v. WiUiams ii. 708 Lovell V. Briggs ii. 887n V. Hicks i. 239, 268, 277, ii. 687 Loveridge v. Cooper ii. 1025 Low V. Barchard i. 313 V. Marshall i. 260n V. Treadwell i. 168n Lowe V. Mannes i. 416 V. Swift i. 150 Lowes V. Lush i. 191, 516, 523, 536 LoA\-ndes v. Bray i. 263, 429, 523, V. Lane i. 236, 365, 377, 382 Lowry r. Cox ii. 1028n V. Tew i. 141n, ii. 1070n V. Williams ii. 966n Lowther, Sir James v. Lady Andover i. 301 V, The Countegs Dowagar of An- dover ii. 793 V. Carlton i. 7. ii. 1019n, 1037 and n, 1043 V. Carril i. 128 I'. Commonwealth ii. 765u V. Condon i. 312 V. Dufferin i. 118n V. Lowther i. 311, ii. 816 Loyes v. Rutherford i. 380 Lubin V. Lightbody i. 416 Lucas V. Bond i. 221 t'. Ex parte i. 59, 60 Luovr. Bunds' i. 143n Lufkin V. Cmtis ii. 543n V. Munn ii. 1033 Lukey v. O'Donnell i. 311, ii. 816 Lumley v. Reisbeck i. 219 Doe dem. v. The Earl of Scarbor- ough ii. 677 Lumsden v. Frazer i. 192 Lund V. Lund i. 158ii V. Woods ii. 546n Lupin r. Marie ii. 857n Lush V. Druce i. 3 7 On V. Wilkinson ii. 916n, 917, 925n Luther v. Kidby i. 198 Lutwrych v. Winford i. 67 Luxton V. Robinson ii. 429n Lyddal v. Weston i. 519, 521 Lylc V. Bradford ii. 1045u V. Duncan ii. 982n Lyman v. Little i. 18 In V. United Ins. Co i. 156n, 180n Lynch v. Utica Ins Co ii. 88 In Lynn v. Charters . ii. 865 Lyon V. Annable i. 256n, 340n Ex parte i. 56 V. James ii. 888n V. Richmond ii. 1021n Lysnev v. Selbv i. 4, 272, 273, 421, 422, 488, ii. 684 Lyster v. Dolland ii. 655, 661, 903 V. Mahony ii. 546 Lytton V. Lytton ii. 612 Maberly v. Robins i. 531, 533, ii. 813 Macartney v. Blackwood ii. 815 Macclesfield, Earl of, v. Blake i. 88 Maccubbin v. Cromwell MacheU v. Clarke !Mackay v. Collins V. Orr Macldntosh v. Barber V. Townsend MackreR v. Hunt Macki-eth v. Marlar ii. 85 On ii. 589 ii. 764u i. 80 i. 61 ii. 903n i. 76, 464, ii. 799 i. 301 Symonds ii. 856, 861, 863, 866, 867, 868n, 870, 881, 1016 Maclean v. Dunn McAdoo V. Syblett McAnulty v, Bingamon McAllister v. Montgomery V. Read McBetli V. Mc Beth McBride v. Moore McCampbell v. Gill McCartee v. Campbell f . Teller McCann v. Forbes V. O'Farrell McCarty v. Leggett i. 134 i. 267n ii. 966n ii. 853n ii. 681n ii. 567n ii. 624n ii. 1064n ii. 609u IL 543n i. 51, 83,ii. 794 i. 82 ii. 764n McCaskle r. Amarine ii. McCe^ey v. Leadbetter McCrady v. Brisbane McCraw v. Davis 882n, 966n, 1052 ii. 1056n ii. 708n i. 313n Vol. I. F xJii CASES CITED. McComiell v. McConnell ii. 821n McCrca v. Purmont i. 1.5 3n McCr.-n^ken r. Sanders i. 327n, ii. 1029 McCrcody v, Thompson ii 643n McCreery v. Allender ii. 884n McClintock v. Graham i. 37n McComb V. Wright i. 60n, 126n, ISlii, 132n, 2y3n, 410n, 606n McCulloch V. Cotbuch i. 88 McDaniel v. Moody i. 37n McDermid v. Cortland i. 237 McDonnell v. Daniup L 424n, 426n McDowell r. Chamliors i. 128n McDonald v. McLeod i. 168n V. Hansom i. 496 V. Sims ii. CA2n Mc Fadden v. Jenkyns ii. 937 Mel'' all V. Sherrard ii. 984n McFarlaiid v. Stone ii. 608n, 625n McFarlane v. Gritiith ii. 1024n MeFear v. Battorf ii. 856n McFerran v. Taylor i. 4, 3rm,. 263n McGuin V. ShaefFer ii. 8S7n McGhce V. Morgan i. 313 McGregor v. Brown ii. 9S4n, 1058n McGuire v. McGowan ii. 908n, 909n McLitire v. Hughes ii, 94 lu McJilton V. Commonwealth ii. 857n McKay v. Carringtoni. 191n, 242n, 346n ii. 793n i. 357n i. 425n 140n, UP.n ii. 689n ii. 891n ii. i029n 310n, 313n ii. 76-5n 195n, 198n ii. 794n ii. 879n ii. 857n i. 15 3n i. 370n ii. 853, 854 ii. U34, 1041 n, 1052n i. 4 i. 138, 256, 429 i. 252, ii. 793 i. 59n Melvin McKcanu. HqcA McKee v. Brandon V. Phillips McKendrie v. Lexington McKey v. Young McKim v. Moody McKinney v. Pinkard V. Watts McKiimon v. Thompson ». Sterrett McKnight v. Bright McLcarn v. McLellan McLcllan v. Cumberland Bank McLelland v. Cresw oil MoLaod V. Drummond McMechan v. Griffing McMeekia ». Edmoads McNam(ira v. Arthur V. Williams McNair's Apijetd McNeil V. Mageo ii 966n, 9S4n, 1057n McNeven v. Livingston i. 275n, 403n McNew V. Tobey ii. 857n McNitt V. Logan ii. 1037n Mcpherson v. Rathbone i. 260n Mcfiueen v. Farqiihart i. 357n, 520, ii. 81ri, 825, 1058 McRaven v. McGuire ii. 9Cnii, 984n Mcllea V. Purmont i. 1 1 2n MoKee r. Alexander ii. 609n McWorter t;. McMahan i. I26n V. Huling ii. 655n Maddeford v. Austwick i. 312 Maddison v. Andrews ii. 911, 1123, 112-:; i 234n ii. 1041, lOGl i. 54 V. Cliimi Maddox v. Maddox Magee v. Atkmson Magennis v. Fallon i. 76, 79, 255, 292, 297, 298, 300, 378, 379, 383, 407, 412, 419, 440, 606, ii. 537, 813, 8ir, 8.39n, 1149 Magill V. Hinsdale i. 53n Maguiac v. Thomp.son ii. 93 In, 937n Magrane v. Archbold i. 239, 246 Magruder c. Peter ii. 857n, 8fi3n Maguire ». Armstrong ii. 1034 Maidment v. Jukes i. 485n Maigley v. Hauer i. 153n Main v. Melbourn i. 48, 145, 291 Maitland V. Wilson ii. 1069 Majoribanks v. Hovenden ii. 1041, 101.'^. Malachy v. Soper i, 423 Maiden v. Menill ii. 1021 Malin v. Malin i. i95n, 312n, ii. 91 In MaJins v. Freeman i. 19, 21, 239 Macalin v. Charlesworth ii. 973, 1022 Maluig V. Hill MaUom v. Bringloe MaUory v. Stodder Malony i). Kernan Malpas V. Ackland Maltby v. Cliristie i. 507, ii. 825 ii. 886 ii. 966n, 1037n ii. 10fi9n ii. 1056 i. 45 Manhattan Co. v. Evertson ii. 1070n Mauly V. Slason ii. S57n, 863u, 875n Man V. Mann V. Pearson V. Stevens Manning Ex parte V. Brown Manningford v. Toleman Mansell v, Mansell Manser's case M.insficld's case V. Mansfield March v. LutUow Marcy c, Bcekman Iron Co. IMarden v. Babcock Marfil V. Rudge i. Marine and Fire Ins. Bank v. Early ii. 880n Margareson v. Saxton ii. y46n Margra^•ine of Anspach v. Noel i, 399, 418, ii. 828 Markby, in re i. 220 Markham v. Merritt ii. 543n Markland v. Clump ii. 70Bn Marks v. Pell i. 158n, ISOn, ii. 612n 175n i. 369n, 370n ii. 70Sn 737n ii. 795, 799 i, 260n, 26 In ii. 882, 919 ii. 1031 ii, 7G8 ii. 542 i. 48n ii. 10G3n i. 53n i. 930n i. 72 V. Robinion Marsli, Ex parte 1!. Turner Marshall v. Baker V. Booker V. Collett V. Conrad v. Christmas V. Frank i. 154n ii. 888, 880 ii. 857n i. 154n, 171n ii. 029n ii. 1021 ii. 884n i. 867n, 863n ii 1067 CASES CITED. xim Marshall v. Lynn i. 154n, 166 V. Peirce ii. 1021n Marston y.Bracketti. 9, ii. 1021n, 1023n V. Hobb3 ii. 702n, 709n, 744n, 747n, 764n V. Norton ii. o64n V. Roe i. 43, 130, 131, 196, ii. 56'5 Martin v. Baker ii. 708n, 764n V. Bo-wker ii. 612n V. D'Arcy ii. 662 V. D welly i. 23 On V. Lang ii. 76on V. Martin ii. 746n, 764n, 88on, 938 V. Mitchell i. 113, 230, 232, 235 1;. Smith i. 262, 429 V. Ormsby, in re i. 61 V. White ii. 82 In Martindale v. Smith, i. 286 Marvin v. Bennett i. 358n, 369n V. McRea i. 258n Maryland Savings Bank v Schroeder i. 140n, li6n Mayor of Congleton v. Patterson ii. 73S Mayor v. Gowland i. 201 Mayor of HuU v. Horner ii. 1022 Mayor v. Steward ii. 725 Maywood v. Lubbock ii. 930n Mead v. Lord Orrery ii, 8-53, 855, V. Steger i. 153n, 176n V. Degolyer i. 154n V. Lord Norbury i. 616 Meadows v. Duchess of Kingston ii. 1070 V. Tanner V. Meadows Mears v. Morrison Mease v. Mease i. 18 i. 116n, 117n, 132n i. 53n i. 153 Maryon v. Carter Mason v. Armitage V. Corder V. 3}uker V. Crosbie V. Lickbarrow V. Wallace Masseuburg v Ashe Massey ?' Batwell i. 231, 286 19, 131, 135,239 i. 341, 342, 495 ii. 929n, y39n i. 2, 4, 267n u. 716 i. 505n ii. 110» ii. 654 Meath, Bishop of, v. Marquis of Win- chester ii. 1062 Mechanics Bank v. Lynn J. 302n of Alexandria v. Seton i. 23on Mechelem v. Wallace i. 94n, 111 Meder v. Birt ii. 1070 Medlicot v. O'Donnel i. 277, 315, ii. 611 888, 899, 1071 Medomac Bank v. Curtis i. 16an Megarael v. Saul Meek V. Kettlewell i. 857n ii. 937 Meers, Sir Thos. v. Lord Stouvton i. 296 V. McIUwain i. 14 In, 142n, 147n, ii. lOSln Massy v. Massy i. 83 Mather v. Priestman i. 56 Matthews v. Bliss i. 53n V. Dand i. 416 V. Danx i. 249 V. Demerrit ii. 663n, 1052n V. Dragrand ii. 887n V. HoUings ii. 680, 684 V. Jones ii. b34, 1060 V. Stubbs i. 67 V. Wallwyn i. 217 Matthie v. Edwards i. 622n Mattock V. Hunt i. 340 V. Kinglake i. 2G1, 263 Maundrell v. Maundrcll i. 198, 542 ii. 782, 928n, 1140, 1144 Mauri v. Heflferman i. 50n Maury v. Lewis ii. 1064n Maxwell v. Montacute i. 125n May V. Easton i. 158n Mayers I'. Rogers i. 262n MayfieldP. Wadsley i. 92, 100, 101, 102, 111, Mayhem v. Coombs ii. 863n Maynard, Serj., case ii. 679, 680 Maynard's case ii. 686 Maynard i'. Moseiey ii. 679 Hayne v. Macartney i. 86n, 85 -Mavo r. Giles ii. 1024n i\ Purcell i. 275n, 506n, ii. 688n, 793n Meggison v. Moore Meigs V. Dimock Meliish V. Brooks V. MeUish V. Motteux ii. 903 ii. 857n ii. 639 i. 180 i. 384 Melvin v. Locks and Canals on Mem- mac River ii. 624n, 625n, 631n Menifee r. Alenifee Mercer ; . Blam V. beldo 1 Meredith v Mucoss V. Naish Meres v. Ansell et al V. Ansell et al Merrill u. I. & O. R. R. Co V. Meachum Merritt v. Clason — — V. Lambert Merry v. Abne Mertens v. Adcock Mertins v. Joliffe Mesnard v. Aldridge Mastear v. Gillespie Metcalf V. Clough V. Dallam V. Fowler V. Scholcy Metcalfe v. Pulvertoft ii. 939, 941, 1046 Meth. Epis. Church v. Jaque? i. l:30n ii. 908u 9l7n Methodist Church v. Remington ii. 884u Meux V. Bell ii. 1026. 1026 I Maltby ii. 1062 I r. Smith i- 072 Meynall v. Garraway ii. 1037 I Michaux v. Gr^ve ii. 885 ii. 1064n ii. 103 In ii. 608n, 625n i. 13ln i. 146a i. 153, 175 i. 155 i. I71n ii. 937n 115n, 128n ii. 1036n ii. 1042 i. 40 ii. 1037, 1066, 1006 i. 24 ii. 1023 i. 48 i. 429n i, 258n ii. 656 xliv GASES CITED. Michaud v. Girod ii. b87ii Middlemore v. Goodalc ii. 708 Middleton v. Spicer i. 192 Middleton, Lord, r. "Wilson i. 118 Midland Railway Co. v. Wescomb ii. 830 Mildmay v. Hungerford i. 379 V. Mildmay ii. 1069 Miles V. Dawson i. 473 V. Langley ii. 10o3 Millard's case ii. 1019, 1069 Mill Dam Foundry v. Hovcy i. 154:n, 171n, ii. 97 In Miller v. Auburn R. R. Co. i. 97n MoUoy V. Sterne i. 24, 390 MoUony v. Keman ii. 1052, 1069 V. li'Estrange ii. 896 Monck V. Iluskisson i. 617, ii. 807 Moncrief r. Qoldsborough i. 14n, 18n, Monell V. Lawrence i. 70n, ii. 1047n V. Monell i. •59n Monmouthshire Canal Co- v, Hartford ii. 646 Monroe v. Alaier i. 177n Montague v. Jeffries i. 202 Montes(iuicu v. Sandys ii. 896 Moutford, liOrd v. Lord Cadogan ii. 1027 V, Bagwell i. lo3n Monypenny v. Bristow i. 198 V. Blandist i. 142, 151 Moody V. Matthews ii. 904n V. Chetwood i. 157n, 23.5n V. Van Dyke ii. 887n V. Cotten i. Ii7n V. Walters i. 608 V. Ilenderaou i. 15811, 180n Moor V. Mayhow ii. 1069 V. Ijvinc i. 117n V. Raisbeck i. 210, 211 i. 370n, ii. 681 Moore v. Armstrong ii. 609n V, Miller ii. 5 5 On V. Bcasley i. 141n V. Plumb i. 37n V. Bennett ii. 1056 Miles V. Stevens i. o30n V. Blake . i. 287 MUligan v. Cooke i. 347 V. Bray ii. 1063n Mills V. Auriol ii. 766 V. Cable ii. 612n, 1029n r. Bell ii. 7G5n V. Creed i. 289 V. Estell ii. 966 V. Edwards i. 138 V. GoodseU ii. 887n -; V. Foley i. 178 V. Harris i. 39 V. Hilton ii. 887n V. Hunt i. .50n V. Holcombe ii. 880n V. Kershaw ii. 1045 Morangue v. Le Roy Du Cercveil V. Oddy i. 32 , 35, 47, ii. 1062n ii. 1044U Millspaugh v. McBridc i. 90n More V. Mayhew ii. 1036 Mibier y.'ilorton ii. 760, 761 Morecock v. Dickens ii. 983 V. MiUs i. 194, 195, 211 Morehead v. Hunt i. 18n MUncs V. Branch ii. 723, 724 Moreland v. Lc Masters i. 14 In V. Gery i. 327, 328 Morgan v. Boone ii.GSSn Milward v. Earl oi Thanet i. 289, 300 V. Davis ii, 612n Minis V. Macon and Western Railroad V. Morgan i. 24 2n 253n, 293n, ii. 857n, 863n, 879n 302n Minard v. Mead i. 53n !!. ii. 611 Minchin v. Nance ii. 818, 819 Ex parte ii. 887n, 896 Minet, Ex parte i 112 V. Shaw i. 249,305, 416 Minns v. Morse i. 143a V. Stell ii. 693n Minor, Ex parte i. 71, 331 V. Tcdcastle i. 374, 375 V. Clarke ii. 766n Morico V. The Bishop of Durham i. 86 Minturn r. Seymour i. 236n, ii. 941n Morison v. Tumour i 113, 126, 129 Mirchouse v. Scaii'e ii. 766 Morle)'- V. Cook i. 25, 398 Mitchell I'. Havne i. 49 Morony v. O'Dea i. 326 V. Xcal i. 606, ii. 693 Morphett v. Jones i. 140 V. Hazen ii. 709n, 764n Morrot v. Paske ii. 688 V. Warner ii. 702n, 708n, 709n Morrill v. Wallace i. 3 724n, 745n, 766ii Morris v. Barrett ii. 902 V. Wiuslow ii. 880n V. Clarkson i. 625, 526 Mitford V. Mitford ii. 880, 893, 1058 V. Edgington ii. 764 Moulc V. Buchanan i. 147n V. Ford ii. 966n Mocatta v. Murgatroyd ii. 1060 V. Kcarsley i. 392, 447 Moggridgc v. Jones i. 261 V. Knight i. 260 V. Thackwell i. 419 V. McNeil i. 265 Mohawk Bank v. Atwater i. 66n V. Mowatt i. 71n Mole I'. Smith i. 542, ii. 927n V. Nixon ii, 911n MolesM'orth v. Opie i. 88 V. Phelps ii. 765n Molineux, Ex parte ii. 892 V. Preston i. 352 MoUct I'.Brane i. 96 V. Rowan ii. 765n CASES CITED. xlv Morris v. Sliter V. Stephenson V. Timmins V. Wadsworth Morris Canal Co. v. Emmett V. Everett Morrison v. Caldwell V. Ives V. McLeod V. Parsons Morroiigh v. Power Morse v. Aldrich V. Child i V. Falkener V. Fanlkner V. Green V. Godfrey V. Merest i. 26 In i. 231 275, 329 i. 462n i. 3 7 On i. 53n i. 370n, ii. 68 In i. 26ln i. 236n ii. 1024 ii. 637 ii. 713n 9, 174n, ii. 1021n i. 421 ii. 1023 i. 63n ii. 926n i. 329 V. Royal i. 51, 275, 276, 277, 326, ii. 687, 895n, «99, 900 V. Shattuck i. 153n Morshead, Sir John, and others v. Frederick and others ii. 1079 Morss V. Elmendorff i. 2o3n, 347n, 35Sn, 373n . 311, 330, 332, 334, 336, 337 i. 131n ii. 1064 i. 183 56, 63, 78, 131, 234, 239n, 240, 241, 268, 293, 310, 311n, 312n, 340, 341, 346, 349, 350 Mortimer v. Capper V. Cornwell V. Orchard ■;;. vShortall Mortlock V. Buller V. Kentish Morton v. Kidgway V. Waldryn Moses V. McFarlan Moseley v. Virgin V. Cook Moss V. Brandor V. Gallimore V. Matthews i. 524 327n, ii. 1029n i. I54n i. 256 i. 234n i. 445 ii. 1056, 1058 i. 219 i. 40,51, 415 Moth V. Atwood i. 212n, 236n, 31 In, 326 Mott V. Clark Monlton v. Hutchinson Moultrie v. Jennings Mountt'ord v. Catesby V. Pouten V. Scott Movan v. Hays Mover v. Schick V. Wiltberger Moyse v. Giles Muldrow V. Muldrow Mullet V. Halfpenny MuUiken v. Mulliken MuUins r. Townsend Mulyany v. Dillon Mnmford v- Whitney Mumma v. Mumma Mundy v. JolUffe i V. Vawtcr Miinroe v. Perkins ii. 973n ii. 1123 ii. 929n ii. 745 ii. 946 i. 17n, ii. 1043 i. 155n, ii. 905n ii. 984n ii. lC48n ii. 901 i. 191n, 192n i. 125n i. 72n i. 67 ii. 896 i. 96n, 97n, 99n ii. 913, 914,915 . 141n, 147, 150 ii. 104 In i. 154n, 171n Murdock's case V. Beal V, Hughes Murless v. Franklin Murphy v. Clark V. Leader V. Tripp 11. 888 i. 369n ii. 908n ii. 914 i. 235n ii. 97 In i. 158n Murrav». Ballou ii. 899n, lOlSn, 1024n, ld'31n, 1043n, 1044n, 1045n, 1070n ■ V. Currie i. 46 V. Finster ii. 1031n, 1069n, 1070n Murray v. Lylburn ii. 919n, 1024n, 1044n, 1046n V. Palmer i. 277, 278, 313, 327, ii. 900 Muscot V. Tisdall Musgrave v. Dashwood Muskerry v. Chinnery Mussell «. Cooke Mussy V. Pierre Myddleton v. Lord Kenyon V. Rushout ii Myers v. Aikman V. Sanders ii. 977n i. 229 ii. 1033, 1034, 1035 i. 121 ii. 884n ii. 936 1054, 1055 i. 530n ii. 937n Mynn v. Jolliife i. 46, ii. 1063 K Nagie v. Ahem ii. 700 V. Baylor i. 236 Naglee v. IngersoU ii. 745n Naii-n v. Prowse ii. 862, 864, 881, 931 Nannock v. Horton ii. 1122, 1123 Nantz V. McPherson ii. 1070n, 1052n Nap V. Betty i. 492 Napper v. Lord Allington ii. 706 Nash V. Ashton ii. 747, 764, 7G7 V. Coates i. 516 V. Palmer ii. 746 V. SpoHbrd ii. 689 V. Turner i. 463 Nason v. Grant i. 173n National Fire Lis. Co. v. Loomis i. Khi, 112n Nazarth Lit. and Benov. Inst. v. Lowe ii. 879n i. Ill ii. 937n ii. 9b4n ii. lOG4n ii. 909n, 930n i. 240, ii. 947 i. 370 238, 355 ii. 662 ii. 926 Ncal V. Yiney V. Williams V. Kerrs V. Ogden Ncalc V. Hagthorpe V. Mackenzie V. Parkin Neap V. Abbott Ncate V. Duke of Marlborougli Nccdham v. Beaumont Needier v. Wright Ncelson v. Sanborn i. Ncely V. Wood ii. Necsom V. Clarkson i. 471, 472, ii Neil V. Cheves V. Tillman Nellis r. Clark ii. 1029 i. 117n ii. 939n 920, 1057 154n 171n 235n xlvi CASES CITEIJ. Nelson V. Aldridge V. lU"id<;es V. Carrington r. Dubois V. Mattlicws i V. McGiffert V. Nelson Nelthorpe v. Pennyman Ncpean v. Doe Ncrvin v. Munns i Nesbit V. Nesbit Nettleton v. Sikes NewaU v. Smith Newbold v. lload Knight Newburyport Bank v. Stone Newcomb v. Brackett i. 45 i. 254 i. 2;59n, 3()9n i. 12(in 370n, ii. 702n, 765n ii. .367n i. 181, 373 i. 90 609, 624, 627 744, 756, 762 ii. 703n i, 9Gn, 99n ii.826 i. 211 ii. 564n i. 264n Newell V. Morgan ii. 908n, 909n, 916n V. Ward ii. 838 New BarbadoesToU Bridge v. Vrceland ii. 702n New Eng. Marine Ins Co, r. De Wolfe i. 53n Newham v. May i. 255 NeAvhall r. Pierce ii. 1052n New Hampshire Bank v. Willard ii. 982n Newland v. Pierce Newman, in re e. Ohapman r. Fitzgerald V. Jenkins V. James Newman v. Payne V. Rogers Newport's Andrew, case Newsomc v. BufFerlow Newstead v. Searles Newton V. Hunt V. Preston V. Swasey New York v. Butler ii 957 ii. 585 ii. 1044n i. 80 ii. G0!ln ii. 1064n ii. 890n i. 292, 302n ii. 037 i. 156n ii. 931, 1041 i. 321, 324 ii. 909, 910 138n, 140n, 141n i. 178n Corporation v. Cushman ii. 749n Life Ins. & Trust Comp'v v. Smith ii. 973n, 9S3n Nias f. The Northern & Eastern llail- wav Co. ii. 1062, 1063 Nicholls V. How ii. 674, 780 V. Johnson i. 11 6n, 117n Nicholson v. Hooper ii. 1022 V. Knapp i. 248 V. Mifflin i. 131n Nicloson V. Wordsworth i. 249, 407, 414, 415, 515, ii. 822, 850 Nicoll V. Huntington ii. 825n Nirols V. Gould i. 317, 326 Nightengale v. Burrell i. 514n, ii. 571n Nind V. Marshall ii. 757, 758, 759 Niven v. Belknap i. 140n Nixon, Ex parte i. GO V. Hamilton i. 7n, 153n , ii. 1043 V. Mayoh i. 473 Noble V. Bosworth i. 37n V. Durell i. 374 V. King ii. 755 Nodder t . Kuffin i. 67 Nodine v. Greenfield Noel V. Bewley V. Hoy V. Jevon V. Ward V. Weston Noke V. Awder Norcdifl" v. Warsley i. 242n, 29 3n i. 528, ii.l024 i. 241, 413 ii. 542 i. 469 i. 526, ii. 693 ii. 709 i. 227 Norcross v. Widgery ii. 984n, 1041n, 1052n Norden i-. Needham ii. 958n Norfolk's The Duke of, case i. 195, ii. 1044 V. Worthy i. 25, 30, 60, 53, 257, 371, 379 Norman v. Foster ii. 760 V. Wells ii. 708n, 7l5n Normanby, Marquis of, v. Duke of Dev- onshire i. 126, 151, 245 Norris v. Le Neve ii. 889, 1041 V. Norris ii. 939 V. School Dis't in Windsor i. 283u V. Wait ii. 1022u V. Norris ii. 939n North V. Langton ii. 787 North River Bank v. Agnew i. 53n Ins Co V. Holmes i. 84n Northup V. Brehmer ii. 966n V. Northup i. 262n Norton v. Babcock ii. 765n V. Hathaway i. 379n V. Herron i. 53 V. Mascall i. 215 V. Preston i. 140n V. Rose ii. 1024n V. Stone ii. 908n Nott V. Hill i. 314, 326 V. Shirlev i. 198 NouaiUe v. Greenwood i. 486, 516, 517, 537 Nourse v. Yarworth ii. 790 Noy V. EUis ii.' 847, 1045 Noys V. Mordaunt i. 199n Nuer V. Schenck ii. 1024n Nugent y. Gilford ii. 853, 854 Nulkes V. Day ii. 657 Nurton v. Nurton ii. 852 Obermeyer v. Nichols Obert V. Ilamell Ochiltree v. Wright O'Connor v. Cook V. Richarrls V. Spaight O'Daniel v. Crawford O'Dell V. Wake Odiorne v. Mason O'Fallon v. DiUon Ogle V. Ship O' Gorman v, Comyn O'Hara v. Orcagle V. O'Neil i. 284n ii. 887n i. 59n i. 344 1. 80, 86n, 87 i. 165 ii. 925n ii. 957 ii. 966n ii. 998 ii. 1017n ii. 937 ii. 637 ii. 909 CASES CITED. xlvii O'Herlihy t). Hedges O'KeUy v. Bodkin Ohio Life Ins. Co. v. Ledyard Oldfield V. Round Oldham v, Halley ■ V. Jones V. Sale Oldin V. Samborne 117, 146, 147, 243 ii. 637 984n . 377 i. 220n ii. 88 7u i. 143n, ii. 543n ii. 892 Oliver and Wife v. Court and others i.59 Oliver v. Court ii. 887 V. Hallam ii. 796n • V. Lowry ii. 1024n Olmstead v. Niles i. 99n Olympic Theater, (the,) i. 37n Omerod v. Hardman i. 163, 290, 296, ii. 835n, 842 O'Neal V, Mead ii. 874 Oncby v. Price i. 224 Oneida Manf. Soc. v. Lawrence i. 3n O'Neil V. Teague i. 180n, 187n O'Neal y. Lodge i. 15 3n O'Neall V. Herbert i. o9n Onions v. Tyrer i. 201 Onley v. Gardiner ii. 643, 644, 645, 646 Only v. Wallier Ontario Eank v. Root Ord V. Noel V. White O'Reilly v. Thompson Oriental Bank v. Haskins Orlebar v. Fletcher Orme v. Broughton Orndy v. Hunton ii. 1064, 1065 i. 138n i. 57, 240 ii. 1024n i. 142 ii. 937n i. 191, 496, ii. 957 i. 259, 428, ii. 708 ii. 1029n Ormond, Lord, t'. Anderson, i. 113, 117 O'Rourkev. Percival i. 113, 241n, 420 Orr V. Hodgson ii. 884n Orrell v. Maddox ii. 612 Ortread v. Round i. 231, 232 Osbaldeston v. Askew i. 419, 520, ii. 824 Osbornw. Lea ii. 1023 Osborne v. Crosberne and others i. Itf3 V. Bremar i. 363n v. Harvey i. 401 V. Mors ii. 939n Osgood V. Breed ii. 564n V. Franklin i. 269n, 310n, 311n, 312n, 313n, 314n V. Strode ii. 932, 1105 Ossulston Lord, v. Deverell i. 490 O' Sullivan v. McSwiney ii. 624 Oswald r. Leigh ii. 1122 Otley, Doe dem. v. Manning & another ii. 932 Ottman v. Moak ii. 885n Overstrect »;. Bate ii. 610n Overton v. Bannister ii. 1022 Ovev V. Leighton ii. 1068, 1070 Owen V. Davies i. 111, 233, ii. 793, 805 y. Foulkes i. 88, ii 887 V. Gooch i. 50 V. Sharpe ii. 939n V.Thomas i. 118, 122 Owings V. Meyers ii. 1044n V. Owings ii. 908n Oxenden v. Lord Falmouth ii. 807, 826 V. Skinner ii. 515, 530 V. Esdaile ii. 695, 857 Oxford, Lord, v. Lady Rodney i. 216 Oxwiclc V. Brockett i. 373 Oxwith V. Plummer ii. 1056 Packard y. Richardson i. Il7n Padgett V. Lawrence ii. 926n Page V. Adams i. 25, 397, ii. 840 V. Foster i. 22 In V. Hughes i. 289n, 30on in re ii. 809, 831 V. Lever ii. 1068 V. Page ii. 908n, 91 On, 911n, 912n 913n Paget V. Foley ii. 614n, 638, 639, 640 / 649n i. 194, 290, 298, 331, 335, 408, 485, 501, Paine v. Meller 332, 333, ii. 793 Painter v. Henderson Packenham's case Palmer v. Algeo et al appelants V. Fletcher V. Temple ii. 887n ii. 718, 721 ii. 637 ii. 862n, 879n i, 27n i. 41, 48, 51, 89, 250, 284, 403, 493 V. White i. 142 Papillon V. Voice i. 469 Parham v. Par ham i. 180n V. Randolph i. 267n, 356r., o57n, 358n, 382n, ii. 681n, 686n Park V. Bates Pai-ker v. Blythmore V. Bodley V. Brooke V. Frith V. Foot V. Grant V. Kelley V. Mitchell V. Parker V. Parmele ii. 765n ii. 1071, 1072 i 115n ii. 1060 i. 292 ii. 64 3n i. 6n ii. 86Gn, 8S0n ii. 643, 644 ii. 671n, 102]u i. 261n, ii. 702n V. Proprietors of Locks etc. ii. 623n V. Sergeant ii. 931 r. Smith i. 27n, 142 V. Staniland i. !)9n, lOOn, 104 V. Wells i. 146n Parkes, Ex parte ii. 862 V. White ii. 899 Parkhurst y. Lowten ii. 1062 V. Van Cortland i. 115u, 140n, 14 In, 143n, 146ii, 149n, 167n ii. 1028n Parkist y. Alexander ii. 9S2n, 1017n, 1048n Parkins v. Titus ii. 602 Parkman y. Welch ii. 1064n Parks V. Jackson ii. 1044n, 1046n V. White ii. 887 xl VJll CASES CITED. Parks ?'. "Wilson Parnthcr v. Gaitskill Parr r. Eliason Parrott r. Sweetland Parry v. Car warden V. Deere V. Frame V. Smith r. Wright Parsons i\ Freeman Parteric'lie v. Powlet Partington, Ex parte V. Woodcock Partridge v. Ilavens V. Usborne Paterson v. Long i. 246 i. 47 ii. 937 ii. 861 ii. 939 ii, G98 i. 456 ii. 1063 ii. 1030 i. 196 i. 153 i. 61, Son i. 219 ii. 909n, 913n i. 4 27, 28, 252, 503 Paton V. iJrebner, and another i. 194, ii. 692 V. Brebncr i. 348 V. Rogers, i. 345, 346, 412, 413, 416, ii. 806 Patrick i^- Grant V. Marshall Patten v. Gurnoy Patterson v. Mertz V. Slaughter Pattison v. Stewart Patton V. McCiUre Paul V. Wilkins Pawle V. (jun Payne v. Bettisworth Payne v. Cave I'. Compton V. Drewe V. Graves V. Shadboit r. Shedden Pavsant v. Ware Peabody v. Tarbell Peacock v. Burt V. Evans t'. Thewer Peakc, Ex parte Pearce r. House Pcarce v. Ncwlyn V. Pearce Pearson v. Davis V. Ijane V. Leacroft V. Morgan V. Pearson V. Pulley V. Williams Peart v. Bushell Pease v. Barber Pechcl, Sir John, v Fowler Peck V. Cardwell V. Ilarriott Pedens v. Owens Pedder, Ex parte Peebles v. Heading Peisch t!. Dickson Peirson v. Catlin Peles *. Jervies i. 175n ii. 1029n i. 5 i. 236n ii. 1071 ii. 930n i. 140n i. 192 i. 53 i. 284n i. 20, ii. 1073 ii. 1072 ii. 959 i. 237n i. 51 ii. 643 i. 175n ii. 908n ii. 1017 ii. 317, 318, 32G ii. 945 ii. 863 ii. 608n ii. 1059 i. 89, ii. 1063n ii. 7G5n i. 509 i. 235 i. 267, ii. 1022 i. 88 ii. 611 i. 221n i. 54, ii 851 i. 258n i. 58 ii. 903, 905 ii. 85 111 i. 370n ii. 889 ii. 912n i. 175n ii. 1064n ii. 757 Pell v. Stephens i. 53 PcUv V. Maddin ii. 909 Pcniber v. Mathers i. 23, 38, 39, 156, 181, 187, 188, 218, ii. 1064, 1065 Pembroke's, Earl of, case Pendleton v. Grant (-•. Eaton Penn v. Craig V. Lord Baltimore V. Glover Pennill v. Hallett Penniman v. Cole V. Hartshorn Pennington v. Beechy Pennington v. Gittings Penny v. Turner Pentland v. Stokes Peques V. Moseby Percy, in re Perkins v. Bradley V. Hadley V. Hayes V. JiIcGavock V. liice V, Webster V. Wright Perrin, in re Perry v. Briggs V. Edwards V. Head V. Meddowcroft V. Nixon V. Pearson V. Phelps Petcngill V. Evans Peter v. Beverly Peters v. Andcrsoir V. Goodrich ii. 791 i. 176 ii. 822n i. 66n i. 289 ii. 746 ii. 922 ii. 925n, 929n i. 126n ii. 1070 ii. 1064n ii. 57 In ii. 984 i. 260n, ii. 68 In ii. 565n ii. 1043 i. 237n ii. 912n i. 23Gn i. 4 i. 370n i. 235n, 237n ii. 662 ii. 5 7 In ii. 746 ii. 908n i. 221 ii. 887n i. 180n, 182n i. 196, ii. 919, 921 i. 37n i. 194n ii. 688 i. 181n, ii. 104Sn, 1052n i. 424n, 425n i. 156n, ISOn ii. 1028, 1029 ii. 854n V. McKeon Peterson v. Grover V. Hickman Petrie v. Clark Pcttibone v. Griswold ii. 892n Fettit V. Mitchell i. 370 Pew V. Lividais i. 154n Phelps V. Blount ii. 089n V- Sawyer ii. 746n V. Wilson i. 370n V. Duke of Buckingham i. 243 V. Fielding i. 261, 429 r. Rcdhel ii. 1056 V. Robinson i. 455 Pliilbrooki!. Delano ii. 91 In Phillmore v. Barry i. 128, 132 Phillipo V. Munniiigs ii. 637, G38 Pliillips Academy v. King ii. 884n Phillips i\ Barbaraux ii. 821n V. Belden ii. 887n V. Berger i. 235n V. Bistolli i. 20 V. Chamberlain i. 180 V. C^ramond ii. 91 In, 919n V. Phillips ii. 903 4 CASES CIT^ID. dik Phillips V, Saunderson ii. 863u, 867n V. Sinclair ii. 612n V. Smith ii. 76on V. Thompson i. 97n, I39n, liOu, U2n, 147n, 149n, i. loOn, 2.53n V. Yaughan ii. 688 Phipen v. Stickney i. 18n, 19n Phipps V. Lord Mulgrave ii. llOSn V. Sculthorpe i. 96 Phyfe V. Wardeil i. 39n, 147n, 150n, 187n, 189n Piatt V. Oliver Pickard r. Sears Pickering v. Dowson V. Xoyes V. Lord Shelburne V. Lord Stamford Picket V. Morris Pickett V. Leggon Picquet v. Swan Pierce v. Gates V. Jackson <■. Johnson V. Nichols V. Scott Piers V. Piers Pierson v. Hooper V. Ivey V. Steortz Piggott V, Waller Pike V. Galvin i. 19n, ii. 908n ii. 1022n i. .53, 386, 388 i. 473 i. 487 ii. 543 ii. 1024n i. 313, ii. 704 ii. 564n, 931n ii. 879n, 866n ii. 747n ii. 709n i. 242n, 29 3n ii. 847 i. 67, 69, ii. 661 i. 177n ii. 61 On ii. 1062n 198, 199, ii. 1123 ii. 708n, 709n Poole V. Coates . V. Rudd V. Shergold V. Vigers i. 4, 271, 310, 311, ii. 687, 887 Pilling V. Armitage ii. 1064 Pillo-vv r. Shannon ii. L070n l*illsburv r. Pillsburv ii. 9l2n Pilmorew. Hood " i. 244, 273 Pimm r, Goodwin ii. 712 Pincke v. Curteis i. 262, 290, 298, 304, 365 Pindar v. Wadsworth Pitcairn v. Ogboume Pitcher r. Barrows i. 520 i. 187 ii. 97 in, 984n ii. 765n i. 49 ii. 745n, 76on, 766n ii. 1052n c. Livingston Pitchers V. Edney Pitkin V. Leavitt Pitney v. Leonard Pitt V. Cholmondeley ii. 787 V. Davis " i. 223 V. Donovan i. 423 t'. Maekreth i. 120 !'. Williams ii. 726 Pitts V. Edelph ii. 1037 Plant I'. James ii. 764 Piatt, Lady, v. Sleap ii. 771 V. Squire i. 9n, ii. I021u, 1022n Playford v. Hoare i. 514, ii. 823 Plumer v. Robinson ii. 1052n Plumtre v. Odell i. 77 Plymouth y. Carver ii. 713n, 731n Earl of, V. Hickman ii. 919 Poindexter v. McCannan i. 222n Pole 1'. Pole ii. 916 Pollard ». Rarnen ii. fi43n PoUard v. Dwight ii. 1i5n, 76^n V. Kinner i. 146n V. Shaafer ii. 708ii PoUexfen v. Moore i. 191, ii. 816, 856, 873, 875, 876,877 Poly blank v. Hawkins ii. 770 Pomeroy, Ex jjarte i. 60 V. Stevens ii. 663n, 984n, 1040n, 1041n, 1052n Pomfret, Earl of v. Lord Windsor ii. 610, 1044, 1065 i. 198 i. 50 i. 310, 331, 361, 364, 365, 461,506n, ii. 819 Poor V. Robinson ii. 562n Pope v. Biggs i. 219 Lord V. Duncannon i. 329 1-. Garland i. 8n V. Harris 237 V. Root i. 311, 332, 335, 336 c. Simpson i. 291, 496 Pophani V. Baldwin ii. 1052n r. Eyre i. 118, 147, 243, 292 Pordage v. Cole i. 48 Portarliugton, Lord v. Soulby ii. 1068 Porter v. Bank of Rutland ii. yl9n, 1064n ii. 984n ii. 655n i. 258n i. 221n i. 261n ii. 702n, 747n, 764u Maine Bank ii. 954n i. 354, 371, 413,416 ii. 709 i. 472 c. Cole I'. King V. Nash V. Nelson V. Rose V. Noyes I'ortland Bank v. I'ortman v. Mill Portmore Lord, v. Bunn c. Gorint V. Morris i. 153n, 186 i. Taylor i. 315, 317 Portsmouth, Earl of, v. Lord Effing- ham Post c. Leet Post ell c. Pohtell Potter V. Gardner V. Potter V. Taylor Potts V. Curtis I'. Webb Poulctt (,-. Poulctt Poulter V. KUlingbeck Poultney v. Holmes Powell ?•. Clark V. Dillou ?•. Divett V. Doubble c. Edmunds r. Martyr li. 610, 1043 i. 65n, 87n i. 203n ii. 842n i. 147, 198, 213n ii. 764n i. 320 i. 290 i. 516 i. 101 i. 98 i. 369n i. 119, ii. 1052 i. 156 i. 30 i. 22, 23, 166 ii. 794, 795, 826 r. Monson & B. Manulacturing Co. ii. 542n, 90Cn, 908n V. PoweU i. 227, 626, u. 909n Power V. Shell ii. 644 Prankerd v. Prankerd ii. 9U Fraf t V. Colt 11. 666 V>ii,. I. G CASES CITED. Pray v. Waterston ii. 663n Pye V. Daubuz ii. 767 Prendergast v. Eyre i. 73 80, 344, 354, Ex parte ii. 937 357, 358, 498 Pyke V. Northwood i. 205n V. Turton ii. 903 V. Williams i. 140 Prentice v. Achorn i. 236n Pyle V. Pennock i. 37n Prentiss v Russ i. 53n Pyncent v. Pyncent i. 470 Presbyterian Corporation v. Wallace ii. 926n Q Prescott V. Hubbell ii. 936n Quaintrell v. Wright i. 175 t'. Nevers ii. 63n Quesnel v. Woodlief i. 369n, 370n V. Truman ii 745n, 764 Quincey, Ex parte i. 37 Prestage v. Langford ii. 890, 892 Preston v. Barker i 85 II V. Carr ii. 1062 Rabbett v. Raikes i. 37 V. Crofut ii. 937n Radcliffe v. Fursman ii. 1062, 1062n, V. Tubbin ii. 1042, 1045 V. Warrington i. 288, 290, 295, Prevost V. Grats ii. 610n, 887n, 900n 305, 491 Price V. Asheton i. 118 Radford v. Wilson ii. 1070 V. Blp.kemore i. 62, ii. 871 Radnor, Earl jf v. Shafto i. 56, 205, 213 V. Bym ii. 891 Radnor, Lady, or Bodmir , V. Rother- V. Carver i. 527 ham, or Vendebendy ii. 781 V. Copner ii. 612 Ra'i-!cr,Lady, v. Vendebendy ii. 782 V. Dyer i. 162, 166, iro, 173, 379 R artety v. King ii. 612 V. Moxon i. 87 Ragan v. Gaither ii. 680n V. North i. 77,90, 372 Railroad Co. v. Ormsby i. I75n v. Price i 84n, 89, 374n, ii. 1070 Rainy v. Vernon i. 45 V. Strange i. 506, 515 RoJeigh's, Sir Walter, case ii. 915 V. Williams i. 263 Ri:.jnsay v. Brailsford i. 237n, 242n, Priddy v. Rose ii. 1026 261n, 293 BlOn, ii. 793n Prideaux c Prideaux i. So, 87 Ramsbottom v. Gosden i. 158 Prideux v. Gibbin i. 196 V. Mortley i. 121, 124 Priest V. Cummings ii. 543n V. Tunbridge i. 124 V. Rice ii. 663n, 984n, lo52n Rnra«den v. Hylton ii. 935 Prince v. Case i. 96n, 97n Ramsey v. Eaton ii. 953 Pring V. Pearson i. 518n Rancliffe, Lord, v. Lady Parkyns ii. 1070 Pring'e v. bamucl i. 373n, 379n Randall v. Errington ii. 897 V. Witten i. 358n, ii. 764" V. Everst i. 221 Prit-'hari v. Atkinson ii. 764u V. Mi^rgan ii. 905, 935 V. Brown ii. 65Sn, 908n, 909n, V. Phillips ii. 902n,939n 1052n V. Randall ii. 903n V. Ovey i. 244, 328 V, Richell i. 272 r. Quinchant i. 184 V. Rigby ii. 723 Proctor V. Tarnum i. 67n V. Willis i. 182n 184n V. Johnson ii. 765 Randolph v. Kinney ii. 708n, 799 V. AVarren ii. 917 V. Rosser ii. 822n Prodgcrs o. Langhara ii. 937 Rankin v. Matthews i. 22n Propert v. Parker i. 126, 238 V. Maxwell i. 347n Prosser v. Edmunds i. 422 V. Porter ii. 887n r. Watt3 i. 459, 460, ii. 934 Rann v. Hughes i. 126, 163 Prvtharch v. Hjivard i. 224 Rantin i'. Robertson ii. 745n Pugh c. Bell i. 19 In, 327n,ii. 909n, Rappencr v. Wright ii. 697 1029n Rastel V. Hutchinson i. 138, ii. 912 f. Chesseldine i. Il7n. 132n, Ratcliffc V. Bleasly i. 472 ii. 702n Rathbun v, Rathbun ii. 905n, 91 In V. Good i. 141n, 147n Ravald c. Russell ii. 630 Pullen V. Lord Middlcton i. 228 Rawlins v. Burgis i. 198 Puivertol't V. Pulvertoft ii. 930, 931, r. Timberlake i. 370n, ii. 6Sln 936, ii. 941 Rawson, Ex parte ii. 1019 Purcell I'. McXamara ii. 899n Ray V. Lines ii. 643n Purvis r. Rayer i. 488, 491, 492, 494, Raymond v. Holden ii. 908n, 925n Putbury v. Trevalion i. 197n — - V. Webb i. 78 Putnam r. Ritchie ii. 102.3n, 102bn Rayner v. Costler ii. 612n V. Westcott i. 340n V. Julian i. 251 Putney *, Day i. 99n Rea V. Wijliams ii. 901,902, 1116 CASES CITED. n Read v. Livingston ii. 925n, 935n Reynolds v. Waring i. 160 V. Ward ii. 946 Rham v. North ii. 891n Reading v. Weston i. 152n, 158n Rhoades v. Selin i. 260n Redding v. Wilkes i. 140 Rhodes v. BuUard u. 753 Redford v. Gibson ii. 857n, 867n, 879u V. Rhodes i. 140n, 147n 880n V. Smethurst ii. 608n Redington v. Redington ii. 908, 913, 914 Rice V. Goddard ii. 681n Redkeimer v. Pyron ii. 842n V. Grone i. 63n Reece v. Frye ii. 1063n V. Peet i. 256n Reed v. Brooks i. 89n V. Rice i. 173n, 221n V. Chambers i. 289n V. Woods i. 177n V. Hornback i. 31n Rich V. Jackson i. 156 , 164, 173, 187 V, Noe i. 242n, 357n, 506n V. Rich ii. 762, 786 V, Warner ii. 887n V. Waite ii 766n V. WiUiams ii. 1069 Richards v. Allen i. 143;i, 256n Reese v. Waters ii. 884n V. Barton i. 427, 445, ii. 653, 693 Reeves v. Gill ii. 691 V. Fry ii. 644 V. Reeves i. 469 V. Hayward i. 115 Reichart v. Castator ii. 939n V. Jackson ii. 1062 Reid V. Shergold ii. 1020 V. Porter i. 117 Reigall v. Wood ii. 1020n Richardson v. Baker ii. 876n ReiUy v. Jones i. 221 V. Blight i. 180n Reinecker v. Smith. i. 313n V. Boright ii. 885n Remington v. Deverall i. 217 V, Chason i. 25911 Renforth v. Ironside ii. 1017 V. Cooper i. Id4n Repp V. Repp ii. 880n V. Dorr u. 709n, 764n Requa V. Rea i. 84n, 87n V. Hooker i. 154n Retallick v. Hawkes i. 259 V. Horton ii. 834 ReveU v. Hussey i. 235, 237, 331 V. Jones i. 71n, ii. 887n Rcvett V. Harvey ii. 892n V. McJvinson i. 327n, ii. 1029n Rex V. Bellringer i. 170 V. Mitchell ii. 1067 V. Bullock ii. 947 r. Rid^eley ii. 863n V. Cracroft i. 91 V. Richardson ii. 624n V. Dunston i. 138 V. Thompson i. lo5n V. Everard i. 373n Ricker v. Kelley i. 97n V. HaUier ii. 780 V. Ham ii, 929n V. Inhabitants of Haddenhan ii.884 Ricket V. Snyder ii. 745n V. Inhabitants of Horndon i. 96 Rickman v. Morgan i. 310 V. Inhabitants of Laindon i. 153 Riden v. Fion ii. 609n V. Inhabitants of Preston ii. 697 Riddell v. Riddell u. 711, 726 V. Inhabitants of Scammonden Riddle v. Emerson ii. 905 i. 152 Rider v. Kidder ii. 909, 911 V. Inhabitants of Standon i. 96 Ridler ;■. Kidler ii. 885 V, Inhabitants of Wyckham i. 153 Ridley v. McNairy i. 140n V. Lamb ii. 672, 781, 778 Ridgley v. McLaughlin ii. 571n V. The Lord of the Manor of Hen- Rigby V. McNamara i. 67, 88 don ii. 692 Rigden v. Vallier ii. 902 V. Marsh i. 16n, 17 Riggs V. Cage ii. 693n V. Miller i. 179 V. Dooley ii. 609n V. Osboume i. 179 V. Murray ii. 942n V, Ponsonby ii. 894 V. Sally ii. 57 In V. St. John ii. 780 Right V. Bawden ii. 913 V. Sanckey and Tipper ii. 727 V. Beard i. 264 V. Smith ii. 673, 674 V. BuckneU ii. 1018 V. Snow i. 192 Righter v. Stall u 821n V. Varlo i. 179 Ring V. Gray ii. 984n V. wakes i. 235 Riplev V. Waterworth i. 203, 204 V. Withers ii. 1062 i. Yale ii. 626n Reynell v. Long i. 464 Rippingall v. Lloyd i. 25 287, 398, 429, Reynolds v. Blake i. 76 450 Ex parte ii. 887, 897, 898 Rist V. Hobson i. 114 V. Nelson 1. 255, 266, 306 Rivers t'. Steele ii. 1047 V. Reynolds ii. 665n Roach V. Martin ii. 671n V. Vance i. 340n, 369n lli CASK,? LITKU. Roach V. Rutherford 1. 242u, 2i)3n, 403n, I 506n, 530n llogers V. Humphreys i. 21i) V. Jones ii.'984n, 104 In, 1052n V. Wadham ii. 712, 713, 723 V. Murray ii. 908n Roakc V. Kidd i. 242n, .-500, ;>12, 517 V. Rogers i. 398, ii. 840, 887n, Robb r. Bntterwick i. 185, ii. 691 S88n, 891n Robbins v. Eaton ii. 88on f.. Saunders i. 289n. 2!Un, 302n, Roberts r. Jackson ii. 770u 305n V. Marston i. 284n V. Scale ii. 1071, 1072 V. Marchant i. 253 V. Skillicorne ii. 835 V. Massey i. 51, u. 794 Roll V. Osborne ii. 717 V. Rose ii. SSOn Rolls V. Graham ii. 966n V. Roulands i. 258 Rome V. Young i. 302, ii. 880 V. Salisbury ii. SSOn Romilly v. James i. 629, 530 V. SncU i. 502 Rondeau v. Wyatt i. 132, 138 V. Stanton ii. 1020n Root ?'. French ii. 92Gn V. Tunstall ii. 899 Roots V. Lord Dormer i. 361 V. AVigf^m ii. d85n Roper i\ Cook ii. 866n r. Wyatt i. 25, 396, .397, 447 V. Coombs i. 295, 489 Robertson v. Robertson i. 140n, 141n V. Halifax ii. 577, 578, 579 V. Great "Western Railway Comp'y Rosamond v. Lord Melsington i. 186 i. 252 Rose V. Calland i. 365, 506, 515, ii. 823 Robinson c. Anderton ii. G79 V. Cunynghame i. 117, 122, 196, i!. Batchelder i. I64n, 168n 198, 213 V. Blanchard i. 164, 168 V. Daniel ii. 608n y. Cropjjs i. 22 In Rosevelt v. F'ulton . i. 4, 267n V. Davison ii. 1017 Ross V. Boards i. 34e!, 504 V. Elliott i.485 V. Hageman ii. 912n V. Harrington ii. 955 r. Nowell i. 158n, ii. 6l2n V. Hardman i. 258n V. Ross i. 227 V. Macdonnell ii. 698 V. Toms ii. 5 7 In V. Milncr i. 419 V. Turner ii 708u, 709n, 713n V. Musgrove i. 31, 59, 393 L-. "W^hitson ii. S57n, 863n V. Page i. 162, 173 Rnswcll r. Yaughan i. 272, 421, 422, V. Pettinger ii. 643n 488, ii. 684 V. Ridley ii. 897n, 898 Rothermaler v. Myers i. 175n V. Stowell i. 296 Routledge v. Dorril i. 180 V. Wood i. 527 V. (jrant i. 20, 116 Robison i\ Codmaii ii. 542n Row V. Teed i. 138 — — V. Swett ii. 623n Rowe V. Hamilton ii. 543n V. Pettinger ii. 64 3n >\ I'ower ii. 6)^3 Robson V. Brown i. 195 V. Roach i. 423 — '— V. Collins i. 166 Rowell in re ii. 663n V. Kemp "i. 1062, 1063, Rowntree v- Jacob ii. 864 Roch V. "NVadham ii. 729, 730 Rowton r. Rowton i. 138n, 149n Rochard r. Fulton ii. 1026 RoYStcr V. 'Shackleford i. 275n, ii. 684n Roche V. O'Brien i. 275. 277, 326, Kucker v. Cammeyer i. 130, 132 ii. 900 V. Lambdin ii. 56on V. O'Shea i. 83 c. Lowther ii. 702n Rochfort r. liOrd Belviderc i. 216 Ruggc v. Ellis i. 310n Rodman .v. Zilley i. 236u lluiidal V. Everest i. 40 Rodwell V. Phillips i. lOOn Runlet V. Otis ii. 1021n Roe V. Lowe i. 228 Runnels v. Jackson i. 293n, 305n, V. Mitton ii. 932, 936 ii. 908n V. Ncal ii. 966n Runyan r. Coster ii. 884n V. Popham ii. 911 Rusliton r. Craven i. 518 V. lioade ii. 1129, 1137 Kushwortli's Case i. 370 V. Rowlston ii. 609 Russell V. Allen ii. 9()8n V. Soley i. 217 V. Clark i. 5, 253n Roebuck r. Dupuy ii. 756n V. Hoar ii. 5 5 On Roffey V. Shallcross i. 345 ('. Todd ii. 876n Rogers v. Atkinson i. 153 n, 180n, 182n p. Wood ii. 929n V. Earl i. 182, 184 Rutiieribrd r. Ruif i. 236n V. Garnett i. 373n Rulland's, Countess of, case i. 171 1.. Hall ii. 935n Rutledge v. I.,awrence i. 424n CASES CITED. liii Rutledge v. Smith ii. 793n, 794n, 796n, 90'5n Ryall, Sir Malthus, et ali. assignees, v. Rolle, Executor of Stevens, et ali. i. 235 RyaUt'. RyaU ii. 911, 919 Ryden v. Jones ii. 887n Ryder v. Gower i. 87 V. Wager i. 200, 201 Rvland V. Smith ii. 917 Ryle V. Brown i, 314n, 317 V. Swindells i. 323 s Sabbarton v. Sabbarton Sabin v. Hartness Sacheverel v. Baguoll Sadler v. Hobbs V. Robinson Sage V. McGuire V, Ranney V. Wilcox Sagory v. Dubois Sainsbury v. Jones V. Matthews St. Albans, Duke of, v. Ii. 1108n i. 37n i. 464 i. 59n i. 27on i. 147n i. 272n i. 117n ii. 82 In i. 252, 254, 257 i. 100, 107 i. 24G, 260, 263, 429, ii. 690 St. Cross, Master of, v. Lord Howard De Walden 1. 374 St. Andrews Church v. Tompkins ii. 982n, 1017n St. John, Lord, v. Broughton ii. 637 St. John V. Champneys ii. 1092 Lord, V. Lady St. John ii. 936 V. Bishop of Winton i. 195 V. Benedict i. 235n, 237n V. Palmer ii. 764n St. Paul 17. Vincent Dudley and Ward i. 156 Sale V, Crompton ii. 956 Salisbury v. Hatcher i. 241 Lord r. Wilkinson ii. 810 Salkeld v. Johnston ii. 647 Sallee v. Duncan ii. 1064n Salmon v. Bennett ii. 925n r. Bradshaw ii. 764 Salter v. Cavanagh ii. 635 Salters' Company, The, v. Jay ii. 643 Saltmarsh v. Bcene ii 887n, 888n Saltown, Lady, r. Philips i. 491 Sanquirco v. Bennedetti i. 235n Sansom v. Rhodes i. 286, 449 Sartcr v. Gordon i. 235n, 31 In Saunders v. Lord Anneslev i. 270, 343n, 42],ii. 612 V. Cramer V. Dehew V. Frost V. Fcrrill V. Leslie V. Musgrave V. Robinson Saunderson v. Jackson i. Savage v. Carroll i. i. 210 ii. 1019 ii. 821n ii. 936n ii. 862 i. 21 i. 9, ii. 1021n 120, 126, 127 141, 150, 212, 213, ii. 919 ii. 1022 i. 201, ii. 1028 i. 409, ii. 702 i. 234n i. 84, 89, 310 ii. 966n ii. 1063 286n, ii. 1057n i. 236 Sampson v. Burnside V. Easterby V. Sweltenham Sanborn v. Stetson Sanders v. Deligne I'. Guy V. Wakefield V. Hyatt Sanderson v. Walker Sandlord v. Button Sands v. Codwisc Sandys v. Hodgson Sanger v. Ea.stwood Sangon v. WUliams 1. 9Gn ii. 726 i. 471 i. 277n ii. 786, 1019 i. 74n i. 112 ii. 57 In i. 50, ii. 891, 898 ii. 609n i. 326n ii. 1022 ii. 929n i. 227 V. Foster V- Taylor V. Whitbread Saverj' v. Spence Savile v. Savile Savings' Bank v. Davis Sawyer v. Birchmore V. Hainmett i Say V. Barwick Say and Seal's, Lord, caseii. 1062, 1063 Sayle v. Freeland i. 227 Sayer v. Townscnd ii. 908n Scanlan v. Turner ii. 543n V. Wright i. 453n, ii. 884n Scarborough, Lord, v. Doe, de, Saville ii. 579 Schermerhorn v. Vanderheyden i. 153n Schneider v. Heath i. 25, 385 V. Norris i. 1 26 Schillinger v. McCann i. 153n Schrciber v. Creed i. 27, ii. 734 Schmidt i;. Livingston i. 236n Schnebly v. Ragan ii. 857n, 866n, S7on Schnell v. Schroeder ii. 6o5n Schutt V. Large ii. 1042n, 104Sn Schuyler r. Russ i. 3rtln Scoby V. Blanchard ii. 908n Scoones v. Morrell i. 518n, ii. 827n Scorborough v. Burton ii. 822 Scorell i;. Bcxall i. 99, 103, 106 Scot r. FenhouUet ii. 787 Scott V. Bell ii. 935 V. Davies i. 277 V. Dunbar i. 318, 324, ii. 854, 1031, 1033 V. Fields i. 289n, 305n V. Freoland ii. 887n, 888n, S97n V. Gallagher ii. 1052n V. Hanson i. 3, 378 V. Irving i. 48n V. Knox ii. 610, 611, 787, 789 V. Langstaffe i. 243 V. Nesbitt i. 84n, 85 I'. Nixon i. 459, 517, ii. 614, 628 V. Rothe i. 80, 83 V. Scholey V. Wharton Scrafton v. Quincey Scroope v. Scronpe u. 6oo i. 248n ii. 973 ii. 915 liv CASES CITED. Scully V. Delany Seabourne c. Powell Seaforth, Ex parte Seagoocl r. Meale Seaman v. Kicks V. Price V. lliggins r. Vawdry Seamore v. Harlan Scare)' r. Reardon Sears v. Boston V. Brink Seaton v. Booth ^•eawin v, Seawin Sebring v. Mcssereau Secrest v. Turner Seddon v. Senate Sedgwick i'. Hargrave • V. HoUenback ii. 745n, 746n, 764n Seidensperger v. bpear i. 96n Seguine i-. Seguine ii. 565 Segur V. Tingley i- 271 Selby V. Chute ii. 746 V. Selby i. 128, ii. 877 Selden v. James ii. 794n, 796n Seldon v. Coulter ii. 56on Selkrig v. Davies ii. 903n Sellick V. Trevor i. 392, 419, 493 Selsby, Lord v. Rhoades ii. 890 Semple v. Burd ii. 857n Senhouse v. Christian ii. 903 V. Earl i. 469 V. Earlc ii. 938, 1060 Sessions v. Barfield i. 177n Seton V. Slade i. 112, 194, 262, 287, 290, 293, 299, 305, 357 i. 423 ii. 766 i. 42 i. 117, 122, 144 i. 65n, 7ln i. 98 i. 84n i. 353, 519, 521 ii. 76on i. 327n i. 234n, 237n i. 117n ii. 265, 361 ii. 914 i. 506n i. 22 In ii. 746, 755 i. 231, 505 Sevier v. Greenway Sewall V. Glidden V. Wilkins Seward r. Jackson V. WUlock i. 221 ii. 936n i. 261 ii. 930n 262, 263, 295, 429, ii. 692 Sewel V. Johnson i. 89 Sexton V. Wheaton ii. 92.5n Seymour v. Delancey i. 235n, 242n, 269n, 293n, 311n, 313n, 326n, 486n, 506n V. Nosworth V. Rapier Shackleford v. Hadley V. Helme Shadf'orth v. Temple Shaftesbury, Lord v. Arrowsmith i. 47 1 Shales v. Shales ii. 913, 914, 915 Shannon v. Bradstreet i. 63, 150, 234, ii. 925 Shapland v. Smith i. 506, 507, 610, 514 Shapley r. Ranglcy Sharp V. Adcock V. Page Sharpe v. Roahde Shaw V. Borrer V. Botley V. Boyd ii. 1069 i. 176 i. 4 ii. 821n i. 204 ii. 1021n i. 514 i. 448 ii. 825, 957 ii. 839 ii. 952 ii. 543n Shaw V. Jakeman r. Nudd V. Poor V. Russ V. Shaw V. Simpson V. Wilkins V. Wright Shearer r. Ranger i. 184, 635 i. 131n ii. 984n, 1048n ii. 543n i. 143n i. 65 259n, 284n, 424n i. 626 ii. 748n, 764n Sheehy et ali. v. Lord Muskcrry ii. 1035 Sheets v. Ajidrews ii. 424n Sheffield v. Lord Mulgrave i. 296, 606, 515 Shelbume v. Inchiquin i. 175, 176, 178, 181, 187, 188 Shelbv V, Hearne V. Shelby Sheldon v. Barnes V. Cox Shelling V. Farmer Shelly V. Nash Shelmardine v. Harrop Shelton v. Darling u. 708n ii. 562n i. 178 ii. 984, 141 i. 177n i. 324 i. 217 i. 53n v. Homer ii. 887n, 888n, 89 In, 894n V. Livins i. 22 V. Pease ii. 709n V. Tiffin ii. 857n Shenton v. Jordan i. 246 Shepard v. Shepard ii. 885n, 936n Shepherd v. Hall ii. 698 V. Kain i. 386 V. Keatley i. 390, 391, 446, 493 V. Little i. 153n V. McEvers ii. 1031n V. Murdock ii. 612n Sheppard v. Doolan i. 512 V. Duke ii. 638 V. Gosnold i. 179 Sheratz v. Nicodemus ii. 863n, 879n, 880n Sherboume i-. Fuller V. Shaw Shcrk V. Endress Sherley v. Fagg Shermer v. Shenner Sherwood v. Salmon V. Robins Shewen, Doe dem. v. Wroot Slieve V. Whittlesay i. 140n i. 116n, 117n ii. 939n ii. 1019 i. 178n i. 267n, 378n i. 34, 325 ii. 925 ii. 624n Shields V. Mitchell ii. 966n Shine v. Gough ii. 786, 1016, 1028 Shipman v. Thompson ii. 693 Shippey v. Derrison i. 119, 128 Shirley v. Davies i. 378 Ann, Ex parte ii. 609 V. Shirley i. 112n, 26 In, ii. 85 7n t'. Spencer i. I41n V. Sugar Refinery ii. 880n V. Stratton i. 238, 310, 388 V. Watts Shirras v. Craig Shiveley r. Jones Shore r. Collett Short V, Atkinson ii. 660, 959 ii. 982n ii 1045n i. 458, 467, 468 i. 8.? CASES CITED. Iv Short V. Kalloway ii.766 Small and others v . Attwood and others Shotwell V. Murray ii. 1021n i. 268 Shove V. Wiley i. 9 V. Attwood i. 4, 238, 267n, 277, Shovel, Sir Cloudesley , V. Bogan i. 369 279, 280, 281, 310, 312, 323, 401, Shrewsbury, Lord, v. Gould ii. 753 u. 687, 814,831, 900 Shuffleton v. Jenkins i. 284n, 30on V. Jones i. 9n Shultz V. Moore ii. 966n, 984n, 1048n V. Marwood ii. 849 Shumway v. Holbrook ii. 676n Smallcomb v. Buckingham ii. 959 Shute V. Dorr i. 143n Smartle v. Penhallow ii. 913 V. Taylor i. 221n Smith V. Arnold i. 116n Sibson V. Fletcher ii. 1020 V. Bab cock i. 45n, 267n Sicard v. Davis ii. 966n V. Baker ii. 909, 1024 Siddon v. Cham ells ii. 1019 V. Beatty i. 267n Sidebotham v. Barrington i. 116, 296, V. Duke of Beaufort i. 471 412, ii. 82S V. Bell i. 176n Ex parte i 9, 400, 418 V. BraUsford i. 137n, 138n Sidmouth v. Sidmouth li. 913n, 914 V. Burnam i. 290, 298, ii. 908n, Sidny v. Ranger ii. 887 919n Sigourney v. Lamed ii 966n, 984n V. Carney i. 245n Sikes V. Lister i. 192, 224 V. Lord Camelford ii. 909 Simmons v. Cornelius i. 142, 151 V. Chichester i. 455 V. Hill i. 141n 147n, 235n V. Clarke i. 15, 17, 18 V. Tongue i. 72n V, Clay ii. 610, 611 Simonds v. Catlin i. 136n V. Compton ii. 759, 760, 766 Simon v. Brown ii. 984n V. Cooke i. 469 V. Gibson ii. 103 In V. Crosbs' i. 4 V. Motivos i. 50, 132 V. Daniel u. 103 In Simpson v. Clayton ii. 722n V. Deacon ii. 922 V. Gutteridge ii. 542 V. Dearmer i. 198 T, Hawkins ii. 745n V. Death i. 517. 538 Sims V, Boaz i 256n, 26 In V. Sir Thomas Dolman i. 298 V. Hutchins i. 143n 256n, 357n V. Dolman ii. 795 V. Lewis i. 253n V. Evans i. 369n, 370n V. Richardson ii. 1036n V. Garland • ii. 939, 940 Sinard v. Patterson i. 17ln V. Greer ii. 935n Sinclair v. Jackson i. 153n, ii. 6d9n V. Greenlee i. 14n, 19n Sitwell V. Bernard i. 62 V. Guyon i-. 834,1845 Skeats v. Skeats ii. 913 V. Haines ii. 702n Skeeles v. Shearly ii. 660 V. Henry i. 261n, 263n Skelton's case i. 416 r. Hibbard i. 192, 464, ii. 816, 856 Skett V, Whitmore ii. 909 V. Jackson i. 249 Skinner, in re i. 59 V. Jersey i. 175n V. Dayton i. o3n v. Jones i. 198n, ii. 563n V. Miller i. 221n V. Kmg ii. 610 V. Stouse u. 1021n V, Knowlton ii. 609n V. Stacy i. 216 V, Leigh ii. 824 Skipwith V. Shirley i. 459 V. Lloyd i. 60, 249, 250, 36G Slack V. Sharpe i. 39 V. Low ii. 1052 Slater v. Douglass ii. 942n V, Maxwell i. 184n V. Nason ii. 884n V. Meredith i. 79 V, Rawson ii. 'i Oln, 708n, 709n, V. Mitchell ii. 624n 744n, 764n V. Nelson i. 76 Slaymaker v. St. Johns ii. 909n V. Patton i. 140n, 146n Slee V. Manhattan Co. i. 221n, ii. 612n V. People's Bank i. 22 In Sloane v. Cadogan ii. 936 937, 1119, V. Phillips ii. 1029 1120, 1121, 1122, 1123, 1124, 1125, V. Read ii. 999 1126 V. Richards i. 53n Slocum V. Despard i. 262n V. Robinson i. 262n V. Marshall i. 313n V. Rosewell ii. 1020 Sloman v Heme ii. 1062 V. Shepherd ii. 745n V. Walter i. 14 On ii. 795 Sloper V. Fish i. 506, 515, ii. 831, 957 V. Smith i. 140n, 146n, 262n, Slossou V. Beadle i. 221n ii. > 544, 646n. 930n, 1025 Ivi CA««S CITED. i. 264n ii. 766ii ii. 564n i. 99, 100, 106, 116 i. 366, 367 ii. 771 Smith V. Stewart V, Strong ■ f. Sweet V. Surmau V. Tolcher V. Tracy V. Turner i. 141 V. Ward ii. 888n V. Watson i. 122 Sir William v. Wheeler ii. 850 V. Wilkinson ii. 909 V. Woodhouse i. 260 Smithwick v. Jordon ii. 562n Smvtho, in re ii. 599 Snell y. Silcock ii. 612 Snelgrove v. Snelgrove ii. 1068n. 1069n, 1070n Snelling v. Squint ii. 1048 Solms V. McCuUoch ii. 984n Solomon v. Turner i. 189 Some I'. Taylor i. 374 Somerville r Truemau i. 289n Somes V. BreM-er ii. 937n, 1037n V. Skinner ii. 689n Sorrell v. Carpenter ii. 1044, 1046, 1047 Soule V. Heermance i. 340n Souter V. Drake i. 390, 391, 492, 493 South V. Thomas ii. 608n Southby V. Hutt i. 9, 38, 392, 404, 418, 449 V. Stonehouse Southerin v. ^lenduni Southerland v. Briggs South Sea Company v. D'Oliff Souverbv t*. Arden i. 469 il. 54Gn i. 141n i. 181 i. 178n ii. 1067n ii. S;i6 ii. 921 ii. 948, 1049 ii. 982n ii. 834 ii. 766, 834 ii. 102 In i. 205n i. 197 i. 260 ii. 1024 ii. 5G2n ii. 1063 ii. 727 i. o3n 708, 713n, 715 ii. 748 i. 522 i. 248 i. 261 i. 53 ii. 10o2n Weston iiT984n. 1040n. l04Sn Sponable v. Snyder ii. 984n Sprague v. Baker ii. 708n, 745n, 765n, 766n Spratlev i'. GriiRths i. 313 Spratt V Ilobhouse ii. 947, 948, 949 Souzer «. DeMeyer Sowarsby v. Lacy Sowden v. Sowden Sowerby v. Brooks Spader r. Lawler Spalding r. Shalmer Sparkman v. Timbrell Sparks v. AVhite Sparrow v. Cooper V. Ilardcastle Speake v. Sheppard Speldt V. Lechmere Spence v. Robbins Spencelcy v. Schulenburgh Spencer o. Boycs V. Field Spencer's case V. Marriott Sperling v. Trevor Spiller V. Spiller V. Westlake Spittle V. Lavender Spofford V Manning S])ratt V. JeflFery i. 390, 391, 392, 491, 493 Spring V. Chase V. Parkman f. Sandford Sproule V. Pryor Spurr V. Tremble Spun-ier v. Elderton V. Fitzgerald V. Hancock i V, Mayoss Squii-e v. Baker V. Campbell V. Harder V. Tod Staats V. Ten Eycke Stabback v. Leat, Stacey v. Elph Stackhouse v. Bamston ii. 765n ii. 676n i. 71n ii. 878 ii. 609n i. 48, ii. 811 i. 138 291, 293, 334, 496 ii. 815 i. 310 i27 ii. 91 In i. 256, 259, 428 ii. 765n i. 523 ii. 895n ii. 611 Stackpole v. ArnolJ i. 53n, 153n, 175n Stackpoole v. Curtis i. 69 V. Stackpoole ii. 939 Stadd V. Cason ii. 1065 Stadt V. Lill i. 112 Staftbrd v. Van Renssellaer ii. 8o7n Stainbank v. Fernley i. 274 Staines v. Morris i. 38, ii. 691, 822, 825, 829 Stallings v. Freeman Stammers v. Dixon Standen v. Standen Standifer v. Davis Standley v. Hemington Stanhope's Lord, case V. Earl Yerney Stanley, in re ii. 887n i. 179 ii. 1133 i. 262n, 263n i. 262 i. 365 ii. 783, 881, 1145 i. 225n 91.3n ii. 751 ii. 984n, 1041n ii. llOSn i. 234 ii. 755, 756, 757 i. 80 ii. 701 ii, 625n i. 132, 135 V. Brannan V. Hayes V. Perley V. IjCC V. Robinson Stannard v. Forbes ■ V. Stannard V. UUithorne Stausbury v. Taggart Stanstield v. Johnson Stapvlton V. Scott i. 238, 355, 357, 414 507, 516, 537 Stark V. Cannady ii. 909n Starr i\ Starr 908n State V. Elliott i. 37n Staughton v. Hawley i. 231n Staym-ode i-. Lacock • ii. 708 Stead r. Dawber i. 166, 168, 173 V. Liddard i. 260 V. Nelson i. 230 Stcadman v. Lord Galloway i. 302 V. PalUng i. 164 Stearns v. Hubbard i. 138n, 140n V. Swilt ii. 543u Stcbbins r. Eddy i. 53n, 369n, 371n Steed V. Whittaker ii. 1043 Steel V. Cook ii. 562n V. Houghton et ux i. 188 ..Steele t!. EUmaker i. 18n CASES CITED. IVll Steele v. Mitchell ii. 1033 V. PhiUips i. 70, ii. 656, 661 V. Worthington i. lo3n Steele v. Steere i. 155n, ii. 905n, 008n Steinliauer r. Whitman ii. 68 In Stent V. Baily i. 330 Step i\ Alkiie i. 347n Stephen v. Yandle ii. 61 On Stephens v. Bateman i. 313 V. Bridges ii. 772 V. Medina i. 263 | V. Neale et ali ii. 1001 c. Olive ii. 936 V. Winn i ll7n Stephenson r. Dunlap i. 260n v. Harrison i. 424n Sterlmg v. Peet ii. 745n, 765n, 766n Sterrv v. Arden ii. 929n, 93 In, 937n, 1052n Stevens v. Adamson i. 380 V. Baily i. 224 V. Cooper i. 15on, 158n, 166n, 171n V. Dobell i- 53 1 V. Fuller i. 3 I i. Griffiths i. 153n ! V. Guppy i. lOn, 223, 2.53, 401, 463 i ii. o43n i. 96n, 97n } ii. 1125 j ii. 564n ■ ii. 608n, (i22n ii. 929 Owen V. Stevens V. Trucman V. Van Cleve V. Win ship Stevenson v. Hayward r. Maxwell i. 284n, ii. 793n, 794r., 797n r. Mclleary Steward v. Allen Stewart v. Allerton V, AUiston V. Andrews V. Careless I'. Doughty c. Drake V. EUice V. Ilutcliins ' r. Ilutton V. Inglehart V. Ives V. Stewart Stileraan v. Ashdown Still well V. Mellersh Stilwell V. Wilkins Stinchfield v. Little Stiinerraaun v. Cowing Stit/ell V. Copp Stockman r. Hampton Stockton V. Cook V. George Stoddart v. Smith Stoevcr v. Whitman Stokes f . Moore V. llussell Stokoe r. llobson Stone V. Buckr.or r. Clark V ou. 1. ii. 608)1 I ii. 655u I i. 30 ' i. 30, 34, 357, 407 , i. 379n ' i. 138 I i. 99n 1 ii. 700n, 7G4n, 76on \ ii. Slfini i. 15Su . ii. 857n , ii. 939n ii. 857n, 87yn i. 270, 421 ii. 916, 935 i i. 75 1 i. 313; i. 53n, ii. 97 In i ii. 69 3n i i. 283n I i. 464, 465 I i. 275n I i. 262n i. 358n, 361n j ii. 502n i i. 118, 126, 129 1 ii. 716, 726 i. 217 i. 255n i. 175n. I78n H Stone V. Commercial Railway Co. i. 206n V. Dennv i. 268n V, GwilHm i. 489 V. Hooker ii. 745n 11. Whiting i. 96 V. Yea ii. 734 Storer v. Freeman i. I75n Storey v. Lord George Lennox ii. 1062 V. Saunders i. 228 Storrs V. Barker ii. 102 In Story V. Odin i. 27u, ii. 643n ■'?;. Lord Windsor ii. 1036, 1068, 1069 Stoughton V. Pasco ii. 982n Stourton, Lord v. Sir Thomas Meets i. 296 Stout V. Jackson ii. 765n Stowe's case i. 373n Stow V. Stevens ii. 702u V. Tift ii. 660u Stowell f. Robinson i. 168, 283, 286, 287 Strachan v. Thomas ii. 640 Stratford r. Bosworth i. 116 >\ Powell i. 186 r. Twynam ii. 888 Strathmore, I;ady, v. Bowes i. 198 Su-eathfield v. StVeathfield i. 199n Street v. BroAvn i. 259, 472 Strickland v. Strickland ii. 552 Strode v. Blackbovim i. 454, 468, 470, 483, ii. 1069, 1071 V. LadyFolkland i. 177 Strong 7-. Perkins ii. 67 6n r. Shumway ii. 765n V Stewart i. 158n Stroud r. Lockhart ii. 984n Stuart, Ex parte i. 478 V. Ferguson ii. 858, 974 Stubbs V. Roth ii. 1033 r. Sargon i. 76, 459 Stuckey r. Drew ii. 94 6n Sturge r. Starr ii. 1021 Sturt V MeUish ii. 1036 Sttntcvant /•. VVaterbury ii. 1064n Stuyvesant c. Hall ii. 1044n, 1048n '- r. Mavor &c. of New York i. 235ii 256n Style f . Martin ii. 1046 SulUvan v. Bavlev i. 84 r. Jacol) ■ ■ i. 236 Siimnor v. Murphy ii. 939n V. Williams i. 63n, ii. 755n, 756n Siitherland v. Briggs i. 141 r. Brush i. o9n Sutton r. Chetwvnd ii. 940 r. Cole Suydam v. Jone- Swan's case V. Cox r. Drury Phillips ii. 884n i. 171n, ii. 708n ii. 749 i. 2^1 i. 171n, 261n, 263n ii. 702u i. 6 Swanborough v. Coventry i. 27 Iriii CASES CITED. Swartwout v. Burr i. 91n, 224n, 233n, ! Taylor v. Owen ii. 7l3n, 731n ii. 823n V. Patrick i. 23 6n Sweet V. Brown ii. 765n v. Perry i. 261n V. Jacocks ii. 908n, 912n V. Porter ii. 1028n V. liCe i. 128 • V. Boss i. 117n ii. 1037 V. Kudd i. 181, 187 Swectland v. Smith i. 286, ii. 799 V. Salmon i. 46 Swctt V, Colgate i. 3 V. Shun i. 39 V. I'atrick ii. 766n V. Stibbert ii. 679, 1031, 1033, Sweetzer v. Hummell i. 263n 1052, 1056 S-wil't 0. Davis ii. 913, 914 V. Stile ii. 929 V. Thompson i. 37n V. Tabrum i. 68 Switzers v. Skyles i. 19n V. Taylor ii. 913, 914 Sykes v. Giles i. 46 V. Townsend i. 37n Symms v. Lady Smith ii. 693 V. Waters i. 97n Symonds v. Ball i. 135 V. Wheeler ii. 1023 Symondson v. Tweed i. Ib5, 149 Teall V. Auty i. 99, 100, 106 • Teasdale v. Teasdale ii. 1022 T Tebbott V. Vowles i. 200 Tabb V. Archer i. 184n Teed v. Carruthers ii. 865 Taber v. Porrott i. 50u Tempest's case ii. 713 Tait V. Lord Northwick i. 88 Temple v. Brown i. 431,488 Talbot V. Bowen i. 13 In, 138n V. Palmer i. 287 V. Warfield ii. 815n V. McLachlan ii. 678 Talbot V. Minnett i. 68 Tenant v. Jackson ii. 834n Talliaferro v. Talliaferro ii. 909n Ten Broeck v. Livingston i. 497n Tallmadge v. WaUis ii. 681n Tendrings v. London i. 241 Tankard v. Wade ii. 1129 Ten Eyck v. Holmes ii. 821n Tanner v. Florence ii. 1056 Terrie's case ii. 773 V. Smart i. 120 Terrv v. Williams i. 429 i. 25, 275 Tetlcy V. Tetley ii. 1090 Tapley v. Buttcrfield i. 53n Tevis V. Bichardson i. 237n, 245n V. Labaume ii. 764n, 766n Tharin v. Ficklin i. 630n, ii. 702n Tapp V. Lee i. 5, ii. 1022 Thayer v. Clemence i. 258n, ii. 709n, Tappenden v Randall i. 258 765n Tarback v. Marbury ii. 942 V. Kramer ii. 1048n Tardiff tj. Scrughan i. 863,864, 866, 868, V. Mann ii. 612 870 V. Rock i. llln Tarwater v. Davis i. 294n Thellusson v. Woodford i. 199 Tasker r. Small i. 252, 253 Thibault v. Gibson ii. 952 Tatem v. Chaplin ii. 708, 717 Thicknesse v. Vernon ii. 901 Tawney v. Crowther i. 120 Thi.silewood Ex parte i. 313, 317 Tayler v. Waters i. 96 Thomas v. Blackman i. 116 Taylor v. Adams ii. 862n V. Cook i. 96 V. Alston i. 911 V. Davis i 177, 184, 189 V. Baker ii. 1052. 1053 et ux. V. Davis and another i. 183 V. Beech i. 140 V. Dering i. 62 124, 240, 350 V. Blackiow i. 8, ii. 10G3 Ex parte ii. 672 — — V. Brown i. 307, ii. 827 V. Hatch ii. 623n V. Cole, in Error i. 726 V. Fred. Co. School ii. 821n V. Colgate i. 73n V. Grand Gulf Bank i. 97n V. Cox ii. 623n V. Perry i. 370n V. Dobar ii. 760 V. Pledwell ii. 661 V. Fleet i. 267n, 269n, 378n, 379n, V. Powell ii. G85 388n V. Smith ii. 930n V. Gorman i. 79 I. Thomas i. 175 i. 53 V. AVliite ii. GlOn — — V, Hawkins i. 198, ii. 855 V. Walker ii. 908n, 909 — — V. Horde ii. 609 Tho.nason d. 'Anderson ii. 571n V, Hcrriat ii. 937n Thomlinson v. Smith ii. 855, 1029 V. Huntor il. 879n Thompson v. Blackstone i. 240 V. Lonpworth i. 237n, 302n V. Blair ii. 1056n V. Luther i. 139n V. Branch ii. 912n V. Martindale i. 390,602 V. Davenport ii. 793n CASES CITED. lis Thompson v. Davies V. Dimond V. Gamrael V. Gaillard V. Goodwill V. Gould V. Guthrie V. Jackson V. Ketcham V. Mason V. McGaw y. Murray V. MiUs V. Sanborn V. Scott V. Shattuck V. Simpson V. Spiers doe dem. v, Thompson V. Todd V. Towne Thomson in re V. Miles V. Wilson Thorn v. Newman V. Wooloombe Thornbury v. Bevill ThomhUl v. Glover V. ThonihiU Thornton v, Dixon V. Henry V. Knox ii. 857n, 863n, 879n, SSOn Thorp V. Freer ii. 818, 825 i. 19n i. 72n ii. 543n ii. 624n ii. 937n i, 140n, 504n i. 424n i. 312n i. 164n i. 327n, ii. 1029n ii. 546n i. 512u i. 294, 461 ii. 1021n, 1022n i. 141n ii. 708n ii. 635 ii. 1025 ii. 567n, 629, 9 Ion 138n, 146n i. 192 i. 225n i. 340 i. 96 ii. 770 ii. 716 i. 116 i. 68 i. 88 ii. 903n i, 138n, 14 In Tipping V. Gartside i. 75 Title V V. Davis i. 217 Tobev V. Bristol i. 235n, 328n Todd v. Gee i. 253n, 254, 367, 416, ii. 806 V. Gee and others ii. 1111 ■ V. McCuUam Thrale v. Cornwall Threlkeld v. Fitzhugh Thresh r. Rake Thring v. Edgar Thruxton v. Attorney- general Thursby v. Plant Thwaites, ex parte Thynn v. Thynn Tibbs V. Parker Tice V. Annin Tickle V. Brown Tickner v. Tiekner Tiernan v. Beam V. llescauire Tiffin V. Tiffin U. 887n ii. 715 ii. 76on i. 168 ii. 1070 ii. 790, 791 ii. 715 ii. 906 i, 141n ii. 655n ii. 643, 645, 646 i. 198 ii. 866n ii. 61 In ii. 786, 787, 790, 791 Tillotson V. Grapes ii. 68 In TiUmln v. C)wand ii. 9S4n Tilton V. Hunter ii. 1048n V. Tilton i. 140n, l47n, 15on, 156n, 180n Timberlake v. Parish i. 155n Timson v. Ilamsbottam ii. 1025 Tindal v. Canover ii. 702n V. Cobham i. 250 Tingley v. Cutter i. 153n Tiuney v. Ashley i. 261n, 263n, ii. 702n V. Tinney i. 163 Tinny v. Tinny ii. 643 V. Hoggart V. Summers Tolar4>. Tolar ToUett V. Tollett Tolson V. Kaye Tompkins Ex parte V. ^\Tute i. 429 i. 260n ii. 94 In i. 180 ii. 608 i. 59, 90, ii. 1083 i. 27, 361 Tomlin v. McChord i. 242n, 293n, 506n Tomlinson v. Ward Tompkins v, Elliott V. MitchbU Tomson v. Ward Tongue v. Morton Toole V. Medlicott Topham v. Constantine Torrey v. Buck V. Bank of Orleans Totton's Case Toulmin v. Buchanan ii. 822n i. 284n ii. 857n, 863n i. I73n ii. 1044n i. 141, 150 ii. 856 i. 238n ii. 887n, 888n ii. 674 ii. 936n V. Steere i. 7, ii. 1029, 1042, 1044 Tourle v. Rand . i. 469, 470 Tourvillev. Naish ii. 1024, 1036 Town, Ex parte ii. 887 V. Needham i. 14 In V. Smith ii. 1064n Townley v. Bedw^ell i. 203, ii. 806 Townsend v. Champernowne, 446, ii. 803, 804, 818, 823, 824, 826, 1149 V. Cowing i. 53n Lord V. Granger i- 29 V. Hubbard i- 53n V. Houston i. 140n, 14 6n V. Lord Kingston ii. 1001 V. Lowfield i. 113 V. Morris ii- 709n V. Townsend ii. 61 On V. Weed ii. 702n Townshend v. Askew ii. 662 Marquis of, v. Bishop of Norwich i. 124, 128, ii. 1147 V. Stangroom i. 156, 158, 162, 164, 173, 181, 238, 239, 255, 370 V. Townshend i. 25 In, ii. 61 On, 798 Townson v. Tickell Trask v. Vinson i. Traver v. Hoisted Tra^'is v. Waters Trecothic v. Austin Tremaine r. Liming Trefusis v. Clinton Trenchard v. Hoskins Trent v. Hanning Treswallen v. Penhules Trevanian v. Mosse Trevelvan v. White Tribble v. Oldham Tribourg v. Lord Pomfret Trimble v. "Boothby ii. 850 421n, ii. 681n ii. 702n ii. 822n ii. 61 On ii. 702n i. 88, ii. 804 ii. 761 ii. 506 i. 374 ii. 1069 ii. 897, 1046 ii. 880n i. 217 ii. 1046n Ix CASES CITKI». Trimbles v. Harrison ii. 864n Trimmer v. Bayne ii. 875n, 879u Trimmcl's Commissioner case i. 195 ' Tyson ;-. Passmore Tripp V. Cook i. 81n, S7n, 89n, Don Tyrer r. Artingstall V. Bailey Triplett r. Gill Troughton v. Johnson V. Troughton Troup r. Haight V. Wood Trower v. Newcombe Trull I'. BigeloAv ii. 709n, 744n i. lln, ISn 1 i'. 079 I ii. 984n ' i. 18n j i. o, 30, 379 ii. 1037n u V. Eastman i. 317n, ii. (J89n, 708n I'. Skinner Truluck I'. Peoples Trustees v. (iray Tubbs V. Broadwood Tucker v. Bass — — 0. Clarke V, Gordon V, Seaman's Aid Sol- V. Wood Tufts V. Adams Tullr. Pai-lett Tunstall v, Trappes Turleston v. Hives Turner v. Back V. Beaurain V. Clav V. Cre'bUl V. Dambell Ex parte V. Harvey 0. Pettigrew V. Richardson V. Trcsevant V. Wight Turi^in v. Turpin Turqiiand v. Vanderplank Turrill v. ^lurray Turton v. Benson Tuthill V. Babcock V. llogers Tuttle V. Jackson Twambley i-. Henley T-sveddell v. Tweddell i. I73n ii. 1037n ii. SS-tn ii. 921 i. 53n i. 256n ii. 681n i. 178n i. 8 ii. 708n, 70in i. 153 ii. 984, 1041 i. 121 ii. 1020 i. 353, 427 . i. 31 On ii. 1047n ii. 61 On i. 101, ii. 835 i. 6, 57, <)0, 240, 207, 278, 312, ;;4i ii. 919n Twelves c. Williams Twigg V. Pitield Twining v. Morris Twisleton v. Griffith Twyford v. Warcup Tylee v. Webb Tyler v. Bevcrsham t'. Drayton V. Givens V. Webb V. Young Lyndalc v. Wavrc Tyrconnell, Earl of, v. Duke of Ancas- ter i. 28 Tyree v. Williams i, loin, 212n, 2S'ln, 293n i. G ii. 93 In i. 248 ii.5G2u ii. 952 ii. 610n ii. 1020 i. 4, 267n i. 517, ii. 614n ii. 1041n ii. 74on, 747n i. 216n, 315, ii. G12 ii. 880n i. 73, ii. 805 14n, IS, 1!», 239, 312, 343 i. ^".a, 32G i. 370 ii. 1059 i. 373 i. 472 i. 117n ii. 1043, 1049 i. 284n 630n i. 88 I Uaii I . ivc'iinuy 1. Ulen v. Kittredge Ulrich ?•. Ditchhcld Underbill v. Horwood V. Van Cortlandt Underwood v. Lord Courtow c. Hithcox V. Ogden Union Bank v. Emerson V. Baker United States v. Daniel V. Hooe t>. Munroe University v. Miller Upshaw V Hargrave ii. Upton V. Bassett V. Lord Ferrers V. Vail Urch I'. Walker i. Urmston v. Pate XTsher v. Richardson L^xbridge, Lord v. Christie v. Staniland V. Stretton 1. 307 i. 307 i. 42 In 310n, 3 lln i. r26n i. 176 i. 313 i. 327n n ii. 984, 1036 i. 311 ii. 984n i. 37n ii. 908n ii. 102 In ii. 982n i. 181n ii. 884n 857n, 879n ii. 926 i. 85, 87 i. 5 414, ii 850 ii. 684 ii. 857n i. 379 ii. 722 i. 72 Vale V. Davenport i. 67 Valentine v. Piper i. 46n, ii. G93n, 966n, 97 3n Valiier r. Hiiulo Van Alstync v. Wimple Van B liven v. Olmstead Vance v. McNarrv V. Vance Vancouver v. Bliss ii. 1067n i. llln i. 158n ii. 966n i. 258, ii. 543 i. 353, 3G5, 419, 508, ii. 822, 828 i. 170, 238 ii. 849n ii. 885n i. 264n Van c. Curpo V.-^udever's Appeal Van Dorens v. Everett VanHerhcuvel v. Storrs Vanderkurr v. Vandeikarr ii. G50n, 745n, 756n Vanderkemp v. Shclton ii. 9b3n Vane v. Lord Barnard ii. G79, 680, 764, 1042 Van Ej)ps o. Schenectady i. 43n. 361n, 363n, ii. 702n V. Van L^pps ii. 887n, 88Sn Van Horn v. Crain ii. 743n V. Fonda ii. 887n, 1029n (;. Frick i. 13 In Ver Uermest v. Porter ii. 816n Van Meter r. McFadden ' ii. 930n Van Ness v. Hyatt i^. 650n Van Rensselaer v. Clark ii. 966n, 984n Van Rhyn v, Vincent ii. 61 On Van Slykc r. Kimball ii. 745n, 7G4n Van Sittart v. Barber i. 471 CASES CITED. Van Sittart v. Collier i. 70 Wakeman v. Duchess of '. Elutland i. 75, Van Wyckc v. AUiger i. I91n 464, ii 683, 704, 705 Varick v. Edwards i. 314n Waldron v. Forester ii. 799, 817 Varnuni v. Abbott ii. 6S9n V, McCarty ii. 745n, 764n Vaux V. Ncsbitt ii. 884n Walford v. Marchant ii. 1092 Vaughan v. Wilson ii. 956 Walker's case ii. 713 Vawser v. Jefthey i. 200 V. Advocate General i. 12n Veasie v. WUliams i. I4n, 17n, 59n, V. Barnes i. 218 27 7n ii. 88 7n V. Burrows ii. 916 Veal V. Nicholls ii. 699 ■ V, Constable i. 132 135, 174, 258 Veedcr v. Fonda i. 65n V. Kamstead i.. 835, 1045 Verner v. Winstanley i. 221, 313 V. Griswold ii. 546n Verney, Lord v. Carding ii. 1031 V. Jeffreys i. 292 Vernon's case ii. 1105 V. Moore et al 425, 451 Ex parte i. 224, ii. 909 V. Preswick ii. 85 7n V. Henry i. I75n V. Russell i. 168n V, Keyes i. 6 V. Smallwood i. 59, ii. 838, ii. 722 1045 V. Stephens i. 51 V. Walker i. 157 V. Vernon i. 195, 1125 V. Wildman ii 1062 Verplank v. Arden ii. 937n Wall V. Bright i. 203 V. Sterry ii. 929n,931n V. Stubbs i. 312 Vesey v, Elwood i. 71, 74 Wallace v. Cooke ii. 693 Vicary v, Moore i. 153n, 154n V. Lord Donegal ii. y85, 1020, 127 Vickers v. Cowell ii. 903 V. Wallace i. 315 T. Scott i. 62 Waller v. Harris i. 249n Vidal V. Girard ii. 884n V. Hendon i. 130 Vigers v. Pike i. 268 v. Horsfall i. 260 Villard v. Robert ii. 971n, 9S4n Walling V. Aiken ii. 982n Villiers v. ViLliers ii. 790 WaUinger w. Hilbert i. 365, 366, 416 Vincent v. Going i. 67 71, 74, 79, 80 Wallingford v. Allen ii. 88on, 936n V. Thwaites i. 80, 86 V. Hearl ii. 622n V. Willington ii. 637 Walpole, Lord, v. Earl of Cholmonde- Violet V. Fatten i. 117n ley i. 175 Vizard v. Longdale ii. 543 Walsh V. Walsh ii. 82 Vizod V. Ijonden ii. 543 V. Whitcomb ii. 693 VoU V. Smith i. 142, 151 Walsingham, Lord t'. Goodrickeii. 1062, Voorhees v. De Meyer i. 237n, 242n, 1063 287n, 289n, 302n , 347n, 358n, Walter v. Maunde i. 8, 502, 503 369n, 606n de Chirton's case ii. 910 V. Freeman i. 37n Walters v. Morgan i. 138 Vyvyan v. Arthur ii. 715, 722 V. Pyman i. 417 ' Walton V. Hobbs ii. 1064 w V. Stanford ii. 1033 Waddington v. Banks i. 19 In V. Walton ii. 563n, 567n V. Bristow i. lOOn Wallwyn v. Coutts ii. 929 Waddilove v. Barnett i. 219 V. Lee i. 470, ii. 1019, 1051, 1067, Waddy v. Newton i. 374 1068 Wade i\ Greenwood ii. 879n Wamburg v. Schenck ii. 609n V. Harper ii. 887n, 888n Wainburze v. Kennedy ii. 61 On I'. Killough i. 26on Wanby v. Sawbridge i. 135 V. Marsh i. 219 Warburton v. Loveland ii. 927, 974, V. Paget ii. 766 979 V. Pettibonc ii. 887n V, Mattox ii. 08 9n Wadlcigh v. Glines i 230n, ii. 689n Ward V. Cooke i. 85, 87 Wadswortli v. Wendell i. 191n,ii. lonin V. Davidson ii. 82 In Waggener v. Waggener i. 506n V. G anions i. 459 Wagstaft" V. Head ii. 10G9 V. Ledbetter i. 156ri, 157n Wain V. Warlters i. 112 V. Moore i. 198 Wainewright in re ii. 5S5 I'. Smith ii. 887n, 897n, S99n Wainwright v. Read i. lo4n, 3G7n, 3f)9n Warde v. Jcfl'ery i. 290, 298, 305 Wait V. Day ii. 916n Warden v. Adams ii. 1058n Wakclicld v. Lithgow i. 4Sn Wardlc v. Carter i. 322, 324 Wardsworth v. Wendell ii. 103 In Ixii CASES CITED. Ware v. PolhiU ii. 783 Watts V. Waddle i. 242n, 293n, 357n, V. Weathnall ii. 765n ii. 702n Waring v. Johnson ii. 562n Waugh V. Reilly ii. 884n V. Hoggart i. 25, 28, 33n Way V. Yally ii. 715 Mackretli i. 488 Weakley v. Bucknell ii. 925 V. Ward i. 21G, 218 Weal V. Lower i. 227 Wark V. Willard ii. 1023n Weaver v. Bentley i. 256n V. Williams i. 689n V. Carter i. 369n Warn v. Bickibrd ii. 767 Webb V. Alexander ii. 745n, 764n Warncford v. Thompson i. 517 V. Austin i. 446 Warner's case ii. 883 V. Bettel i. 262 V. Daniels i. 2, 4, 5, Gn, 238n, V. Lugar ii. 1052, 1056 25Sn, 267n, 277n, 31 In V. Manchester and Leeds Hail- | V. Hatfield i. 26 In, ii. 702n way Company i. 205 V. Mower ii. 97 In V. Paternoster i. 97n V. Van Alstyne ii. 879n V, Patterson i. 221n Warnock v. Wightraan ii. 984n V. Rorke ii. 888, 899n Warren v. Batemau i. 499, 502 V. Russell ii. 715 716, 720, 771 V. Childs ii. 655u V. Webb i. 468 V. Howe ii. 700 Webber v Jones i. 75 I'. Richardson i 398, 400, 406 Webster v. Atkinson i. 175n V. Staggs i. 168 V. Ela i. 116n, 117n V. Sproule ii. 857n V. Harris i. 180n V. Wheeler i. 164n, 26 In V. Hoban i. 40n Warrick v. Warrick i. 7, ii. 1043, 1060 V. Maddox ii. 1052n Warwick (1. Bruce i. 100, 104 Wodderburne v. Carr i. 130 V. Noakes i. 47 V. Wedderburne ii. 61 On Washburn v. Bank of Bellows Falls Wedgwood v. Adams i. 235n, 237 ii. 823n Weed V. Terry i. 233n V. Merrill i. 158n, 180n Weeks v. Evans ii. 766 Washington v. Brymer ii. 1122 Weems v. Brewer i. 7 In, 34 In V. Trousdale ii. 984n Weir V. Tate i. 541n Watchman v. Crooke i. 17 In Weiser v. Weiser ii. 756n Waters v. Creagh ii. 1064n Welch T>. Ireland i. 171 V. Groom ii. 888, 889 Welford v. Beazeley i. 122, 127 V. Mattinglj' i. 4, 238n V. Beezley ii. 1060 V. llandall i. 22 In, 522n WeUesley v. Wellesley ii. 920 v. Taylor i. 88 Wells V. Newbold ii. 57 In ■■ v. Travis i. 287n, 347n, 3o8n, 361n V. Prince ii. 608n, 621n Watertown r. Cowen ii. 708n, 737n V. Smith, i. 242n , 262n, 289n, Watklns v. Cheek ii. 840 293n V. Hatchett ii. 1068n V. WeUs i. 29 3n V. Hodges i. 168n Wendell v. Van Rensellaer ii. 890n V. Maund ii. 947 1021n V. Peck ii 1021n, 1023n Wentworth v. Goodwin ii. 68 In V. Stockett i. 139n, 189n Wesley v Thomas i. 139n, 156n, 158n, V. Worthington ii. 1024n 189n Watlington v. Howley ii 1044n, 1047n West V. Berney i. 517 Watrous v. Chalker i, 230n V. Harbeson i. 157n Watson v. Birch i. 86, 87 V. Randall ii. 966n V. Dickens ii. 937n V. Reid ii. 1054, 1055, 1056 | V. England ii. 609n V. Spaiilding ii. 75 In V. Pabner ii. 1064n V. Vincent i. 88 V. lioid i. 301n Westbrook v. Harbeson i. 156n, 157n V. Toone ii. 897n Western v. Perrin ii. 831 i. 249 V. Russell i. 119, 120, 129, 213, V. Wells ii. 857n 311, 346, 359 Watt V. Grove ii. 887 Westerv-elt v. Matheson i . 347n, ii 680n Watts V. CresweU ii. 1022 West India Dock Company v. The May- V. Fullerton i. 196 or and Corporation of London V. Kancy ii. 852 ii. 907 V. Martin i. 87 Weston V. Berkeley ii. 1070 V. Sheppard i. 286n Wetherellv. Bellwood ii. 649 V. Weighill ii. 649 CASES CITED. IXIU Wetmore v. Green V. White Weymouth i\ Boyer Whaley v. Bagenel »." Elliott WhaUey v. Whalley Whallon v. Kaufman Wharf V, Howell Wharton v. May Wheate v. Hall Wheatland v. Dodge Wheatley v. Slade V. Williams Wheaton v. Wheaton Wheeler v. Bramah V. Collier V. D'Esterre V. Newton V. Wright V. Wheeler ii. 165n! i. 140n, 141n, 146n ii. 1041 i. 123, 140 i. 369n ii. 1028 ii. 765n i. 221n i. 326n i. 506, 615 ii. 571n i. 346, 359 ii. 1063n i. 180n i. 60 16n, 17, 114 i. 141 i. 231 i. 390 i. 48n Wheelock v. Thaverii. 708n, 709n, 727n Whelan v. Whelani. 312n,ii. 931n, 937n Whelpdale v. Cookson ii. 898 Whichcote v. Bramston i. 317 V. Lawrence ii. 887n, 891, 898n, 900 Whicher v. Crews i. 3 7 On Whipple V. Foot i. 99n V. McClure i. 312n Whitackre v. Whitackre ii. 887 Whitbeck v. Cook ii. 745n, 764n V. Whitbeck i. 153n Whitbread v. Brockhurst i. 138, 140 V. Jordon i. 451, 458, ii. 1053, 1054 Whitbread and others, ex parte, in the matter of Shaw i. 138 Whitchurch v. Bevis i. 124, 137, 139, 140 White V. White i. 137, 198 V. Whitney ii. 708n, 765n V Wilson i. 85, 87 Whitechurch v. Whitechurch ii. 787, 788, 790, 1108 Whitfield V. Fausset i. 464, ii. 1026, 1065 Whitehouse v. Hines i. 312n Whiting V. Dewey ii. 765n Whitlock V. Walton ii. 624 Whitmarsh v. Walker i. 96n, 99n, lOOn Whitmeli). Farrel i 246 Whitmore's case i. 203 Whitney v. Cochran i. 143n V. Goddard ii. 624n V. Lewis ii. 68 In V. Webb ii. 608n, 624n 625n V. Whitney i. 18 In, ii. 550n Whittaker v. Sumner i. 158n V. Whittaker i. 212, 214, 301 VVliittemore v. Bean ii. 562n Whittick V. Kane i. 158n Whitton, Ex parte i. 225n Whitworth ». Davis i. 191 V. Gaugain ii. 654 Whorwood v. Simpson i. 291, 312 V. Whorwood ii. 921, 922 Wickham v. Everest i. 249 Wigg V. Wigg ii. 1036 Wiggins Ex parte ii. 887n, 897n V. Lord i. 48 •». McGimpsy i. 272n, ii. 681n Wigglesworth v. Steers i. 236n Wilbur V. How i. 19n V. Paine i. 14 In Wilcocks r. Wilcocks ii. 920, 1118 Wilcox V. Bellaers i. 419, 514, ii. 823 V. Callaway ii. 879n Whitcomb v. Foley i. 417 V. Wood i. 155n V. Minchin ii. 887, 890n Wilde V. Fort i. 285, 406, 427, 529, 530, White's case i. 237 ii. 674, 806 White V. Bartlett i. 50 ' Wiley V. Smith ii. 571n V, Baylor ii. 957 Wildgoose v. Moore ii. 998, 999 V. Bond ii. 6o5n V. Weyland ii. 1040 V. Carpenter ii. 90«n Wildigos V. Keeble ii. 998 V. Cazanove ii. 879n Wilkerv. Bodington ii. 782, 1049, 1134 V. Cox i. 236n Wilkins v Fry i. 39 V. Cuddon i. 36, 57, 239 , 380, 383 1-. Lynch ii. 782 235, 269n, 311, 312n V. Vaschbinder i. 37n V. Dougherty ii 863n V. Woodfin ii. 1064n V. Ewer ii. 611 V ilkinson v. Forkington i. 337 V. Flora i. 311n V. Scott i. 140n, 153n V. Foljambe I. 459, 488 491, 496, Wilks V. Davis i. 328 ii. 823 V. Smith i. 261, 262 V. Hillacre i. 216 V. V\ ilks ii. 922 V, Mann ii. 609n WUlan V. \\ Ulan i. 2.39 V. Nutt 1 . 330, 334 Willard v. Stone i. 234n ii. 689n V Twitchell ii. 744n V. Proctor i. 12S , 132, 133 Willetr. Sandfoid i. 197 V. Stover ii. 866n Willett V. Clarke i . 294, 394, 533 V, Stringer ii. 932, 1019 Welley v. Fitzpatrick ii. 681n V. Wakefield ii. 871, 880, 1053 WilUam v. Higden i. 255 V. Weeks i. 153n V. Ne\-ille i. 142, 151 V, Williams ii. 863n, 866n Williams in re i. 226n Ixiv CASES CITED. Williams Sir John's Case i. 143 Wilson V. Chalfant i. 9Gu V. Atteuborough i. 74, 85 V. Davisson ii. 838n, 879n V. Bailey i. 37n V. Forbes ii. 765n V. Beaman ii. 708n V. Foreman ii. 919 V. Burrell ii. 715, 747 V. Forster i. 471 V. Busby ii. 939 Elizabeth v. Fuller i. 274 . r. Calverley 1238, 355 V. Graham ii. 863n r. Carter i. 241 V, Greenwood i. 06 V Chitty ii. 543 V. Hart i. 131 V. Cratidock ii. 6G1 V. Hillj'er ii. 1069n, 1070n V. Dakin i. 221n V. Keane i. 234 V. Edwards i. 30o, 3-16, 397, ii. 829, V. Knubley ii. 766 830 V. Rastall ii. 1062 V. Hollingsworth ii. 908n, 1036n, V. Robinson ii. 760 1069n V. Spencer i. 424n V. Jersey ii. 737n V. Troupe i. 522n, ii. 093n, 887n, V. Lambe ii. 1071, 1072 1003n V. Llewellyn ii. 890 1'. AVormol ii. 630, 937, 959 V. Maitland i. o9n Wilton V. Harwood i. 140n r. Marshall ii. 887n Wiltshire v. Sims i. 40 V. Millington i. 4'] Winch V. Winchester i. 160, 370, 371, V. Utey ii. 61 On ii. 822 V. Owens i. 196, 198, 221 Winchell v. Latham i. 153n V. Protheroe i. 423 Winchester, Bishop of V. Fournier V. Read i. 25 6n ii. 1061 f. Roberts ii. 857n, 863n V. Paine ii. 825, 1045 V, Rogers i. 327n, ii 793n, 1028n Windsor v. Tyrrell i. 66 V. Shaw i. 253 Wineland v. Coonee ii. 937n V. Sorrell ii. 983 Wing V. Earle i. 375 i\ Springfield ii. 688 Winged V. Lcfebury i. 192 , 245, ii. 1031 V. Thompson, or Boiiham i. 302 Winglield v. Tharp" i. 525 V. Wace i. 67 Winne v. Reynolds i. 23 7n, 242n, 49 7n, V. Williams ii. 550, 1071 519n Williamson v. Curtis ii. 835 Winslow V. Merchants Ins . Co. i. 37n V. Dale i. 84n, 86n V. Rand ii. 715n V. Gordon ii. 1016n Winter v. Lord Anson 1857, 858, 859, V S eater ii. 898 860, 861, 870, 879, 1043 Willie V. Lugg i. 217 V. Blades ii, 794 Williford r. Bentley i. 3 7 On V. Brookwell i. 96, 97 WilUs r. Bank of England ii. 949,. 952 V. Devereux i. 231 V. Brown ii. 662 V. Livingston i. 261n V. Butcher ii. 1056n Winterbottom v. Ligham i. 417 V. Commissioners of Appeals in Wirdman v. Kent i. 344 Prize Causes ii. 810 Wise V. ]\Ietcalfe i. 528 V. Jernegan i. 313 Wi.'Jeman's Case ii. 929 V. liatham ii. 888 Wiseman v. Beake i. 315 V. Robinson ii. 012 Wiswell V. McGown i. 25 3n, 283n, V. Twambley ii. 1024n 289n, 305n, 358n V. Watson ii 563n Withers v. Baird ii. 702n r. Willis ii. 909, 911 V. Pinchard i. 231 Willison V. Watkins i . 610n, 623n V. Withers ii. 909 WiUoughbv V. Willoughby i. 263, Witherspoon v. Anderson i . 327n, 424n, ii. 778, 780, 785, 1016, 1059, ii 765n, 1029n 113o, 1144 Withy V. Cottle i. 2 34, 248, 416 Wills V. Stradling i. 140, 141 V. Hightower ii. 745n Willson V. Betts ii. 624n V. Mumford ii. 708n V. Carey i. 21 Wolfe V. Liiyster i. 18n Wilmot V. Wilkinson i. 300, ii. 692, Wolseley v. Cox ii. 699 698 Wolveridge v. Steward i. 39 Wilson, Ex parte ii. 893 Womble v. Battle ii. 857u in re i. 226n Wood, in the matter of ii. 585 V. Allen ii. 826 V. Abrcy i. 324, 326 V. Carey i. 12n V. Bank of Kentucky ii. 880n r. Cl;i))ham ii. 806 V. Bernal i. 299 CASES CITED. Ixv Wood V. Birch ii. 905 V. Downes i. 276, 277, ii. 896, 892, 900 i. 194, 218, 346, 423 i. 84n ii. 937n i. 97n i. 419 i. 97n i. 15711 V. Maimi. 51n, 71n, 72n, 73n, 84n, ii. 103611, 1037n, 1067n, 1069n V. Manley i. 43, 96 V. Norman ii. 905 V. Perry i. I73n, 25 In, ii. 688n V. Robbins V. Richardson ■ V. White Woodbury v. Parshley Woodcock V.Bennett Wooden v. Haviland Woodgate v. Woodgate Woodhouse v. Jenkins r. Meredith Woodhull V. Neafie Woodie's case Woodman v. Coolbroth V. Freeman V. Morrell Woodroff V. Greenwood WoodrofFe v. Allen V. Titterton Woods V. HaU ■ V. Hudson V. Huntingford V. Woods Woodson I'. Palmer Woodward V. Pickett r. Woodward Woodyatt v. Gresley Woollam V. Heam i Wooster v. Butler Worcester, Bishop oiv. Parker ii. 1019 Wonnley v. Wormley ii. 836n, 842n 887n Worall V. Jacob ii. 93n Worsley et al. v. Dematos and Slader ii. 984 Worsley v. Earl of Scarborough ii. 1043, 1045, 1047 Worth V. McAden V. Northam Wortley v. Birkhead Wotton V. Cooke Wragg V. Comp't Gen Wrayu. Steel i. 258n i. 240 i. 252, 507 i. 96n , 236n, 253n, 294n, ii. 702n i. 180n ii. 834 ii. 752 ii. 887 i. 72n ii. 931 i. 453n i. 253n ii. 914, 915 ii. 746 i. 315, 316 i. 417 i. 18n i. len i. 216 ii. 609, 1062 ii. 82 In i. Il7n ii. 879n ii. 1058 153, 156, 157, 164 i. 175n, I78n V. Williams Wren v. Kirton V. Pearce Wright V. Bond r. Dannah V. DeKljTie Ex parte Vol. I. i. 59n ii. 939n ii. 1037, 1047 ii. 768 ii. 857n ii. 912 ii. 781 i. 18, 74, ii. 892 i. Il7n i. 415 i. 133 i. 22, 154 ii. 1024 ii. 952 292 343, ii. 830 rs i. 241n i.56 ii 1062 ] i. 889, 892n i. 260n ii. 936n u. Foarnley V. Howard V. Maude and others V. Maunder V. Mayer V. Proud V. Smythe V. Stanard V. Trustees,'Meth. Epis. Church ii. 562n V Wellesley i. 302 V. Wilson i. 36 V. Woodland ii. 879n V. Wright i. 73n Wrightson w. Hudson ii. 982 Wrixon v. Vize ii. 616, 624, 635, 636, 637 Wyatt V. Allan Wyatt V. Allen V. Barwell Wy brants v. Tallon Wyman v. BuUard V- Winslow Wynn v. Williams Wynne V. Alston V. Griffith V. Morgan V. Thomas Wythe V. Hemiiker ii. 1079 i.46, 131 ii. 985, 1045 i. 219 ii. 709n, 764n i. I64n 441, 781, ii. 840, 927 ii. 857n i. 251, 418 i. 293, ii. 826 ii. 693 ii. 877 WyvHle v. Bishop of Exeter and others i. 292 V. Bishop of Exeter i. 332, 834, ii. 828 YaUop, Ex parte ii. 1024 Yancey v, Lewis ii.j681n, 745n Yates V. Faiebrother i. 49 Yea V. Field i. 465 Yeavely v. Yeavely ii. 1044 Yerby v. Grisby i. 46n, ii. 85 In York?;. Eaton ii. 901 York Buildings Company v. Mac- kenzie ii. 887, 888, 891, 897, 900 Young V. Clarke i. 6, 311 V. Burton i. 235n V. CoveU i. 5 V. Frost i. 236n V. Hopkins ii. 1064n V. Isett ii. 879n V. Lillard i. 242n, 293n, 357n, 606n, ii. 680n V. Radford ii. 772 V, Lord Waterpark ii. 638 V. Young i. 183 Youngc V. Buncombe i. 249 Youqua v. Nixon i. 168n Zagury v. FurnaU Zeiter v. Bo^^^nan ZcUer V. Eckcrt Zouch V. Swaine i. 331 ii. 1044n ii. 61 On ii. 767 [ LXVI ] ERRATA IN TABLE OF CASES. S^[The Editor was prevented from examining the proof sheets of the first sixteen pages in the Table of Cases, and most of the following errors escaped notice ia consequence. Alexander v. Newton, for i. 80n, read i. 180n. Anderson v. Foulke, for i. 84n, road i. 7 In, 84n, 87n, 90n. Annan v. Merritt, for i. 704n, read i. 140n. Armstrong v. Campbell, for ii. 807n, read ii. 887n. Att'y General v. Boston, for ii. 782, read i. 17bn. Barksdale v. Toomy, for i. 341n, read i. 261n. Barton v. Rushton, for i. 94n, read i. 194n. Beard v. Eai-k, for ii. 993, read ii. 693n. Bell V. Webb for ii. 829n, read ii. 899n. Bernal v. Donegal, for i. 316, read i. 314, 326n. Blanchard v. Ingersoll, for ii. 985n, read ii. 935n. Bodinei'. Edwards, for ii. 910n, readii. 916n. Bolivar Man. Co. v. Neponset Man. Co. for ii. 462, read ii. 642n. Botts V. Cosine, for i. 31n, read i. 131n. Boykin v. Smith, for i. 36n, read i. 136n. Breitliaupt v. Thurmond, for ii. 730n, read ii. 702n. Brinkerhoff tJ. Marvin, for ii. 962n, read ii. 982n. Buck V. McCoughty, for i, 367, read i. 357n. Burns v. Southerland, for i. 47n, read i. 147n. Champion v. Brown, for i. 9 In, read i. 19 In. Cheney v. Watkins, for ii. 932n, read ii. 982n. Por DoweU v. Warren, read Dowell v. Webber, ii. 608n. Poole V. Shergold, for 401, read 451. Prescott V. Nevers, for 63n, read 263n. The following Cases have been omitted in the Table. Andrews v. Scotton, i. 84n. Atkinson v. Farmer, i. 7 In. Bates V. Norcross, ii. 1048n. Battle V. Rochester City Bank, i. 256 n. Boon V. Murphy, ii. 863n. Boos V. Ewing, ii. 862n. Byers v. Aiken, i. 262n, 263n. V. Mullen, i. 153n. Byrd». Curlin, ii. 939n. . Caulkins v. Harris, ii. 765n. Clapp V. Tirrell, ii. 939n. Cushman v. Blanchard, ii. 765 n. De Mottr. Starkev, ii. 1069n. Doe V. Eeed, ii. 8S4n, 1041n, 1052n. Pratt V. Carroll, i. 278n, 287n, 289, note. r. Law, i. 25 3n, 287n, 289n, 302n, 357n. V. Van Wyck, ii. 857n. [ Lxrii ] TABLE OF STATUTES CITEl). 13 Edw. 1, c. 19 (Administration) ii. 833 33 Edw. 1 (Measures) i. 373 11 Hen. 7, c. 20 (Estates Tail) ii. 575, 581 24 Hen. 8, c. 4 (Measures) i. 373 27 Hen. 8, c. 10 (Uses) ii. 588, 773 31 Hen. 8, c. 13 (Monasteries) i. 517 32 Hen. 8, c. 2 (Limitations) i. 485 32 Hen. 8, c. 9 (Pretended Title) i. 422 32 Hen. 8, c. 34 (Conditions) ii. 709 33 Hen. 8, c. 39 (Crown Lands) ii. 673, 1010 34 & 35 Hen. 8, c. 20 (Bonds) ii. 581, 604 13 Eliz. c. 4 (Crown Debtors) ii. 673, 1010 13 Eliz. c. 5 (Fraudulent Conveyances) ii. 916, 917 13 Eliz. c. 7 (Bankruptcy) ii. 946 27 Eliz. c. 4 (Fraudulent Conveyances) ii. 925 et seq. 39 Eliz. c. 18 (Conveyances) ii. 925 43 Eliz. c. 4 (Charitable Uses) ii. 944 21 Jac. 1, c. 15 (Traders) ii. 916 21 Jac. 1, c. 16 (Limitations) i. 485 21 Jac. 1, c. 19 (Bankruptcy) ii. 880, 960 21 Jac. 1, c. 24 (Execution) ii. 958 16 & 17 Car. 2, c. 5 (Extent) ii. 671 29 Car. 2, c. 3 (Frauds) i, 92 et seq., 125 et seq. ii. 905, 954, 958 3 & 4 W. & M. c. 14 (Fraudulent Devi- ses) ii. 662 et seq., 833 4 & 5 W. & M. c. 20 (Judgments) ii. 955 7 Will. 3, c. 12 (Frauds) i. 107 7 & 8 Wm. 3, c. 36 (Judgments) ii. 955 11 & 12 wm. 3, c. 4 (Papists) ii. 998 2 & 3 Anne, c. 4 (Registry) ii. 966 et seq. 6 Anne, c. 18 (Registry) ii. 677 et. seq., 966 et seq. 6 Anne, c, 35 (Registry) ii. 677 et seq., 966 et seq. 7 Anne, c. 19 (Infant Trustees) i. 224 7 Anne, c. 20 (Registry) ii. 967 et seq. 10 Anne, c. 18 (Enrolment) i. 477 3 Geo. 1, c. 18 (Papist Vendors) ii. 998 8 Geo. 1, c. 25 (Judgments) ii. 955 9 Geo. 1, c. 7 (Churchwarden) ii. 883 6 Geo. 2, c. 30 (Bankruptcv) ii. 672 7 Geo. 2, e. 20 (Mortgage) i. 216 8 Geo. 2, c. 6 (Registry) ii. 966 et seq. 14 Geo. 2, c. 20 (Recoveries) ii. 1000 17 Geo. 3, c. 50 (Auctions) i. 21 19 Geo. 3, c. 56 (Auctions) i. 11 25 Geo. 3, c. 35 (Extents; i. 91 29 Geo. 2, c. 36 (Papists) ii. 998 31 Geo. 3, c. 32 (Papists) ii. 885 41 Geo. 3, c. 109 (Liclosure) i. 109, 432 ii. 888 42 Geo. 3, c. 93 (Auctions) i. 11 43 Geo. 3, c. 30 (Papists) ii. 885 46 Geo. 3, c. 135 (Bankruptcy) ii. 946 47 Geo. 3, c. 74 (Traders' Assets) ii. 834 et. seq. 48 Geo. 3, c. 149 (Stamps) i. 445 49 Geo. 3, c. 121 (Bankruptcy) ii. 947 53 Geo. 3, c. 141 (Annuity) App. No.xi 54 Geo. 3, c. 145 (Attainder) ii. 544 54 Geo. 3, c. 173 (Land-tax) ii. 1003, 1038 55 Geo. 3, c. 184 (Stamps) ii. 698 et seq. 55 Geo. 3, c. 192 (Copyholds) i. 200 56 Geo. 3, c. 50 (Crops) ii. 110 57 Geo. 3, c. 100 (Land Tax) ii. 1005 et seq. 1 & 2 Geo. 4, c. 23 (Inclosure) i. 525 1 & 2 Geo. 4, c. 121 (Extents) ii. 1009 3 Geo. 4, c. 92 (Annuities) App. No. xi. 3 Geo. 4, c. 117 (Stamps) ii. 700 5 Geo. 4, c. 74 (Measures) i. 375 6 Geo. 4, c. 16 (Bankruptcy) i. 60, 191, ii. 947, et seq. 9 Geo. 4, c. 14 (Written Undertakings) i. 5 9 Geo. 4, c. 35 (Judgments, L-eland) ii. 653 10 Geo. 4, c. 7 (Roman Catholics) ii. 999 1 WUl. 4, c. 7 (Judgments) ii. 956 1 Will. 4, c. 36 (Contempts) i. 227 1. W^ill. 4, c. 40 (Executors)— Residue) i. 440 1 WlQ. 4, c. 46 (Illusory Appointments) ib. 1 WiU. 4, c. 47 (Payment of Debts) i. 627 1 Will. 4, c. 60 (Infant Trustees, &c.) i. 200, 224, ii. 909 LXVIIl TABLE OF STATUTES CITED. 1, Will, i, c. Co (Lunacy) i. 233 1 & 2 Will. 4, c. 0^ (Bankruptcy) i. 437, '■ ■' ii. 948 1 & 2 Will. 4, c. 68 (Interpleader) i. 49 2 & 3 Will. 4, c. 71 (Tithes) i. 487, ii. 642 2 & 3 Will. 4, c. 100 (Tithes) ii. 647 2 & 3 Will, i, c. 114 (Bankrupts) ii. 672 3 & 4 Will. 4, c. 27 (Limitations) i. 485, 486, 495, ii. 613 et seq., 899 3 & 4 Will. 4, c. 42 (Interest— Practice) ii. 639, 813,956 3 & 4 Will. 4, c. 47 (Bankrupts) ii. 948 3 & 4 Will. 4, c. 74 (Estates Tail) i. 228, 440, ii. 573 et seq. 3 & 4 Will. 4, c. 74 (Fiaies and Kecove- ries) ii. 1001 ct seq. 3 & 4 Will. 4, c. 87 (Awards) i. 432, 525 3 & 4 AVill. 4, c. 94 (Sales by a Master) i. 66 3 & 4 Will. 4, c. 104 (Assets) ii. 656, 766, 791, 835, 878 3 & 4 Will. 4, c. 105 (Dower) i. 212, 439 ii. 545 et seq., 936 3 & 4 Will. 4, c. 106 (Liheritance) ib. i. 436 4 & 5 Will. 4, c. 22 (Rents) i. 220 4 & 5 WiU. 4, c. 23 (Escheat) i. 440 4 & 5 Wm. 4, c. 83 (Modus) ii. 649 4 & 5 Will. 4, c. 92 (Tenants in TaU, Ireland) ii. 603 et seq. 5 & 6 Will. 4, c. 63 Measures) i. 375 6&7 Will. 4, c. 71 (Tithes) ii. 603 eC seq., 649 6 &|7 Will. 4, c. 85 (Marriage) i. 443 6 & 7 Will. 4, c. 86 (Registry of Births) i. 443 7 Will. 4 & 1 Vict. c. 28 ii. 616 1 Vict. c. 26 (Wills.) i. 440, 441, 614, ii. 560 et seq. 1 & 2 Vict. c. 64 (Tithes) i. 450 1 & 2 Vict. c. 69 (Mortgagee, Heir of) i. 225 1 & 2 Vict. e. 110 (Insolvency, &c.) i. 56 60, ii. 664 et seq., 958, 960 et seq. 2 Vict. c. 11 (Crown Debts — Lis pendens ii. 951, lOlO et seq., 1013 2 & 3 Vict. c. 29 (Bankrupts) ii. 952 3 Vict. c. 60 (Mortgage) i. 527 3 & 4 Vict. c. 82 (Judgments) ii. 663 6 & 6 Vict. c. 116 (Assignees — Registry) ii. 672 6 & 7 Vict. c. 54 (Presentation) ii. 642 7 & 8 Vict. c. 27 (Presentation) ib. 7 & 8 Vict. c. 76 (Real Property) i. 435, 440,. 459, ii. 717, 749, 846, 1031 8 & 9 Vict, col (Presentation) ii. 642 8 & 9 Vict. c. 106 (Real Property) i. 432, 435, 440, 469, ii. 717, 749, 846 8 & 9 Vict.c. 112, i. 440, ii- 660,777, 789, 791 8 & 9 Vict. c. 113 (Award) i. 433, ii. 1044 8 & 9 Vict. c. 119 (Shortening Convey- ances) ii. 651, 706 8 & 9 Vict. c. 124 (Shortening Leases) u. 651 THE LAW OF VENDORS AND PURCHASERS OF ESTATES. INTRODUCTION. 1. Vendor's liability to disclose defects. 2. TJnnecessartj where the purchaser has hwwledge. 4. Or they are patent. 6. But they must not be concealed. 7. Sale subject to all faults. 9, 10. Random 2}raise by vendor. 11. False statement of vahw ; small fine; speedy vacancy ; rich meadow. No Deceit unless party off his yuard. False statement of valuation fatal. So of rent. Misrepresentations by a stranger. Misrepresentations and 7Mn-disclo- sures by a purchaser. Must not mislead tJie seller. Nor conceal a death which adds to value. 12. 13. U. 15. 18. 19. 20. Concealment of incumbrances p,nd defects in title. Attorney's liability in such cases. Same attorney for both sides. Attorney iuay not disclose defect to party interested. Obligation of grantor of annuity. Necessity for investigation of title. Result. Purchasers bound by covenants in lease. Inquiry after incumbrances. Where a purchaser may take posses- sion. Purchaser of equitable rights. Auctio7ieers not to prepare condi- tions. Title to be investigated before sale. 1. Moral writers insist (a), that a vendor is bound, in foro conscienticE, to acquaint a purchaser with the defects of the sub- ject of the contract. Arguments of some force have, however, been advanced in favor of the contrary doctrine ; and our law does not entirely coincide with this strict precept of morality (b) (1). (a) Cic. de Off. 3. 13 ; Grotius de Jure s. 3 ; Valerius Maximus, 1. 8. c. 11 ; et Belli ac Pacis, 1. 2. c. 12. s. 9 ; Putfen- vide Deuteronomy, xxv. 1-i ; Paley's dOrf de Jvire Natura; et Gentium, 1. 5. Mortd Pliilosophy, vol. i. b. 3. oh. 7. c. 3. B. 2 ; Puffendorf de Off. 1. 1. c. 1.5. (6) Vide infra,' ch.. 7. (1) See 2 Kent, (6th ed.) 482. 484 ; Alston v. Outerbridge, Dev. Eq. 18. Vol. I. 1 2 CONCEALMENT OF DEFECTS BY SELLERS. *2. If a person enter into a contract, with full knowledge of ali the defects in the estate, the question cannot arise : scientia enim utrinque par pares facit contrahentes (c). 3. So, if at the time of the contract, the vendor himself was not aware of any defect in the estate, it seems that the purchaser must take the estate with all its faults, and cannot claim any cojupensa- tion for them. 4. And even if the purchaser was, at the time of the contract, ignorant of the defects, and the vendor was acquainted with them, and did not disclose them to the purchaser ; yet, if they were patent, and could have been discovered by a vigilant man, no relief will be granted against the vendor (1). 5. The disclosure of even patent defects in the subject of a con- tract, may be allowed to be a moral duty ; but it is what the civilians term a duty of imperfect obligation. Vigilantibus, non dormientibus jura subveniunt, is an ancient maxim of our law, and forms an insurmountable barrier against the claims of an improvi- dent purchaser. 6. In this respect, equity follows the law. But it has been decided, that if a vendor, during the treaty, industriously prevent the purchaser from seeing a defect which might otherwise have easily been discovered, he is not entitled to the extraordinary aid of a court of equity : and it is conceived, that he could not even sustain an action against the purchaser for a breach of the con- tract (-2). 7. And if a vendor know that there is a lateht defect in his estate, which the purchaser could not, by any attention whatever, possibly discover, it is not clear that he is not bound to disclose his knowledge, although the estate be sold, expressly subject to all its faults (d) (3). 8. By the civil law, vendors were bound to warrant both the title and estate against all defects, whether they were or were not conusant of them. To prevent the inconveniences which inevitably (c) Grotius dc Jure Belli ac Pacis, 1. (rf) See 2)ost, eh. 7. s. 4. 2. c. 12. s. 9. 3 ; Puflcndorf dc Jure Na- turtc et Gentium, 1. 5. c. 3. s. 5. (1) 2 Kent, (6th ed.) 484. A mistake as to the value of the consideration given for the conveyance of land, is not a sufficient ground for setting aside the conveyance, where the vendor had the means of avoiding the mistake by inquiry,, and no fraud or falsehood -was used to influence his judgment. Warner v. Dan- iels, 1 Wood. & Minot, 90, 101, 102 ; Mason v. Crosby, 1 Wood. & MLiiot, 342. (2) 2 Kent, (6th ed.) 482 to 434. (3) See 2 Kent, (6th ed.) 482. [*2] MISREPRESENTATIONS OF VALUE OR RENT. 3 would have resulted from this general doctrine, it was qualified by holding, that if the defects of the subject of the contract were evident, or the buyer might have known them by proper precaution, he could not obtain any relief against the vendor (1). 9. The rule of the civil law also was, " simplex commendatio non obligat." If the seller merely made use of those expressions, which are usual to sellers, who praise at random the goods which they are desirous to sell, the buyer, who ought not to have relied *upon such vague expressions, could not, upon this pretext, pro- cure the sale to be dissolved (e) (2). 10. The same rule prevails in our law (/), and has received a very lax construction in favor of vendors. It has been decided, that an action of deceit cannot be maintained against a vendor for having falsely affirmed, that a person bid a particular sum for the estate, although the person to whom the representation was made was thereby induced to purchase it, and was deceived in the value (o-) (3). 11. Neither can a purchaser obtain any relief against a vendor for false affirmation of value (A) ; it being deemed the ])urchaser's own folly to credit a nude assertion of that nature. Besides, value consists in judgment and estimation, in which many men differ. So, where a church lease was described in the particulars of sale, as being nearly of equal value with a freehold, and renewable every ten years, upon payment of a small fine, the purchaser was not allowed any abatement in his purchase-money, although the fine was very considerable, and it was proved that the steward of the estate had remonstrated with vendor, before the sale, upon his false description (i). And a statement in the particulars of an advowson, that an avoidance of the preferment was likely to occur soon, was held to be so vague and indefinite, that the Court (e) 1 Dom. 85. Duckenfield v. Whichcott, 2 Cha. Ca. (/) Chandelor v. Lopus, Cro. Jac. 4 ; 204 ; see Ekins v. Tresham, 1 Lev. 102; Pike V. Vigers, 2 Dru. and WaLsh, 266. reported 1 Sid. 146, bvthe nameof Lea- {g) 1 llol. Abr. 101. pi. 16. See 1 Sid. kins v. Clissel. [Stevens v. Fuller, 8 X. 146 ; Kinnaird v. Lord Dean, stated in- Hamp. 463.] fra, n. (j) Brown v. Fenton, RoUs, 23 June, (A) Harvey v. Young, Yelv. 20. See 1807, MS. ; S. C. 14 Yes. jun. 144. (1) 2 Kent, (6th ed.) 484, 48.5. (2) Ohitty Contr. (8th Am. ed.) 452 ; 2 Kent, (6th ed.) 485 ; Davis v. Meek- er, 5 John. 354 ; Oneida Manuf. Society v. Tiawrence, 4 Cowen, 440 ; Swett v. Colgate, 20 John. 196. (3) Morrill r. Wallace, 9 N. Hamp. 111. 115; 2 Kent, (6th ed.) 486; Cross V. Peters, I Greenl. 376 ; Fagan r. Newson, 1 Devereux, 22. [*3] 4 illSRKPRESENTATlONS OF VALUE OR RENT. could not take notice of it judicially ; and that its only effect ought to have been, to put the purchaser upon making inquiries respecting the circumstances under which the alleged avoidance was likely to take place, previous to his becoming the purchaser (k). So a statement, that the property is uncommonly rich water meadow land, will not annul the contract, although the land is imperfectly watered (J). 12. And in an action of deceit, it is not sufficient to show that the vendor was guilty of a misrepresentation — for example, repre- sented the grantor of an annuity, which was offered for sale, as a man of large property, and that the purchaser need be under no apprehension as to his responsibility, whilst, in point of fact, he was in confinement for debt, and had been so for some time — but it must be shown that some deceit was j)ractised for the purpose *of throwing the party off his guard, and preventing him from being watchful (jn) (1). 13. But if a vendor affu'm, that the estate was valued by persons (Z;) Trower v. Newcome, 3 Mer. 701. (^) Scott V. Hanson, 1 Sim. 13. (m) Dawes v. King, 1 Stark. Ca. 75. (1) In Doggett V. Emerson, 3 Story C. C. 700, it -was held, that if a purchaser buys on the faith of a false representation by the seller, touching the essence of the contract, the sale "will bo set aside in equity, "whether the misrepresentation were the result of fraud or of mistake. In tliis case Mr. Justice Story said ; — " It appears to me, that it is high time that the principles of Courts of Equity upon the subject of sales and purchases should be better understood, and more rigidly enforced in the community. It is equally promotive of sound morals, fau deal- ing, and public justice and policy, that every vendor should distinctly compre- hend, not only that good faith should reign over all his conduct in relation to the sale, but that there should be the most scrupulous good faith, an exalted honesty, or, as it is often felicitously expressed, nbcrriina fdcs, in every representation made by him as an inducement to the sale. He should literally, in his represen- tation, tell the truth, the -whole truth, and nothing but the truth. If his repre- sentation is false in any one substantial circumstance going to the inducement or essence of the bargain, and the vendee is thereby misled, the sale is voidable ; and it is usually immaterial, "whether the representation be "wilfully and designed- ly false, or ignorantly or negligently untrue. The A-endor acts at his peril, and is bound by every syllable he utters, or iiroclaims, or knowingly impresses upon the vendee, as a lure or decisive motive for the bargain." This subject was consid- ered at large in Daniel r. Mitclicll, 1 Story ('. ('. 172. See also Small v. Atwood, 1 Younge, 107, 450 ; M'Ferran r. Taylor, 3 Cranch, 270 ; llosevelt v. Fulton, 2 CoAven, 131 ; LcAvis r. M'Lcmorc, 10 Yerger, 20(5 ; "Warner r. Daniels, 1 AVood. & Minot, 107, 108 ; ^lason r. Crosbv, 1 AVood. & Minot, 342 ; Smith v. Babcock, 2 ib. 24G ; TuthiU v. Uabcock, ib. 298 ; Waters v. Mattmgley, 1 Bibb, 244. "Where the vendee of land made representations respecting the value of Avhat was taken for tlie consideration, which were false in material points, and which influenced the vendor to sell, it was held, that they Avould vitiate the sale, whether the vendee knew them to be false or not. "Warner v. Daniels, 1 Wood. & Minot, 90 ; Shackleford r. Hadlcy, 1 A. K. Marsh, 500. So if the false rep- resentations were made by another person in the presence of the vendee, and the vendee gained an advantage bv them. Warner v. Daniels, ubi supra; Mc'Meekin V. Edmonds, 1 Hill Ch. 288. 293 ; Ma.son v. Crosby, 1 Wood. & Minot, 342. See Perkins r. Rice, Litt. Sel. Cas. 218. [*4] MISREPRESENTATIONS OF VALUE OR RENT. 5 of judgment, at a greater price than it actually was, and the pur- chaser act upon such misrepresentation, the vendor cannot compel the execution of the contract in equity (n), nor would he, it should seem, be permitted to maintain an action at law for non-perform- ance of the agreement. 14. And a remedy will lie against a vendor, for falsely affirm- ing that a greater rent is paid for the estate than is actually re- served (o) (I) : because it is a circumstance within his own knowledge (I). The purchaser is not bound to inquire further: for the leases may be made by parol, and the tenants may refuse to inform the purchaser what rent they pay ; or the tenants may combine with the landlord, under whose power they frequently are, and so misinform and cheat the purchaser. It has been de- cided also, after great consideration (^j), that a purchaser may recover against a vendor for false affirmation of rent, although he did not depend upon the statement, but inquired what the estate let for. Where it can be satisfactorily proved that the purchaser did not rely upon the vendor's assertion, a jury would probably give but trifling damages. And it has been laid down (<^),that if the party to whom the representations were made, himself resorted to the proper means of verification before he entered into the con- tract, it may appear that he relied upon the result of his own in- vestigation and inquiry, and not upon the representations made to him by the other party ; or if the means of investigation and veri- fication *be at hand, and the attention of the party receiving the representations be drawn to them, the circumstances of the case (»?) Buxton V. Cooper, 3 Atk. 383 ; S. Salk. 211, S. C. nom. Risney v. Sclby ; C. MS. ; see Partridge v. Usborne, -5 Dobell v. Stevens, 3 Earn. l\: Cress. ()23 ; Russ. 10.5 ; Small r. Attwood, 1 Yon. Small r. AttAvood, 1 You. 407 ; Fuller 407. InD. r. upon appeal, the purchas- r. Wilson, 3 Adol. & Ell. X. S. 58. 68. ers held to be bound ; 6 Cla. & Fin. 232 ; 1009, post, ch. 4, s. 6. Pike r. Vigors, 2 Dru. & "Walsh, 1. ( ;;) Lysney v. Sclby, uhi sup. (0) Ekins v. Tresham, uhl sup. ; Lys- (q) See Clapham v. Shillito, 7 Beav. ney ZJ. Selby, 2 Lord Raym. llis"; 1 14(i. (1) In the 1st vol. of CoU. of Dccis. p. 332, the following case is reported : — An heritor having solemnly affirmed to liis tacksman at setting the lands, that there was paid, by the preceding tenants, for each acre, a great deal more tlian rciUly was paid, and thereby induced him to take it at a very exorbitant rate, ^-hereby he was leased uftra dimidium ; yet continued to possess two years before he com- plained. The Lords found the allegiance of circumvention and fraud, both in consilio and in eveiitu, not sufficient to reduce the tack, and that the tenant should have informed himself better what teas the true rent, and not have relied on the setter's assertion, and ought to have tried the quality of the ground, and, his eye being his mer- chatit, he had nouc to blame but himself, especially now that he had acquiesced two years. Kinnaird v. Lord Dean. (1) Mason v. Crosbv, 1 Wood. & Minot, 3.52, 353. [*5] 6 MISREPRESENTATIONS BY PURCHASERS. may be such as to make it incumbent on a court of justice to im- pute to bim a knowledge of llie result, wbich upon due inquiry he ought to have obtained, and thus the notice of reliance on the representations made to him may be excluded (1). 15. The same remedy will lie against a person not interested in the property, for making a false representation to a purchaser of value or rent, as might be resorted to in case such person were owner of the estate (r) ; but the statement must be made fraudu- lently, that is, with an intention to deceive ; whether it be to favor the owner, or from an expectation of advantage to the party himself, or from ill-will towards the other, or from mere wantonness, appears to be immaterial (s). [The above doctrine stands upon a principle of natural justice, long recognized in the law, that fraud or deceit, accompanied with damage, is a good cause of action (*2) ; and this doctrine is now well settled both in the English and American juris- prudence (3).] 16. And in cases of this nature it will be sufficient proof of fraud to show, first, that the fact, as represented, is false : secondly, that the person making th(^ representation had a knowledge of a fact contrary to it. The injured party cannot dive into the secret recesses of the other's heart, so as to know whether he did or did not recollect the fact ; and therefore, it is no excuse in the party, who made the representation, to say, that though he had received information of the fact, he did not at that time recollect it (t). 17. But if the representation amount to an assurance only of (?•) [Upton r. Yiiil, 6 John. 181; 2 and see G Yes. jun. 18G ; 13 Ves. jun. Kent, (6th ccl.) 48i), .K: note ; Hean r. 131 ; 12 East, (534, n, ; Hutchinson v. Hcrrirk, 3 Fairf. 2G2.] Pasley r. Free- Bell, 1 Taunt. o;J8 ; De Graves i\ Smith, men, 3TermKe}). .51 ; i]yre 1-. Dunsford, 2 Camp. (Ja. J33 ; Foster r. Charles, 7 1 East, 318; Ex parte'Carr, 3 Yes. cS; Einf;. lOG ; 4 Moo. & P. 61 and 741; Eea. 108 ; see 6 Scott, 810. Corbett v. Brown, 2 Mood. & Malic. 108 ; (s) Ilaycraft v. Creasy, 2 East, 92 ; 5 Carr. & P. 363 ; Freeman v. Baker, 5 Tapp c. Ece, 3 Bos. & Pull. 3G7 ; [2 Kent, Barn. & Adol. 797. (6th cd.) •489 and note ; Bean r. llerrick, (i*) Burrowes r. Lock, 10 Yes. jun. 3 Fairf. 262 ; Youns r. Covcll, 8 John. 470, per Sir Wm. Grant. 23 ; IlusscU v. Clark, 7 Cranch, G9 ;] (1) "Warner r. Daniels, 1 Wood. & Minot, 90. 101, 102. But a contract for the sale of a township of land may be rescinded in favor of the purchaser for fraud in the sale, although he had an opportiuiity to examine the land before the pur- chase, and did examine it, but dicl not go into details, and confided for those in the false statements of the person negotiating with him, and of his agents. Smith V. Babcock, 2 AVood. & Z^Iinot, 246 ; TutliHl /•. Babcock, ib. 298. (2) X'pton r. Yail, 6 John. 181 ; 2 Kent, (6th ed.) 489, and note. (3) 2 Kent, (Gth ed.) 489 & note; Adams v. Paige, 7 Pick. 542; Addington r. Allen, 11 Wendell, 374 ; Gallagher v. Brunei, 6 Cowen, 346; Benton r. Pratt, 2 Wendell, 38.5 ; Livermore v. Herschcll, 3 Pick. (2d ed.) 38, note ; Patten v. Gnrney, 17 Mass. 182. CONCEALMENT OF DEFECTS IN TITLE. 7 a man's ability to answer an obligation, it must, to be binding, be in writing (u). 18. A purchaser is not liable to an action of deceit for misrepre- senting the seller's chance of sale, or the probability of his get- ting a better price for his commodity than the price which such proposed buyer offers (x). Nor is a purchaser bound to acquaint the vendor with any latent advantage in the estate : for instance, if a purchaser has discovered that there is a mine under the estate, he is not bound to disclose that circumstance to the vendor, although he knows the vendor is ignorant of it ( y). But a very little is suflicient to affect the application of this principle. If, it has been said, a word, a single word be dropped which tends to ^mislead the vendor, that principle will not be allowed to ope- rate (z) (1). 19. And equity will not interfere in favor of a purchaser who has misrepresented the estate to any person who had a desire of purchasing it (a). 20. If a purchaser conceal the fact of the death of a person of which the seller is ignorant, and by which the value of the property is increased, equity will set aside the contract (b). And even at law, if a man seeking to buy a life policy, conceal his knowldge of the extreme danger in which the life is, and underrate the value of the policy, such conduct amounts to legal fraud, and he can- not maintain any title to the policy so acquired (c). 21. The same rules apply to incumbrances and defects in the title to an estate, as to defects in the estate itself. Both law and equity require the vendor to deliver to the purchaser the instru- (?<) 9 Geo. 4, c. 14, s. 6 ; Swan v. Phi- {a) Sec IIo-\vard r. Ilopkvns, 2 Atk. lips, 3 Xev. & Per. 447 ; 8 Adol. & Ell. 371 ; Youn.o- r. Clerk, Prec.'Cha. 538. 457; [2 Kent, (Gth ed.) 489 in note; (/>) Turner r. Harvey, iJac. 169 ; and Rev. Stat. Mass. ch. 74, ^^3 ;] see Devaux as to concealment generally, see Harris V. Steinkeller, G Bing. N. C. 84. r. Kemblc, 1 Sim. 128, reversed by L. (x) See Ycrnon r. Keys, 12 East, 632. C. and in I). P. (y) Sec 2 Bro. C. C. 420. {c) Jones v. Kecnc, 2 Mood. & Hob. (z) Per Lord Eldon, in Tm-ncr v. 348. Harvey, 1 Jac. 178. (1) See 2 Kent, (6th ed.) 490 ; Parker v. Grant, 1 John. Ch. 630. In Livingston v. Peru Iron Co. 2 Paige, 390, it was held, that although a sim- ple suppression of truth, by one of the parties to a contract, may not be sufficient to authorize a co\irt to set it aside, yet, if any thing is said or done to mislead or deceive the other party, the court will grant relief against the contract. As m a case where the vendee, applyuig for the purchase of a lot of wild land, repre- sented to the vendor that it Avas worth nothing, excejjt for the purposes of a sheep pasture, when he kncAv there was a valuable mine on the lot, of the exis- tence of which the vendor was ignorant, the purchase was decided to be voidable on account of the fraud. [*6] B CONCEALMENT OF DEFECTS IN TITLE. ment by whicli the incuinbrances were created, or on which the defects arise ; or to acquaint him with the facts, if they do not appear on the title-deeds. If a vendor neglect this, he is guilty of a direct fraud, which the purchaser, however vigilant, has no means of discovering. If therefore a seller knows and conceals a fact material to the title, there is no principle upon which relief can be refused to the purchaser (d). 2"2. And Lord Hardwicke laid it down (c), " that even if an at- torney of a vendor of an estate, knowing of incumbrances thereon, treat for his client in the sale thereof, without disclosing them to the purchaser or contractor, knowing him a stranger thereto, but represents it so as to induce a buyer to trust his money upon it, a remedy lies against him in equity (/) : to which principle it is ne- cessary for the court to adhere, to preserve integrity and fair deal- ing between man and man ; most transactions being by the inter- vention of an attorney or solicitor." 23. The same observation applies, and indeed with much greater force, to the attorney or agent of the purchaser. It can seldom happen that the attorney or agent of the purchaser is conusant of any incumbrance on the estate intended to be purchased, unless he be employed by both parties; which the same person frequently is, in order to save expense. This practice has been discountenanced by *the courts (^), and is often productive of the most serious conse- quences ; for it not rarely happens, that there are incumbrances on an estate which can be sustained in equity only, and which will not bind a purchaser who obtains the legal estate, unless he had notice of them previously to completing his purchase. Now notice (Ji) to an agent, although one concerned for both parties, is treated in equity as notice to the purchaser himself; and, therefore, if the attorney know of any equitable incumbrance, the purchaser will be bound by it, although he himself was not aware of its existence (1). (rf) Per Sir W. Grant, Coop. 312. (/) It seems clear that relief might (e) Per Lord Hardwicke, 1 Yes. 96 ; now be obtained at law. and see 6 Yes. jun. 19o ; Burrowes v. (^r) See 6 Yes. jun. 631, n. Lock, 10 Yes. jun. 470 ; and Bowles v. {h) See infra, ch. 23. Stewart, 1 Sch. & Lef. 227. (1) Le Neve v. Le Nerc, Ambler, 436, 439 ; Dunlap's Paley's Agency, 262 ct seq. and notes ; Champlin r. Laytin, C Pain;o, 189 ; Dryden r. Frost, 3 Mylne & Craig, ()70 ; Griffith c. (hifhth, 9 I'aige, 31.3 ; Toiibniii r. Stccrc, 3 Meriv. 210. It has, however, been held, that the notice or knowledge of facts to affect the principal must have been acquired by the agent or attorney in the same trans- action. Le Neve r. I^e Neve, Ambler, 439, in note ; I>0A\'ther r. Carlton, 2 Atk. 242 ; Warwick v. Warwick, 3 Atk. 294 ; Hiorn r. Wi]!, 13 Yesey jr. 120 ; Hood V. Fahnestock, 8 AYatts, 489 ; Bracken f. Miller, 4 Watts and Serg. 102, 111 ; 1 [*7] T CONCEALMENT OF DEFECTS IN TITLE. 9 24. And by these means, a purchaser may even deprive hhnself of the benefit to be derived from the estate lying in a register county : the register may be searched, and no incumbrance appear ; yet, if the attorney have notice of any unregistered incumbrance, equity will assist the incumbrancer in establishing his demand against the purchaser (i) (I). 25. Another powerful reason why a purchaser should not employ the vendor's attorney is, that if the vendor be guilty of a fraud in the sale of tlie estate, to which the attorney is privy, the purchaser, although it be proved that he was innocent, will be responsible for the misconduct of his agent (Jc). In one case (/), a purchaser lost an estate, for which he gave nearly 8,000/., merely by employing the vendor's attorney, who was privy to a fraudulent disposition of the purchase-money. 26. Of course a man's attorney is not at liberty to disclose any defect which he has discovered to the party entitled to take advan- tage of it, although that party is also his client ; and it is no defense that the owner was aware that the attorney was also concerned for the other party (m). 27. The seller's attorney, too, should be cautious not to obtain any undue advantage of the purchaser behind his solicitor's back ; for not only cannot such advantage be retained, but it may, if deemed fraudulent, induce the court to rescind the contract al- together (w). 28. But to return, it has been decided that the grantor of an *annuity is not bound to lay open to the intended grantee all the (J) See infra, ch. 21, 22, 23. Hicks v. Morant, 3 You. & Jer-^. 286 ; 2 {k) See Bowles v. Stewart, 1 Sch. & Dow & Clark, 414. I,cf. 227. (w) Taylor r. Blacklow, 3 Biiig. X. (0 Doe V. Martin, 4 Term Rep. 39 ; C. 235. (?i) Berry v. Armistead, 2 Kee. 221. (I) Whenever in any proceeding before a Master the same solicitor is employed for two or more parties, such Master may, in liis discretion, require that any of the said i^arties shall be represented before hira by a distinct solicitor, and may refuse to proceed until such party is so represented. — General Orders, 23d Nov. 1831, 77. Story, Eq.jur. ^ 408. Still this rule seems not to be entirely settled, and some decisions of great authority hold it dependent upon the circumstances of each case. See Mountford v. Scott, Turn, ic Russ. 279 ; Ilargreaves v. Rothwell, 2 Keen, 1-54, 157, 160 ; NLxon v. Hamilton, 2 Dru. & Walsh, 364, 390, 392 ; (irithth V. Griffith, 1 Hoff. Ch. Rep. 158 ; Nixon v. Hamilton, 1 Irish Eq. 46 ; Lcnchan V. M'Cole, 2 Irish Eq. 342. And notice to a solicitor in one transaction, which is closely followed by and connected with another, so as clearly to give rise to a presumption, that the prior transaction was present in his mind, and tliat he could not have forgotten it, is constructive notice to his client in the latter trans- action. A fortiori, if it is clear, that, at the time of the second transaction, the first was fully in his mind. Ilai'greaves v. Rothwell, 2 Keen. 154, 159. Vol. I.' 2 [*«] 10 PURCHASER BOUrn> BY COVENANTS IN LEASES. circumstances of his situation : lie is only bound to give hones-t answers to questions put to him by the intended grantee. If the- grantee employ the grantor's attorney to prepare the deeds, the mere preparation of the deeds does not place him in a confidential relation towards the grantee ; but as the agent of the grantor he stands in his situation, and is not bound to do more than his prin- cipal (o). 29. With the exception of a vendor, or his agent, suppressing an incumbrance, or a defect in the title, it seems clear, that a pur- chaser cannot obtain relief against a vendor for any incumbrance, or defect in the title, to which his covenants do not extend ; and therefore if a purchaser neglect to have the title investigated, or his counsel overlook any defect in it, be appears to be without a remedy (^). 30. To sum up the foregoirrg observations, — a purchaser is entitled to relief, on account of any latent defects in the estate, or in the title to the estate, which were not disclosed to him, and of which the vendor, or his agent^ was aware. In addition to this protection afforded him by the law, a provident purchaser will examine and ascertain the quality and value of the estate, and not trust to the description and representation of the vendor, or his agents ; he will employ an agent and attorney not concerned for the vendor, and wili have the title to the estate inspected by counsel. 31. Where it is stated upon a sale, even by auction, that the estate is in lease, and there is no misre-presentatixm, the purchaser will not be entitled to any compensation, although there are cove- nants in the lease contrary to the custom of the country ; because whoever buys with notice of a lease, is held conusant of all its con- tents (^) (1). This rule, it should seem,ouglit, as between a vendor and purchaser, to have been confined to a contract actually exe- cuted by the conveyance of the estate and payment of the purchase- money ; but as the point has been thus decided, no person having notice of any lease, or that the estate is in the occupation of tenants, (o) Adamson r. Evitt, 2 Russ. & Myl. MS. ; S. C. 14 Yes. jun. 426 ; Walter v. 66. Maunde, 1 Jac. & Walk. 181 ; Barrand (jo) See post, ch. 12. v. Archer, 2 Sim. 437 ; Popef. Garland, {q) Hall V. Smith, Rolls, l»Dec. 1807, 4 You. & CoU. 394. (1) If at the time of a contract for the sale of land, there is a lease outstandings, which is unknown to the vendee, the vendee is not bound, but may rescind the contract, the vendor not being in a situation to give a perfect title. Tucker v. Wood, 12 John. 190; Jackson v. Wass, 11 John. 525; Green r. Green, 9 Cowen, 46 ; Ellis v. Haskins, 14 John. 363 ; Fuller v. Hubbard, 6 Cowen, 13. PURCHASER TAKING POSBESSION. H should sign a contract for purchase of the estate without first see- ing the leases, unless the vendor will stipulate that they contain such covenants only as are justified by the custom of the country. 32. With respect to incumbrances, it remains to remark, that if a purchaser suspect any person has a claim on the estate which he has contracted to buy, he should inquire the fact of him, at the *saine time stating that he intends to purchase the estate ; and if the person of whom the inquiry is made has an incumbrance on the estate, and deny it, equity would not afterwards permit him to en- force his demand against the purchaser (r) (1). 33. The inquiry should be made before proper witnesses ; and as a witness may refresh his memory by looking at any paper, if he can afterwards swear to the facts from his own memory, it seems advisable that the witness should take a note of what passes (s) (2). 34. Where difficulties arise in making out a good title, the pur- chasey should not take possession of the estate until every obstacle is removed. Purchasers frequently take this step, under an im- pression, that it gives them an advantage over the vendor ; but this is a false notion ; such a measure would, in many cases, be deemed an acceptance of the title (t), or would at least be a ground to leave it to a jury, to consider whether the party had not taken possession with an intention to waive all objections. Where a pur- chaser, after delivery to him of the abstract, which disclosed a reservation of a right of sporting not noticed in the particulars by which he purchased, upon his application was let into possession, and paid the greater part of the purchase-money, without objectino- to the right reserved, and apologized for not sending the draft of the conveyance, and afterwards raised the objection, he was held bound by his conduct, which was considered as a waiver of the objection ; and although a clerk of the seller's solicitor wrote in answer to the purchaser's application for compensation, that a rea- (>•) Iddeston v. Rhodes, 2 Yern. ooi; (i) See 3 P. Wms. 193 ; Calcraft v. Amy's case, 2 Cha. Ca. 128, cited; Iloebuck, 1 Yes. jun. 226 ; 12Yes. jun. Hickson r. Ayhvard, 3 MoUoy, 1. 27 ; and Yancouvea- i'. Bliss, 11 Yes. jun. (s) See Doe v. Perkins, 3 Term Rep. 464 ; Ex jDarte Sidcbotham, 1 Mont. & 749, and the cases there cited ; Burrough Ayr. 655; 2 Mont. & Ayr. 146, vide V. Martin, 2 Camp. Ca. 112. post, ch. 8. Hamp. 35 1, Per WUde J. in Saunders v. Kobinson, 7 Metcall", 3 15 ; Bright r. IJoyd, 1 Story C. C. 478 ; Allen v. Winston, 1 Hand, 65. (2) 1 Greenl. Ev. § 436, { 437, § 438 ; Bunker v. Shad, 8 Metcall', 150 ; Shove v. Wiicv, 18 Pick. 558. [*9] 12 EXAMINATION OF TITLE BEFORE SALE. sonable compensation would be allowed, yet this was not deemed binding, as he had no authority to make such an offer (w). 35. If, however, the objections to the title be remediable, and the purchaser be desirous to enter on the estate, he may in most cases venture to do so, provided the vendor will sign a memoran- dum, importing that the possession taken by the purchaser, shall not be deemed a waiver of the objections to the title, or be made a ground for compelling him to pay the purchase-money into court, in case a bill be filed, before the conveyance to him is executed. And a purchaser may, with the concurrence of the vendor, safely take possession of the estate at the time the contract is entered into, as he cannot be held to have waived objections, of which he was not *aware ; and if the purchase cannot be completed on account of objections to the title, he will not be bound to pay any rent for the estate, unless perhaps the occupation of it has been beneficial to him (x). 36. A purchaser of any equitable right, of which immediate possession cannot be obtained, should, previously to completing his contract, inquire of the trustee, in whom the property is vested, whether it is liable to any incumbrance. If the trustee make a false representation, equity would compel him to make good the loss sustained by the purchaser, in consequence of the fraudulent statement (y). When the contract is completed, the purchaser should give notice of the sale to the trustee. The notice would certainly affect the conscience of the trustee, so as to make him liable in equity, should he convey the legal estate to any subse- quent purchaser ; and it would also give the purchaser a priority over any former purchaser or incumbrancer, who had neglected the same precaution (2;). 37. Auctioneers usually prepare the particulars' and conditions of sale ; but this a vendor should not permit, as continual disputes arise from the mis-statements consequent upon their ignorance of the title to the estate. 38. Where an estate has been in a family for a long time, or the title has not been recently investigated, it will be advisable for the owner to have an abstract of his title submitted to counsel, and any objections which occur to it cleared up, previously to a contract (it) Burnell v. BroAvn, 1 Jac. & Walk. 145 ; Stevens v. Guppy, 3 Russ. l71. 168 ; see Southby v. Ilutt, 2 Myl. & Cra. (y) Burrowes v. Lock, 10 Ves. juii. 207. 470. {x) Heame v. Tomlin, Peake's Ca. (;) Vide in/rat ch. 22. 192; see Kii'tland v. Pounsett, 2 Taunt. [*10] EXAMINATION OF TITLE BEFORE SALE. 13 being entered into for sale of the estate. By this precaution, the vendor will prevent any delay on his part, which might impede the sale from being carried into effect by the time stipulated ; and will, in many cases, avoid the expense necessarily attending tedious discussions of a title. Another advantage is, that if there should be any defect in the title which cannot be cured, it would be known only to the agents and counsel of the vendor. It is of the utmost importance to keep defects in a title from the knowledge of persons not concerned for the owner. Persons concerned for purchasers, have in many instances communicated fatal defects in a vendor's title, to the person interested in taking advantage of them, by which titles have been disturbed. 14 OF SALES BY AUCTION. *CH AFTER I. OF SALES BY AUCTION AND PRIVATE CONTRACT. SECTION I. WHAT IS AN AUCTION. 1. What is an auction. 3. Dumb bidding. 4. Candlestick bidding, o. Marked paper bidding. 6. Glass of liquor bidding. 7. What a valid demand. 9. Auctioneer must sell. 10. Warranty bg auctioneer. This Chapter, in former editions, contained the law relating to the auction duty ; but as that is now repealed, it is necessary- only to retain so many of the authorities as may still have a general application. It should be borne in mind that the decisions upon what constituted an auction, depended upon the auction duty acts. 1. The acts of Parliament, in directing every auctioneer to take out a license, extended that liability to every person excercising the trade of an auctioneer or seller by commission at any sale of any estate, goods, &ic., by outcry, knocking down of hammer, by candle, by lot, by parcel, or by any mode of sale at auction, or whereby the highest bidder was deemed to be the purchaser (a) ; which description seemed to embrace all the modes of sale by auc- tion upon which duty was imposed. 2. The acts applied to every mode of sale, whereby the highest bidder was deemed to be the purchaser. Therefore, where after an auction at which there was no bidding, the seller's agent stated that he should be ready to treat for the sale by private bargain, and the meeting broke up ; and the agent shortly afterwards went into a private room, with several of the persons who attended the sale, and he stated that the highest offer above 50,000 /. would be accepted ; and offers were accordingly made to him, and he having opened them, said that the one which was the highest ivould he accepted, provided the terms of 'payment could he adjusted, and these terms having hecn adjusted, the hargain was concluded the («) 19 Geo. III. c. .3G, s. 3 ; 42 Geo. III. c. 93, s. 14. 1*1 OF BIDDINGS. 15 *followmg day; this was held to be within the act. The agent put himself under an obligation to treat with all the persons assembled, and to give the estate to the highest bidder. The question was not, whether this was what was usually called a sale by auction, but whether for the purpose of the act every thing must not be considered as such a sale where the contract was with various persons, with an engagement to let the highest bidder be the purchaser. He might have taken any individual he pleased and concluded a bargain with him ; that would have been a transaction of a different kind : but here he treated with a number, and came under an engagement to accept the highest offer (b). 3. Any thing in the nature of a bidding was within the acts ; and therefore where the owner put the price under a candlestick in the room (which is called a dumb bidding), and it was agreed that no bidding should avail if not equal to that, it was holden (c) to be within the acts ; as being in effect an actual bidding of so much, for the purpose of superseding smaller biddings at the auction. 4. Upon such a sale by candlestick biddings, as they are deno- minated, where the several bidders do not know what the others have offered, a bidding of so much per cent, more than any other person had offered, was deemed bindnig on the person who made it (d). 5. So biddings by several persons of sums marked upon a paper were within the act (e). 6. So in the case of a female auctioneer who continued silent during the whole time of the sale, but whenever any one bid she gave him a glass of brandy : the sale broke up, and in a private room he that got the last glass of brandy was declared to be the purchaser. This was decided to be an auction (/). 7. If there were two owners, and one appointed a puffer un- known to the other or to the auctioneer, he would, if he were the last bidder, have been deemed the highest bidder within the com- mon condition (^). 8. Although the condition were, that the highest bidder should immediately after the sale pay the auction duty, yet a demand after the day's sale was concluded was valid, notwithstanding that (6) Walker v. Advocate-General, 1 (e) Attorney-General v. Taylor, 13 Dow, 111. Trice, 036. (c) See the case cited, 3 East, 3-10. (/) 1 Dow, 115. Capp V. Topham, infra. (g) Wilson v. Carey, 11 Mees. & Wils. id) 3 Mer. 483, per Lord Eldon. 3G8. [*12] 10 ON PUFFING. the sale of the lot in question was followed by the sale of other unconnected lots (A). *9. The auctioneer must himself sell the estate, and cannot without a special authority, delegate the sale to another (i). [Yet this does not require that he should make all the sales in person. He may employ all necessary and proper clerks and servants. And in the course of a protracted sale, he may undoubtedly, without a violation of law, relieve himself by employing others to use the ham- mer and make the outcry. But this should be done under his imme- diate direction and supervision (ji).] 10. A statement by an auctioneer to the vendor or his agent, that he had done what was necessary to avoid payment of the duty, amounted to a warranty, although the duty became payable, not by the default, but by the ignorance or mistake of the auctioneer. (/») S. C. 183 ; Schmaliiig v. Thomlinson, G Taunt. («■) See Cockran r. Irlam, 2 Mau. & 147; Coles v. Trecothick, 9 Yes. jun. Selw. 301 ; Cablin v. Bell, 4 Camp. Ca, 251, (ii) Per Morton J. in Common-n'ealth v. Ilarnden, 19 Pick. 482 ; Chittj^ Contr. (8th Am. ed.) 207 and cases in note. SECTION II. or PUFFING. 1. Civil law. 2. Lord Mansfield against : Bexwell v. Christie. 3. Lord Kenyan against: Iloward v. Castle. 4. Lord liosshjn for : ConolUj v. Par- sons. 5. Lord Alvanleg for : Bramley v. Alt. 6. Sir W. Grant for : Smith v. Clarke. 8. Later authorities against. 9. liesult favorable. 10, 17. Public notice. 11. Appointme^it to rim up price, bad. 12. So appointment of more than one puffer. 14. Or ichere an implied condition against it. 15. Or sale is tcithout reserve. 16. Effect on sub-purchaser. 18. Purchaser tiot to deter bidders. 19. .Safe damaged by sup2)osed puffers, not enforced. 20. Puffer bidding for the wrong estate not bound in equity. 1. According to Cicero (o), a vendor ought not to appoint a puffer to raise the price, nor ought a purchaser to appoint a per- [*13] (a) De Off. 1. 3. « OF PUFFING. 17 son to depreciate the value of an estate intended to be sold (1). And Huber lays it down (b), that if a vendor employ a puffer he shall be compelled to sell the estate to the highest bo7ia fide bidder ; because it is against the faith of the agreement, by which it is stipulated that the highest bidder shall be the buyer (2). 2. In Bexwell v. Christie (c), Lord Mansfield and the other Judges of B. R. followed the rule of the civil law, and treated a private bidding, by or on the behalf of the vendor, as a fraud ; but the Legislature, by the subsequent statutes imposing a duty on sales of estates by auction, seems to have been of a different opinion, and even to have sanctioned it. Lord Rosslyn, who was *present at the making of the act, remarked in the case of Conolly V. Parsons, that (d) the acts of Parliament go upon its being an usual thing and a fair thing for the owner to bid. The pressure, when the tax was imposed, was by embarrassing people, who chose to dispose of their goods by auction if they chose to be purchasers, by the tax falling upon them. He said, that he thought it would have occured either to Lord Thurlow or to him, when the exception in favor of the owner was proposed, that the case would not exist, as the owner could not be a bidder ; or that, for his attempting to do what he could not by law, it would be just that he should pay the duty. It was very wrong to the public to let that clause stand, if at the time it was understood that the owner bidding was doing an illegal thing. The acts did not require an open notice, but only a private notice to the auctioneer, and an oath to prevent the setting up a bidding for the owner that the bidder might evade paying the duty. 3. Lord Kenyon, however, in the case of Howard v. Castle, where the purchaser was the only real bidder, and there were several puffers (e), clearly coincided with Lord Mansfield's opinion ; and held, that unless it was publicly known that the owner intended to bid, it was a fraud upon the purchaser, and consequently no action would lie against him for non-performance of his agree- ment. The acts of Parliament, he thought, did not intend to interfere with this point, but to leave the civil rights of mankind (i) Prsclectiones, x\'iii. 2. 7. See Twining r. Morris, 2 Bro. C. C. 326 ; (c) H. 16 Geo. III. Cowp. 395. Perkins' ed. 331 noteb ; and sec 3 Term {d) See 3 Yes. jun. 628. Rep. 93, 95. (e) 36 Geo. lU. ; G Term Rep. 642. (1) Moncrief v. Goldsborough, 4 Har. & iM'Hen. 282 ; Donaldson v. M'Rov, 1 Browne, 3t6 ; Smith ». Greenlee, 2 Dev. 126 ; Troughton r. Johnson, 2 Haj-wood, 28. (2) See the opinion of Ware J. in Veazio >•. "Williams, 3 Ston,- C. C. 611, 632. Vol. 1. 3 [*14] 18 OF PUFFING. to be judged of as they were before. And Grose, J. also expressed his opinion, that the doctiiiie was not in the least hnpeached by the acts of Parliament. 4. But in the case of Conolly v. Parsons (/), Lord Rosslyn said, he fancied the foregoing case turned on the circumstance that there was no real bidder ; and the person refused instantly. It was one of those trap auctions which are so frequent in this city. The reasoning went large, certainly, and did not at all con- vince him. He said, he should wish it to undergo a re-considera- tion ; for if it was law, it would reduce every thing to a Dutch auction, by bidding downwards (I.) He felt vast difficulty to com- pass *the reasoning, that a person does not follow his own judg- ment because other persons bid ; that the judgment of one person is deluded and influenced by the biddings of others. The facts of the case of Conolly v. Parsons do not appear in the report ; but I learn, that there was a contest between real bidders, after the per- son employed to bid on the part of the vendors had desisted from bidding. The suit was compromised by the purchaser paying a considerable sum of money to the vendor to release him from the contract ; and consequently Lord Rosslyn did not give judgment ; but it seems he was clearly of opinion that the sale was valid. 5. And in the latter case of Bramley v. Alt (o-), where an estate was put up to sale by public auction, and an agent for the vendor bid to 75/. an acre, without public notice of his intention to do so ; and after a contest with real bidders the estate was bought at 101/. lis. an acre ; Lord Avanly, then JNIaster of the Rolls, de- creed a specific performance with costs. And he concurred with Lord Rosslyn in considering the case of Howard v. Castle only (/) 3 Yes. jun. G2.), n. (<;) 3 Yes. jun. G20. See Sumner's cd. note (a). (I) A sale of this nature is thus conducted : The estate is put up at a high price, and if nobody accept the offer, a lower is named, and so the sum first required is gradually decreased, till some person close with the offer. Thus there is of neces- sity only one bidding for the estate, a mode of sale which, in this country, would attract few bidders. In some counties in England a singular mode of sale of es- tates for redemption of land-tax is adopted ; the auctioneer states the sum of money wanted, and the number of acres to be disposed of, and the person who will accept the least quantity of land for the sum required, is declared the pur- chaser ; so that the persons bid downwards, until some one name a qujtotity of land less than any other will take. The manner of conducting sale by auction of the post-horse duties is at once Dutch and English. The duties are put at a large sum, named in the particialars, and the sale is then conducted in the same manner as a Dutch auction ; but when any person actually bids, others may advance on that bidding, and the highest bidder is declared the purchaser ; ju.st as if the sale had been conducted in the usual way. [*15] OF PUFFING. 19 as a decision, that where all the bidders except the purchaser are puffers, the sale shall be v^oid. 6. In a subsequent case (A), it appeared that assignees of a bankrupt had put up the estate to sale by auction. It was proved that a bidder was employed on their parts to bid up to, but not exceed 1501., the sum for which the estate was actually sold. The Master of the Rolls held, that the assignees had not committed any fraud, they did not employ the bidder for the purpose, generally, of enhancing the price, but merely to prevent a sale at an undervalue, and they stated previously, what they conceived to be the true value, below which the lot ought not to be sold. He treated the case of Howard v. Castle as having pro- ceeded on the ground of plain and direct fraud, and said, that in a similar case he should come to a similar conclusion. 7. By these decisions, therefore, it was ruled, that a bidder may be privately appointed by the owner in order to prevent the estate from being sold at an undervalue ; and that if there were real *bidders at a sale, it must be supported, although the bidding im- mediately preceding that of the purchaser was a fictitious one (i). 8. But Lord Tenterden again opened the question at nisi prius, and expressed extrajudicially the strong inclination of his opinion, that if a person be employed with a view to save the auction duty (I), the sale is void, unless it be announced that there is a person bidding for the owner ; the act itself is fraudulent. The statute was made for a different purpose, with a view to the duty only, and could not be made to sanction what was in itself fraud- ulent (k\ And in a late case, C. B. Alexander treated it as clear, that the employment of a puffer vitiated the sale (Z), but it was not necessary to decide that point. And in Crowder v. Austin (a horse cause), after a bona fide bidding of 12/. the owner's servant made repeated biddings up to 23/. That appears to have been a mere fraud, but the court is reported to have been inclined to adhere to Lord Mansfield's opinion in Bexwell v. Christie (m). (A) Smith V. Clarke, 12 Yes. juu.477. (0 Rex v. Marsh, 3 You. & Jcrv. 331, (<■) Smith V. Clarke, 12 Yes. jun. 477. vide jMtif. Tliis -was rather a mi.s-state- See Sumner's ed. note (a). ment of the rule than a judicial opinion (A) Wheeler v. Collier, 1 Camp. Ca. against it. 123. (m) 3 Bing. 368. (I) The appointment is with a -view to prevent the estate from going below a fixed sum ; or, in some cases, to run up the price fraudulently. The auction duty was saved bv givmg a proper notice. [*161 80 OF PUFFING. 9. The authorities, liowever, preponderate in favor of the validity of a person privately bidding, and the practice is universally adopted, and ought not to be lightly disturbed. It would require a decision of the House of Lords to overrule the decisions, and it would be better to leave them undisturbed, restricted as the power now is (1). 10. Where public notice has been given, the contract will be binding on the purchaser, although there was no contest between real bidders ; but only the purchaser and the person employed to bid, bid against each other (n). Consistently with the above authorities, the rule, it should seem, would be the same, even where public notice had not been given, provided the bidder was appointed only to protect the vendor's interest. 11. But where a person is employed, not for the defensive pre- caution, with a view to prevent a sale at an under value, but to take advantage of the eagerness of bidders to screw up the price, that will be deemed a fraud (o). 12. Neither do the cases authorize the vendor to appoint more *than one person on his behalf. It seems highly proper that a vendor should be permitted to appoint a person to guard his inter- ests against the intrigues of bidders : but it does not follow that he may appoint more than one. The only possible object of such a proceeding is fraud. It is simply a mock-auction ; and, notwith- standing Lord Roslyn's impression, it is universally felt and acknowledged, that the judgments of most men are deluded and influenced by the biddings of others ; and if a man believe the other bidders to be real ones, he advances under the apprehension that he shall let slip the opportunity of buying. As far as any aid was sought from the auction-duty acts, in support of private bid- dings on behalf of the owner, it was clear that they did not author- ize or sanction the appointment of more than one person. In the report of Conolly v. Parsons it is stated, that persons were employed to bid, and did bid for the vendors ; but the fact is, that one person only was employed by them, and actually bid on their behalf. The Master of the Rolls observed, in the late case of {n) Bo-\vles v. Round, 5 Vcs. jun. 508. Chancellor seemed rather to be of opin- Sumner's ed. note (i). ion that the appointment of one puffer (o) See 12 Ves. jun. 483. In Fitzger- was, in no case, bad. Crowder v. Aus- ald V. Forster, 31st July 1813, the Vice- tin, 3 Bing. 368. (1) See Latham v. Morrow, 6 B. Monroe, 630 ; National Fiie Lib. Co. v. Loomis, 11 Paige, 431. f*17] OF PUFFING. 21 Smith V. Clarke, that he did not see, that if several bidders were employed by the vendor, in that case a court of equity would compel the purchaser to carry the agreement into execution ; for that must be done merely to enhance the price. It was not neces- sary for the defensive purpose of protection against a sale at an undervalue (p) (1). 13. In a later case upon this subject, Lord Tenterden held clearly that the sale was void in point of law, as two persons had been employed to bid, although they were both limited not to go beyond the same fixed sum. The current authority, therefore, is clearly against the validity of such a sale (5'). 14. In a late case upon a sale by the Crown of an estate seized under an extent, it was stipulated, that " on the part of the Crown, Mr. E. Driver should be at liberty to make one bidding, but no more, and if the highest bidder, the sale to be void ;" and a puffer was employed at the auction by Mr. Driver, the agent for the Crown ; the court held that the sale was not binding upon the purchaser (r). We cannot fail to perceive that in this last case the condition was pregnant with a negative, that no puffer should be employed. Mr. Driver was there, not simply as the auctioneer, but as the known person to protect at any moment the estate by liis bidding ; the other person was merely a puffer, to give to the *sale the appearance of a contest ; a real bidder must have been misled by the conditions (^2). (/)) See 12 Yes. jun. 483 ; and sec 8 (>■) Ilex v. Marsh, 3 You. & Jer. 331 ; Terra Kep. 93. 9o. and sec Crowder r. Austin, 3 Bing. 368, (7) Wheeler v. Collier, 1 Mood. & 11 Moo. 283. Malk. 123. (1) Mr. Justice Story, in Yeazie r. Williams, 3 Story C. C. 622, 623, quotes largely from Sir William Grant's judgment in. the above case of Smith v. Clai-ke, and highly commends the suggestions there made. (2) Mr. Chancellor Kent, in liis learned Commentaries, having noticed and commented on the cases of Bexwell r. Christie, Howard v. Castle, Conolly v. Pai'- sons, Bramley v. Alt, and Smith r. Clarke, says : — " It would seem to be the conclusion, from the later cases, that the employment of a bidder by the owner would or would not be a fi-aud, according to tlic circumstances tending to show innocence of intention, or a fraudulent design. If he was employed bona fide to prevent a sacrifice of the property under a given price, it would be a lawful tTcinsaction, and would not vitiate the sale. But if a number of bidders were employed by the owner to enliancc the price by a pretended competition, and the bidding by them was not real and smccre, but a mere artifice in combina- tion with the owner, to mislead the judgment and inflame the zeal of others, it would be a fraudulent and void sale. So it would be a void sale, if the pur- chaser prevails on the i^ersous attending the s;ilc to desist fi-om bidding, by rea- son of suggestions by way of appeal to the sympatliies of the company." 2 Kent, (oth ed.) 538, 539. And Mr. Justice Story, iii Yeazie v. Williams, 3 Story C. C. 623, approves of the above remarks and suggests that they furnish " the true and just [*18] 22 OF PUFFING. 15. Where the particulars or advertisements state that the estate is to be sold icilJiout reserve, the sale will be void against a purchaser, if any person be employed as a puffer, and actually bid at the sale. This was decided in the case of Meadows v. Tan- ner (s). The Vice-Chancellor said, that the plain meaning of the words ivithout reserve, in a particular of sale, is, that no person will be employed to bid on behalf of the vendor for the purpose of keeping up the price ; and that the vendor could hav-e no claim to the aid of a Court of Equity to enforce a contract against the purchaser, into which he might have been drawn by the vendor's want of lliith. 16. Although an original purchaser will not be bound where a (s) 5 Madd. U. and satisfactory results." In the above case of Veazie v. Williams, Mr. Justice Story fui-tlier observes : — " It ajipcars to me, that there is room for some distinc- tions upon tills subject, Avhich, it' they do not fully reconcile the cases, are, at all events, well adapted to subserve the purposes of private justice and convenience, as well as public iiolicy. ^Vhere all the bidders at the sale, except the purchaser, ai-e secretly employed by the seller, and yet are apparently real bidders, and the purchaser is misled thereby, and is induced to give a larger price in consequence of theu- supposed honesty and exercise of jiidgmcnt, then the sale ought to be held a fraud upon the purchaser, because he has been intentionally deluded by them. But where there are real bidders, as well as secret bidders for the sellers, these, if the last bid before the purchaser's bid be a real bid, and no intentional deceit has been practiced by what have been sometimes called decoy ducks, to mislead or surprise the judgment or discretion either of other real bidders or of the purchaser, there seems to be a soHd ground to hold that the sale is valid." See idso Wolfe v. Luyster, 1 Hall, (X. York) 146 ; :Morehead v. Himt, 1 Dev- ereux & Eat. Eq. Rep. 35; Woods v. Hall, ib. 411; Steele v. EUmaker, 11 Serg. & Kawle, 86 ; Chitty Contr. (8th Am. ed.) 298, 692, and in notes ; Moncrief V. Goldsborough, 4 Ilarr. & M'llen. 282 ; Troughton r. Johnson, 2 HayAV. 28 ; Phippen v. Stickney, 3 Metcalf, 380, 387 ; Latham r. Morrow, 8 B. Mom-oe, 630 ; Xatioual Fii'e Ins. Co. v. Loomis, 11 Paige, 431 ; JeiJdns r. Hogg, 2 Const. Rep. 821. Mr. Chancellor Kent, however, notwithstanding the conclusion above stated by him as the result of the cases, declares that " the original doctrine of the Iving's Bench is the more just and salutary doctrine. In sound policy, no person ought in any case, to lie employed secretly to bid for the owner against the bonajide bidder at a public auction. It is fraud in law on the very face of the transac- tion ; and the o-wmcr's interference and right to bid, in order to be admissible, ought to be intimated in the conditioixs of sale ; and such a doctrine has been recently declared at AVcstminstcr haU. Crowder v. Austin, 3 Bingh. 368. The language of tlie Supreme Court of Louisiana is strongly in favor of the doctrine of Lord Manstield. Baham v. Bach, 13 Louisiana Rep. 287." Sec also the learned dissenting opinion of Mr. Justice Ware, in the case of Veazie v. WU- liams, 3 Story C. C. 632. In this case of Veazie v. Williams, it appeared that fiilse bids had been made, but by the auctioneer, who had no authority to make them from the seller. Ujion this ;Mr. Justice Story said, — " Be the general doc- trine upon this subject as it may, no case has fallen luider my notice, m which it has been held, that the act of the auctioneer in receiving, or making false bids, unknown and unauthorized by the seller, would avoid the sale. And upon piiir- ciple, it is very difficult to see why it should avoid the sale, since there is no fraud, connivance, or aid given by the seller to the false bids. If the purchaser is misled by the false bids of the auctioneer to suppose them to be real, he may have an action against the auctioneer for the injury sustamed thereby." OF PUFFING. 23 fraud has been practiced in the biddings, yet if he transfer his contract, a strong case of fraud must be made out against the original purchaser, to enable the court to give the benefit of it to his assignee, who was not induced through competition to give the price (t). 17. Where public notice is given, the mode least liable to objection seems to be that of reserving a bidding, or stipulating in the conditions of sale, that the owner may bid once in the course of sale (u). It may here, however, be proper to observe, that buying in an estate, especially where it is done without public notice, mostly prejudices a future sale. This was exemplified, in the sale of an estate before one of the Masters in Chancery, where 23,000/. was bona Jicle bid, and the estate was bought in by the agent of the vendor ; afterwards there were three other sales in the Master's office ; and the consequence of the estate having been bought in deterring others from bidding, was, that on the two first occasions no more was offered than 12,000Z. and 6,000Z. ; and the estate finally sold for 1.5,000/. (r). 18. As on the one hand a seller cannot appoint puffers to delude the purchaser, so on the other, if a purchaser by his conduct .deter other persons from bidding, the sale will not be binding (1). Thus, where upon a sale by auction of a barge, a bidder addressed the company present, saying he had a claim against the late owner, by whom he said he had been ill used, whereupon no one offered to bid against him : but the auctioneer refusing to knock down *the property to a single bidding, a friend of the bidder's bade a guinea more, and the first bidder then made a second and higher bidding, amounting, however, to only one-fourth of the prime cost of the barge ; it was held that there was no legal sale (y) (2). (i) See 12 Yes. jun. 484. Kiiton, 8 Yes. jun. o02; and sec T-vvin- (u) Sec Co-svp. 397 ; Jervoiser. Clarke, ing r. Morris, 2 Bro. C. C. 326. 1 Jac. & Walk. 389. (y) Puller v. Abrahams, 3 Brod. & (x) See 6 Yes. jun. 629; Wren v. Bing. 116 ; 6 Moo. 316. (1) Woods r. Hudson, o Munf. 423; Hudson v. Hudson, 5 Munf. 180; Troup V. Wood, 4 John. Ch. 228, 2o4. (2) 2 Kent, (oth ed.) .539, and note; Hamilton r. Hamilton, 2 Richardson Eq. 35.5 ; Gardiner v. Morse, 2-5 Maine, 140 ; Haynes v. Crutchficld, 7 Alabama, 189. The Supreme Court of Xcw York have held, in several cases, that contracts by which one party stipulated not to bid against another at an auction sale, or an agreement by one to bid tor the benefit of himself and another party, could not be enforced in a court of law. The decisions have been usually placed upon two grounds ; 1st, that such a contract was nudum pactum, being -w ithout con- sideration ; 2d, that it was against public policv and a fraud on the vendor. Jones r. Caswell, 3 John. Cas. 29 ; Doolin r. ^Vard, fi John. 194 ; ^^■ilbur r. How, 8 John. 444 ; Thompson r. Davies, 13 John. 42. The same doctrine wiis held in Dudley v. Little, 2 Ham. (Oluo) 505 ; and in Piatt v. Oliver, 1 McLean, 295. [*191 94 or PUFFiNfi. 19. And where the seller's known agent bid at the sale for the purchaser, and was considered as a pufter, which deterred other bidders, a specific performance was refused (c) ; so even where a real purchaser was considered as a puffer, and the actual puffer neglected to bid the appointed sum, the court refused to inter- fere (fl). 20. These instances are in favor of the seller. Where a puffer by mistake bid for the wrong estate, which was knocked down to him, equity left the seller to his remedy at law (i). (~) Twining v. Morris, 2 Ero. C. C. («) Mason z>. Armitagc, 13 Ves..jun. 326, sec iwst, ch. 4, s. 3. 25, post, ch. 4, s. 3. (6) Malliiis V. Freeman, 2 Kee. 2.5. See also Gulick v. "Ward, o Halstcd, 87. On the other hand, in Smith v. Green- lee, 2 Devereux, 126, the Court of North Carolina, while they sustain the gen- eral doctrine, that a sale might be avoided when made to one in behalf of an association of bidders designed to stifle competition, yet concede that this rule would not apply to an association of bidders formed for honest and just pur- poses, as in the case of a union of several persons formed on account of the magnitude of the sale, or where the quantity offered to a single ])idder exceeded the amount wliich individuals might wish to purchase on their o-mi account. And in riiippen v. Stickney, 3 Mctcalf, 388, 389, Mr. Justice Dewey, delivering the o]5inion of the court, said ; — " AA"c are of opinion, that an agreement between A. & li. that A. will i)crmit B. to become the purchaser of certain projDerty about to be offered for sale at public auction, and that A. will pai-ticipate with B. in the benefits of the purchase, ■\^•ill or will not be fraudulent, as the circumstances of the case show innocence of intention or a fraudulent purjiose in making such agreement ; that where such arrangement is made for the purpose and with the view of 2)reventing fair competition, and by reason of want of bidders to depress the price of the article offered for sale, below the fair- market value, it ■\\ill be illegal, and may bo avoided as between the parties, as a fraud upon the rights of the vendor. But, on the other hand, if the arrangement is entered into for no such fraudulent purpose, but for the mutual convenience of the parties, as with the view of enabling them to becoine purchasers, each being desirous of purchas- ing a part of the property offered for sale, and not an entire lot, or induced by any other reasonable and honest jiurpose, such agreement will be valid and bind- ing." See also Small v. Jones, 1 Watts & Serg. 128 ; Switzcr v. SkUcs, 3 Gil- man, 529. In Gardiner v. Morse, 25 Maine, 140, the Supreme Court of Maine approved of the above rules laid doA\'n in the case of Pliipjjen v. Stickney, and in that case decided that, where the parties agreed, that if the defendant, at an auction sale of the effects of a bankrupt, would not bid upon a note against the plaintiff, wliich was a part of said effects, tlie plaintiff -would discharge a demand he held against the defendant, such agreement was xinla^A-ful and void. Gardiner V. Morse, 25 Maine, 140. OF THE PARTICULARS AND CONDITIONS OF SALE. 25 SECTION III. OF THE PARTICULARS AND CONDITIONS OF SALE. 1. Bidding may be countermanded. 2. Condition against it. 6. Sale under Act of Parliament. 7. Conditions favorably construed. 8. Where purchaser tenant at will only. 10. Cannot be contradicted at sale. 16. Purchaser bound by previotts know- ledge . 17. Good title implied : all interest in- cluded. 18. Condition to take a defective title. 21. Condition to avoid sale if title de- fective. 22. Effect of conditio?! to rescind sale. 23. Description of estate. 25. 37. Free public-house. 26. Rights of ioay. 27. Plun of new street. 28. Lights. 30. Reading of kase at auction. 31. Buildings roHOved. 32. Evidence of identity. 33. Covenant against trades. 34. Clear yearly rent. 36. Covenants in lease. 39. Waterloo Bridge annuity : potcer to redeem not stated. 40. Power of purchase not stated. 41. Condition that misdescription not to avoid sale. 42. 43. 44. 49. 52. 5o, 59. 61. 62. 63. 64. 65. 66. 67. 71. 72. 73. 74. 76. 77. 78. 79. 81. 83. 84. Does not extend to fraudulent de- scription. Equitable doctrine thereon. Nor to want of title to material part. Nor to unintentional error zvhere pur- chaser misled. Or the vahie cannot be estimated. 58. Effect, generally, of error not fraudulent icpon the condition. Timber. Timber-like trees to be paid for. Fixtures. Deeds not to be produced. Assignments of terms, Sgc. * Attested copies. Landlord' s title. Liability of jJurchaser of leaseholds. Preparation of conveyance. Forfeiture of deposit and right to resell. Stipulated damages. Forfeiture of deposit under condition. Where there is no such condition. Re-sale after bankruptcy. Seller's lien. Time allowed to purchaser. Unicsual conditions. Agreements to be signed. Auctioneer may bind purchaser and seller. The particulars and conditions of sale (o) next claim our atten- tion. I . A bidding at a sale by auction may be countermanded at any time before the lot is actually knocked down (h) (1) ; because the assent of both parties is necessary to make the contract binding ; that is signified, on the part of the seller, by knocking down the (ffi) Sec a foi-m of them, App. Xo. 1. Moo. & Pav. 717. As to goods, see {b) Payne v. Cave, 3 Term Kep. 148 ; I'hiUips r. BistoUi, 3 Dowl. & Ry. 822. see Routledge v. Grant, 4 Bing. 653 ; 1 (1) See Downing v. Brown, Hardin, 181. Vol. I. 4 I*-20] 26 COUNTERMAND OF BIDDING. hammer. An auction is not unaptly called locus pcenitenlice. Every bidding is nothing more than an offer on one side, which is not binding on either side till it is assented to. If a bidding was binding on the bidder before the hammer is down, he would be bound by his offer, and the vendor would not, which can never be allowed. 2. The countermand of a bidding would, in some cases, prove of the most serious consequences ; and it might therefore be advisable to stipulate in the conditions of sale, that no persons shall retract their biddings. 3. If the bidding be retracted, the retractation must be made loud enough to be heard by the auctioneer, otherwise it amounts to nothing, and is the same as a thought confined to the person's own breast (c). 4. This condition was originally suggested to me by the case of Payne v. Cave, and it has now become a common condition. But I always thought it one that could not be enforced. In Jones v. Nanney (^d), Mr. Baron Wood suggested the difficulties, that to. hold that an action would lie on an implied undertaking not to retract would be an invasion of the statute of frauds, and he asked whether, if there had been an express condition of sale, that the statute of frauds should have no operation on the transaction between the parties, it could be contended to be an efficient condi- tion so as to avoid the statute. *5. Although the duty was, by the acts, imposed on the vendor, yet he was not restrained from making it a condition of sale, that the duty, or any certain portion thereof, should be paid by the purchaser over and above the price bidden at the sale by auction : and in such case the auctioneer was required to demand payment of the duty from the purchaser, or such portion thereof as was payable by him under the condition : and, upon neglect or refusal to pay the same, such bidding was declared by the act to be null and void to all intents and purposes (c). But it was properly held that the nonpayment made the contract void only at the option of the vendor. The object of the provision was to protect the revenue, and that, it was observed, would be sufficiently accomplished by this construction {/)- The rule thus established is one of general application. (c) Jones V. Xanncv, ^I'Clel. 39 ; 13 (/) Malins v. Freeman, 4 Bing. N. C. Price, 102, 103. ' 395 ; 6 Scott, 187 ; AViUson v. Carey, 10 (d) 13 Price, 99. Mees. & Wels. 641. (c) 17 Geo. 3, c. 50, s. 8. See 7 Yes. jun. 34.5. [*21] CONSTRUCTION OF CONDITIONS. 27 6. Although trustees sell under an Act of Parhament which prescribes that after certain acts the last bidder is to be the pur- chaser, yet the trustees, as between them and the bidders, may superadd other conditions (^g.) 7. The Judges will so construe conditions of sale as to endeavor to collect the meaning of the parties, without encumbering them- selves with the technical meaning of the words. Thus where (A) the city of London let an estate by auction for a term of years, according to certain conditions of sale, by which it was stipulated that the purchaser should pay a certain rent before the lease was granted, which he accordingly agreed to do, the Court of King's Bench held that although the money to be paid could not be strictly called a rent, the relation of landlord and tenant not having then commenced, yet the parties intended the money should be paid, and it must be paid accordingly. Lord Kenyon said, he had always admired an expression of Lord Hard- wicke's, " that there is no magic in words." But under an agree- ment for purchase, with a stipulation, that until the conveyance is made the purchaser shall pay and allow to the seller at the rate of a fixed sum per annum, three half-yearly payments will create the relation of landlord and tenant, and the sum payable will be reco- verable as rent (i). 8. But it has been considered that in the case of Saunders v. Musgrave there was a clear intention to create a tenancy at a fixed annual rent. And therefore where, in an agreement for purchase with ^possession, it was stipulated that the purchaser should pay interest at five per cent, per annum on the purchase-money until the comple- tion of the contract, the purchaser, although he had built upon the land, was treated as tenant at will only, and the other was allowed to maintain an ejectment without notice to quit. The provision for payment of interest was not, it was said, by way of compensation for the occupation, but was quite independent of it (Jc). 9. Great care should be taken to make the particulars and con- ditions accurate ; for the auctioneer cannot contradict them at the time of sale ; such verbal declarations, — the babble of the auction- room, as Lord Eldon termed them (/) — being inadmissible as evidence (1). {(/) Levy V. Pendorgrass, 2 Boav. 415. Cres. 524 ; 9 Dowl. & R. 529. (A) City of London v. Dias, "Wood- (k) Doe v. Chamberlain, 5 Mee. & fall's L. & T. 301. Wels. 14. (t) Saunders v. Musgrave, 6 Barn. & (/) See 1 Jac. & Walk. G39. (1) See "SVright v. DeKlyne, Peters C. C. 199 ; Grantland r. Wright, 2 Muuf. 179 ; Rankin v. Matthews, 7 Iredell, 286. f*22] 98 VERBAL CONTRADICTIONS 10. Thus, where estates were put up to sale by auction (m), and in the printed particulars of sale were stated to be free from all incum- hrance, they were bought by a person who, discovering that there was a charge on the estate of 17Z. per annum, refused to complete the purchase, in consequence of which, an action was brought by the vendor ; and although he offered to give in evidence, that the auctioneer had publicly declared from his pulpit in the auction- room, when the estate was put up, that it was charged in the manner above specified, yet the court of C. B. refused to admit the evidence, as it would open a door to fraud and inconvenience, if an auctioneer were permitted to make verbal declarations in the auction-room, contrary to the printed conditions of sale ; and the plaintiff was nonsuited. And this rule prevails in favor as well of the seller as of the purchaser (ii), and it equally applies to a sub-sale ; therefore, if A buy at sale after a formal explanation at the sale, which was heard by 13, and then re-sell to 13, the first declaration is no more binding upon B than A, and therefore A cannot enforce the contract, as explained by the auctioneer, against jB (o). 1 1 . The same rule of course prevails in equity, where the person setting up the parol evidence is plaintiff. Upon the sale of an estate by auction the particular was equivocal as to the words ; but it was clear the purchaser was to pay for timber and timber- like trees. There was a large underwood upon the estate. At the sale, the article being ambiguous, the auctioneer declared he was only to sell the land ; and every thing growing upon the land must be paid for. The defendant, the purch^iser, insisted he was only to pay for timber and timber-like trees, not for plantation *and underwood. The declaration at the sale was distinctly proved ; but it was determined by the Court of Exchequer that the parol evidence was not admissible, (p) (1). 12. Nor when the seller is plaintiff can parol evidence be ad- mitted on his behalf, of the declarations at the sale, although the purchaser, by the written agreement, bind himself to abide by the conditions and declarations made at the sale (^q) . (»i) Gunnis v. Erhart, 1 H. Black. 289 ; (o) Shelton v. Livins, 2 Crompt. & Jei-. see Jones v. Edney, 3 Camp. Ca. 285, 411. 286 ; Bradshaw r. 13ennett, 5 Carr. & (;j) Jenldnson v. Pepys, 6 Ves. jun. Pay. 48, 330, cited; 15 Ves. jun. 621, stated. (m) Powell V. Edmunds, 12 East, 6. (?) Higginson v. Clowes, 15 Ves. jun. 515, vide infra. ( 1) See Cannon », Mitchell, 2 Desaus, 320, P23] i AT SALES BY AUCTION. '29 13. So if the particulars of sale state the estate to he held for three lives, but one drop before the sale, and the auctioneer state the fact, evidence of his statement cannot be received (?•). The •Court observed, that before the sale, the auctioneer ought to have altered the particulars with respect to the lives so as to have made them conformable to the fact. 14. But a question has been raised, whether, if by a collateral representation a party be induced to enter into a written agree- ment, different from such representation, he may not have an action on the case for the fraud practiced to lay asleep his pru- dence (5). 15. And if in truth the party do not purchase under the con- ditions of sale, although he bid at the auction, the conditions are not binding upon him : as where, before the sale of goods, an executor agreed that a legatee might bid at the auction to the amount of his legacy, and set off the purchase-money to that extent ; it was held that the legatee so becoming a purchaser was not bound by the condition of sale requiring every purchaser to pay his purchase-money (i). 16. And if the purchaser have particular personal information given him of an incumbrance, or of the nature of the title, it seems that the parol evidence may be admitted (u). It may therefore be proved that the purchaser perused the oi'iginal lease before the sale (x), as that does not contradict the particulars of sale ; but after such evidence is received, it would be difficult to act upon it at law, against a direct statement in the particulars that is to bind the purchaser to the knowledge of a fact contrary to the written statement. For the reading the lease at an auction by the auctioneer is no excuse for a misdescription of the terms of the *lease in the particulars of sale (y). Such evidence may be used in equity as a defence against the specific performance, if the parol variation was in favor of the defendant, and the plaintiff seek a performance in specie according to the written agreement (^z). IT. It should be borne in mind that in contracts for the sale of real estate, an agreement to make a good title is always implied, {)■) Bradshaw v. Bennett, o Carr. & 52; Fife r. Clayton, 13 Vcs. jun. 546, PajTi. 48. where the particuLir was altered before (s) See Po-wcllr. Edmunds, 12 East, 6. the sale. Ogilvie r. Foljambe, 3 Mer. {i} Bartlett v. Pumell, 4 Adol. & Ell. 53. 792 ; a case of goods, the seller was (x) Bradshaw r. Bennett, 5 Carr. & plaintiff. Pay. 48. (m) Gunnis v. Erhart, 1 II. Black. 289 ; (ij) Sec 1 Biiig. N. C. 379. and see Pemberr. Mathers, 1 Bro. C. C. (z) Higginson r. Clowes, ubi sup. [*241 no CONDITION TO ACCEPT THE TITLE. unless the liability is expressly excluded (a). And an agreement generally to sell, not expressing the interest in the subject, includes all the vendor's interest (b). 18. A condition upon a sale by assignees who had a defective title, that the purchaser should have an assignment of the bankrupt's interest under such title as lie lately held the same, an abstract of which might be seen, was held to be a sale only of such title as the assignees had (c). 19. But the mere statement in a condition that the seller shall deliver up certain deeds, which are all the title-deeds in his pos- session, will not prevent the purchaser from requiring a good title (d). 20. If it be the custom in a public auction-room to paste up the conditions of sale in the room, and the auctioneer announce that the conditions are as usual, they will, if pasted up according to the usual custom, be binding on the purchaser, although he did not see them (e). This can seldom, however, happen upon a sale of estates. 21. The late Mr. Bradlev recommended, that where it is under- stood, at the time of sale, that the vendor has only a doubtful title, a provisional clause, to the following effect, should be inserted in the conditions of sale and articles of purchase ; which would be sufficient, he thought, to obviate any doubt that might otherwise arise at the sale : " That if the counsel of the purchaser shall, on the examination of the title, be of opinion that a good title and conveyance cannot be made of the purchased premises within the time limited by the articles for carrying the same into execution ; in that case, the same articles shall be discharged, and not further proceeded in on either side." 22. A stipulation in a contract, that in case the vendor cannot deduce a good title, or if the purchaser shall not pay the money on the appointed day, the agreement shall be void, does not enable either party to vitiate the agreement, by refusing to perform his part of it : the seller may avoid the contract, if the purchaser do not pay the money ; the purchaser may avoid it, if the seller do not make a title ; or the contract will be void if the seller cannot (a) See 1 Mccs. & Wels. 701. (d) Dick v. Donald, 1 Bligh, N. S. 655. {/)) Bower v. Cooper, 2 Hare, 408. (e) Mesnard v. Aldiid'^e, 3 Esp. C'a. (c) Fremc v. "Wright, 4 Madd. 364; 271 ; Bywater r. liichardson, 1 Adol. & post, ch. 8. See also Molloy v. Sterne, Ell. 508. 1 Dru. & Walsh, 585, et qu.' f*2.'5] DESCRIPTION OF ESTATE IN PAKTICULARS. 81 make a title ; but it is not sufficient for him to say that he can- not (f)' And where the seller reserves a power to rescind the contract instead of answering objections to the title, yet if he once elect to answer, he is precluded from afterwards rescind- ing the contract (§•) ; and the same rule would apply where the condition limits the purchaser's right to make objections (A). The seller, of course, would ^ not be permitted to deliver a false abstract in order to enable him to avoid the contract ; and if he insist that he has that right to rescind the contract, he cannot at the same time retain the deposit (^). 23. The estate cannot be too minutely described in the partic- ulars ; for although, as Lord Thurlow observed, it is impossible that all the little particulars relative to the quantity, the situation, &;c. should be so specifically laid down as not to call for some allowance and consideration, when the bargain comes to be exe- cuted (k) ; yet if a person, however unconversant in the actual situation of his estate, will give a description, he must be bound by that, whether conusant of it or not (I). 24. Lord EUenborough has observed, that a little more fairness on the part of auctioneers, in the forming of their particulars, would avoid many inconveniences. There is always either a sup- pression of the fair description of the premises, or there is some- thing stated which does not belong to them ; and in favor of justice, considering how little knowledge the parties have of the thing sold, much more particularity and fairness might be expected. The particulars, he added, are in truth like the description in a policy of insurance, and the buyer knows nothing but what the party communicates (m). 25. In one case (n) the conditions of sale stated a house to be "a free public-house." The lease contained a covenant to take beer from the lessors ; the auctioneer read over the whole lease in *the hearing of the bidders, but he stated erroneously that the cove- nant had been decided to be bad. The purchaser brought an (/) Roberts V. Wyatt, 2 Tau. 2G8 ; Thurlow ; Schneider v. Heath, 3 Camp. llippms;all i\ Lloyd, 2 Xcv. & Mann. Ca. oOG. Sec ch. 7, s. 3, -i, infra. [Jack- •llO ; Page v. Adam, -i Beav. 209, post, son c. Mass. 11 John. 525 ; M'Fcrran i;. vol. 2. Tavlor, 3 Crauch, 70 ; State v. Gaillard, (//) Tanner v. Smith, 10 Sim. 110; 2 Bay, 11.] Morley r. Cook, 2 Hare, lOG. {m) See 3 Smith, 439 ; and see Duke (A) Cutts V. Thordcy, 13 Sim. 206. of Norfolk i: Worthy, 1 Camp. Ca. 337, (/) See 2 Ilare, 111, 110. and post. Waring v'. Hoggart, 1 Ky. & {k) See 1 Ves. jun. 224, ;>er Lord ]Mood. 39. Thurlow. («) Jones v. Edncv, 3 Camp. Ca. 284 ; {I) See 1 Yes. jun. 213, per Lord Fhght v. Booth, 1 Bing. N. S. 370. [*26] 32 DESCRIPTION OV KSTATE action to recover his deposit. Lord Ellenborough said that in the conditions of sale this is stated to be "a free pubhc-house." Had the auctioneer afterwards verbally contradicted this, he should have paid very little attention to what he said from his ])ulpit. Men cannot tell wiiat contracts they enter into if the written conditions of sale are to be controlled by the babble of the auction-room. But here the auctioneer, at the time of the sale, declared that he warranted and sold this a free public-house. Under these circum- stances, a bidder was not bound to attend to the clauses of the lease, or to consider their legal operation. 26. Where (o) a lot was described on a plan with others, and the particulars stated that this lot was to be subject to the same rights of way and passage, and other rights and easements over the same, as were then enjoyed under the existing leases of the Crescent houses, it was held, that the sale was not binding upon the pur- chaser, because a way over the lot did exist for the Crescent houses ; but a reference to the other part of the particulars, so far from throwing any light upon the existence of the way, tended to mislead the bidder at the auction ; for the description of the Crescent houses noticed a right of way over another part of the estate, but not this right of way ; and although the plan was referred to, it contained no trace of any right of way over this lot for the use of the Crescent houses, except , a carriage sweep, for which provision was made. There was a way over the lot for the use of another lot, clearly marked upon the plan, and the presence of this was considered to add strength to the conclusion that none other was intended to be reserved. The description referred to of the Crescent houses, stated that the lease of one of them might be seen at the attorney's office, and would be produced at the sale. But the court was of opinion that the exception of the rights and easements in this particular lot, and the above reference to the lease, did not impose an obligation on the bidder to refer to the lease itself. Whatever might have been the case, if the particulars had been confined to matter of description only, the court thought that as there was a direct reference and appeal to the plan, and the plan, whilst it disclosed one way, altogether omitted any trace of the way in question, the bidder at the auction could not be bound, in the exercise of ordinary prudence and vigilance, to look further ; that the inspection of the plan would lull all suspicion to sleep, and that it was calculated not simply to give no information, (o) Dykes v. Blake, 4 Bing. X. C. 463. I IN PARTICULARS. 33 *but actually to mislead. Particulars and plans of this nature should be so framed as to convey clear information to the ordinary class of persons who frequent sales by auction, and they would only become a snare to the purchaser, if, after the bidder has been misled by them, the seller should be able to avail himself of expres- sions which none but lawyers could understand or attend to. The existence of the way was not sufficiently disclosed to make it clear to persons of ordinary vigilance and caution, and the contract was not binding upon the bidder. 27. The mere exhibition of the plan of a new street, at the time of the sale of a piece of ground to build a house in the line of the intended street, does not amount to an implied contract to execute the improvements exhibited on the plan, where the written contract is silent on that head (^) (1). 28. If a house be sold with all the lights belonging to it, and it is intended to build upon the adjoining ground belonging to the same owner, so as to interfere with the lights, a right so to build should be expressly reserved ; it will not do to describe the house as abutting on building ground belonging to the seller (jq) (2). 29. Where there is a dispute between two purchasers at a sale, who have obtained their conveyances, as to which a wall, for example, belongs, a handbill advertising the properties for sale, which was circulated in the sale-room before and at the time of sale, and was seen by the party against whom it is sought to be used, or his agent who bought for him, is admissible in evidence to prove that the wall was reputed to belong to the property of the other pur- chaser (r). 30. The reading the lease at the auction by the auctioneer, is, as we have seen, no excuse for a misdescription of the terms of the lease in the particulars of sale (s). 31. And where a lease is sold by auction, the purchaser is not (p) Feoffees of Heriot's Hospital r. (•) Murlev r. M'Dennott, 3 Xev. & Dukes, Jac. 422 ; Blanchard v. Bridges, Per. 3oG ; s' Adol. & Ell. 138. 4 Adol. & Ell. 17G ; Squire v. Campbell, (.s) 1 Bing. N. C. 379 ; Jones v. Ed- 1 Mvl. & Kee. 459 ; Sclircibcr r. Creed, ney, supra, p..2o ; see Paterson r. Long, 10 S"im. 9. 6 Beav. o90. (1) But if land is conveyed as bounded on a way upon one side, tliis is not merelv a description, but an implied covenant that there is such a way. Parker V. Smith, 17 Mass. 413. (2) Stoi-y V. Odin, 12 Mass. 1(57 ; 3 Kent, (Gth cd.) 448 ; Palmer r. Fletcher, 1 I-evins, 122. Vol. I. 5 ' [*271 34 DESCRIPTION OF KSTATE IN PARTICULARS. bound to complete his purchase if any part of the buildings demised have been removed, although he heard the lease read, and the particulars did not comprise the building in question (t). 32. Although it be stipulated that no further evidence of identity of parcels shall be required, yet such proof may be required, if the *descriptions in the title deed differ from each other, and from the particulars of sale (u). 33. And in a case where the original lease contained a power of re-entry if certain trades were carried on upon the property, and the lessee granted under-leases containing no such stipulation, and upon a sale by the assignee of the original lessee, the conditions of sale stated the covenant in the original lease, and that such covenant would be inserted in the under-leases to be granted to the purchasers, but no mention was made whether the covenant was inserted in the under-leases already granted, the purchaser was allowed to recover his deposit from the auctioneer (x). Lord Tenterden observed, that he was of opinion that it is the duty of every person truly and honestly to represent that which he is to sell. A careful man and a lawyer looking at these conditions of sale might ask what were the terms of the leases which had been granted : The purchaser is informed by the statement in the con- ditions, that the original lessee is restrained from carrying on these obnoxious trades, and that in the leases to be granted to him a similar covenant is to be entered into. None but a very careful person would suppose that it could be doubtful whether the persons to whom under-leases had already been granted were bound in the same manner. He was, therefore, clearly of opinion that the plaintiff could not be bound to take the title. 34. In stating an estate to be of any given " clear" yearly rent^ the parties should attend to the meaning of the word " clear," in an agreement between buyer and seller ; which is clear of all out- goings, incumbrances, and extraordinary charges, not according to the custom of the country, as tithes, poor-rates, church-rates, Sic^ which are natural charges on the tenant (y). 36. As we have already seen, the st-atement that the property is in lease binds the purchaser to the covenants in the lease (s) ; but unusual ones should of course be stated. (t) Granger v. "Worms, 4 Camp. Ca. 39 ; sec Flight r. Booth, 1 Bing. N. C. 83 ; see 1 Bing. N. C. 379 ; and see 370. Tomkins v. "White, 3 Smith, 43.). ( ,/) Earl of Tyrconnel v. Duke of An- (u) FloM-er r. Hartopp, G Beav. 470. caster, Ambl. 237; 2 Ves. 500. (a;) "Waring c. Hoggart, 1 Ky. & Mood. (z) SuprOf p. 8. See Paterson v. Long, 6 Beav. 690. [*28] CONDITION ABOUT MISDESCRIPTIONS. 35 37. Where the agreement was to sell the lease of a 'public house, described as held at a certain net annual rent under common and usual covenants, it was held that the contract was binding upon the pur- chaser, although the lease contained a covenant to pay the land- tax, sewers rate, and ail other taxes, and a proviso for re-entry if any business but that of a victualler should be carried on in the house (a). *38. And in Barraud t;. Archer (b), where the particulars of sale described the estate, which was in the Isle of Ely, as consisting of fen land, and as being let to a tenant at the yearly rent of 165Z., and stated that the lessor allowed the eau-brink tax and land-tax : it appeared that the estate was also subject to other taxes for em- banking and draining, under a local public Act of Parliament, and as they were not mentioned in the particulars, the purchaser claimed a compensation for them. On the part of the seller, it was insisted that there was no misrepresentation, and that the par- ticular expressly mentioned that the estate was fen land, and enu- merated all the taxes which the landlord allotted to the tenant, and that it was not usual to state the taxes which the tenant paid. The Vice-Chancellor held that the purchaser was not entitled to a compensation (c). But if there be a misrepresentation, of course the purchaser would be entitled to compensation. 39. Where the particulars did not state that the annuity offered for sale, which was payable out of the tolls of Waterloo-bridge, was, as in fact it was, redeemable, and the bridge act had no such provision, the purchaser was held entitled to recover his deposit, for sellers should be strictly bound to disclose the real nature of the subject of the contract (d). 40. So where leasehold houses were sold by auction and de- scribed as a well secured rental for about fifteen years, with rever- sionary interest, and no notice was taken of an Act of Parliament which gave power to a company to purchase the property, the purchaser was held not to be bound by the sale, for he never in- tended to contract, and did not contract to purchase the mere right to compensation (e). 41. We have hitherto considered cases of alleged misdescrip- (ffi) Bennett v. Wornack, 7 Bam. & Sim. 436, cited ; Pope v. Garland, 4 Cress. 627 ; 1 Man. & Rv. 644. You. & Coll. 394. {h) 2 Sim. 433 ; 2 lluss. & Myl. 7ol. (cl) L'overley v. Burrell, post, c. 7. (c) See Lord Townsend v. Granger, 2 (e) Ballard 'v. Way, 1 Mees. & Wela. 520. [*291 36 CONDITION ABOUT MISDESCRIPTIONS. tion, where the (jueslion suiiply was whether the property was properly described. But it is common for sellers to guard against misdescriptions and errors by an express condition that they shall not annul the sale, but that a compensation shall be given for the difference in value. Such a condition however does not extend to fraudulent errors. 42. This was decided by Lord Ellenborough in a case where the estate was stated in the particulars to be about one mile from Horsham. It turned out that the estate was between three and four miles from that place. Upon an action brought by the pur- chaser *for recovery of the deposit, it was insisted that the effect of the misdescription was saved by the condition, which provided that no error or misstatement should vitiate the sale. But Lord Ellenborough said, that in cases of this sort he should always re- quire an ample and substantial performance of the particulars of sale unless they were specifically qualified. Here there was a clause inserted, providing that an error in the description of the premises should not vitiate the sale, but an allowance should be made for it. This he conceived was meant to guard against un- intentional errors, not to compel the purchaser to complete the contract if he had been designedly misled. He therefore left it to the jury whether this was merely an erroneous statement, or the misdescription was wilfully introduced, to make the land ap- pear more valuable from being in the neighborhood of a borough town. In the former case, the contract remained in force, but in the latter case the plaintiff was to be relieved from it, and was en- titled to recover back his deposit. The plaintiff had a verdict ; so that the jury must have thought the misdescription fraudulent (/). 43. And of course in equity, if the error'be not a fair subject for compensation, a specific performance will be refused, although the misdescription arose simply from negligence(l); for equity will enforce a sale with a compensation for a slight unintentional misdescrip- tion, although there is no such condition (2), and will not assist the seller, where there is such a condition, if the misdescription is an important one. In Stewart v. AUerton (§•), where a lease at rack- rent was described as one at a ground-rent, Lord Eldon treated (/) Duke of Norfolk v. Worthy, 1 Stewart r. Alliston, 1 Mer. 26 ; Trower Camp. Ca. 337 ; see Fenton v. Brown, r, Newcome, 3 Mer. 704. 14 Yes. jun. 144; 1 Ves. & Bca. 377 ; (y) 1 Mer. 2C. (1) See McFerran v. Taylor, 3 Cranch, 270; Bowles v. Eound, d Vesey jr. (Sumner's ed.) 508 and note. '2) Kins: V. Bardeau, 6 John. Ch. 38. [*30] I CONDITION ABOUT MISDESCRIPTIONS. 37 the case just as if there had been no such condition. The subject of the contract, he observed, did not answer the vendor's description of it, and that in .a point so material as to exclude the doctrine of compensation, which ought never to be applied to a case like the present. He refused an injunction ; and added, that even if a court of law should judge otherwise as to the representation, he should have great difficulty in decreeing a specific preformance, where the description was, at the best, of so ambiguous a nature, that it could not with certainty be known what it was that the purchaser imagined himself to be contracting for. 44. So in the case of Powell v. Doubble (Ji), a house was described in the particulars of sale as a brick-built dwelling-house. It turned out that the house was built partly of brick and partly of timber, and that some parts of the exterior were composed of only *lath and plaster, and that there was no party-wall to the house. Shortly after the sale the ancient chimneys fell inwards through the house, but it was not proved to what this was attributable. There was the usual condition, that misdescriptions should be the subject of allowance. The case was heard upon bill and answer, and the bill was dismissed with costs ; as the Vice-Chancellor was of opinion that such a description means that the house was brick built in the ordinary sense, and that it was not a subject for compensation. 45. And even at law, if the description be of property not wholly belonging to the seller, and the part not belonging to him is an essential part, the case will not fall within the condition, although there be no fraud, but mere error ; neither can a pur- chaser be compelled to take another property, with a compensa- tion, in lieu of that by error described in the particulars (1). 46. Thus in a case at nisi jnius (i), where the particulars stated one of the houses to be No. 4 instead of No. 2, although the names of the occupiers were correctly stated, and the houses Nos. 2 and 4 were of the same description, but the latter was in rather better repair than the former, the purchaser brought an action for his deposit, insisting upon his right to rescind the contract, notwithstanding the condition under consideration. Best, C. J., agreed with the rule as laid down by Lord Ellen- (A) MS. V. C. l.j June 1832. (/) Lcacli v. Mullett, 3 Car. & Pay. 115. (1) See Graham v. Hendien, 5 Munf. 18o ; Reed v. Hornbark, 4 J. J. Marsh, 377. 38 COPy)ITION ABOUT MISDESCRIPTIONS. borough, and said that if it was a mere error, or misstatement from error, it was cured by the conditions. If it was pure mistake, not prejudicing tlic party, it would be cured by the conditions ; but he thought that auctioneers ought to be narrowly watched, lest, under the idea of mistake, they covered material matters ; but if the description was of any other property than that intended to be sold, though it was made by error, the conditions did not cure it. If the purchaser had intended to buy the house sold, notwith- standing the misdescription, he should have thought that the jury would be justified in finding a verdict for the defendant, for he should not suffer the purchaser to take advantage of a mistake by which he was not prejudiced. 47. In a case (k) in which a sale by auction was made under a power in an annuity deed, and the estate was described as a sub- stantial brick building and two plots of ground, the whole estimated to let at 35/. per annum, and the conditions stated that one of the plots could not be properly identified by the seller, but the pur- chaser was to accept by the description only contained in the *conveyance of it, and there w^as the common condition as to errors, — the plot not identified could not be found, and the pro- perty was not what is called a substantial brick building, and would not fetch the rent stated, — the purchaser was allowed to recover his deposit. The Chief Justice was of opinion, that if any substantial part of the property had no existence or could not be found, the purchaser might rescind the contract in toto, even if the seller was not guilty of any fraudulent misrepresentation in that respect (1) : deficiency in value might be fit matter for compensa- tion, but not the total absence of one of the things sold. With reference to the general description, was that, the learned judge asked the jury, a bona fide description or not ? If they thought it an exaggerated description, quite beyond the truth, and that the seller was not acting 6ona ^fZe when he gave it, that circumstance alone would entitle the purchaser to rescind the contract, notwith- standing the language of the condition as to errors. {k) Robinson v. Musgrove, 2 Mood. & Rob, 92. (1) A vendor is bound to know, that ho actually has what he proposes to sell. And even though the subject matter of the contract be liable to a contingency, which may destroy it immediately. If the contingency has in fact happened, the contract will be void ; as, if a life estate in land is sold, and at the time of the sale the estate is terminated by the death of the person, in whom the right vested, a court of equity will rescind the purchase. Allen ». Hammond, 11 Peters, 70. If a horse is sold, which both seller and puixhascr believed to be alive, the pur- chaser would not be compelled to pay the consideration, if in fact, at the time of the sale, the horse is dead. Allen »-. Hammond, 1 1 Peters, 63. CONDITION ABOUT MISDESCRIPTIONS. 39 48. In another recent case (I), where, upon a sale by auction, the above-mentioned condition was inserted in the conditions of sale, it appeared that the house was leasehold, but that a small yard mentioned in the particulars was not included in the lease, but was held from year to year at a separate rent ; and, although it did not appear that the sellers, who had recently acquired the premises, were aware of the fact ; yet, as the yard was proved to be an essential part of the premises, and was held only from year to year, instead of for the term in the house »as stated in the parti- culars, and at a separate rent, the Court held clearly that the defect was not matter of compensation. 49. And where the misdescription, although an unintentional one, is such as would induce a person to bid who really wanted the subject as described, and not the subject as it exists, or perhaps in other words, where there is a substantial misdescription, it will nok fall within the condition. 50. Thus in a late case (m), where the premises were described in the printed particulars of sale, on the back of which the pur- chaser had signed the memorandum of the contract, as calculated for an extensive business in carpets, haberdashery, drapery, paper, floor-cloth, upholstery, grocery, tea-trade, or coach-building. The premises were situated in the Piazza, Covent-Garden. The parti- culars also stated, " that no offensive trade is to be carried on : they cannot be let to a coftee-house keeper, or working hatter." There was the usual condition as to mistakes, &;c. not vitiating the *contract. The lease was produced at the sale, and the proviso for re-entry partially read : which circumstance was used only to nega- tive any wilful concealment or misrepresentation by the seller of the terms of the lease. The proviso for re-entry extended, amongst other things, to the premises being used for various specified trades, or as a shop or place for the sale of any provisions whatever. It was held that the purchaser might rescind the contract. The Court treated the case as standing clear from any fraud, and took the description to have originated either from ignorance, inadver- tence, or accident. The question therefore simply was, whether the misdescription fell within the condition. It was extremely difficult, the Chief Justice observed, to lay down from the decided cases any certain definite rule which should determine what mis- (Z) Dobell V. Hutchinson, 3 Adol. & (w) Flight v. Booth, 1 Ling. X. S. Ell. 355 ; and see Mills c. Oddy, 2 37u. Crompt. & Mces. 103.. [*33] 40 CONDITION ABOUT MISDESCRIPTIONS. statement or misdescription in the particulars should justify a rescinding of the contract, and what should be the ground of com- pensation only. All the cases concur in this, that where the mis- statement is wilful or designed, it amounts to fraud, and such fraud, upon general principles of law, avoids the contract altogether. But with respect to misstatements which stand clear of fraud, it is impossible to reconcile all the cases ; some of them laying it down that no misstatements which originate in carelessness, however gross, shall avoid the Contract, but shall form the subject of com- pensation only ; Duke of Norfolk v. Worthy, Wright v. Wilson ; whilst other cases lay down the rule, that a misdescription in a material point, althougli not proceeding from fraud, is, in a mate- rial and suljstantial point, so far affecting the subject matter of the contract that it may reasonably be supposed that, but for such fnisdescription, the purchaser might never have entered into the contract at all ; in sucii case the contract is avoided altogether, and the purchaser is not bound to resort to the clause of com- pensation. Under such a state of facts, the purchaser may be considered as not having purchased that which was really the sub- ject of the sale, as in Jones v. Edney, where the misdescription was held to be fatal (I). It appeared to the Court that a lease which was described as containins; a restriction against offensive trades, and a lease containing restrictions not only against offen- sive trades, but also against some trades Ihat are inoffensive, were not one and the same thing, but a different subject matter of con- tract ; and that where a man purchases by the former description, it may very well be supposed that he would not have become the *purchaser, whether he bought for the purpose of carrying on trade upon the premises himself or for money investment, if he had known the lease had contained the larger and more extensive restrictions, and the purchaser was held not to be bound by the sale, but entitled to recover his deposit. 51. And in the case of Dykes v. Blake (n) already referred to where a right of way over the lot sold was not described so as to bind the purchaser, there was the usual condition as to mis- descriptions, &ic. The lot was described as " a first-rate building plot of ground," and as having an extended frontage ; and it was («) Supra, p. 2G; 4 Bing. X. C. 476. (I) The Chief Justice referred to .Tones v. Edney, and "Waring v. Iloggart, as authorities tliat misdescription by negligence only -would vitiate the sale ; but in neither of these cases does there appear to have been the above condition. [*34] CONDITION ABOUT MISDESCRIPTIONS. 41 heid that this was not a subject of compensation within the condi- tion. The Court observed that the purchaser might safely con- clude, as the seller intended him to conclude, that he might pur- chase the whole lot for the purposes of building. But the direction of the way claimed would render the close altogether useless for the very purpose for which it was known to be purchased. 52. And although there be this condition providing a compensa- tion, yet the sale will be void if from the nature of the case no estimate can be made of the diminution in value. Thus where a reversion was sold after the death of a person aged 66, in case he should not have children, and it turned out that he was only 64, Lord Tenterden held that the sale was void. He said that in the case of a reversion simply expectant on the death of an individual, if a mistake be made in his age, a compensation may be made under the condition, for the difference of value may be computed ; but where there is an additional contingency, such as that of the birth of future children, in this case the difference of age alters the likelihood of the contingency, and in such a case therefore no esti- mate can possibly be made of the difference in value between the thing described and the thing sold, and the contract itself must be vacated (o). 53. And in Flight v. Booth (^), where the covenants restricting the trades were not truly stated, the Chief Justice asked how the condition could govern such a misstatement as that, what action at law could be framed upon it ? It would at least, he added, in- volve the purchaser in great difFculty. 54. And the case of Stewart v. AUerton, before quoted, may perhaps also be referred to this head, for Lord Eldon thought the difference between an estate let upon a ground rent and one let at rack rent was not a subject for compensation (^q). *55. So far the points appear to be settled, but as the reader will have observed, a difference of opinion seems to have prevailed upon this general point, viz., whether a misdescription in an important respect is fatal where it is occasioned by carelessness or error, and not by fraud. In addition to the opinions expressed in the cases already quoted there are other authorities on this head. 56. Thus in Wright v. Wilson (r), where the action was brought to recover the deposit on account of a misdescription, and there (o) Sherwood v. Robins, 1 Mood. & {q) Supra, p. 30 ; 1 Mer. 26. Malk. 194 ; 3 Cair. & Pay. 339. (r) 1 Mood. & Rob. 207. ip) 1 Bing. N. C. 378, 379. Vol. I. 6 [*35] 42 CONDITION ABOUT MISDESCRIPTIONS. was the usual clause as to misdescriptions, it appeared that the par- ticulars of sale referred to a map as containing the description of the estate, and in that map a turnpike road was set out immedi- ately adjoining the premises ; whereas it turned out that there was no turnpike road within a quarter of a mile, and that what on the face of the map appeared as a turnpike road was, in fact, a mere footpath. There was no evidence on either side to show how the misdescrip- tion had originated, although it was said to have arisen from the miscopying of a map (s). INIr. Justice Park, after referring to the case of the Duke of Norfolk v. Worthy, said that he should direct the jury that if the misdescription was a wilful and designed one, and had been inserted by any one employed to make the plan or con- nected with the sale, that would be a fraud adopted by the vendors, and consequently would annul the bargain altogether, although the vendors themselves might not have been aware of the misde- scription. But if the jury thought that the misdescription had originated in error, then however gross the negligence of the vendors might be, he was of opinion that they were bound to find their ver- dict for the vendors. Supposing even that the mistake were so important as the purchaser's counsel offered to prove it to be, still the purchaser must abide the event of having bought an estate without looking at it, and subject to the condition in question. He was further of opinion, that the onus of proving the fraud lay on the purchaser, the presumption of law being against fraud. 57. Again (t), where a house was sold by auction as held by a low ground rent, viz., at a ground rent of 15/. per annum, and in truth the house and three others were comprised in an original lease at 35/. a year, and there was the usual clause as to errors of description, the Learned Judge at nisi prius put the question as being whether this was a wilful misdescription by the sellers or by some of their agents, or a mistake. He should say that it was a wilful misdescription, and that there was no doubt about it. The *purchaser had a right to avoid the sale unless the jury should think the misdescription arose from mistake. This was a misde- scription which would materially enhance the value. 53. We cannot fail to perceive that the strong leaning of the Courts is properly against the seller where the misdescription is an important one, and not fairly a subject for compensation. The {s) Sec 6 Carr. & Pay. 734. (t) Mills v. Oddy, G CaiT. & Pay. 728. [*36] CONDITION ABOUT MISDESCRIPTIONS. 43 opinion expressed in Wright v. Wilson, that if there be error only, the purchaser will be bound, however gross the negligence of the seller may have been, has not been followed, nor can the onus of proving the fraud altogether be thrown upon the purchaser where there is a gross misdescription. For gross negligence may well be held tantamount to fraud, where a seller issues an actual descrip- tion of his property, and limits his responsibility by such a condi- tion, and a jury would be warranted in coming to the conclusion that there was fraud, from the facts, viz. the means of knowledge, the duty imposed upon the seller to use due diligence, the descrip- tion varying in important m.atters from the actual state of the property, and the tendency of the misdescription to mislead a pur- chaser whom it may be said compensation would not compen- sate. It is not like a case where the seller should say, ' I do not choose to inquire; I have described the property as I believe it to be, and if any one buy, he must take it whether it answer the description or not, only with a compensation.' But in these cases the purchaser has a right to presume that the seller is acting bona fide, and has used due diligence. The condition, as the Court ob- served in Flight v. Booth, will comprehend a case where there is half an acre more or less than is described, or cases which resolve themselves into simple cases of that nature (?*). This is no doubt clearer, where the condition provides for a compensation to be paid to either the purchaser or the seller, as the case may be, than where it applies only to a compensation to the purchaser; for the former condition, which is the usual one, forbids the construction that the seller is, by gross negligence, to misdescribe the property and then to claim an aditional price for some advantage which he has omitted to mention ; and the like construction must prevail, whe- ther the compensation be payable to the purchaser or to the seller (1). 59. Where the timber and other trees are to be taken by the purchaser at a valuation, it should be stated acciu-ately for what trees he is to pay. 60. In case where there were several lots, it was stated after two of them, that the timber on them was to be paid for. The particulars *were silent as to the timber on the other lots, which was of consider- ably greater value ; but there was a general condition that all the timber and timber-like trees, down to \s. per stick inclusive, (m) 1 Bing. N. C. 378. See Cattell v. s. 1 ; "SVTiitc f. Cuddon, 8 Cla. & Fin. Corrall, 3 You. & Coll. 413, ;jos<, eh. 8, 766. (1) See upon this subject the cases cited ante 4, in note. [*37] 44 CONDITIONS AS TO TIMBKR, FIXTURES, &£C. should be taken at a fair valuation. The purchaser of the lots, to which no statement was annexed, claimed the timber without paying for it ; and the Master of the Rolls thought that a purchaser might be so fairly impressed with that idea, notwithstanding the general condition, that he refused to compel him to perfom the contract according to the seller's construction (x). 61. But although it should be merely stipulated that the pur- chaser shall pay for timber, yet he must pay for trees not strictly timber, if considered so, according to the custom of the country (y) ; and in one case, where by the condition it was expressed that all timber and timber-like trees should be taken at a valuation, the purchaser was held liable to pay for certain pollards (z). 62. It is proper, also, to make some provision as to articles not properly fixtures. Lord Hardwicke, said, that if a man sells a house where there is a copper, or a brewhouse where there are utensils, unless there was some consideration given for them, and a valuation set upon them, they would not pass (a). But in the absence of any stipulation, common fixtures would pass to the purchaser under the common conveyance (6) (1) ; unless it could be collected from («) Higginson v. CloAves, 15 Ves. jun. (a) Ej; parte Qiiincey, 1 Atk. 478. 516. (A) Colegrave v. Dias Santos, 2 Barn. (y) Duke of Chandos v. Talbot, 2 P. & Cress. 7G ; 3 DowL & 11. 256 ; Ex parte Wms. 601 ; Anon. Cli. 25 July 1808. Llovd, 1 Mont. & Avr. 494 ; Longstaff {z) Rabbctt v. Raikes, Woodfall L. & r. Meagoe, 2 Adol. & Ell. 1G7 ; Hitch- T. 224, 6th. ed. ; and see Aubrey v. Fish- man v. AValton, 4 Mees. & Wels. 409. er, 10 East, 446. (1) As between vendor and vendee of land, all fixtui-es jjass to the latter, though they were created for the purposes of trade or manufactures. Miller v. Plumb, 6 Cowen, 665. The rule is the same as between heir and executor, ib ; Spencer Ch. J. in Holmes v. Trempcr, 20 John. 29. But it is otherwise, as between tenant and landlord or reversioner, and as between tenant for life and remain- der-man. Mdlcr V. Plumb, 6 Cowen, 665. A cotton gin attached to the gears in the gin-house upon a cotton plantation, passes with the land. Farris r. Walker, 1 Bailey, 540. So of a packing screw. M'Danicl i-. Moody, 3 Stewart, 314. So a steam engine with its tixtures, used to drive a bark-mill and pound- ers, to break liides in a tannery, erected by the owner, passes by the sale of the freehold. Ives i-. Ogelsby, 7 Watts, 106. 'See Voorhies r. Freeman, 2 Watts & Serg. 116; Pyle r. Pennock, 2 Watts & Serg. 390 ; Sparks v. State Bank, 7 Black. 469. So a steam-engine, boilers, &c. and machinery adapted to be moved by such engine, by means of connectmg bands, and other gearing, which are placed in a building, designed for the manufacture of steam-engines and other heavy iron work, arc lixturcs or in the nature of fixtures ; Winslow c Merchants' Ins. Co. 4 Mctcalf, 306 ; and as between the mortgagor and mortgagee, cannot be removed by the mortgagor, or otherwise disposed of by liim, while the mort- gage is in force, though placed in the building by the mortgagor after the mort- gage, ib. ; Voorhis r. Freeman, 2 Watts iV Serg. 110 ; Pyle v. Pennock, 2 Watts & Serg. 390 ; Day v. Perkins, 2 Sandford Ch. 359. In iJespatch Line of Packets V. Bellamy Manf. Co. 12 N. Hamp. 205, it was held that an engine used in a building, and which could not lie removed without taking down a part of the building, avUI pass by a conveyance of the land ; and macliines and other articles essential to the occupation of a building, or to the biisiness carried on in it, and i CONDITIONS AS TO TIMBER, FIXTURES, &C. 45 the context that they were not intended to pass ; as if a conveyance be made of an iron-foundry and a dwelling-house, together with all grates, boilers, bells, and other fixtures in and about the dwelling- which arc affixed or fastened to the freehold, and used with it, partake of the character of real estate, become part of it, and pass by conveyance of the land. But where the owner of a wool-cardinj^ factory had mortgaged it and the appur- tenances for carrying on the same, but still remained in possession, the machinery, attached to the building by a leather band, Avhich might easily be slipped off, but on account of its size and weight being required to be taken in pieces in order to remove it, was held liable to be taken by the creditors of the mortgagor. Gale V. Ward, U Mass. 3y2. See Walker v.' Sherman, 20 Wendell, 030. The above case of Gale r. Ward is said not to be opposed to the decision in Winslow r. Mer- chants' Ins. Co. tibi supra, 4 MetcaU", 313, 314. A mortgagor has no right to re- move a grist-mill or the appurtenances erected by him on the mortgaged land. Petengill v. Evans, .3 X. Ilamp. ;')4. By the conveyance of a saw-mill Avith the appurtenances, the mill-chain dogs and bars, being in their apjoropriate places at the time of the conveyance, were held to have passed. Farrar v. Stackpole, 6 Greenl. lo4. A kettle in a fulling-mill set in brick work, passes to the mortgagee of the mill. Union Bank v. Emerson, lo Mass. 139 ; Despatch Line of Packets r. Bellamy Manf. Co. 12 N. Hamp. 233. Where the owner of land erects upon it a dye- house, and sets up dye-kettles therein firmly secured in brick work, they become part of the realtv and pass bv a deed of the land, without express words. Noble V. Bosworth, lO'Pick. 314. Iron stoves fixed to the brick work of the chimnies of an house are a part of the house, and pass Avith it on an extent of an execution upon it. Goddard v. Chase, 7 Mass. 432. Windows in a dwelling-house arc fixtures, and pass by the conveyance of the estate. State v. Elliot, 11 N. Ilamp. iUO. Fencing materials on a farm, which have been used as a part of the fences, but are temporarily detached, AA-ithout any intent of diverting them from their use as such, arc a part of the freehold, and pass by a conveyance of the farm to a pur- chaser. Goodrich r. Jones, 2 Hill, 142. See Despatch Line of Packets v. Bella- my Manf. Co. 12 N. Hamp. 232 ; Gibson r. Vaughn, 2 Bailey, 389. A convey- ance of land couA^eys the grain growing on it to the purchaser. Wilkins r. Yash- binder, 7 Watts, 264 ; Burnside v. Wightman, 9 Watts, 46 ; S. C. 2 AVatts & Serg. 268. But see Austin v. SaAAwer, 9 CoAven, 39. GraA'e stones, Avhen erected, are fixtures. Sabinr. Ilarkness, 4 N. Ilamp. 41;). Other articles, though in some measure attached to the freehold, have been held not to pass by a conveyance of it. Such as a stove, Avith a funnel running into the chimney. Williams v. Bailey, 3 Dana, l.)2 ; Frccland r. SoutliAvorth, 24 Wendell, 191 ; Green i\ First Parish in Maiden, 10 Pick. o04 ; Goddaid r. Chase, 7 Mass. 432; Gafiield r. llapgood, 17 Pick. 192; Gray r. Holdship, 17 Serg. & E,. 415. So a still fixed in a rock furnace, Avliich furnace Avas built in- side and against the Avail of a liouse erected for the puqiose, Avas held not to pass by the extent of an execution on the land, iuM'Clintock r. Graham, 3 ^I'Cord, 553. Where the land couA'eycd is pnh/ic proper///, the grant Avill not pass Avood, Avhich has been pre\-iously cut and corded bv a person Avithout title. Jones r. Snelson, 3 Missouri, 393. Macliincry in a Avoolen factory, not appearing to be affixed or fastened to the buildings or land, does not pass Avith the freehold on a diA'ision of real estate. Walker v. Sherman, 20 Wendell, 636 ; Despatch Line of Packets v. Bellamy Manf. Co. 12 X. Hamp. 234. See Gale v. Ward, 14 Mass. 352 ; Farrar r. Stack- pole, 6 Greenl. 154; Yoorhies r. Freeman, 2 Watts & Serg. 116; Cresson r. Stout, 17 John. 116, 121 ; SAvift r. Thompson, 9 Conn. 63. A mortgagee after a recoA-ery on a bill in ecjuity by the mortgagor to redeem, and before possession taken under the judgment, may laAvfully take down and carry aAvay a barn, and a shed used as a blacksmith's shop, erected by liim on the land mortgaged, the materials of Avhich Averc his oa\ti, there being no cellar under either of the buildings, and no injury done to the soil by the removal, other than what may haA-e arisen from taking up a few posts on Avliich the end of the barn rested. TaA-lor v. Townsend, 8 Mass. 411. 46 CONDITIONS AS TO TIMBER, FIXTURES, &tC. house ; the enumeration of the fixtures in the house will prevent the fixtures in the foundry from passing (c). 63. If a seller wish to protect himself against the production of deeds not in his possession, he must state distinctly his inten- tion, for a condition that the seller should deliver an abstract and deduce a good title was held to authorise the purchaser to require the deeds to be produced to verify the abstract, although they were not all in the seller's possession ; and in the condition to deliver up to the purchaser all the title-deeds and copies of deeds or other documents in the seller's custody, it was expressed, " but that he should not be bound to produce any original deed or other *documents than those in his possession and set forth in the abstract." It was observed, that it by no means follows that the vendor cannot prove his title because he has not in his possession all the deeds ne- cessary for that purpose. It could not therefore have been inferred by the purchaser that the restriction as to the liabihty to deliver up certain deeds was to apply to the liability to produce them for the purpose of proving the title, and if that inference was not obviously to be drawn from the conditions, a court of equity ought not to compel a purchaser to take the estate without a title. There was nothing in the conditions of sale sufficient to lead the purchaser to understand that he would have no I'ight to have any evidence of any title to the land sold, unless the vendor should happen to be in possession of deeds sufficient for that purpose, a circumstance of which the purchaser could know nothing. Whether that was the intention of the vendor or not was immaterial, if he did not take proper means to explain such intention to the purchaser (r/). (c) Hare r. Horton, 5 Barn. & Adol. (d) Southbv v. Ilutt, 2 Myl. & Cra. 715 ; see Birch r. Dawson, 2 Adol. & 207. Ell. 37 ; a case upon a will. The movable scenery in a theatre, and the flyint^ statues, do not pass with the building ; but the permanent stajie does. Olympic Theatre, 2 Browne, 279, 285. A house built for a distillery Avas sold, and it was held that the joists, vats, buckets, pickets, and faucets, did not pass by the deed ; but the pumps, cisterns, iron-gratin"ation of a [l) See 1 Treat. Eq. 2d ed. p. 350, and purchaser of an equity of redemption to Fonbl. n. (y) ibid. ; and sec Taylor v. indemnify the vendor against the mort- Shum, 1 Bos. & Pull. 21 ; Fagg v. Dobie, gage-money. 3 You. & Col. 96. [*39] 48 CONDITIONS AS TO LEASEHOLDS. anything for a purchaser to indemnify against. It has lately been decided tiiat the assignee is liable to indemnify the lessee who assigned to him against breaches during the time he (the assignee) is in possession, although he has not covenanted to indemnify the lessee (in), but not further (n). And where a purchaser from an assignee of a lease agreed to take the estate without an assign- ment, and held it to the end of the term, he was held liable to the lessee in equity for breaches of covenant during his possession, although the lessee was not a party to the contract for sale (o). 70. An assignment to hold subject to the payment of the rent and to the performance of the covenants in the lease, will not operate as a covenant so as to bind the assignee after he has assigned over (p). 71. It should always be stated in the conditions, that the con- veyance shall be prepared by and at the expense of the pur- chaser (f217; Dunlap's Paley's Agencv, 10, 390; Jacob's case, 2 Bay, 84 ; Parkist v. Alexander, 1 John. Ch. 394 ; Holbrook v. Wight, 24 Wen- deU, 169. ^ (3) See Bamford v. Shuttleworth, 11 Adol. & Ellis, 926 ; Taber v. Perrott, 2 Gallison, 565. [*51] OF FORFEITURE OF THE DEPOSIT. 61 long time, it seems advisable for the parties to enter into some arrangement for the investment of the deposit. 31. As a vendor will not be subject to any loss by the invest- ment of the purchase-money in the funds without his assent, so he will not be entitled to any benefit by a rise in the funds, although the purchaser gave him notice of the investment; unless he (the vendor) agreed to be bound by the appropriation. Sir William Grant has observed, that a deposit does not impose a liability or responsibility upon the party to whom notice of it is given ; throw- ing upon him any risk as to the principal. The principal remains entirely at the risk of the party making the deposit. He cannot, by depositing the money with his backers, throw the risk of their credit upon the other parties. They are not called upon to express their opinion of that bank, or to say anything upon the subject. There is no difference between that and a deposit at the Bank of England, or a conversion of the money into stock ; as the one party has no more right to make the other consent to have the fund laid out in stock than in a private bank (b). 32. No objection can be made to the whole of the deposit required by the conditions not being paid by the purchaser, if the vendor, after the sale, agree to accept a less sum (c). 33. A purchaser has no right to elect to put an end to the agreement by forfeiting the deposit (d) (1). 34. Although the deposit be forfeited at law, yet equity will, in general, relieve the purchaser, upon his putting the vendor in the same situation as he would have been in, had the contract been preformed at the time agreed upon (c). But if a bill by a purchaser for a specific performance is dismissed, the Court cannot order the deposit to be returned : as that would be decreeing relief (/). 35. Where the seller files the bill, he submits to the jurisdiction, and although his bill is dismissed, the Court will compel him to repay the deposit, and with interest, where that ought to be paid. This was first decided by Lord Eldon, and has since been followed by other judges (^g). (6) Ilobcrts V. Massey, ubi sup ; Acland (c) Vcnion v. Stephens, P. "Wnis. G6 ; V. Gainsford, 2 Mad. 28. Moss v. Matthews, 3 Ves. jun. 279. (c) Hanson «. lloberdeau, Peako's Ca. (/■)Ecmiet Colleger. Carey, 3 Bro. 120. Sec ex parte Gwymc, 12 Ves. jun. C. C. 390. 378; and 1 Camp. Ca. 427. (/;) Sec Butler r. Lord Portailington, 1 (rf) Crutclilcy v. Jeniina;ham, 2 Mer. Dru. & War. 65 ; Graves v. Wright, 2 506 ; sec Palmer r. Temple, 9 Add. & Dru. & War. 77. EU, 520 ; Savile v. Savile, 1 V. Wms. 7-15. (1) See Wood v. Mann, 3 Sumner, 317. 62 OF SALES BY PRIVATE CONTRACT. ^SECTION V. OF SALES BY PRIVATE CONTRACT. 1. Printed conditions and agreement. 2. Written agreement ; letters. 3. Previous representations at an end. 4. Unless there be fraud. 5. Purchase completed by agent binding altJwugh contract not in writing. 7. Where agent binds himself. 8. Personal tmdertaking by solicitor. 9. Attested copies of parcels where sale is in lots. 10. Contract to pirocure a jjurchaser. 11. Waiver of contract on compromise btj the other party with his creditors. 12. Purchaser liable for nuisance on the estate. 1. In regard to sales by private contract, all such of the fore- going observations as clo not apply exclusively to sales by auction are equally applicable to sales by private contract. But it is seldom that a seller can obtain the introduction into an agreement of an unusual stipulation. There is no competition at the moment, and the price being agreed upon, the terms of the contract follow the usual practice. The attempt to introduce an unusual condition would in many cases put an end to the treaty. Where it is really important to a seller that he should be guarded in the sale by special conditions, the best plan would be to have the particulars of the estate with the conditions printed, adapting them to a private sale with a printed form of an agreement at the end. Persons desirous of treating for the estate would thus know beforehand upon what conditions the sale was to be made, and would not be likely, if they did make an offer, to object to be bound by them. 2. As soon as the treaty is concluded, a regular written agree- ment should be signed by both parties, containing the names of the seller and buyer, the description of the estate and the price, with the usual stipulations (a). Letters, as we shall see, may amount to a sufficient agreement. They are often relied upon, where it is feared by either party that the other will withdraw if the matter is prolonged. But they generally lead to litigation. 3. We shall see that after a contract is executed, what passed between the parties cannot be adverted to (except as a defence against a specific performance), because what passed between the (a) See a form of an agreement, Appendix, No. 6. . [*52] OF REPRESENTATIONS BEFORE THE CONTRACT. 63 parties in their communication may have been altered and shifted *in a variety of ways, but what they signed and sealed was finally settled. It would destroy all trust ; it would destroy all security, and lay it open, unless the parties are completely bound by what they sign and seal. This was laid down at law by Lord Lough- borough (b). 4. And in a later case, it was said to be in vain to reduce a con- tract to writing if you may afterwards refer to all that has passed by parol. But fraud is an exception. One learned judge held, that where parties come to an understanding, and reduce the con- tract to writing, by that alone they are afterwards to be bound, unless some fraud can be shown. Even if there had been a repre- sentation it would not avail. He held that if a man brought him a horse, and made any representation whatever of his quality and soundness, and afterwards they agreed in writing for the purchase of the horse, that shortens and corrects the representation, and whatever terms are not contained in the contract do not bind the seller, and must be struck out of the case (c) (1). 5. But fraud is admitted to be an exception. In the above case the opinion of the Court was, that mere representations, not embodied into the contract, were not a fraud. Where the repre- sentations do amount to a fraud, the purchaser, although the contract is silent on that head, has been allowed to recover damages (c/), or to avoid the contract (e) (2). 6. If a man at the request of another enter into a contract for a purchase, and pay the price and obtain the subject, the principal cannot, in answer to an action for the money paid to his use, object that tlie contract was not in writing as required by the statute of frauds (/). 7. As agreements for sale of estates are generally entered into by the attornies of the parties, it may, in this place, be proper to observe, that where an attorney ^ters into an agreement on behalf (6) Haynes v. Hare, 1 H. Blackst. 604, 316 ; Fuller v. Wilson, 3 Adol. & Ell. X. (c) Pickering v. Dowson, 4 Taunt. 779; S. 58, G8, j^ost, ch. 4, s. 5. post. (e) Hutchinson v. Morlcv, 7 Scott, 341. {d) Stevens v. Dobell, 3 Barn. & Cress. (/) Pawle v. Gun, 4 Bing. N. C. 445. 623 ; Taylor v. Green, 8 Carr. & Pay. (1) See 1 Greenl. Ev. ^ 281. (2) Per Story, J. in Hough v. llichardson, 3 Story C. C. 690 ; Chitty Contr. (8th Am. ed.) 588, 589 and notes; Cochrane v. Cummings, 4 Dall. 250 ; Prentiss V. lluss, 4 Shepley, 30; Smith i\ Kichards, 13 Peters, 26; Doggett r. Emerson, 3 Story C. C. 733 ; Daniel v. Mitchc41, 1 ib. 172 ; Matthews r. Bliss, 22 Pick. 48 ; Morris Canal Co. v. Everett, 9 Paige, 168; Stebbins v. Eddy, 4 Mason, 414; Hazard v. Irwin, 18 Pick. 85. [*53] 64 OF REPRESENTATIONS BEFORE THE CONTRACT. of his principal, the agreement should bo made and signed in the name of tiie principal, by him as attorney: for if an attorney cove- nant in his own name for himself, his heirs, he, he will himself be personally bound, though he be described in the instrument as covenanting for and on the part of his principal (^) (1). *8. A ])ersonal undertaking by a solicitor at a sale to procure certain evidence of the title, &:c. cannot be enforced in a summary way under the summary jurisdiction of the Court (A). 9. Where an estate is sold in lots, whether by public auction or private contract, it may he advisable for the vendor to take attested (7) Applcton r. Biiiks, 5 East, 118 ; Morris, 2 Taunt. 37o ; Pell v. Stephens, 2 Kemlray i". llodson, 5 Esp. Ca. 228 ; My. & Kee. 334: ; Gaby v. Driver, 2 You. Norton ('. Hcrron, 1 Ry. & Mood. 229 ; & Jerv. o49 ; Jones t. Littledale, G Adol. S. C. 1 CaiT. & P. 648 ; Spittle v. Laven- & Ell. 48 G ; Magee v. Atkinson, 2 Mees. der, 1 Moore, 270 ; Gray r. Guttcridge, 1 & "\Vcls. 440. Man. & liy. 614. See IJuke of Norfolk t?. (h) Peart v. Bushell, 2 Sim. 38, Worthy, 1 Camp. Ca. 337 ; Bo^ven v. (1) In Mears v, Monison, 1 Breeze, 172, it is said that the iisual and appropriate mode of executing a deed or other Avriting by an agent or attorney, is for the agent or attorney to sign his principal's name, and then his own as agent or attor- ney. Signing in the following manner, without mentioning the name of the principal, is not binding on the principal ; to wit, "A. B., agent." No particular form of words, however, is necessary ; but the capacity in which the agent acts must appear from the face of the instrument ; ancl Avhere this is the case, it is sufficient. Magill r. Hinsdale, G Conn. 464. K the name of the principal be signed, it seems to be indifferent, whether it be before or after that of the attor- ney, lb. ; Campbell v. Baker, 2 Watts, 83 ; Ilovey w. ^Nlagill, 8 Conn. 680 ; Shel- ton r. DarUng, 2 Conn. 43.5. See also Stiuchficld r. Little, 1 Greenl. 231 ; El- weU i,-. Shaw, 1 Greenl. 339 ; S. P. 16 Mass. 42; Johnson v. Johnson, 1 Dana, 368 ; Powlcr r. Shearer, 7 Mass. 14 ; Copeland v. Mercantile Ins. Co. 6 Pick. 198 ; Stackpole v. Arnold, 11 ^Ma.ss. 27; Tucker v. Bass, 5 Mass. 164 ; Clapp j-. Day, 2 Greenl. 30 ; Key v. Parnham, 6 llarr. & John. 418 ; Spencer v. Field, 10 Wen- dell, 87 ; Dunlap's Paley's Agency, 180 et sc(i. 378 et seq. and notes ; Clark v. Courtney, Peters, 318 ; Marcy v. Bcckman Iron Co. 9 Paige, 188 ; Skinner v. Dayton, 19 John. 568 ; To^^^lscnd v. Cowing, 23 Wendell, 435 ; North lliver Bank V. Aciuee, 3 Hill, 263 ; Bradlee v. Boston :Manf. Co. 16 Pick. 347 ; Minard v. Mead, 7 Wendell, 78 ; Ilctfernan v. Adams, 7 Watts, 116 ; Grubbs v. Wilev, 9 Smedes & Marsh. 29. If a bond sets forth that A. B. as agent for C. D,, legally appointed for that purpose, binds the said C. D. to make title, &c. and it is exe- cuted thus, "A. B. {Seal) agent for C. D." it is the deed of C. I), provided the agent's authority is sufficient. Doming y«Jiullitt, 1 Blackf. 241 ; Hunter v. Mil- ler, 6 B. Monroe, 612. The rule of law, that an agent binds himself and not liis principal, unless he use the name of tlie principal, api)lies only to sealed i/istni- meuts. In contracts not under seal, if the agent intend to bind his principal and not himself, it will be sufficient if it appear in such contract that he acts as agent. Antbews v. Este, 2 Fairf. 267 ; N. Eng. Marine Ins. Co. v. DeWolf, 8 Pick. ,56 ; Rice v. Gove, 22 Pick. 1.58, 161 ; Townscnd v. Cowing, 23 Wendell, 435 ; Town- send r. Hubbard, 4 Hill, 351; Evans r. Wells, 22 Wendell, 324. In Morse r. Green, 13 N. Ilamp. 32, it was held, that if the agent be authorized to subscribe the name of liis princijial to a note, the fact need not appear in the note, but may be proved by parol. 'I'he rule, in reference to the mode of executing an instru- ment by an agent, seems also to be relaxed in the case of a sealed contract where the seal is not necessary to the validity of the instrument. Evans r. WeUs, 22 Wendell, 234. See Lawrence r. Taylor, 5 Hill, 107, 113 ; Tapley v. Butterfield, 1 Metcalf, 315 ; Despatch Line of Packets f. Bellamy Manuf. Co. 12 N. Hamp. 205, 234 to 238. [*54] OF NUISANCES. 65 copies of the parcels included in the different conveyances ; in order to satisfy a cautious purchaser of any part of the estate, that no part of the estate bought by him is included in any of the con- veyances to the other purchasers. 10. It may here be observed, that if a man agree to get another so much for his estate, and actually provide a purchaser with, whom the owner agrees for the sale of the property, at the sum stipulated, and a deposit is paid, the first agreement will be per- formed, although the purchaser cannot perform the agreement, if the seller let him off, and retain the deposit as a forfeiture (i). 11. Where a man had bought an estate and paid a deposit, but the title had not been made out, and being desirous of compro- mising with his creditors, he applied to the seller to cancel the contract and return the deposit, which the latter refused to do, but said that he would never sue the purchaser on the contract, and thereupon the compromise with the creditors proceeded ; it was held that it would have been a fraud in the seller if he had attempted to enforce the contract, and therefore the purchaser was not allowed to recover the deposit, although the title had not been made out Q). 12. A purchaser should be cautious in buying a property where a nuisance exists ; for if a nuisance be created, and a man purchases the premises with the nuisance upon them, though there be a demise for a term at the time of the purchase, so that the pur- chaser has no opportunity of removing the nuisance, yet by pur- chasing the reversion he makes himself liable for the nuisance. But if after the reversion is purchased, the nuisance be created by the occupier, the reversioner incurs no liability ; yet, in such a case, if there was only a tenancy from year to year, or any short period, and the landlord chose to renew the tenancy after the tenant had created the nuisance, that would make the landlord liable. He is not to let the land with the nuisance upon it (J:). («■) Horford v. Wilson, 1 Taunt. 12. (k) The King r. Pedlev, 1 Adol. & Ell. U) Clark V. Upton, 3 Mann. & Ryl. 89. 827, per Littledale, J. Vol. I. 9 66 TRUSTEES, &C. SELLING BY PRIVATE CONTRACT. ^SECTION VI. OF SALES BY PERSONS NOT BEING OWNERS. 2. Valuation of property. 24. 4. May sell privately, or by auction. 26. 6. Insolvents' estates to be sold by auction. 27. 7. Assignees of bankrupts not to delay 28. sale. 31. 8. Sale by private contract not within authority to sell by auction. 32. 9. Sale in lots. 33. 11. Sale by auction valid althourjh not at full price. 34. 12. Trustees must use reasonable dili- gence. 35. 14. Time of sale. 36. 15. Where sale leill be stopped. 18. False representation by trustee. 37. 19. Conditions of sale. 38. 21. Where assignee may buy in. 22. Where they may have a reserved 39. bidding. 40. 23. Where damages against the assignees fall on the estate. Assignees putting up an estate. Deposit repaid without a bill fled. Biddings for bankrupt's estate opened. Potver to mortgagee to sell. Liability to make a good title. And compcjisation for misdescrip- tion. Cannot sell to themselves. Trustee of legal estate to convey to trustees to sell. Tenant for life, ic/u;n entitled to rents. Sales by trustees under jwicers of sale and exchange. Cannot be controlled : how to sell. Sale and netc purchase by tenant for life. Their contract binds the estate. Trustees' liability to costs. 1. Where the seller is a trustee for sale, an assignee of a bank- rupt or insolvent, or a mortgagee with a power to sell, he has to consider not only his obligations to the purchaser, but also his habilities to his cestui que (rusts or mortgagor. 2. Of course trustees should satisfy themselves of the value of the property they are empowered to sell ; and although it certainly is not necessary in every case to have a valuation made, yet they will be justified in taking that step, and not allowing the estate to go for less than the valuation (o), but at last trustees, like other sellers, must be guided by that common proof of value, that a thing is worth what it will fetch. 3. Lord Eldon observed, upon the usual words, that the trustees [*55] (a) See o Yes. jun. 680, 681. TRUSTEES, &Z;C. SELLING BY PRIVATE CONTRACT. 67 may sell for such price as shall appear to them to be reasonable, that that expression must be construed, at least in a question *between the trustees and the cestui que trust, after they have with due diligence examined (6). 4. A sale by trustees, &c. may, unless there be a restriction, be made by private contract or by public auction. Even in the case of assignees of bankrupts, there is nothing in the statutes to pre- vent them from selling by private contract ; it may be frequently advantageous for the creditors, and with their consent would be unobjectionable. It is however a circumstance of evidence not to be disregarded upon a complaint that the property, by a dif- ferent mode of disposing of it, might have been rendered more pro- ductive (c). 5. The real estate of an insolvent however is directed to be sold by public auction, with tlie sanction of the creditors (- Lord Eldon. (/) Kv parte Tomkins, Ch. 23d August ((/) Ex parte Buxton, 1 Glv. & Jam. ISIG ; MS. App. No. 11 ; ex parte Lucas, 355. ■ 1 Mont. & Ayr. 93, (A) Ex parte Lewis, ih. G9. (1) See Worth v. ISI'Aden, 1 Dev. & Bat. Eq. 199. The general rule m refer- ence to the responsibility of several trustees for the acts of each other, is that they are not so liable, unless they have made some agreement, by which they have expressly agreed to be bound for each other ; or they have by their own vol- untary co-operation or connivance, enabled one or more to accomplish some known object in violation of the trust. 2 Story Eq. Jur. § 1280. It certainly is the duty of a co-trustee, in case of a joint trust, to exercise due caution and vig- ilance m respect to the approval of, and acquiescence in, the acts of his co-trustees ; for, if he should deliver over the whole management to the others, and betray supine iiadiifcrcnce, or gross negligence, in regard to the interests of the cestui que trujit, he will be responsible. 2 Story Eq. Jur. ^^ 1275. Still the mere fact that trustees, who are authorized to sell land for money, or to receive money, jointly execute a receipt therefor to the party, who is debtor or purchaser, will not ordinarily make either liable, except for so much of the mon- ey, as has been received by him ; although ordinarily in the case of executors it would be different, 2 Story Eq. Jur. ^^ 1280. Bvit wherever a trustee, by his own neghgence or laches, suffers his co-trustee to receive and waste the trust- fund, when he has the means of preventing such receipt and waste, by the exer- cise of reasonable care and dihgence, then, and in such a case, such trustee will be held personally responsible lor the loss, occasioned by such receipt and waste of his co-trustee. 2 Story Eq. Jur. § 1283; Clark r. Clark, 8 Paige, 152; Ed- monds V. Crenshaw, 14 Peters, 1G6. Again, if, by any ])osiiivc act, dii-ection or agreement, of one joint trustee, the trust money is i)aid over, and comes into the hands of the other, when it might and should have been otherwise (controlled or secured by both; there each of them will beheld chargeable for the whole. 2 jStory Pjq. Jur. § 1284. So if one trustee should MTongfuUy sufier the other to detain the trust money a long time in his own hands, without security ; or should lend it to the other on his simple note ; or should join with the other in lending it to a tradesman upon insufficient security, in all such cases he will be deemed liable for any loss. A fortiori, one trustee will be liable, Avho has connived at, or been privy to, an eml)ezzlement of the trust money by another ; or if it is mutu- ally agreed between them, that one shall liave the exclusive management of one l^art of the trust property, and the other of the other part. 2 Story Eq. Jur. I 1284. See Monell c.Monell, 5 John. Ch. 29(^; Sutherland r. Brush, 7 John. Ch. 22 ; Sadler v. Hobbs, 2 Brown Ch. Rep. (Perkins's ed.) 116, 117 and notes and cases cited; Ochiltree v. Wright, 1 Dev. & Bat. 33G ; Williams r. :Maitland, 1 Iredell Eq. 93 ; O'Neall v. Herbert, C. W. Dud. Eq. 30 ; M'Nair's Appeal, 4 Kawle, 157. (2) So an auctioneer, if lie bid for himself, may if the principal chooses, upon notice of the fact, hold the auctioneer to his bid, as purchaser at tlie sale ; and the auctioneer when he purchases, purchases at his own risk and peril, Veazie r. Williams, 3 Story C. C. 625. 72 OF SALES BY ASSIGNEES IN BANKRUPTCY. perty may be knocked down to them as the real buyers (k) ; nor upon the sale of unincumbered property can the assignees have leave to bid unless under very special circumstances. A majority of the creditors present at a meeting summoned for the purpose cannot bind the minority (/). *:23. If assignees contract to sell subject to the approbation of the creditors, and the creditors approve, and consent to the contract, and afterwards the contract is resisted on the part of the estate, the damages, if any be recovered by the purchaser, must, as between the assignees and the estate, be paid out of the estate, and not by the assignees (w). '2i. It is well settled, that assignees of a bankrupt are not bound to take what Lord Kenyon calls a damnosa hcereditas, property of the bankrupt, which, so far from being valuable, would be a charge to the creditors ; but they may make their election ; if, however, they do elect to take the property, they cannot afterwards renounce it, because it turns out to be a bad bargain («). This observation is made as an introduction to a case (o), in which it was decided that the assignees of a bankrupt could not be charged as assignees of the lease, where they had not entered into actual possession, but merely put up the property to sale by auction without stating to whom it belonged, or on whose behalf it was sold, and no person bid at the sale :. the Court considered this as a mere experiment to enable the assignees to judge, whether the lease were beneficial or not, and compared it to a valuation by a surveyor ; but where upon a sale by assignees they received a deposit, but the purchaser refusing to complete his purchase, a second sale was resorted to without success ; yet, as there had been a sale, and a deposit paid, the Court, in the absence of evidence why they did not enforce the contract of sale, presumed that it was in force, and held that the contract of sale fixed them with possession Q^). 25. If the assignees do accept the property, the bankrupt is by a late act (r/) relieved from the rent and covenants, and if the as- signees decline the same, the bankrupt is not to be liable in case he deliver up the lease to the lessor within fourteen days, and the (k) In re Skinner, 1 Mont. & Ayr. 81. n93 ; and see Carter v. Warne, 1 Mood. {l) Ex parte Benumont, iMont. it Ayr. & Malk. 179 ; 4 Carr. & Pay. 191 ; see 30-1. . La-\vrencc r. Knowles, 7 Scott, 381. (m) Turner v. Harvey, Jac. 178. (y))IIastings v. Wilson, Holt's Ca. 290. («) See 7 East, .'542. {//) 6 Geo. 4, c. 16, s. 75. See ex parte (o) Turner v. Richardson, 7 East, 336 ; Pomeroy, 1 Rose, 57 ; ex parte Nixon, 1 Wheeler v. Bramah, 3 Camp. Ca. 370 ; Rose, 445. Copeland r. Stephens, 1 Bani. & Aid. f*601 OF SALES BY TRUSTEES, &tC. 73 lessor is enabled in a summary way to compel the assignees to make their election either to accept the same or deliver up the lease and possession of the estate ; and a provision for the same purposes is contained in the late act regarding insolvents (r). 26. If a bankrupt's estate be sold and the purchaser pay a deposit, and then the fiat be superseded, the Court will upon petition order the deposit to be returned, without driving the purchaser to file a bill (s). ' *27. The biddings for an estate sold under a fiat in bankruptcy have lately been opened in analogy to the rule upon sales by courts of equity (t). This is much to be lamented. Lord Manners re- fused to open sucb a sale unless there was fraud or mismanage- ment (m). 28. A power in a mortgage deed to the mortgagee to sell is in the nature of a trust, but it may be exercised without the concur- rence of the mortgagor (v) (1). 29. But where, as is usual, it is to sell in the event of default being made in payment of the installments, the declaration of the mortgagee, an interested party, is not, as against a purchaser, suf- ficient evidence that the event has happened on which the right of exercising the power of sale was to arise (i). 30. And where there was an equitable mortgage, with a power of sale, although the mortgagee was precluded from selling the estate for a stipulated period, yet the mortgagor having become bankrupt within that period, the Court of Review made an order for an immediate sale, upon the petition of the mortgagee against the wish of the assignees (y). 31. Trustees, assignees of bankrupts (z), and mortgagees with a power of sale, are of course liable to make a good title, just as if they were sui juris, although they are not bound to enter into cov- enants for the title («) (2) ; and if they do not deliver the deeds to the purchaser, they are liable in the same way to furnish attested copies of the deeds, and a covenant to produce the deeds (6). (;•) 1 & 2 Viut. c. 110, s. 60. i^v) Post, uh. 10. (s) Ex j)arte Fector, Buck, -128. (x) Hobson v. Bell, 9 Sim. 17. (t) Ex parte Hutchinson, 2 Mont. 6c ()/) Ex jjurte Sam. Bignold, 3 Mont. & Ayr. 727 ; see ex parte Partington, 1 Ball. Ayr. -177 ; sed qu. & Beat. 209. (;) .See^wsi', ch. 10. (a) In re Martin & Ormsby, 2 Moll. («) Post, eh. 13. 44G. (6) Vide infra, ch. 9. (1) Sec Kinsley r. Ames, 2 Mctcalf, 29. (2) Sec Post 68 note. The law never compels a trustee, who sells under his trust, to enter into any covenants in his deed, except a covenant against his own incumbrances. But it is his diity to procure a good title to be made before he can exact the purchase money, wheu at the sale he has declared that a good title should be made. Ennis r. Leach, 1 Iredell Eq. 416. Vol. 1. 10 [*61] 74 OF SALES UNDER POWERS. 32. And a purchaser from trustees is entitled to a compensation for a misdescription of the qviantity, he, although made without fraud, as in the case of a sale by an owner (c). 33. Trustees, assignees, mortgagees with powers of sale, cannot sell to themselves (d) : they may of course vest the estate by con- veyance in themselves as purchasers ; even executors, having a power of sale, may sell and appoint the estate to themselves, or any of them, or appoint it to a nominal purchaser, as a trustee for them (e) ; but equity would not allow such a purchase to standi unless it should prove beneficial to the cestui que trusts (/). 34. Where- an equitable owner has conveyed the estate to trus- tees *to sell, the person in whom the legal estate is outstanding is bound to convey it to the trustees for sale, and is not entitled to- require the concurrence of the cestui que trusts of the money to be produced by sale. But if, in parting with the legal estate, he goes beyond the mere purpose of conveying it to the equitable trustees^ and so deals with it as to facilitate a breach of trust by the trustees, and a breach of trust be in consequence committed, he is deemed a party to such breach of trust, and is responsible for it (§"). 35. Although a tenant for life of money to be produced by the sale of an estate may not, by the expressions of a will, be entitled to any interest until a sale and investment of the produce, yet where the sale is directed to be made with all convenient speed, twelve months are considered as the lin)o within v.hich the sale might reasonably liave been made, and from that time the tenant for life is entitled to the rents of the estate remaining unsold (h). 36. In regard to trustees having the usual power of sale and exchange under a settlement, they must act in the execution of" the power, when they determine to exercise it, as if it were a trust. They should ascertain, before they proceed to a sale, that thei? power is not a conditional one (/) ; and they should not sell under a power to make partition, or to exchange, although this may be accomplished indirectly (k^. 37. Trustees of such a power, acting bona jide, cannot be con- trolled by equity in the exercise of their discretion, and a proper contract for sale by them will be enforced in equity (I) ; neither (e) Hillr. Buckley, 17 Yes. juii. 394, {h) Tickers v, Scott, 3 Mvl. & Kee. (d) Ch. 19, post. oOO ; see Sitwcll v. Bernard, 6 Yes. juii. (e) Mackintosh v. Barber, 1 Bing. 50. 520, paid many later cases. (/) 1 Sugd. Pow. 142, 143. (t) See 2 Sugd. ou Tow. 473. (jr) Angier r. Stannard,. 3 MyL & Kee. (A) lb. 479. 566. (/) See 2 Sugd. oa Pow. 486. [*62] trustees' liability to costs. 75 can they be compelled to adopt a contract for sale by the tenant for life (m). They should not, under the usual power, which pro- vides for a reinvestment, sell the estate for the mere purpose of converting it into money (n) ; and if they sell the estate they must sell the standing timber with it, although the tenant for life is un- impeachable of waste (o). They may sell the estate to the tenant for life himself, even where his consent is required to the sale (p). 38. If the tenant for life sell with the approbation of the trus- tees, and invest the money in the purchase of another estate in his own name, they will have a lien on the new estate for the amount of the purchase-money of the old one (5-). 39. The contract of the trustees to sell under a power of sale binds the estate ; and though by the deaths of parties the power *should be extinguished, yet the contract must be executed by those who have got an interest by the extinguishment of the power (r) (1). 40. And I may here observe, that trustees will be answerable for costs in a suit if the decisiore be against them, just as if they were selling their own property, as between them and the ven- dor (s) ; although, if they acted properly, they may be able to charge those costs against the trust property. But although often asked, the Court seldom, in a suit between the trustees and a pur- chaser, directs them to have their costs over out of the trust estate, but leaves them to settle that question with their cestui que trusts. (m) Thomas v. Dering, 1 Kee. 729. (>•) Mortlock r. Butler, 10 Yes. jun. («) 2 Sugd. on Pow. 487. 292 ; and see Shannon ». Bradstreet, 1 (0) lb. 488, Scho. & Lef. 52. (p) lb. 492. (s) Edwards I". Harvey, Coop. 40 ; see (q) Price ». Blakemore, 6 Beav. 507. 2^ost, ch. 16, s. 2. (1) But if an executor, in selling real estate, enter into covenants, though ex- pressed to be in his representative capacity, res2:)ecting the title to the estate con- veyed, or for the validity of the conveyance, such covenants will be deemed per- sonal covenants, upon which the estate of the deceased will not be bound, but the executor will be liable cle bonis proprUs. Sumner v. Williams, 8 Mass. 162. [*63] 7e OF SALES UNDRU IMIK Al THORFTY *CHAPTER TL OF SALKS UNDER THE AUTHORITY OF THE COURTS OF EQUITY. SECTION I. OF THE PROCEEDINGS FROM THE ADVERTISEMENTS TO THE CONVEYANCE. 1. Reserved biddin(j. 24. 2. Particulars and advertisements. 27. 3. Sales hi the country. 6. Improper description. 30. 7. Verbal declarations. 32. 8. Mortgagee not to conduct sale. 33. 9. Hoio sale conducted. 34. 10. Deposit. 35. 11. Substitution of another as pur- 36. chaser. 39. 13. Re-sale at a projit. 14. Decree a security to purchasers. 40. 16. Judgment creditors affected. 42. 17. Contract not complete till confirma- 43. tion. 44. 18. Hoio report is cojifirmed. 45. 20. Loss by fire, kc. in the interim. 46. 21. Proceedings tvhere purchaser Iiohh 49. back. 51. 22. Bidding by insane person void. 53. 23. Payment of purchase-money possession. and 55. Incumbrajices, hoxc paid off. Possession from previous quarter- day. Mortgagee's right wheii purchaser. Purchaser's right to life annuity. And to a life interest. And to a colliery. Court alo)ie gives possession. Preparation, &;c. of conveyance. Exceptions to report as to draft conveyance. Eq u i table in cum brances. Exceptions to report of title. Purchaser camwt bring an action. Costs to purchaser where title bad. Who is to pay them. Costs of reference of title. Delay in making out title. Sale contrary to order void. Sale not within statute of frauds. Purchaser restrained from waste. 1. Where a fraud is committed on the purchaser, by puffing at the sale, it cannot be supported, any more than a sale by auction under similar circumstances {a) ; but the Court will, in a proper case, authorize a bidding to be reserv^ed, and to be made one of the conditions of sale. The reservation will be left to the Master's [*641 (a) Vide supra, ch. 1. s. 2. OK THK COURTS OF EQUITY. i I ^discretion, but if he exercise the discretion the Court accompanies the reserved bidding with many precautions (h). 2. Where an estate is directed to be sold before a Master, the particulars of sale are prepared by the plaintiff's solicitor: after they are allowed by the Master, the advertisement for sale must be prepared, either by the plaintiff's solicitor, or by the Master's clerk, and the signature of the Master must be obtained to author- ize the insertion of the advertisements in the Gazette (I). There are always two advertisements (c) ; in the first, no time is appointed for the sale. About three weeks or a month after the insertion of the first advertisement, a warrant must be taken out to fix a time for the sale, and it must be served on all the parties' clerks in court. The warrant being attended, the Master, with the appro- bation of all parties, will fix the time ; and the second advertise- ment, which is usually called the peremptory adv^ertisement, stating the time, must then be prepared, and inserted in the Gazette (d) (2). 3. The estate is generally sold before the Master, but the Mas- ter is at liberty, if he shall think it for the benefit of the parties interested, to order the same to be sold in the country, at such place and by such person as he shall think fit (e) (3). 4. When the sale in the country is over, an afiidavit, prepared by the Master's clerk, and sworn to by the person appointed (toge- (6) Jervoise v. Clark, 1 Jac. & "Walk. (d) See 1 Turner's Practice by Yen. 389 ; Shaw v. Simpson, ib. 392, n. 127. (e) See 2 Fowl. Prac. 30-5. (e) General Order, 23d Nov. 1831, 7.5. (1) It is not necessar)' tliat advertisements of the sale of real estate, by a she- riff or Master in Chancery, should be signed by the officer with his own proper signatiire. Whether the officer's name is signed to the advertisement by himself, or printed, or signed by another, is immaterial. In either case it is a vutual signing by the officer. Coxe r. Ilalstcd, 1 (ircen Ch. 301. (2) A reasonable notice in the sale of land under a decree of Chancery, is all tlnit can be reqiiired, and such sale may be ordered in the discretion of the Chan- cellor, for cash or credit. Darrington v. Borland, 3 Porter, 12. Where the sale is advertised for a specitied day, between the hours of ticelvc and five o'clock in the afternoon, and the property is sold in pursuance of such advertisement, the sale will not be set aside, although there is a pro])riety and convenience in sj^ecifying a particular hour between twelve and live o'clock for the sale. Coxe v. IlaLstcd, 1 Green Ch. 311. (3) In New York a sale of mortgaged premises under a decree must be made by the Master himself, or under his immediate direction. Hyer v. Deavcs, 2 John. Ch. lol. A sale by a jierson deputed by the Master, in his absence, is irregular and will be set aside, ib. This decision was made under the Statute of New York, which directs " that all sales of mortgaged premises, under a decree, shall be made by a ^Master," ib. If the sale is advertised to be on the premises, and the estate is actually sold within eighty yards of the dwelling-house and within view, it will not be set aside, although in fact it was not on the premises, but fifteen or twenty yards from the boundary liiie ; tlie sale otherwise being regular and no fraiid appearing. Ferguson r. Franklin, 6 Munf. 30.5. 1*65] 78 OF SALKS ITNDKK THE AUTHORITY tliei- w ith the bidding-book and printed particulars annexed), stating the sale and the biddings, and the sum for which the estate sold, and to whom, by name, is required (/). 5. Tlie particulars should, as in the case of private sales, cor- rectly state the rental and nature of tenure, &.c. (1). If the property be described as held by tenants under written agreements, and the holdings are by parol, the purchaser will be allowed to retire from the contract (^). 6. If the rents of the estate are incorrectly represented to the purchaser's disadvantage, he will be entitled to a compensation ; but if he object to the statement upon a sale, and there is a re-sale under the same representation, and instead of pointing out the error he again purchases, he cannot claim any compensation (A). 7. The Court, as in cases of sale by public auction, does not in general attend to verbal declarations at the sale, the babble of the auction-room, as it has been called, except in cases where they *have to consider whether a purchaser is to take his bargain or not (i). 8. If a n^ortgagee in a foreclosure suit be allowed to bid for the estate, he will not be permitted to conduct the sale (Jc) ; and no party to a suit can bid for an estate sold under the decree with- out the authority of the Court (/) ; and yet a solvent partner, a defendant in a suit by the assignees of the bankrupt partner for a sale, who bought without leave at the sale before the Master, was allowed to retain his purchase (/«). 9. The plaii\tifF's solicitor should attend at the sale, which is conducted in the following manner : — The Master's clerk prepares (/) 1 Xewl. Piact. 540. (/.) Domville v. Berrington, 2 You. & {(/) Bessonct v. Robins, 1 Saus. & Coll. 723 ; Drought v. Jones, 1 Fla. & Scul. 142. Kel. 316. (A) Campbell v. Hay, 2 Moll. 102. (/) Elworthy v. Billing, 10 Sim. 98. (i) See 1 Jac. & "Walk. ()38, 639 ; per (w) Wilson v. Greemvood, 10 Sim. Lord Eldon. 101, u. (1) The Master must not, in his description of the property, add any particulars which may unduly enhance the value thereof, or mislead the purchaser. Veeder V. Fonda, 3 Paige, 97. See Post v. Leet, 8 Paige, 337 ; Seaman v. Hicks, 8 Paige, 656. The sale by an officer will not be set aside because the terms of sale are unusu- ally strict or severe, if the circumstances of the case call for rigid measures, and no design is manifested to oppress or injure the parties interested. Coxe v. Hal- sted, 1 Green Ch. 311. But if the officer's conduct is grossly improper and op- pressive, ujjon a sale by him, it seems he will be ordered to pay the costs of set- ting aside his report of sale, and of the subsequent proceedings therein. Baring t'. Moore, 5 Paige, 48. \*66] OF THE COURTS OF EQUITY. 79 a particular of the lots to be sold, with spaces between each lot (1). The lots are successively put up at a price offered by any person present, and every bidder must sign his name and the sum he offers, in the space on the particular, under the lot for which he bids ; and formerly 2s. 6d. was paid to the Master's clerk for every bidding ; but that regulation, which had a tendency to damp the sale, was abolished, and in lieu of the half-crowns a sum was allowed to the clerk, as part of the expenses attending the sale. And this again has been corrected under the authority of the 3 &; 4 Will. 4, c. 94, and " upon every sale by the Master, where the purchase-money does not exceed 2,000/., payable on the report confirmed absolute, there is payable by such party as the Master shall direct, 51. ; and for every sale above 2,000/., on every 100/., 5s. It has been decided that when the whole produce of the sale does not exceed 2,000/., however numerous the lots or pur- chasers, only 5/. is payable, and 5s. on every 100/. beyond that sum (n). The best bidder is of course declared the purchaser. If any lots are not sold, they must be again advertised for sale (o). 10. The payment of a deposit, and the investment of it in the funds, are governed by the same rules as are adhered to where the contract is between party and party : and therefore a pur- chaser is not entitled to the benefit of a rise in the funds when his purchase is completed (p). 11. The Court will, on motion, discharge the [)urchaser, and substitute any other person in his stead ; but this will not be done *unless such person pay in the money, and an aflidavit be made 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 (7). Formerly the practice seems to have been to require {n) In the matter of Allen's Charities, Ambrose, 1 Cox, 194 ; D'Oylcyc. Coun- 2Myl. & Kce. 627 ; Windsor v. Tyrrell, tess of Powis, ih. 206. ib. ()2S, n. (7) Kigby c. MWamara, fi Yes. jun. (0) See 1 Turn. Pract. 129 ; 2 Fowl. 515 ; Vale «;. Davenport, (5 Yes. jun. 615; Prac. 30(), 307. see Hamilton r. Ball, 2 Ir. Eq. Kep. 195 ; {p) Vide supra, Y). 51; Ambrose v. Vincent r. Going, 1 Fla. & Kel. 428. (1) It is the duty of the officer, to sell property plainly divided, in separate par- cels ; Penn v. Craig, 1 Green Ch. 495 ; if the property is so situated that it will probably produce more by that mode of selling ; or where a part only is reeiuired to be sold. Mohawk Ikink r. Atwater, 2 Paige, 54. Put the sale of several par- cels together docs not render the sale void, but only voidable ; and after a great lapse of time, the sale will not be disturbed. Mohawk Bank r. Atwater, 2 Paige, 54 ; Penn v. Craig, 1 Green Ch. 495. [*61] 80 OF SALES BY COURTS OF KQUITY. the consent of all the parties in the cause, as well as the consent of the original purchaser (r). 1*2. But even where the title is defective, and another person has agreed to take the estate with the defective title, yet no order can be made until the first purchaser is discharged (s) ; and it must be by arrangement, for the Court will not offer to sell with a title which it is aware is bad (^) ; nor will it provide by condition against imaginary defects ((/). 13. If the purchaser resell at a profit behind the back of the Court, before his purchase is confirmed, the second purchaser is considered a substituted purchaser, and must pay the additional price into Court for the benefit of the estate (c) (1). 14. Although more of an estate is sold than is necessary for the purposes of the trust by virtue of which the decree was made, yet the purchaser can make no objection to it, the decree being a suffi- cient security to him, as it cannot appear but that it was right to sell the whole. If, however, the decree were, that the Master should sell Greenacre, and he sells Blackacre, an objection to the sale would be good (y) ; although it seems that it may be laid down as a general rule, that a purchaser shall not lose the benefit of his purchase by any irregularity of the proceedings in a cause (2;). If a decree is obtained by fraud, it may, of course, be relieved against (a) ; and it has been said that a purchaser is bound to see, that, at least as far as appears on the face of the proceedings before the Court, there is no fraud in the case (b) ; but, if the Court itself be imposed upon, it would be a strong measure to impli/ notice of th(; fraud to the purchaser, from the very proceedings before the Court. But it is a settled maxim that persons pur- chasing *under decrees of the Court are bound to see that the sale is made according to the decree (c). And this more especially applies to the plaintiff" in the cause (rf). Of course a purchaser (r) Matthews i-. Stubbs, 2 Bro. C. C. Crosbie, 1 IJall & Beat. 489 ; Lightburnc 291. V. SM-iit, 2 J5:ill & Beat. 207 ; see Baker v. (s) Williams v. Wacc, C. Coop. 12. Mors^au, 2 Dow, 520 ; Mullin.s v. Town- (0 Piers 1-. Piers, 1 Saus. & Scul. 411 ; send, 1 Dow & Clark, 430. see Lahey v. Bell, G Ir. Eq. Hep. 122. (a) Kennedy v. Daly, 1 Scho. &, Lef. (m) Bennett v. Wheeler, 1 Ir. Eq. Hep. 365 ; Gitiard r. Ilort. ib. ; Lansdo^vne t\ 18. Beauman, 1 MoU. 81). (x) Xodder v. lUiffin, 1 Taunt. 341. {//) Gore f. Stacpoole, 1 Dow, 30 ; as to (y) Lutwych v. Winlbrd, 2 Bro. C. C. the time of sale, see Blacklow v. Laws, 2 248. Hare, 40. (z) Lloyd V. Johnes, 9 Yes. jun. 37 ; (c) Colclough v. Sterum, 3 Bligh, 181. Curtis V. Price, 12 Ves. j\m. 89 ; Bennett (d) Talbott r. Minnet, 6 Ir. Eq. Rep. V. Ilamell, 2 Scho. & Lef. 566 ; Burke v. 83. (1) See Proctor v. Farnam, 5 Paige, 614. [*68] OF SALES BY COURTS OF EQUITY. 81 making use of the machinery of the Court to obtain the estate fraudulently as against the persons entitled to the inheritance, although with the concurrence of the tenant for life, cannot sustain his purchase (e). And the tenant for life cannot be permitted in such a sale to obtain a benefit at the expense of the remainder- man, and if the purchaser permit him to do so, that may in some cases vitiate the sale, although the Court, if the transaction was not fraudulent, will struggle to correct the misapplication, and not to rescind the sale (/)• 15. In the much contested Scotch case of Vans Agnew v. Stewart (o-) ; where a private Act of Parliament authorized the Court of Session, upon an action instituted, to inquire into and ascertain the extent and amount of the debts of a deceased tenant in tail,' and chargeable upon the entailed estate, and after having fixed and ascertained the amount of such debts, to sell the estate ; the object of the suit was to set aside the sales made of the estates, because the provisions of the Act had not been followed. Lord Eldon observed that the case of these purchasers was extremely distressing, and he wished to lay it down in language as clear as any in which he could express himself, that if a Court in this part of the island, or in Scotland, is authorized by an Act of Parliament to proceed to a sale, and if in the manner in which the Act of Parliament provides they shall so proceed, no purchaser is answerable, or can be answerable, for the mistakes or blunders of the Court. Parliament trusts to the wisdom and discretion of the Courts ; and if the Courts act according to the rule of proceeding which is laid down for their government, although they may be wrong, for instance, if they were to mistake the amount of the debts, if they were to suppose that debt A. affected lands, when it did not affect lands, or that debt B. did not affect the lands, when it did affect the lands, — if purchasers, under these mistakes and blunders, were not found to be safe, he did not know how any one could deal as a purchaser under an Act of Parliament. But then he conceived that every Court was bound to proceed according to the directions of the Act ; and that if the Court of Chancery was bound to proceed according to the prescribed mode, and did not so proceed, then the transactions of the Court of Chancery would be *no more a security to the purchaser, than if that Court had not (c) ThornhQl c. Glover, :j Dru. &"\Var. (f) Boweu r. Evans, fi Ir. Eq. Rep. l'J'>. .569. (g) H. of L. Cases, 1822, MS. Vol. I. 11 [*69] 88 OF SALES BY COURTS OF E^UITT. been authonzed by law to proceed at all. And so in like manner if the Court of Session had not proceeded as the Act of Parliament directed, the consequence was, that the purchaser under that Court was in no better situation than the purchaser under any other Court not conforming to the pro}>er course of proceeding. The whole proceedings apj>eared to him contrary to the powers and authori- ties given to the Court of Session, in order to make good titles to the purchasers. Lord Redesdale observed, that it appeared to him most clear, that the Court of Session, having no authority what- soever to decree a sale of the estate, except that which the Act of Parliament gave them, they were bound to proceed according to the powers given them by that Act of Parliament ; and that if they did not do so, they were acting without authority. You did not mean, my Lords, to speak of any error in judgment. If they had decided what were the debts with which the estates were affected, and they had improperly so decided ; if they had allowed claims that were not within the intent of the Act of Parliament, he did not conceive that an error in judgment of that description would have affected the title of the purchasers. But they proceeded without any authority whatsoever; he therefore apprehended that the whole of the proceedings of the Court of Session, with respect to the sale of the estate, were void. He had thought it very im- portant to state just so much upon the subject, as he wished it to be understood that it was not for an error in judgment on the part of the Court of Session that he thought these purchases were void. If the Court of Session had decreed in a suit properly brought, mere error in judgment would be no ground for setting them aside. If the Court of Session had proceeded in a cause in which all the proper parties were represented, and if in the end justice had been done, though the order of sale which was directed by the Act of Parliament had not been pursued, he thought that would not have been a ground for overturning the whole of that which had been done. 16. Where the Court sells, it will protect the purchaser against the parties to the suit, and all persons coming in under the decree. But a person having a legal lien, as a judgment-creditor not coming in under the decree, would not be bound by it, and might proceed against the purchaser (A), unless he obtained a legal interest (A) Barrett v. Blake, 2 Ball & Beat. Saus. &Scul. 419 ; see Fitzgerald y. Lane, 36 i ; Johns v. French, ib. 4.50 ; I'iers c. '■', Ir. Ei^. Kep. 339 ; Stackpoole v. Curtis, Piers, 1 Saus. & Scul. :M0 ; 1 ^L'ru. & 2 Moll. 'JOi. \Val8h, 26o ; Barrett v. Burningham, 1 OF THE CONFIRMATION OF THE REPORT. 83 over-reaching the lien ; in which case it was held by Lord Manners *that the claim being merely in equity, the Court would protect the purchaser buying under its decree (i), or rather would not lend its aid to the judgment-creditor against him. But this has since been denied to be law, and therefore a purchaser under a decree for sale for payment of an incumbrance should see that he obtains a dis- charge from all judgment-creditors, or that they are bound by the decree whether he obtains the legal or equitable estate. 17. In sales by auction or private agreement, the contract is complete when the agreement is signed ; but a different rule pre- vails in sales before a Master ; the purchaser is not considered as entitled to the benefit of his contract till the Master's report of the purchaser's bidding is absolutely confirmed (1) ; and 1 shall now pro- ceed to show what steps a purchaser must take to obtain an abso- lute confirmation of the Master's report. 18. The purchaser must first, at his own expense, procure a report from the Master, of his being the best bidder for the lot he has purchased. After the report is filed, and an office-copy of it taken by the purchaser, he must, at his own expense, apply to the Court by motion, of which no notice need he given (k), that the purchase may be confirmed. Upon this application the order will be confirmed nisi, (I), that is unless cause be shown against the same in eight days after service. The purchaser must, at his own expense, procure an office-copy of this order from the Register (I). If no cause be shown within the eight days, the purchaser must, at his own expense, apply to the Court to confirm the report abso- lutely, which will be done of course (m), on an affidavit of the ser- vice of the order (n), and a certificate of no cause having been shown. The certificate is obtained from the Register by appli- cation to the entering clerk, and leaving the order nisi, the day before. Notice of this application need not be given (o). But if he be served with notice of a motion to open the biddings, he (i) Steele v. Philips, 1 Hogan, 49 ; Beat (/») For a form of the order, see 2 Fowl. 188. Pract. 311. {k) See Parker's Analysis, 141. {») For forms of the affidavit, see 2 (/) For a form of the order, see 2 Fowl. Turn. Pract. .503. -522 ; Parker's Anal. 98; Pract. 308. 2 Fowl. Pract. 310. {o) See 1 Turn. Pract. 129. (I) See 3 & 4 Will. 4, c. 94, s. 10, which authorizes any person to take an office-copy of so much only of any decree, order, report, or exceptions, as he may require. (1) See Mouell v. Lawrence, 12 John. 521. [*70] 04 OF ENFORCING THF. SALE. cannot regularly proceed to confirm his report absolutely (^). The order, however, to confirm absolutely the report when served operates from the day on which it was pronounced (5-). *19. If after having obtained the order nisi, the purchaser neglects to confirm the order, the vendor himself may make the motion (?•). 20. The bidder not being considered as the purchaser until tiie report is confirmed, is not liable to any loss by fire or otherwise which may happen to the estate in the interim (s) ; nor is he, until the confirmation of the report, compellable to complete his purchase (t) ; but upon the report being confirmed, he will be compelled to carry the contract into execution (u). And if an interest of uncertain duration be purchased — as a life interest, the purchaser will be bound, although the life drop the same night (x). 21. If the purchaser neglect to complete his purchase, the practice is for the sellers to confirm the report, and then if the purchaser is supposed to be responsible, to get an order to inquire whether the party can make out a good title (?/) (I), and if he can, (;j) A'ansittart v. Collier, 2 Sim. & Stu. r. Flavcl, 2 Anstr. 3-1 1, cited. 608. (.c) Anson v. Towgood, 1 Jac. & Walk. (q) Aberdeen r. Watlin, 6 Sim. 146. 037 ; see A'incent r. Going, 1 Flan. & Kcl. (r) Chillingwortli I'. Chillingworth, 1 2.50, reversed upon appeal. SeeSIr.Eq. Sim. & Stu. 291 ; liidbettcr c. Smith, 5 Kep. 480; Vesey ''. Elwood, 1 Flan. & Beav. 377. Kcl. 667 ; 3 Dru. & War. 74. (s) Ex parte Minor, 11 Yes. jun. 5o9 ; (y) Notice must be given of the motion see 13 Yes. jun. 018 ; iJac. & Walk. 639. for this order. For a form of the notice, (<) Anon. 2 Yes. iun. 33o. sec 2 Turner, 6p0. (m) Barker v. Iloli'ord, and Eggington (1) Gordon v. Lines, 2 M'Cord Ch. 167. But such an inquiry is not indispen- sable ; it is merch' for the benetit of the purchaser, that he may not be compelled to take a defective title. But if the pui-chaser is satisfied, and makes no objection to the title, or ■waives the inquiry, it docs not afterwards lie in in his n»outh to take any exception of this nature. And, a fortiori, his siirety has no right to take any such exception ; for he has nothing to do -with the matter of the title. This is an affau- wholly appertaining to the rights and duties of the principal. Wood V. Maim, 3 Sumner C C. 318, 332. "WTien, however, the purchaser at the Master's sale, purchases under the as- surance that he is to receive a perfect title, if such title cannot be given, he will not be compelled to complete the purchase. ^Morris v. MoAvatt, 2 Paige, 086. A purchaser has a right to require, tinder such circumstances, a title, which is good both at law and in equity, ib. See Seaman r. Ilicks, 8 Paige, 6.50. In Maryland, the rule of caveat emptor ap])lies to all judicial sales. Chancery in no case attempts to sell anj' tiling more than the title of the i)arties to the suit ; and it alloAVS of no inquiry into the title at the instance of the purchaser or any one else. Bro-vvn v. Wallace, 4 Gill & John. 479 ; Anderson v. Foulke, 2 Ilarr. & Gill, 346. See Atkinson c. Farmer, 2 Murphcy, 291. In Spring v. Sandford, 7 Paige, 5-56, it was held that where real estate is sold by a Master under a decree of a Court of Chancery, as and for a good title, the purchaser is only entitled to such a title as a purchaser of the premises at a pri- vate sale would be bound to receive from his vendor. See Jackson v. Edwards, 7 Paige, 386 ; S. C. 22 Wendell, 498 ; matter of BroAvriing, 2 Paige, 64 ; Dunham V. Minard, 4 Paige, 441 ; Weems v. Brewer, 2 Harr. & Gill, 390. 1*711 OF ENFORCING THE SALE. 85 to obtain an order upon the purchaser to complete his pur- chase (z) (I) ; but if the purchaser is unable to complete his purchase, then on the report being confirmed, it is moved to dis- charge him from the bidding (o), and notice of this motion must be given to the purchaser (b). But a purchaser will not be per- mitted to baffle the Court ; and therefore, instead of discharging the purchaser from his bidding, the Court will, if required, make an -order that he shall, within a given time, pay the money, or *stand committed (c) (1). The order generally would be to resell, throwing the expense and loss upon the first purchaser, but not discharging him from the purchase by the order (rf) (^2). 22. If an insane person bid, of course 'the estate must be resold ; but the Court has no power to hold the next bidder to his bidding {z) See 2 Fowl. Pract. 318. 32.3. (c) Lansdownr. Elclerton, 14 Yes. jun. (a) Cunningham v. Williams, 2 Anstr. 512 ; see Gray r. Gray, 1 Beav. 199. 344. {(I) Harding r. Harding, 4 Myl. & Cra. (6) For a form of the notice, see 2 Turn. 514. Pract. 651. (I) A motion -\vas made before Lord Erskine, that the purchase-money should be paid in by the purchaser. The purchaser did not appear. Alter consulting the Register, \vho had searched for precedents, and expressing his um\illmgness to do an>-tliing to prejudice sales by the Court, the Chancellor refused the motion, but ordered the title to be referred to the Master ; and then, he said, if a good title could be made, he would compel pavmcnt of the money according to the usual prac- tice.— Anon, Ch. 22d July 1806, MS. In 1 Newl. Pract. 544, it is said, that it seems that if the report is confirmed by the coxlors it is not necessary, previous to the application against the purchaser, that he be ordered to pay in his purchase money, that an abstract of title should be deliveredto htm. Sanders v. Guy, Jan. 1811, before Lord Eldon. See 1 Beav. 200, bv the name of Gray v. Gray. (1) Richardson r. Jones, 3 Gill & John. 164 ; Wood v. Mann, 3 Sumner C C. 318. And in a case where the purchaser at a sale by the ilaster, in conformity with a decretal order of the court, gave security to the Master, in the shape ot a cove- nant, with a surety, to pay the purchase-money within a given time, and the mon- ey -was not paid either bv the principal or surety %\ithhi that time, it was held, that a court of eciuitv m"ight, bv uttachmcnt, not only compel the purchaser to complete his purchase by paving" in the purchase-money, but might also proceed against the surety, who liad thus made himself a party to the proceedings, in the same summarv manner. Wood c. Mann, 3 Sumner C. 318. (2) 3 Dan. Ch. Pr.(Perkins's ed.) 1461, 1462 ; Simmons t-. Tongue, 3 Bland, 341; Mullikin V. Mullikin, I Bland, 541. Where there is a decretal order, that m case ot non-payment of the purchase-money witlun a given time, there shall be a resale bv the Master, this is regarded as a inere auxiliary security belonging to tlie par- tv seeking the benefit of the sale. But the court is at Uberty to rescind or sus- pend such order at any time. The right to re-seU docs not take frorn^ the pur- chaser the right to proceed by attachment. Wood v. :Mann, 3 Sumner C. C. .iis , Seton I'. Slade, 7 Vesey, 265," 276. • i i ti t e statute to be created by deed or writing, viz. leases conveying a larger interest to the party than for a term of three years ; but the Lord C. Baron, at nisi prius, ruled other- wise. And now by statute law a feoffment, except one made under a custom by an infant, is made void in law, unless evidenced by deed and a partition and exchange (except of copyhold), and a lease required by law to be in writing, and an assignment of a chattel in- terest (not being copyhold), and a surrender in writing of an in- terest in any hereditament not being a copyhold, and not being an interest which might by law have been created without writing, will be void in law unless made by deed ; but this does not extend to Ireland as far as relates to a surrender (g). &. It has been decided, that a mere license is not within the first section of the statute of frauds(l). This was decided in the case {g) 8 & 9 Vict. c. lOG, s. 3 ; the word 235 ; Thomson v. "Wilson, 2 Stark. 379 ; release in tliis section seems to relate to Phipps v. Sculthorpe, 1 Barn. & Aid. 50 ; 6. 2, see post, ch. 11, s. 6; and see 7 & 8 Thomas v. Cook, 2 Stark. Ca. 408; 2 Vict. c. 76, s. 3, and observe its dura- liarn. & Aid. 119; Dodd v. Acklom, 6 tion. See Mollett r. Brayne, 2 Camp. Mann. & Gran. 672. Ca. 103 ; Stone ». Whiting, 2 Stark. Ca. ( 1 ) If a license is to be understood, as merely an authority to do a particular act, or seiies of acts, upon another's land, without passing any estate or interest in the land, then there appears to be no reason to controvert the position, that a mere license is not within the statute of frauds. This is the definition of a license given by Mr. Chief Justice Parker, in Cook v. Stearns, 11 Mass. 537; and he gives as instances, a license to hunt in another's land, or to cut down a certain number of trees. Such licenses, he says, do not in any measure trench upon the policy of the law, wliich requires that bargains, respecting the title or interest in real estate, shall be by deed or writing. They amount to nothing more than an ex- cuse for the act, which would otherwise be a trespass. But licenses, which in their nature, amount to the granting of an estate, for ever so short a time, are not good without deed, and arc considered as leases. 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 intercut, which ought not to pass without writing, and is the very object provided for by the statute of frauds. The decision in Cook v. Stearns was fuUy approved in Mumfbrd v. Whitney, 15 Wendell, 380, where the cases are ably reviewed and cUscussed by Chief Justice Savage. The same decision is ap- proved also by Mr. Chief Justice Williams in Prince v. Case, 10 Conn. 375, who ably considers the cases and the principle on which they are founded. And in [*96] PAROL LICENSE VALID. lO*? of Wood V. Lake (h). A parol agreement was entered into for liberty to stack coals on part of a close for. seven years, and that during this term the person to whom it was granted should have (k) Say. 3; and see Winter v. Brock- Wood v. Manley, 11 Adol. & Ell. 34; ■well, 8 East, 308 ; Rex v. Inhabitants of Rex. v. Inhabitants of Homdon, 4 Mau, Standon, 2 Mau. & Selw. 461 ; Taylery. & Sel-rt-. 532; Cocker v. Cowper, 1 Cro. Waters, 2 Marsh, 551; 7 Taunt. 74; Mees. & Rose. 418, Maine, the cases of Seidensparger v. Spear, 17 Maine, 123, was decided on the same principles. The same case came under re\n«w in the same court, in Stevens V. Stevens, 11 Metcalf, 251, 257, and its doctrines were reaffirmed. The above definition of a license is substantially adopted by Mr. Chancellor Kent, in his Commentaries, 3 vol. 452. And he adds, that a license is founded in personal con- fidence, and is not assignable, nor within the statute of frauds. And the learned Chancellor very justly remarks that '< this distinction between a pri-\'ilege or easement carrying an interest in land, and requiring a writing within the statute of frauds to support it, and a license which may be by parol, is quite subtile, and it becomes difficult, in some of the cases, to discern a substantial difference be- tween them." In Whitmarsh v. Walker, 1 Metcalf, 313, it was decided, that a license, to enter upon land, and remove mulberry trees therefrom, which were groAving in a nursery and raised to be sold and transplanted, and which had been sold by the defendant, the owner of the nursery, to the plaintiff, passes no interest in the land, and, though not iai writing, is valid notwithstanding the statute of frauds. It was admitted in the case that the defendant, the owner of the nursery, had a legal right to revoke his license. Eut if he exercised his legal right in violation of his agreement, to sell the trees and give liberty to enter and remove them, to the prejudice of the plaintiff, the purchaser, the court held that he "would be responsible in damages. *' If " say the court, " for a valuable consider- ation, the defendant contracted to sell the trees and to deliver them at a future time, he was bound to sever them from the soU himself, or to permit the plaintiff to do it, and if he refused to comply with his agreement, he is res^jonsible in damages." In Claflin r. Carpenter, 4 Metcalf, 583, Mr. Justice Wilde said, " A license to enter on the land of another, and do a particular act or a series of acts, may be valid, though not granted by deed or in Avriting. Such a license does not trans- fer any interest in the land, although Avhen granted for a valuable consideration, and acted upon, it cannot be countermanded." This was said in a case of a sale of growing wood and timber, to be cut and removed by the purchaser, which was held not to be a contract for the sale of any interest in or concerning lands, &c. -within the statute of frauds. In Xettleton ». Sikes, 8 Metcalf, 34, an oral agree- ment had been made by the plaintiff and owner of land, that the defendant might cut down the trees on the land, and peel them, and take the bark to his o-wti use. After the defendant had cut down and peeled the trees, the plaintiff forbid his going upon the land to take away the bark, but the defendant proceeded, entered upon the plaintiff's land and took the bark away. The plaintiff sued him in trespass for breaking and entering his close. The court said, " In the present case, when the bark was peeled, it became the property of the defendant, by the terms of the contract, and if the ])laintiff had taken it away, he would have been liable to the defendant in an action of trover. The bai-k being the property of the defendant, and being on the ])laintifl"s land with his consent, and in pursuance of the contract, he had no right to prevcait the defejidant from taking it away." See Wood r. Manley, 11 Adol. & Ellis, 31. This case of Ncttlcton v. Sikes", it will be preccived, goes one step farther than that of "Whitmarsh r. A\'alker, in which latter case, it was conceded that the owner of the land might lawfully revoke his license, whereas in Xettleton r. Sikes, such license to revoke is expressly denied. These cases seem to come entirely Avithin the definition of a license given above. But in Stevens r. Stevens, 11 M< Oliio, 248, it was decided, tliat, if one enters on the land of another by virtue of a parol license, given for a consideration paid, and erect fixtures, such license becomes irrevocable, and trespass wdl lie against the owner of the land for destroying them. Such license executed gives the right of possession to control, repair, and protect the fixtures against the owner of the fee. The cases on the subject of license are very fully and ably discussed, and some learned and subtile distinctions taken in Gale & Whatley on Easements, Ch. 3. p. 19 et seq. ; 2 Amer. Lead. Cas. by Hare N: Wallace, oOb et seq. Tit. License ; Addison Contr. Ch. 1. p. 8(5 et seci. Some of these distinctions are adverted to in Stevens t\ Stevens, 1 1 Metcalf, 2.54, 255 by Wilde J. 110 OF PAROL AGREEMENTS. lated only to interests, which were uncertain as to the time of their duration. After time taken to consider, it was holden, that the agreement was good for the seven years. 7. The case referred to in Pahiier does not seem to bear out the judgment in the above case ; the decision turned upon another point : but Montague and Haughton both thought that the in- terest in that case was such as bound the land in the hands of a subsequent lessee. That case arose before the statute of frauds, and it would require a considerable stretch to make it apply to a case since the statute. No one will deny, that these cases are within the mischief against which the Legislature intended to guard. In Wood and Lake, the plaintiff was to have the sole use of the part of the land upon which he should stack his coals. How is this to be distinguished in substance from an actual demise for seven years? It appears to be in the very teeth of the statute, which extends generally to all leases, estates or interests (1). The statute expresses an anxious intention to embrace interests of every description. How can it be argued, that a license not counter- mandable, and which confers the sole use of a place on a man, is not an interest within the statute ? L^pon what principle is it, that the person entitled to such an easement may maintain trespass ? This relaxation of the statute holds out a strong temptation to a man in possession of land, under a parol agreement, to commit perjury, in order to ensure to himself a more permanent interest in the land than the statute would permit him to claim, were the real transaction disclosed. The case of Wood v. Lake has, how- ever, been followed in several recent cases Qc) (2). {k) Sec the last note. (1) See Stevens v. Stevens, 11 Metcalf, 2o5, 256. (2) See ante 96 note ; The remarks of Wilde J. on "Wood v. Lake, in Stevens v. Stevens, 11 Metcali", 255, 256 ; Sampson v. Eurnside, 13 N. Hamp. 266 ; Prince V. Case, 10 Conn. 375. In Gale & Whatley, on Easement, Ch. 3, sifter an able review and discussion of the English cases relating to the point decided in the cases of Webb v. Paternoster ^; Wood r. Lake, the learned authors conclude, that the stron^; current of the later authorities is against them, and add, that " authority is hardly necessary to countervail these two cases, as in neither, as was observed by the court of King's Bench in llewlins v. Shippdam, 5 Earn. & Cress. 221, does it appear that the objection was taken, that the right lay in grant, and therefore could not pass without deed ; in addition to which it may be ob- served, that the case in Saycr is of doubtful authority." It is also stated that the case of Webb r. Paternoster, is in re;dity a mere dictum, as the court was not called upon to decide the ([uestion as to the validity of the license, pp. 27, 44, 45. Mr. Chancellor Kent says : "The case of Wood r. Lake, which held a pa- rol agreement for the liberty to stack coal upon any part of the close of another, for seven years, to be valid, was questioned at the time by Mr. Justice Foster, and it has been since forcibly attacked by Sir Edward E. Sugden, in his treatise of the Law of Vendors and Purchasers, and was questioned also in Phillips v. OF PAROL AGREEMENTS. Ill 8. It has been decided, that if, after a lease has been granted, the landlord make improvements on the estate, in consideration of an agreement to pay an additional sum per annum, the sum is not rent, and the agreement is collateral to the lease, and may there- fore be recovered upon, although by parol (J). 9. An agreement under the fourth section which cannot be en- forced on either side, is a contract void altogether, and yet may have, as an agreement, some operation in communicating a license so as to excuse what would otherwise be a trespass, but such license would be countermandable (m) (1). (I) Hoby V. Roebuck, 2 Marsh. 433. (m) Carrington v. Roots, 2 Mees. & Wela. 257 ; see Winter v. Brockwell, 8 East, 308 ; Crosbv v. Wadsworth, 6 East, 602. Thompson, 1 John. Ch. 144, 14-5 ; and yet that case has been recognized, and the doctrine of it sanctioned, by Lord Ch. J. Gibbs, in Ta)'lor v. "Waters. The deci- sion in Cook V. Steams narroAvs the limits assigned to a parol license, wliile, on the other hand, the cases of Ricker v. Kelly, 1 Greenl 117, and Clement v. Dur- gin, 5 Greenl. 9, seem to approach and favor the more questionable doctrine in Wood r. Lake." In Bridges v. PurceU, 1 Dev. & Bat. 492, Mr. Justice Foster held, that the decision in Wood v. Lake was clearly wrong. See also Mumford v, Whitney. 15 Wendell, 380; Miller v. Auburn Rail Road Co. 1 Hill N. Y. 61 ; Hays V. Richardson, 1 Gill & John. 366; Leland v. Gassett, 17 Vermont, 403; Wood V. Leadbitter, 13 Mees. & AVelsb. 837 ; Harris v. Miller, 1 Meigs, 158. (1) See ante, 96 in note. ^SECTION II. OF THE FOURTH SECTION. 1. Extends to interests created de novo. 6. Exclusive right to vesture within it. 6. So growing crops, as grass. 7. Or growing poles, tmderwood, timber. 8. But not wheat. 9. Xor trees sold as wood. 10. Nor potatoes. 11. Nor turnips. 12. Nor hops. 13. Nor crops, between te)ia7its. 14. But void sale, if executed, binding. 16, 32, 36. And sales of crops not within fourth section, are tcithin t/ie seventeenth. 16. Crops sold with the land within fourth section. 17. Fixtures. 18. 32, 35. Examination of the cases. 19. 35. Anon, in Lord Raymond. 20. Waddington v. Bristoic. 21. 34. Crosby v. Wadsicorth. 22. 34. Emmerson v. Heelis. 23. Teall v. Auty. 24. Parker v. Staniland. 25. Warwick v. Bruce. 28. Smith v. Surman. 29. Scorelly. Boxall. 30. Carrington v. Boots. [*98] 112 OF THi; SALE OF STANDING CROPS. 31. Sain^bury V. Matthews. 32. Dunne v. Ferguson. 38. Jones v. Flint. 39. Purchaser oj" husband ri/ crops. 40. Proper stamp. 41. Mining company shares within the fourth section. 42. Entire p><^>'ol agreement for realty and personalty wholly void. 1. The fourth section of the Act extends as well to interests created dc novo out of an estate, as to subsisting interests ; there- fore an agreement for an assignment of a lease will not be bind- ing, unless made in writing («). 2. If a man, having agreed verbally to buy an estate, agree by writing to sell the benefit of his contract to another who actually obtains a conveyance from the original seller, the transfer will be a sufficient consideration for the promise, and the first purchaser may recover the sum agreed to be paid for the transfer (b). 3. We have already seen that a void agreement may operate as a license countermandable (c). 4. In regard to the cases which have arisen upon the sale, by parol, of growing crops of grass, timber, underwood, potatoes, turnips, Stc, I propose to state, in the abstract, the points of law which have been ruled, and then, in consequence of the importance *of the subject and the conflicting nature of the authorities, to examine fully the grounds upon which they were decided. 5. First, then, an actual interest agreed to be granted in land of course falls within the fourth section, and requires a written agreement. And if an agreement profess to give an exclusive right to the vesture of land during a given period, that is an interest concerning lands within the fourth section, and therefore, as we have seen, an agreement to sell a growing crop of mowing grass, to be mowed and made into hay by the purchaser, requires a written agreement (. PuU. 4.)2. (m) Evans v. Roberts, 5 Barn. & Cress, (>•) See Mavficld v. Wadslev, 3 Barn. 829 ; 8 Dowl. & Ky. 611; see 5 Barn. & & Cress. 357 ;' 5 Dowl. & lly.'221 ; Em- Adol. 116 ; Hallen u. Kender, 2 Crompt. merson v. Ilcclis, 2 Taunt. 38 contra, is & Mees. 266. overruled, see 5 Barn. & Cress. 832. (0) Sainsbury v. Matthews, 4 Mees. & (s) Teal v. Auty, 4 Moo. 542. Wels. 343. (1) And the mere license to come upon the land for the purpose of gathering and securing the crop, which is incident to such a contract, is not a sale of a right concerning land within the meaning of the statute of frauds. Addison on Contracts, 92, 93; Whitmarsh v. Walker, 1 Metcalf, 313; Jones v. FHnt, 10 Adol. & EU. 753. (2) But see Rodwell r. Phillips, 9 Mees. & W. 504. [*100] OF THE SALE OF STANDING CROPS. 115 carrying to the purchaser an interest in or concerning the land in which they grow or are planted, is, that they are, with reference to the time when the contract is completed, goods, wares, and merchandise, and therefore fall within the 17th section of the statute, which enacts, that no contract for the sale of goods, wares, and merchandise, for the price of 10/. or upwards, shall be allowed to be good except the buyer shall accept part of the goods so sold, and actually receive the same, or give something in earnest to bind the bargain, or in part qf payment, or that some note or memorandum of the bargain be made and signed by the parties, to be charged by such contract or their agents thereunto lawfully authorized (t) (1). So that if the case fall within the fourth section, *there must be a contract in writing, and if it do not fall within it, yet there must still be a writing, unless there was earnest or part payment made, or part of the subject-matter of sale be accepted and received by the purchaser. 16. In Lord Falmouth v. Thomas (u), where a farm was agreed to be let by parol, and the tenant was to take the growing crops and pay for them, and also for the work, labor, materials in preparing the land for tillage, it was held that the case fell witiiin the fourth section of the statute. The Court observed, that iit the time when the contract was made the crops were growing upon the land, the tenant was to have had the land as well as the crops, and the work, labor, and materials were so incorporated with the land as to be inseparable from it. He would not have the benefit of the work, labor, and materials unless he had the land, and they were of opinion that the right to the crops and the benefit of the work, labor, and materials were both of them an interest in land. 17. But where (x) a tenant having a right to remove fixtures left them in the house, upon a verbal agreement with the landlord that the latter should take them at a valuation, the Court were quite satisfied that this was not a sale of any interest in land, and the judgment of the Court, and particularly of Mr. Justice Little- (<) Evans v. Roberts, 5 Barn. & Cress. Wadsley, 3 Bam. & Cress. 357. 829 ; Smith v. Surman, 9 Barn. & Cress. (x) Haller r. Render, 1 Cr. Mees. & 566. Ros. 266 (1834) : Lee i'. Risden, 7 Taunt. (m) 1 Crompt. & Mees. 89 ; see 1 Atk. 188 ; Colegrave r. Dias Santos, 2 Barn. & 175 ; Poulter v Kil]in<;beck, 1 Bos. & Cress. 76 ; Clavton v. Burtonshaw, 5 Pull. 397 ; see 6 East, 613 ; Maytield v. , Bam. & Cress. 47. (1) See WMtmarsh v. Walker, 1 Metcalf, 313, [*101] 116 OF THE SALK OF STANDING CROPS. dale, in Evans v. Roberts, upon the subject of growing crops, was, they said, an authority to the same effect (1). 18. I have thus endeavored to trace the law as it stands upon the authorities for the guidance of the student and practitioner. But the law on this head is not in a satisfactory state, and can hardly be considered as settled. The cases still require to be thoroughly examined by the Courts, with a view to place the law upon a proper foundation. 19. The first authority is a statement in Lord Raymond (y), that Treby, Chief Justice, reported to the other justices that it was a question before him, at a trial at nisiprius at Guildhall, whether the sale of timber growing upon the land ought to, be in writing by the statute of frauds, or might be by parol. And he was of opinion, and gave the rule accordingly, that it might be by parol, because it was a bare chattel, and to this opinion Mr. Justice Powell agreed. And this in a late case was quoted by Mr. Justice *Holroyd as an authority, and as a case of an ordinary crop, for he added, in some cases, therefore crops growing upon the land may be considered as goods and chattels (2;). 20. In Waddington v. Bristow (a) the question indirectly arose. An agreement was made for the purchase of all a man's growth of hops on his land at a certain rate per hundred weight, to be in pockets, and delivered at a place named, and the custom was where, as in this case, no time was specified for the delivery, it should be within a reasonable time after the hops are picked and dried ; and the question was whether this was a sale of goods, wares, and merchandise, so as to exempt the written agreement from a stamp duty, under an exception in the then Stamp Act, and it was held that it was not. Lord Alvanley thought it an agree- ment for the sale of goods, wares, and merchandise, and something more. Mr. Justice Heath looked to the time at which the contract was made, and at that time the hops did not exist in the state of goods, wares, and merchandise. Mr. Justice Rooke considered the exemption to apply only to ordinary commercial transactions. Mr. Justice Chambre said this contract gave the vendee an interest in the whole produce of that part of the vendor's farm which con- (y) Anon. 1 LordRavm. 182 ; see Hob. (c) Sec 3 Bam. & Cress. 364. 173, 1 Atk. 175. " («) 2 Bos. & Pul. 452. (1) Bost-n-ick r. Leach, 3 Day, 476. So a parol contract for the sale of im- provements on public lands is valid. Zickafosse v. Hulick, 1 Monis, 175. See Frear v. Hardenburgh, 5 John. 272 ; Benedict v. Bebee, 11 John. 145. [*1021 OF THE SALE OF STANDING CROPS. 1 17 sists of hop grounds. If the vendor had grubbed up the hops, or had refused to gather or dry them, it would have been a breach of the contract. Though he admitted that a contract for the sale of so many hops as twenty-two acres might produce, to be delivered at a distant day, might fall within the exception of the Act, notwith- standing the hops ivere not in the state of goods, wares, and merchan- dises at the time of the contract made, yet he could not think the present agreement within that exemption, since it gave an interest to the vendee in the produce of the vendor's land. Mr. Justice Bayley observed, in a later case, that Chambre, J., was the only judge who intimated an opinion that the contract gave the vendee an interest in the land. He (Bayley, J.,) concurred in opinion with the three judges who thought in that case that the hops were not goods, wares, and merchandise at the time of the contract. Mr. Justice Bayley therefore seems to have been of opinion that the sale of the hops was not an interest in land (although that, as he observed, was not the question there,) and yet they were not goods, wares, and merchandise — as Lord Alvanley said, something more than the latter, — and as we may add, something less than the former. The contract, it should be observed, was in November, for all the hops which should be grown in the ensuing year upon the particular lands. At that time the hops which were *the subject of the contract were not in existence, there was nothing but the root of the plant, and the purchaser was not to have that (6). 21. In the important case of Crosby v. Wadsworth (c), there was a parol agreement to sell a standing crop of mowing grass then growing. The grass was to be mowed and made into hay by the purchaser, but no time was fixed at which the mowing was to be begun. Lord Ellenborough, in delivering the opinion of the Court, observed, that this could not be considered in any proper sense of the words as a sale of coods, wares, and merchandise, the crop being at the time of the bargain an unsevered portion of the free- hold, and not movable goods or personal chattels ; and he thought that the agreement, conferring as it professed to do an exclusive right to the vesture of the land during a limited time and for given purposes, was a contract or sale of an interest in, or at least an interest concerning lands (1). (6) 5 Bam. & Cress. 834, 835. (c) 6 East, 602 (1805). (1) See ante 99 notes respecting this case. [*103] 118 OF THE SALF. OF STANDING CROPS. 22. In a later case, in the Common Pleas ((/), growing turnips were sold in lots by auction, and the question arose upon the ne- cessity of a written agreement. It was said arguendo, that the turnips were actually ripe and fit to be drawn, but there was no proof on this point. The Court simply observed, that as to this being an interest in land, they did not see how it could be distin- guished from the case of iiops decided in this court ; but as they held that there was a suflicient signature to bind the purchaser, it seems hardly to have been necessary to decide the question we are now considering (e). Mr. .Justice Bailey, in Evans v. Roberts, said, that he did not agree with Lord Chief Justice Mansfield, that there was no distinction between the hops in Waddington v. Bristow, and the growing turnips in the case of Emmerson v. Heelis, be- cause he thought that in the latter case the growing turnips at the timeof tlie contract were chattels {/)• 23. In Teall v. Auty (^), A having bought a lot of growing timber, sold the poles to B, which A the seller cut and delivered to B the purchaser, who carried them away ; and upon the autho- rity of Waddington v. Bristow, Emmerson v, Heelis, and Crosby V. Wadsworth, the Court was of opinion that the agreement was originally for the purchase of an interest in land, for when it was made the poles were growing ; but the poles having been actually taken away, the question ultimately turned upon the form of ac- tion. *24. In Parker v. Staniland (A), where potatoes in the ground, and which had not been severed, were sold at so much a sack, to be dug by the purchaser, and taken away immediately, and which was held not to be a sale within the 4th section, Lord Ellen- borough observed, that there was this difference between the cases, that in Crosby v. Wadsworth the contract was made while the grass was then in a growing state, which was afterwards to be mown at maturity, and made into hay ; whereas there the con- tract was for the potatoes in a matured state of growth, which were then ready to be taken, and were agreed to be taken im- mediately. The contract was confined to the sale of potatoes and nothing else was in the contemplation of the parties. He was not disposed to extend the case of Crosby v. Wadsworth further, so as to bring such a contract as this within the statute of frauds, (rf) Emmerson v. Heelis, 2 Taunt. 38 (<;) 4 Moo, 542 (1820) ; see Scorell (1809). Boxall, infra. (e) See o Bam. & Cress. 833. (A) 11 East, 362 (1809). (/) 5 Barn. & Cress. 835, [*]041 OF THE SALE OF STANDING CROPS. 119 as passing an interest in land. Mr. Justice Bayley also referred the cases of Crosby v. Wadsworth and Waddington v. Bristow to the ground that the contracts were made for the growing crops of grass and hops, and therefore the purchasers of the crops had an intermediate interest in the land while the crops were growing to maturity before they were gathered. This places the doctrine upon an intelligible footing : it shows that there is nothing in the nature of the crop, whether hops, grass, potatoes, turnips, &ic., but that the distinction relied upon was between groiving crops and those which had arrived at ma- turity. 25. In the next case (i), where the sale was of ?i growing cro"^ of potatoes at so much per acre, to be dug and carried away by the purchaser, but no time was appointed for that purpose, it was decided that the contract was not within the 4th section of the statute. But here the Court had to grapple with the difficulty, that the crop was a growing one. Lord Ellenborough observed, that if this had been a contract conferring; an exclusive ri^ht to the land for a time, for the purpose or making a profit of the growing surface, it would be a contract for the sale of an interest in, or concerning lands, and would then fall unquestionably within the range of Crosby v. Wadsworth. But here the contract was for the sale of potatoes at so much per acre ; the potatoes were the subject matter of sale, and whether at the time of the sale they were covered with earth in the field or in a box, still it was the sale of a mere chattel. In this case, therefore, the learned judge gave up his former *ground ; he looked at the contract as at the delivery of the crop, and as depending upon the question, whether merely the crop or an interest in the land was the subject matter of sale. There is no objection to the rule which he refers to as being established by Crosby v. Wadsworth. 26. In Evans v. Roberts (A:), where it was held that a cover of potatoes in the ground, to be turned up by the seller, might be sold by parol, Mr. Justice Bayley took the distinction, that the contract was to buy the potatoes which a given quantity of land should produce, but not to have any right to the possession of the land. In Crosby v. Wadsworth, he observed, the buyer did ac- quire an interest in the land, for by the terms of the contract he was to mow the grass, and must therefore have had tiie possession (t) Wai-nick t\ Bruce, 2 Mau. & Sehv. 205 (1813). (^) Barn. & Cress. 829 (1826). [*105j 120 OF THi: SALK Of STANDING CROPS. of the land for the purpose. Besides, in that case the contract was for the growing grass, which is the natural and permanent pro- duce of the land, renewed from time to time without cultivation. And he took the distinction between growing grass, which does not come within the description of goods and chattels, and cannot be seized as such under a fi. fa., and growing potatoes, which come within the description of emblements, and are deemed chattels by reason of their being raised by labor and manurance. He held therefore that this case did not lall, nor would a sale of a growing crop of the like kind fall within the 4lh section. Mr. Justice Holroyd, in the same case, thought, that although the vendee might have an incidental right by virtue of his contract to some benefit from the land while the potatoes were arriving at maturity, yet he had not an interest in the land within the mean- ing of the statute : if even the buyer had had the right to dig up the potatoes, he would not have had an interest in the land, but a mere easement. And Mr. Justice Littledale was still more explicit. He was of opinion that a sale of the produce of the land, whether it be in a state of maturity or not, provided it be in actual existence at the time of the contract, is not a sale of lands, tenements or hereditaments, or any interest in or concerning them within the 4th section of the statute. The words lands, tenements, and heredita- ments in that section, appeared to him to have been used by the legislature to denote a fee simple, and the words, any interest in or concerning them, were used to denote a chattel interest, or some interest less than a fee simple. 27. But in this case, Mr. Justice Bayley for the first time referred to the rule as to emblements, and gave an extrajudicial ^opinion, that the contract was for the sale of goods, wares, and merchandises, withip the meaning of the 17th section, but as the price was under 10/., a written note or memorandum of the agree- ment was not necessary. Littledale, J., took the same view of the case, whilst Holroyd, J., simply held, that the case did not fall within the 4th section. '28. In Smith v. Surman (/), where the timber was in the course of being felled by the seller, and was sold at so much a foot, that was held not to fall within the 4th section. Mr. Justice Bayley said the contract was not for the grow ing trees, but for the timber, at so much per foot ; i. c. the produce of the trees when they should be cut down and severed from the freehold. Mr. Justice Littledale (/) Supra, p. 99. 9 Barn. & Cress, 561 (1829). [*106] OF THE SALE OF STANDING CROPS. ' tfl was of opinion that if the contract had been for the sale of the trees, with a specific hberty to the vendee to enter the land to cut them, it would not have given him an interest in the land within the meaning of the statute. The object of a party who sells timber is not to give the vendee any interest in his land, but to pass to hirn an interest in the trees when they become goods and chattels. But after an elaborate consideration of the statute, the Court held that the contract fell within the 17th section, notwith- standing that work and labor was to be performed upon the trees by the seller, and that they were not converted into goods and chattels until after the contract. 29. And in Scorell v. Boxall (m), where the question was whether trespass could be maintained by the purchaser by parol of underwood which was to be cut by him, Alexander, C. B., said that this parol contract was in direct violation of the statute of frauds. It seemed to him to be clearly a contract relating to the sale of an interest in land, which, by the statute, must be in writing. Mr. Baron HuUock said that it was incumbent on the purchaser to establish his right to an interest in the freehold, for trees are annexed to the freehold, are parcel of the inheritance, and pass with it. He referred to the distinction as to what are or are not emble- ments. There was, he said, a manifest distinction between crops and the subject matter of this contract. It is true that the dictum in Lord Raymond was opposed to this opinion ; but it was to be remembered that, if it were law, the several modern cases which have been decided could never have arisen. He never before heard that dictum cited as an authority, and the only claim which it had, in his opinion, to that distinction, was the allusion to it by Mr. Justice Holroyd, in Mayfield v. Wadsley. *30. Again, in Carrington v. Roots (n), which, like Crosby v. Wadsworth, was a verbal agreement to sell a growing crop of grass at so much an acre, to be cleared by the purchaser before a day named, the Court said, that if this was a contract for the sale of goods, it was not disputed that it was void by the 17th section of the statute ; and they held that if it was to be considered as a sale of an interest in land, it was not binding by virtue of the 4th section of the statute. But no distinction was taken as to the nature of the crop. 31. So where the sale was of potatoes then planted, at the price (m) 1 You. & Jerv. 396 (1829) ; see («) 2 Mees. & Wels. 248 (1837). Teall I'. Autv, supra, p. 99. Vol. I." 16 [*107] 122 OF THE SALE OF STANDING CROPS. of 25. per sack, the same to be dug by the purchaser at the usual time for digging the same, and to be paid for at that time, it was held to be a contract to sell potatoes at so much a sack on a future day, to be taken up at the expense of the vendee. He must give notice to the seller for that purpose, and could not come upon the land when he pleased. It gave no right to the land. If a tempest had destroyed the crop and there had been none to deliver, the loss would clearly have fallen on the seller. There was only a stipulation to pay so much per sack for the potatoes when deliv- ered ; it was only a contract for goods to be sold and delivered (o). 32. In a case where a crop of turnips recently sown was sold for 10/., Joy, C. B., in Ireland, observed that, at common law, growing crops were uniformly held to be goods. The statute of frauds took them as it found them, and provided for lands and goods according as they were so esteemed before its enactment. If before the statute a growing crop had been held to be an interest in lands, it would come within the 2d section of the Act (p), but if it were only goods and chattels, then it came within the 13th section. And the Court thought that growing crops had all the consequences of chattels, and were, like them, liable to be taken in execution, and therefore the contract was a valid one (^q). 33. In the result, therefore, where the crops are considered as chattels, there must be a note or memorandum " in writing of the agreement under the 17th section, unless the value be under lOl. or there was earnest or part payment, or part of the subject matter of sale was received and accepted by the purchaser. 34. It remains to be considered in which of the cases the true rule has been adopted. It is to be regretted that they are so con- flicting, and still more that many of them should have been decided *upon slight distinctions, which in later cases it was found necessary to abandon. 35. As to the leading case of Crosby v. Wadsworth, which Lord Ellenborough professed his own unwillingness to carry further, there is much in the judgment open to observation ; but the ques- tion is, whether the Court came to the right conclusion, that the agreement did confer an exclusive right to the vesture of the land during a limited period and for a given purpose. If that was the true construction, the agreement no doubt required a writing to (o) Sainsbury v. Matthews, 4 Mees. & I suppose, of the value. "Wels. 343 (1838); nothing was said in {p) Irish Act, 7 "Will. 3, c. 12. regard to the 17th section, on account, (q) Dunne i\ Ferguson, 1 Hayes, 541. [*108J OF THE SALE OF STANDING CROPS. 123 give validity to it. But there appears to have been no solid dis- tinction between that and many of the later cases, in which a power to enter and gather the crop was incidentally given. The cases of potatoes and turnips, for example, are stronger cases, more particularly the former, as the ground is disturbed, and the whole produce is carried off. If Crosby v. Wadsworth was, as it appears to have been, a mere sale of a growing crop, to be cut and carried by the purchaser, the decision could not now be sup- ported on this principle, consistently with the other authorities, and the case of Emmerson v. Heelis may safely be considered as overruled (r). 36. But then it will be urged that Crosby v. Wadsworth may be supported on the other ground, viz. the doctrine of emblements, as there the crop was grass spontaneously produced from year to year. But the Chief Justice took no such distinction, nor did he refer to any such doctrine in its support in the later cases in which he referred to that case ; nor was that distinction taken in Car- rington v. Roots, which, like Crosby v. Wadsworth, was the sale of a growing crop of grass. This distinction would require a written agreement under the 4th section for the sale of a crop of grass, whilst a crop of clover would fall within the 17th section. Indeed, many difficulties would arise : it would be doubted, for example, which section would apply to a growing crop of apples (s) ; and part of a crop of clover might fall within the 17th section and the residue within the 4th (?) ; and the different sorts of fixtures would lead to many distinctions (u). And where cases are within the 4th section, still there would be exceptions, according to the distinction in Smith v. Surman, for that case establishes that even a permanent crop may, although growing, be sold as a chattel. But the learned reader may probably doubt whether the doctrine of emblements has been properly applied to this case. Clearly, *the framers of the statute of frauds had no such distinction in view, nor was it adopted by the Courts until recently. It is a new con- struction of this old statute, and few things are less to be desired. The right to take a crop in execution, or its character in case of death as an emblement, does not determine the question upon the statute. The crop, whatever be its nature, is growing or planted and in the ground, and the true question was agitated in the early (r) See now Jones v. Flint, 10 Adol. (<) See Graves v. Weld, 5 Barn. & & Ell. 759. Adol. 105. (s) See 5 Bam. & Adol. 116. (m) See 7 Taunt. 191. pi 09] Iii4 OF THE SALE OF STANDING CROPS. cases, viz. whether the sale of the crop was an interest in or con- cerning land, and it was held that it was not, and it would be better it is submitted to abide by that rule, than, in every case of a permanent crop, to be considering whether it be sold as a grow- ing crop or as a chattel. The pomt ruled by Treby, C. J., and agreed to by Powel, J., and quoted as an authority by Holroyd, J., and never denied to be such till the case of Scorell v. Boxall, ought not to have been lightly overruled. It would be difficult to support Teall v. Auty as an authority, for there the poles were already a chattel in the hands of the original buyer and sub-seller, and he was to cut and deliver them at a given price : that case is in direct opposition to the case of Smith v. Surman. If the late cases are to be followed, it will be found necessary to have the rule as to fixtures reconsidered. 37. If it should ultimately be held that the 4th section does not apply to any of these cases, unless an exclusive interest in the land is given to the purchaser, the only other question will be, whether any of these crops fall within the 17lh section. The opinion in Waddington v. Bristow, as we have seen, was, that hops (which are emblements) were goods, wares, and merchandise, arid something more ; and in Crosby v. Wadsworth, the case of the growing crop of grass (which is not an emblement), Lord Ellenborough said, that, iji the outset, he felt himself warranted in laying wholly out of the case, the provision contained in the 17th section, as not appli- cable to the subject matter of that agreement, which could not be considered in any proper sense of the wor ds as a sale of goods wares, or merchandise, the crop being at the time of the bargain (and with reference to which he agreed with Mr. Justice Heath in Waddington v. Bristow, that the subject matter must be taken) an unsevered portion of the freehold, and not movable goods or personal chattels (x). And he made this observation, not with reference to any supposed distinction on this point between natural and artificial grasses, but generally with reference to an unsevered crop in the ground. And this seems to be the true distinction ; *but as the law stands, every sale of crops in the ground should be made by a written agreement, unless they are under the value of 10?., and are clearly sold as movable goods. 38. In a later case (y), where the sale was by parol of the crop of corn on the land, and the profit of the stubble afterwards, and (x) 6 East, 610. (y) Jones v. Flint, 10 Adol. & Ell. 763. [*110] OF THE SALE OF STANDING CROPS. 125 the seller was to have liberty for his cattle to run with the pur- chaser's, and the latter was also to have some potatoes growing on the land, and whatever long grass was in the fields ; the pur- chaser was to harvest the corn and dig up the potatoes, and the seller was to pay the tithe. The question arose only on the 4th section, and it was held that this was not a sale within it. The crops were not ripe, though nearly so, when sold. The Court held that all the crops but the long grass were fructus industriales, as such chattels, and although not ripe, yet the sale, from their original character, was a contract merely for the sale of goods and chattels. An easemisnt of the right to enter the land for the purpose of harvesting and carrying away the crops, was all that was intended to be granted to the purchaser. As to the grass, the seller was to pay the tithe, and reserved to himself the right of turning his own cattle into the fields, and the more reasonable construction of the contract was, that the possession of the field still remained with the owner after the harvesting, as before, and it was more reasonable to consider the owner as agisting the vendee's cattle, than as having his own cattle agisted by him whose interest at the best was of so very limited a nature. And in this way the Court escaped out of the authority of Crosby v. Wadsworth. But the Court said that the long grass was the natural produce of the land, not distinguishable from the land itself, in legal contemplation, until actual severance ; and according to Crosby v. Wadsworth, if the parties in this case intended a sale and purchase of the grass, to be mowed or fed by the buyer, both on principle and authority the objection must prevail. But this we have seen they held not to be the case. And they doubted whether anything that could be called a crop of grass was in the ground, or in the contemplation of the parties at all. Of course it was the spontaneous production of the earth during and after the corn crop. But in this case the Court avoided impeach- ing the principle of Crosby v. Wadsworth. 39. Before we quit the subject of crops, wc may observe, tiiat any purchaser of the crops of any person engaged or employed in husbandry, on any lands let to farm, must not take, use, and dis- pose of any hay, straw, grass, turnips or other roots, or other ])ro- duce, *or any manure or dressings intended for such lands, and being thereon, in any other manner or for any other purpose than the seller ought to have taken, used, or disposed of the same, if no such sale had been made (^). (z) 56 Geo. 3, c. 50, s. 11. [*lll| 126 OF THE SALE OF STANDING CROPS. 40. We may close the subject of a sale of growing crops by observing, that an agreement for such a sale, carrying the right of possession for a limited time at a gross sum not exceeding 50/., requires a 1/. stamp as a conveyance within the description in the Stamp Act (a). 41. In a case in Ireland (b), a sale of a share in a mining com- pany was held, by the Court of King's Bench, to be within the statute. The Chief Justice observed, that the mining company were engaged in a partnership in interests, in or concerning lands, tenements, or hereditaments. The nature of mining implies at least a right to open the ground, and keep it open, and such right to the land for a limited time and purpose as induced the Court, in Crosby v. Wadsworth (c), to hold a contract for the sale of a growing crop to be within the statute. But the evidence given upon the trial, by the secretary of the company, put this part of the case out of doubt. He stated, that the company had many mines at work in different parts of Ireland ; that they had pur- chased some and rented others, and that they had erected steam- engines, and smelting-houses, and built workmen's houses. Now, the shares of this company were transferable ; and what does a purchaser of one of them acquire, and what would he be entitled to on the dissolution of the company ? Why, a share in those houses and interests in lands which the company had acquired. 42. We may close these observations by observing, that if an entire agreement be made for the sale of real and personal estate, and the agreement as to the land be within the statute, and void, it cannot be supported as to the personal property which was sold with it (d) (1), and if the agreement be a valid one, yet no pro- perty in the goods vests in the purchaser before the contract is executed (e). (a) Cattle r. Gamble, 5 Bing.N. C. 46. Drakeford, 3 Taunt. 382; Mayfield v. (6) Bovcc V. Green, Batty, G08. Wadslev, 3 Barn & Cress. 357 ;"o Dowl. (c) 6 East, C02. ' & R. 224 ; Lord Falmouth v. Thomas, 1 (d) Cooke V. Tombs, 2 Anst. 420 ; Lea Crompt. & ^Mees. 89 ; Mechelen v. Wal- r. Barber, ih. 425, cited. See Chater r. lace, 2 Nev. & Per. 224 ; 7 Adol. & Ell. 49. Beckett, 8 Term Hep. 201 ; and see Neal (e) Lanyon v. Toogood, 13 Mces. & V. Viney, 1 Camp. Ca. 471; Corder t*. Wels. 27. (1) Thayer v. Rock, 13 Wendell, 53. If part of an entire promise be void by the statute of frauds, the whole is void. Van Alstyne v. Wimple, 5 Cowen, 1 62 ; Loomis I'. Newhall, 15 Pick. 159. •I BY WHOM AGREEMENT IS TO BE SIGNED. 127 =^SECTION III. OF THE FORM AND SIGNATURE OF THE AGREEMENT. 2. Signature by party to be charged suf- ficient. 32. J 5. How the other party may be bound. 34. 8. Receipts and letters sufficient. 9. Stamping letters. 35. 11. Offers in writing binding. 13. Unless there be fraud. 3G. 14, 39. Simple acceptance binding. 15. Offer may be retracted before ac- 38. ceptance. 40. 1«. Where special acceptance necessary. 41. 17. Receipt or letter must specify all the terms. 44. 24 Trifling omissio7i fatal. 45. 25. Omissions supplied by reference to other writings. 47. 31 What amounts to an adapttion of an unsigned agreement. Insufficient references to other pa- pers. Want of signature not supplied by letter abandoning an agreement. Reference to different contract in- sufficient. Auctioneer s 7-eceipt, entry, S^c, bind- ing. Letters to third persons binding. Bonds of reference to surveyor. Rent rolls, abstracts, iVe., not agree- ments. Nor draft of conveyance. Valid agreeynent binding, though sent as instructions. Pleading letters. 1. We may now consider, first, what is a sufficient agreement ; 2dly, what is a sufficient signature by the party or his agent ; and 3dly, who will be deemed an agent lawfully authorized. 2. The statute requires the writing to be signed only by the person to be charged ; and therefore, if a bill be brought against a person who signed an agreement, he will be bound by it, although the other party did not sign it, as the agreement is signed by the person to be charged (a) (1). This point has been established by (rt) Hatton V. Gray, 2 Ch. Ca. 164 ; Cotton V. Lee, 2 Bro. C. C. 564 ; Coleman V. Upcot, 5 Yin. Abr. 527. pi. 17 ; Buck- house V. Crossby, 2 Eq. Ca. Abr. 32, pi. 44 ; Seton v. Slade, 7 Ves. jun. 265 ; 2 Jac. & "Walk. 428 ; Fowle v. Freeman, MS. ; 9 Yes. jun. 355, S. C. See 1 Scho. & Lef. 20 ; and 1 1 Yes. jun. 592 ; AYestern r. Russell, 3 Yes. & Bea. 187 ; and see Wain V, Warlters, 5 East, 10 ; Egerton v. Mat- thews, 6 East, 307, which do not impeach this doctrine : see particularly 5 East, I 6 ; and Allen r. Bonnet, 3 Taunt. 169. As to Wain V. Warlters, see Stadt v. Lill, 9 East, 348 ; 1 Camp. Ca. 242 ; Ex parte Minet, 14 Yes. jun. 189 ; Kx parte Gar- dom, 15 Yes. jun. 286 ; Batenian v. Phil- ips, 15 East, 272 ; Sanders v. Wakefield, 4 Barn. & Aid. 595 ; Jenkins r. Reynolds, 3 Brod. & Bing. 14 ; 6 Man. 86. (1) 2 Kent, (6th ed.) 510 and note ; Shirley v. Shirley, 7 Blackf. 452 ; Higdon V. Thomas, 1 Harr. & Gill, 139 ; Getchell v. Jewett, 4 Greenl. 350 ; Barstow v. [*112] 128 BY WHOM AGREEMENT the authority of Lord Keeper North, Lord Keeper Wright, Lord Hardwicke, C. B. Smith, and Bathurst and Aston, Justices, when Lords Commissioners, Lord Thurlow, Lord Eldon, and Sir Wm. *Grant. The Legislature has expressly said, that the agreement shall be binding if signed by the party to he charged ; and as Lord Hardwicke has observed, the word party in the statute is not to be construed party as to a deed, but person in general (h) ; but there have been instances in which the want of the signature to the agreement by the party seeking to enforce it, has been deemed a badge of fraud (c) ; but, perhaps, the transaction ought not to be viewed in that light, unless the other party called on the party who had not signed to execute it, in which case a refusal to sign might be held to operate as a repudiation of the contract (c?) (I). 3. In a late case. Lord C. J. Mansfield observed, that in equity a contract signed by one party would be enforced, and it ivas not clear that it was different at Jaw (e). The rule in equity, it is con- ceived, is founded simply on the words of the statute, which must be equally binding on the courts of law. There is not an objec- tion which can be made to the rule as applicable to an action at law which will not apply with equal force to a suit in equity. In a later case, accordingly, upon the 17 section, the same learned judge observed, that every one knows it is the daily practice of the Court of Chancery to establish contracts signed by one person only, and yet a court of equity can no more dispense with the sta- (6) See 3 Atk. 503. (d) See 2 Ball & Beatty, 371 ; and Mar- (c) See O'llourke v. Percival, 2 Ball & tin v. Mitchell, 3 Swanst. 428. Beatty, 58. (c) Bowen v. Morris, 2 Ta\mt. 374. (I) The author's anxiety to place the law upon a safer footing, induced him to bring in a bill to amend the statute of frauds. He had not an opportunity of press- ing it through the House of Commons ; but as such tilings are not accessible, and the law -will probably be altered, it has been thought right to print the biU in the AppendLx, No. 8. Gray, 3 Greenl. 409 ; McCrea v. Purmort, 16 AVendell, 460 ; 1 Greenl. Ev. § 268 ; Clason r. Bailcv, 14 John. 487 ; Douglass i-. Spears, 2 Nott & Me. 207 ; Davis v. Shields, 26 Wendell, 341 ; 2 Cruise Dig. by Mr. Grecnleaf, Tir. 32, ch. 3, } 10, 4 vol. 52, and note ; Lent v. Padelford, 10 Mass. 230 ; Hawkins v. Chase, 19 Pick. 502. But under the Rev. Stat, of New York, a contract for the sale of land is not binding upon cither party, unless the agreement is in ■\AT:iting, and is subscribed by the party by whom the sale is made, or by his duly authorized agent. And it is not sufficient to ch:\rge the vendee upon such contract, that the agreement was subscribed by him or by his agent. Champlin v. Parish, 11 Paige, 405; Na- tional Fire Ins. Co. v. Loomis, 11 Paige, 431 ; Baptist Church in Ithaca v. Bige- low, 16 Wendell, 28, 30; Cammeycr r. I'nited German Lutheran Churches, 2 Sandf. Ch. 186. And it is not sufficient to the validity of such contract, that it is in the hand- writing of the vendor ; it must be actually subscribed. Champlin v. Parish, 11 Paige, 405. [*113] BY WHOM AGREEMENT IS TO BE SIGNED. 129 tute of frauds than a court of law can (/). Lord Eldon has ob- served, that equity has not upon these points gone further than courts of law : what is the construction of the statute, what within the legal intent of it will amount to a signing, being the same questions in equity as at law. Upon that point, equity professing to follow the law, if a new question should arise, he said that he would rather send a case to a court of law (g). In a still later case at nisi prius, where the purchaser only had signed, Lord Tenterden said it was the duty of the auctioneer to sign, and he had often had occasion to lament they do not do so. What a court of equity would do in the case he could not possibly say. He declined de- ciding the point according to his opinion, as the counsel would *not undertake to carry the same forward on a bill of excep- tions (h). 4. This point was again agitated in the late case of Laythoarp v. Bryant (i), and it was decided that the agreement was binding upon the party who signed it. This puts the point at rest. The Court thought there was no reason for saying that the signature of both parties is that which makes the agreement. The agree- ment in truth is made before any signature. The word agreement was satisfied if the writing states the subject matter of the con- tract, the consideration, and is signed by the party to be charged. The statute requires that it shall be signed by the party to be charged, and it was not intended to impose on the vendor the bur- then of the proof of some other paper in the hands of the opposite party, and which the vendor may have no means of producing, for it often happens that each party delivers to the other the part signed by himself. A common case is where an agreement arises out of a correspondence : it often happens that a party is unable to give evidence of his own letter, and he is not to be defeated because he cannot produce a formal agreement signed by both the parties to the contract. 5. The cases establish this further principle, that where a con- tract in writing or note exists which binds one party, any sub sequent note in writing signed by the other is sufficient to bind him, provided it either contains in itself the terms of the contract, or refers to any writing which contains them, although it is not written with any view of binding the writer by the contract (Ar). (/) Allen V. Bcnnct, 3 Taunt. 17G. («) 2 BiuR. N. C. 73.5 ; Field r. Boland, ((/) 18 Yes. jun. 183. 1 Ururv & Widsh, 37. (/i) Wheeler v. Collier, 1 Mood. & Mai. (k) Dobell v. Hutchinson, 3 Add. & 123. Ell. 355 ; vide infra. Vol. L 17 [*114] 130 OJt'FEKS BINinNG. 6. But although the agreement must be signed, yet it need not be so averred in a bill for a specific performance ; for the writing, unless signed, would not be an agreement, and as the allegation in the bill of course is that there is an agreement in writing, signature must be presumed until the contrary is shown (/). 7. If a written agreement has been in part executed, it seems that an agreement subsequently entered into between the parties, and reduced into writing, will bind them both, if signed by one of them (in) (1). 8. A receipt for the purchase-money may constitute an agree- ment in writing within the statute (??.) (2) ; and it has frequently been decided, that a note or letter will be a sufficient agreement to take *a case out of the statute (o) (3) ; but every agreement must be stamped before it can be read (p) ; and, as this ought to be done, the Court will perniit the cause to stand over to get the agreement stamped, and will assist either party in obtaining it for that purpose. 9. Thus, in Fowle v. Freeman (§'), the agreement was sent by the (l) Kist V. Hobson, 1 Sim. & Stu. 543. arcls v. Hayward, 2 Mann. & Grang. 574. (m) Oweu V. Davies, 1 Yes. 82. (;>)Ford.r. Compton ; Heame r. James («) Colef? V. Trecothick, 9 Yes. jun. 2 Bro. C. C. 32, 309. 234 ; Blagden v. Bradbear, 12 Yes. jun. (q) Rolls, March 8, 1804, MS. 9 Ves. 466. jun. 351, S. C. but not reported as to this (0) Coleman v.Upcot, 5 Yin. Abr. 527, point. See infra, Clarke v. Terrel, 1 pi. 17 ; Buckhousey. Crossby, 2 Eq. Ca. Smith's Hep. 399 ; Coles v. Trecothick, Abr. 32, pi. 44. As to contract by letters 9 Yes. jun. 234. in cases not within the statute, see Ilich- (1) See Galer. Nixon, 6 Cowen, 445. (2) Barickman v. Kuykendall, 6 Blacki". 21. But to have this effect the receipt must show either on its face, or by refei'ence to some other document, every ma- terial part of a valid contract on the subject, ib. ; Kav r. Curd, 6 B. Mom-oe, 100 ; Ellis r. Dcadman, 4 Bibb, 466. A receipt, in the words, " Received of A. B. f — , in pai-t pay for a lot he bought of me in the town of Y.," &c. and signetl, is not a sufficient statement of the terms of the contract. Kay t\ Curd, 6. B. Monroe, 100. But a receipt stat- ing, that the vendor had received of the vendee a certain sum, " being on account of a plantation on the Cypress, sold to him this day for $2,200, payable in differ- ent installments, as per agreement," was held sufficient compliance with the stat- ute of frauds. Cosack r. Descondrcs, 1 M'Cord, 425. (3) It is not ncces.sary, that the whole agreement should be comprised in a single instrument or document, nor that it should be ckawn up in any particular form. It is sufficient, if the contract can be plainly made out, in all its terms, from any writings of the party, or even from his correspondence. But it must all be collected from the w^itings ; orjd testimony not being admissible to supply any defects or omissions in the written evidence. 1 Greerd Ev \ 268 ; 2 Cruise Dig. by Mr. Greenleaf, 'lit. 32 ch. 3 § 3 and note, 4 vol. 51 note; 2 Kent, (6th ed.) 510, 511 ; Idc r. Stanton, 15 Yermont, 685; Adams ». M'Millan, 7 Porter, 73; Bailey v. Ogden, 3 John. 399; Abcel r. Radcliff, 13 John. 297; Tarkhurst v. Yan Cortlandt, 1 John. Ch. 273; Atwood r. Cobb, 16 Pick. 230, Per Shaw C. J. ; Parker v. Bodley, 4 Bibb, 102 ; Baptist Church in Ithaca v. Bigelow, 16 Wen- dell, 28 ; Merritt v. Clason, 12 John. 102. And while the controversy is between the original parties, all their contemporaneous writings, relating to the same sub- [*115] ©FFERS BINBING. 131 vendor to his attorney, with a letter written at the bottom, direct- ing him to prepare a technical agreement. The vendor afterwards refused to perforni the contract, and the attorney would not deli- ver the agreement to the purchaser for the purpose of getting it stamped, contending that it was a private letter to him ; but the Court, on motion, ordered it to be delivered to the purchaser for that purpose (1). 10. But if the agreement is admitted by the answer, so as to dispense with the necessity of proving it, the office-copy of the bill, or, if the defendant refuse to produce it, the record itself, may be read in support of the plaintiff's case, and need not be stamped, nor can the fact of the agreement not being stamped be taken advantage of (r). IL If, upon a treaty for sale of an estate, the owner writes a letter to the person wishing to buy it, stating, that if he parts with the estate it shall be on such and such terms (specifying them) ; and such person, upon receipt of the letter, or within a reasonable time after the offer is made (s), accept the terms mentioned in it, the owner will be compelled to perform the contract in specie (t). 12. So if a man (being in company) make offers of a bargain, and then write them down and sign them ; and another person take them up and prefer his bill, that will be a sufficient agreement to take the case out of the statute (u) (2). 13. But if it appear that, on being submitted to any person for acceptance, he had hastily snatched it up, had refused the owner a copy of it ; or if, from other circumstances, fraud in procuring it may be inferfed, in case of an action, it will be left to the jury to say whether it was intended by the defendant, at first, to be a valid (r) Hudlestonc. Briscoe, 11 Yes. jun. pi. 87. See Gaskarth v. Lord Lowther, 583. 12 Yes. jun. 107. (s) See 3 Mer. 4.54 ; 1 CoU. X. C. 310. (m) S. C. per Lord Chancellor. (<) Coleman v. Upcot, 5 Yin. Abr. 527, ject matter, are admissible in evidence. 2 Cruise Dig. by Mr. Greenlea^ Tit. 32. ch. 3 § 3 in note ; Frceport r. Bartol, 3 Greenl. 340. An aj^reement in writing, to refer a matter in dispute respecting a parol sale of lands, to arbitrators, if in other respects certain, constitutes a sufficient memoran- dum of agreement to bind the parties to a specific performance of their award that the lands shall be conveyed. Brown i\ Burkemcyer, 9 Dana, 161. (1) But a parol agreement for the sale of land, wiU not be specitically enforced against the heir of the vendor, though the vendor had given instructions in wri- ting, stating the terius, to an attorney, to draw the deed of conveyance. Givens c. Calder, 2 Desaus. 172. But see Finucane c. Kearney, 1 Freeman, Cli, 6.5, 69. (2) So where an agent had agreed, by parol, to bid for his principal, at a sheriff's sale, for certain real estate, and who took the titles m his own name, the case will be taken out of the statute of frauds, by an account made out and signed by him, charging his principal with the purchase- money, Denton v. M'Kenzie, 1 Desaus, 289- 132 LETTERS. RECEIPTS, OPERATING agreement on his part, or as only containing proposals in writing,, ^subject to future revision (x) ; and if the aid of equity be sought, these circumstances would have equal weight with the Court. So in every case it must be considered, whether the note or cor- respondence import a concluded agreement ; if it amount merely to treaty, it will not sustain an action or suit (y). 14. The letters will not constitute an agreement unless the an- swer to the offer is a simple acceptance, without the introduction of any new term (r) (I) (1). And if the offer be in effect rejected by the tender of a less sum, the offer is at an end and cannot be revived by a simple acceptance of it (a). 15. And although a given time be named in the offer for the acceptance of it, yet it may be retracted at any time before it is actually accepted (b). 16. And where a letter or other writing do not in itself evidence all the terms of the engagement by which the person signing it consents to be bound, but it requires from the other party not a simple assent to the terms stated, but a special acceptance which is to supply a farther term of the agreement ; there it is obvious that such special acceptance must be expressed in waiting, for otherwise the whole agreement will not be in writing, within the statute of frauds (c). 17. The note or writing must specify the terms of the agreement, for otherwise all the danger of perjury which the statute intended to guard against would be let in (2). 18. Thus, upon the sale of nine houses which were in mortgage, (x) See Knight r. Crockforcl, 1 Esp. 9 Barn. & Cress. 561 ; Thomas v. Black- Ca. 189. man, 1 Coll. 301. (_y) Huddleston r. Briscoe, 11 Ves. jun. («) Hyde v. Wrench, 3 Beav. 334. 583 ; Stratford v. Bosworth, 2 Ves. &Bea. (b) Routledge v. Grant, tibi sup. ; 341 ; Ogilvie v. Foljambe, 3 Mer. 53. Thornburv y. Bevill, 1 You. & Coll. C. (z) Holland v. Eyre, 2 Sim. & Stu. 194 ; C. 554. Routlcdge r. Grant, 4 Bing. 653 ; 1 (c) Boys r. Ayerst, 6 Madd. 316. Moore & Payne, 717 ; Smith v. Surman, (I) Where there are divers letters, it is sufficient to stamp one with the duty of 11. 15s., although in the whole they contain twice the number of words allowed or upwards : 55 Geo. 3, c. 184. Sch. Agreement. (1) Eliason v. Henshaw, 4 Wheaton, 225, 228. (2) Smith V. Arnold, 5 Mason, 414 ; Idc r. Stanton, 15 Vermont, 685 ; Nichols V. Johnson, 10 Conn. 192 ; Meadows v. Meadows, 3 M'Cord, 458 ; Adams v. M'Millan, 7 Porter, 73 ; Pipkin v. James, 1 Humph. 325 ; Kay r. Curd, 6 B. Monroe, 100; Abeel v. Radclilf, 13 John. 297 ; Dodge v. Lean, ib. 508. The agreement must in some way shoAv who are the parties to the contract. Sherburne i;. Shaw, 1 N. Hamp. 157; Nichols v. Johnson, 10 Conn. 192; Web- ster t'. Ela, 5 N. Hamp. 540 ; Anderson ». Harold, 10 Ohio, 397. [*116] AS AGREEMENTS. 133 the vendor wrote a letter to the mortgagee to this effect " Mr. Leonard, pray deliver my writings to the bearer. I having disposed of them. Am, Sic." The vendor afterwards refused to perform the contract, and pleaded the statute of frauds to a bill filed by the purchaser for a specific performance, and the plea was allowed ; because it ought to be such an agreement as specified the terms thereof, which this did not though it was signed by the party ; for this mentioned not the sum that was to be paid, nor the number of *houses that were to be disposed of; whether all, or some, or how many'; nor to whom they were ta be disposed of; neither did this letter mention whether they were disposed of by way of sale or assignment of lease (jcl) : but where the property is described gene- rally as " Mr. O.'s house," parol evidence has always been admitted to show to what house the treaty related (e) (1). 19. So where the memorandum was in these words, " Sold 100 Mining Purdy's, at 175. 6d., J. Greene," it was held insufficient, as the names of both the buyer and the seller were not mentioned in it (/) (2). 20. So where (^), upon a parol agreement, the vendor sent a letter to the purchaser, informing him that, at the time he con- tracted for the sale of the estate, the value of the timber was not known to him, and that he (the purchaser) should not have the estate, unless he would give a larger price ; Lord Hardwicke held, that the letter could not be sufficient evidence of the agreement, the terms of it not being mentioned in the agreement itself 21. So in a recent case, where an auctioneer's receipt for the deposit was attempted to be set up as an agreement, the Master of (d) Seagood r. Meale, Prec. Cha. 5G0 ; 437 ; 9 Dowl. & Ry. 497 ; Graham v. Rose V. Cunynghame, llVes. jun. .5.50; Musson, 7 Scott, 7(i9 ; all live cases on Card V. Jaffray, 2 Scho. & Lef. 374 ; Lord the 17th section. Ormand v. Anderson, 2 Ball. & Beat. (e) Ogilvie c. Foljambc, 3 Mer. 53 ; see 363; and see Champion r. Phimmcr, 1 Bleakley r. Smith, 11 Sim. 150. New Hep. 2.52 ; Ilinde r. Whitchousc, 7 (/) Boyce v. Green, Batty, G08. East, 558 ; Cooper v. Smith, 15 East, {;/) Clerk, v. Wright, 1 Atk. 12 ; and 103 ; Richards v. Porter, 6 Barn. & Cress, see Clinan v. Cooke, 1 Scho. & Lef. 22. (1) AVhcre the subject of sale was described in the memorandum as " B.'s right in C.'s estate," the description was held to be sufficiently certain. Nichols v. Johnson, 10 Conn. 192. The following memorandxim was held sufficient to satisfy the statute, namely, — " For C. Shu/tz, May 27th, at Auction, Corner of Lower Market and Main Street, fifteen feet front , bij forty-six feet deep; Chesseldine. Terms of sale — one quarter cash, balance in twelve, eighteen and twenty-four months, with interest secured by mortgage, J. J. Wright, auctioneer." Pugh v. Chesseldine, 1 1 Ohio, 109. See Bleakley i-. Smith, 11 Sim. 150. (2) Nichols V. Johnson, 10 Comi. 192 ; Sherburne v. Shaw, 1 N. Ilamp. 157 ; Webster v. Ela, 5 N. Hamp. 540 ; Anderson v. Harold, 10 Ohio, 399. [*n7] 134 LETTERS OPERATING AS AGREEMENTS. the Rolls rejected it, because it did not state the price to be paid for the estate ; and it could not be collected from the amount of the deposit, as it did not appear what proportion it bore to the price (A) (1). (A) Blajden v. Bradbear, 12 Ves. jun. Cress. 583 ; 8 Dowl. & Ry. 343. 46G ; sec Elmore c. Kingskote, o Barn. & (1) Ida V. Stanton, 15 Vermont, 685: Meadows v. Meadows, 3 M'Cord, 458 ; Adams c. M'Millan, 7 Porter, 73. See Johnson v. Ronald, 4 Munf. 77. The following memorandum, namely, " It is agreed that B. is to have the re- fusal of a certain farm situated, &c. which was bought by me for the sum of 1940 dollars upon his complying with certain conditions from the hrst day of April next, which conditions the aforesaid B. has complied with," was held suffi- ciently to indicate the price of the land to be conveyed. Bird v. Richardson, 8 Pick. '252. In Atwood v. Cobb, IG Pick. 227, the writing signed by both parties was as follows : "This certifies, that / have sold to N. A." the plaintiff, " about five acres of land, more or loss, being the same which I bought of him, m con- sideration of the same sum which I paid him for the 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." This was held not to be void on the ground that the price to be paid for the land was not set forth therein with sufficient certainty ; nor on the ground of uncertainty as to the time when the contract was to be executed. Mr. Cliief Justice Shaw, said ; " It is quite impossible to go thi-ough the cases upon this branch of the statute of frauds ; it is sufficient to say, in general terms, that under this provision," respectmg a writ- ten agreement, memorandum or note, on a sale of lands, " the contract or mem- orandum must express the substance of the contract, ^^^th reasonable certainty, either by its own terms or by reference to some other deed, record, or other mat- ter from which it can be ascertained with like reasonable certainty. The statute is intended a.s a shield ; no particular forms are required,' and it looks at the sub- stance of the contract. It requires a note or memorandum of the contract, not a detail of all its particulars. The court are of opinion, that the memorandum, loose and unskilful as it is, answers these conditions. It refers definitely to facts, familiarly known to the parties, and in all pi'obability well understood by them ; the estate is avoU described as the same estate, which Atwood" the plaintiff " had before sold to Cobb" the defendant. " The principal uncertainty is as to the price to be paid ; for having considered this as an executory contract, as an agreement for a sale, to be made afterwards, it follows as a necessary consequence, tliat when it farther states the consideration, the payment of that consideration is to be fur- ther understood, and it has the same meaning as if the words were, in considera- tion of the same sum to be thereupon paid to me therefor, which 1 paid him. This fixes the sum, together with some slight addition of interest to be computed for a time specified, and the expense of a deed. The latter is a trifle, may be considered as very nearly settled by usage, and at all events, cannot be deemed to be of the substance of the contract. As the amount paid for an estate, is usually determined by the consideration expressed in the deed of conveyance, or by some receipt or memorandum, it is impossible to pronounce this contract void under the statute, because it does not express with sufficient certainty the price to be paid for the estate." By express provision in Massachusetts the memorandum required by the stat- ute of frauds need not contain a statement of the consideration. Rev. Stat, of Mass. c. 74, ^^2. This had before been decided in Packard f. Richardson, 17 Mass. 122. So in Maine, the memorandum is held sufficient if it do not express the consideration. Levy v. Merrill, 4 Greenl. 180 ; Cummings v. Desmett, 26 Maine, 397. So in Connecticut, Sage v. Wilcox, (3 Conn. 81. So in South Carolina, Tj'ler V. Givens, RUey's Law Cas. 56, 62, overruling Stephens v. Winn, 2 Nott and Mc. 372, n; Woodward v. Picket, Dudley S. Car. Rep. 30. So in New Jersey, Buckley r. Beardsley, 2 Southard, 570. So in North Carolina, >Iiller r. Irvine, 1 Dev. & Bat. 103. So in Mississippi, Wren v. Pearce, 4 Smedes & Marsh, 91. A different construction has been adopted in New York, and it is there held that li LETTERS OPERATING AS AGREEMENTS. 135 22. And here we may notice a case where an agreement was executed which referred to certain covenants, which had been read, contained in a described paper, which, in fact, contained the terms of the agreement. It appeared that all the covenants contained in that paper had not been read ; and which of them had been read, and which had not, was the difficulty, which could only be solved by parol testimony ; and Mr, Justice BuUer held clearly, that such evidence was inadmissible (i), as it would introduce all the mischiefs, inconvenience, and uncertainty the statute was designed to prevent ; and Lord Redesdale has since unqualifiedly approved of this decision (j). *23. Neither will a performance be compelled on a note or letter, if any error or omission, however trifling, appear in the essential terms of the agreement (1.) 24. Thus in a case (k) (I) before Lord Hardwicke, the bill was brought to have a specific performance of an ageement, from letters which had passed between the parties. It appeared, that a certain number of years purchase was to be given for the land, but it could not be ascertained whether the rents upon a few cowgates were 5s. or Is. ; and although there was no other doubt, Lord Hardwicke held, that such an agreement could not be carried into execution. He said that in these cases it ought to be considered. (0 Broclie r. St. Paul, 1 Yes. jun. 32G ; cited. See 9 Yes. jun. 252 ; Stokes v. Higgiusoii f. Clowes, 1.5 Yes. jun. ol6 ; Moore, 1 Cox, 219; Popham r. Eyre, Lindsay v. Lynch, 3 Scho. & Let'. 1. Lofft, 786; Gordon r. Trevelvn, 1 Price, • {J) 1 Scho." .S: Lef. 38 ; and see O'Her- 64 ; Blore v. Sutton, 3 Mer. 237 ; Price lihy V. Hedges, ibid. 123. v. Assheton, 1 You. & Coll. 4il ; Ken- (A) Lord Middleton v. Wilson, ct e con- -vvorthv r. Schofield, 2 Barn. & Cress. 945. tra, Chan. 1741, MS. ; S. C. Loift, 801, (I) The case is in Reg. Lib. 1741, fo. 260, by the name of Lord Middleton v. Eyre. The estate was sold by an agent to Dr. "NYilson, by parol, and the parties ajipearto have bound themselves by letters, the particulars of which do not appear in the llegister's book. The parties beneficially interested afterwards sold the estate for a greater price to Lord Middleton, who filed a bill for a specific performance of the agreement, and Dr. AVilson filed a cross-bill. The cross-bill Avas dismissed "with costs, and in the original cause a specific performance was decreed. The point in the text is not stated in the Kegister's book. the writing must in some manner express the consideration. Sears v. Brink, 3 John. 210; Leonard i-. Yredenlmrgh, 8 John. 29. The same construction, adop- ted in New York, seems to have been adopted and approved in New ILimp- shire. Neelson v. Sanborne, 2 N. Ilamp. 414. See Yiolet r Patton, 5 Cranch, 142; Taylor v. Koss, 3 Yerger, 330; 2 Stark. Ev. (.5th Am. ed.) 340, n. 1; 3 Kent, (6th ed.) 121, 122 ; Bean v. Burbank, 16 Maine, 460; DeWolf v. llabaud, 1 Peters, 499 ; Chitty Contr. (8th Am. ed.) 6.5, 66. It is enough in a simple contract under the statute of frauds, in New York, if the consideration can be collected from the contract itself by reasonable construction. Douglass V. Ilowland, 24 Wendell, 35. (1) See Per Shaw C. J. in Atwood r. Cobb, 16 Pick. 230, 231. [*118] 136 LETTERS OPERATING AS AGREEMENTS. whether at law the party could recover damages ; for if he could not, the Court ought not to carry such agreements into execution. 25. The late Lord C. J. Mansfield observed, that there had been many cases in Chancery, some of which he thought had been car- ried too far, where the Court had picked out a contract from letters, in which the parties never certainly contemplated that a complete contract was contained (/). 26. If the property be not identified, but is capable of being so by the reference in the agreement or letter, that is sufficient; therefore a letter written by the seller to the purchaser's solicitor, stating that " he had sold the house, Slc. in Newport to Mr. Owen for 1,000 guineas, the money to be paid as soon as the deeds can be had from Mr. Deere," was held valid, as the deeds would show what house was the subject of the contract (w). 27. So although a letter do not in itself contain the whole agree- ment, yet if it actually refer to a writing that does, that will be sufficient, although such writing is not signed (1). 28. Thus in a case where an estate was advertised to be let for three lives, or thirty-one years, and an agreement was entered into for a lease, in which the term for which it was to be granted was ^omitted ; Lord Redesdale held, that if the agreement had referred to the advertisement, parol evidence might have been admitted to show what was the thing (namely the advertisement) so referred to, for then it would be an agreement to grant for so much time as was expressed in the advertisement ; and then the identity of the advertisement might be proved by parol evidence {n). And Sir William Grant, in a late case, expressed his opinion, that a receipt which did not contain the terms of the agreement, might have been enforced as an agreement, had it referred to the conditions of sale, which would have entitled the Court to look at them for the terms (o). And where a written offer or proposal to sell was sent by the owner to A, followed by another letter from the owner to A, {I) 3 Taunt. 172. & Hob. Ca. 221, , (m) Owen r. Thomas, 3 ^lyl. & Kce. (o) Blagden v. Bradbcar, 12 Ves. jun. 353 ; supra, p. 117. 466 ; and see Shippey v. Derrison, 6 Esp. («) Sec Clinan r. Cooke, 1 Scho. & Lef. Ca. 190 ; Hinde v. Whitehouse, 7 East, 22 ; and see Cass v Waterhouse, Prcc. .558 ; Ken-\vorthy v. Schofield, 2 Barn & Cha. 29 ; Ilindc v. Whitehouse, 7 East, Cress. !)4o ; S. C. 4 Dowl. & Ry. oo6 ; .558 ; Feoffees of Ilcriot's Hospital v. Gib- Turn. & Russ. 352 ; Carroll v. Cowell, 1 son, 2 Dow, 301 ; Powell v. Dillon, 2 Ball Jebb & Sym. 43. & Beat. 416. See Jacob v. Kirk, 2 Mood. (1) See Dowry v. Dufferin, 1 Irish Eq. 281. [*119] LETTERS OPERATING AS AGREEMENTS. 131 Stating that he had just received A's note (which di,d not appear), and was glad he had determined to purchase the farm," and con- cluded that he would write to B (who had made an offer for the estate) to inform him he had agreed to purchase the estate ; Sir W. Grant thought that his letter plainly implied that he had offered to sell upon some terms in which he understood A to have acquiesced, for it was evidently not an assent to any terms then first proposed to him. Determination and agreement upon the part of A to purchase did seem necessarily to pre-suppose some proposal to sell, for it would be absurd to speak of an original proposal from ^ as a determination and agreement bringing the business to such a close as that it only remained to confer upon the title. This letter therefore clearly implied an antecedent pro- posal, followed by an acceptance, to which it was an assent. As to the nature of the proposal, there was no controversy. It was in the seller's handwriting, and, couphng that with the letter, it amounted to an agreement signed by the party to be charged within the 4th section of the statute of frauds (p). In this case therefore the words were spelled, with a view to collect from them that some proposal or offer had preceded them, and that being made" out, parol evidence was admitted to prove the proposal in writing, which had actually been sent. 29. So an agreement not containing the name of the buyer or *seller may be made out by connecting it with a letter from him on the subject (^q), or with the conditions of sale, where they are referred to by the agreement, and contain the name (r). 30. It was said by the Court, in a late case (s), that the cases on this subject are not at first sight uniform, but on examination it will be found that they establish this principle, — that where a contract or a note in writing exists which binds one party, any subsequent note in writing signed by the other is sufficient to bind him, provided it either contains in itself the terms of the contract, or refers to any writing which contains them ; but we may further observe, that such a note in writing would bind the party who signs it, although there was no contract or note in writing existing which bound the other party. (p) "Western v. Russell, 3 Yes. & Bea. 355, 5 Nev. & Man. 251. 187. {)■) Laythoarp v. Bryant, 2 Bing. N. C. (. (c) Rann r. Hughes, 7 Term. Rep. 350, (h) .Sec Marq. of Normanby v. Duke n. ; S. C. MS. in tot. verbis. of Devonshire, 2 Frecm. 216. {d) Prec. Ch. 16. (I) In Dawson r. Ellis, I Jac. & Walk. 524, the Court -was of opinion, that if ^ A contract verbally to sell to B and afterwards contract by writing to sell to C, and I then convey the estate to B, he ( B) is not liable to perform the contract with C, although he had notice of it before the conveyance. (1) Chitty Contr. (8th Am. ed.) 4, 5. [*126] HOW THE AGREEMENT SHOULD BE SIGNED. 145 requisite to the validity of a written agreement, and it is now clearly established, that sealing is not necessary (1) ; and if a man be in the habit of printing or stamping instead of writing his name, he would be considered to have signed by his printed name (e). 4. The signature required by the statute is to have the effect of giving authenticity to the whole instrument ; and where the name is inserted in such a manner as to have that effect, it does not much signify in what part of the instrument it is to be found (/) (2). 5. Therefore, the signing the name at the beginning of the agreement will take it out of the statute ; as, if a person write the agreement himself, and begin, " ^ J5 agrees to sell, &:c." and this was onlv in analo^jy to the case of a testator writins; his name at the beginning of his will, which, before the late statute, was equi- valent to his signing it ; and yet the statute of frauds expressly required a signature (§•) (3). *6. And such a signature will be sufficient, although a place be left for a signature at the bottom of the instrument (A) ; and yet, as Lord Eldon observed, it is impossible not to see that the inser- tion of the name at the beo-innino; was not intended to be a sig- (e) Saunderson v. Jackson, 2 Bos. & Ca. 182 ; 9 Ves. jun. 248 ; and Saunder- Pul. 238 ; Schneider v. Norris, 2 Mau. & son v. Jackson, 2 Bos. & Pul. 238. See Sehv. 286. Cooper v. Smith, 15 East, 103 ; Morison (/) Vide Stokes v. Moore, stated infra ; r. Tumour, 18 Yes. jun. 175 ; Propert v. Allen V. Bennet, 3 Taunt. 169 ; Lobb v. Parker, 1 Kuss. & Myl. 625 ; Bleakley v. Stanley, 5 Adol. & Ell. N. S. 574. Smith, 11 Sim. 150. (y) Knight V. Crockford, 1 Esp. Ca. (A) Saunderson v, Jackson, ubi supra. 189 ; and see 1 Bro. C. C. 410 ; 3 Esp. (1) The assignment of a lease may be made in writing without seal. Holliday V. Marshall, 7 John. 211. " This" say the court, "is obvious from the language of the statute of frauds, which declares an assignment not good, unless it be by deed or note in writing." Bvit a blank assignment of a lease made by signing the name of a party and afhxing thereto Ms seal is not regarded as an assign- ment by deed or nod) in writing, within the requisition of the statute of frauds. Jackson v. Titus, 3 John. 430. "To allow the subsequent filling up of the deed by a third person," said ^Ir. Cliief Justice Kent, " to have relation back to the time of the sealing and delivery of the blank paper, in consequence of some parol agreement of the parties, is to open a door to fraud and perjury, and to defeat the wise and salutary provisions of the statute." But see Ulen v. Kittredge, 7 Mass. 233 ; Nelson r. Dubois, 13 John. 175 ; Clason v. Bailey, 14 John. 484. (2) Penniman v. Hartshorn, 13 ^lass. 87; Higdon r. Thomas, 1 Ilarr. & Gill, 139 ; Argenbright r. Campbell, 3 Hen. & Munf. 144, 198 ; Clason v. Bailey, 14 John. 484 ; M'Comb v. Wright, 4 John. Ch. 659, 663. J. 11. B. having live houses, but no other property, in Cable Street, Liverpool, agreed to sell them to J. B. for £248 ; and, thereupon, drew up the following memorandum in his own hand-wri- ting, " Jiily 26th, 1839. J. B. agrees ■v\-ith J. K. B. to take the property in Cable Street, for the net sum of £248 10s." The agreement was held to be sufficiently signed by the vendor. Bleakley v. Smith, 11 Sim. 150. The signature of a contract, for the sale of lands owned by a mercantile firm, made by one partner in the partnership name, in the presence and with the assent of the other partner, is a sufficient signing by both. M'Worter v. M'Mahan, 1 Clarke, 400. (3) I Jarman, Wills, (2d Am. ed.) 70, 71 and notes. Vol. L 19 {*127] 146 SIGNATURE AS A WITNESS. nature, and that the paper was meant to be incomplete till it was further signed. 7. And a party may be bound by his signature, although he subscribe in form as a witness (i). 8. So, where a clerk of an agent duly authorized to treat for a principal, signed an agreement thus, " Witness A B, for C D, agent to the seller," it was holden to be out of the statute (Jc). 9. But an agreement after a sale by auction signed by the pur- chaser, and regularly witnessed by the auctioneer's clerk, who had full authority to give receipts for him, and did give a separate re- ceipt for the deposit, was of course held not to be so signed as to bind the seller (/). 10. Lord Eldon, in the case of Coles v. Trecothick, laid it down, that where a party or principal, or person to be bound signs as, what he cannot be, a witness, he cannot be understood to sign otherwise than as principal. But the signature in that case was altogether different from a simple signature as a witness, for though the person in that case called himself a witness, it is evident that he could not have signed as such, since he signed for another person, and it was the same thing as if he had signed merely " E. Philips, for Mr. Smith, agent for the seller" (m). This seems to be the true distinction. In a late case. Lord Denman, C. J., said, he thought Lord Eldon's remark in Coles v. Trecothick open to much observation. A witness might be drawn into transactions which he did not contemplate, and of which he was ignorant. That would be a great step to take ; no such de- cision had been actually made, and if it had, he should pause, unless he found it sanctioned by the very highest authority, before he held that a party attesting was bound by the instrument (7i). But there appears to be no foundation for the doubt thus thrown upon the dictum of Lord Eldon, for he confines his observation to the case where the party or principal, or person to be bound signs as, what he cannot be, a witness, and must therefore be con- sidered *to sign in his proper character. The objection is, that a party who was merely required to attest the execution as a witness, might be drawn in to become what he never contemplated, a party to a contract of which he was ignorant. But by the rule as ex- (i) See Welford v. Bcazlcy, 1 Yes. 6 ; (0 Gosbell v. Archer, 2 Adol. & EU, 3 Atk. 503; and sec 9 Yes. jun. 251. 500. (A) Coles V. Trecotliick, 9 Yes. jun. (w) See 2 Adol. & Ell. 508, 509 ; 4 Nev. 234 ; 1 Smith's Eep. 233 ; but see Blore & Mann. 494. r. Sutton, 3 Mer. 237. (»») 2 Adol. & Ell. 508. [*128] WHAT AMOUNTS TO A SIGNATURE. 147 pressed by Lord Eldon, the person signing is assumed to be really the contracting party. In the case put by way of objection, there would be no real contract by the party to sign. 11. It is not necessary to put down the name of the principal ; if the name of the actual bidder, although an agent, be put down, that is sufficient (o). 12. And it is sufficient, it seems, if the initials of the name are set down (p) (1). 13. But a letter without a signature of the name in some way cannot be brought within the statute. Therefore, a letter written by a mother to her son, beginning, " My dear Nicholas," and ending, " your affectionate mother," with a full direction, contain- ing the son's name and place of residence, is not a good agreement within the statute (^q). 14. It seems that the signature of the purchaser by ' himself or his agent, on the back of the particulars and conditions of sale, with the sum opposite to it, is a sufficient compliance with the directions of the act (r) ; where the paper on which the endorse- ment is made contains the name of the seller. 15. And, as we have seen, an agreement not signed, may be supported by a signature to a writing referring to the agreement. 16. But the mere altering the draft of the conveyance will not take a case out of the statute (5), nor will the written approbation of it by the agents be sufficient, although it recite the contract in the usual way (t) ; neither will the writing over of the whole draft by the defendant with his own hand be sufficient, as there must be a signature (u). To this rule we may, perhaps, refer the case (0) "SVMte V. Proctor, 4 Taunt. 209 ; 117 ; 9 DowL & Ry. 148 ; cases on the Kenworthy v. Schofield, 2 Bam. & Cress. 17th sect. ; Emmersonr. Heelis, 2 Taunt. 945. 38. (/>) Phillimore v. Barry, 1 Camp. Ca. (*) Hawkins r. Holmes, 1 P. Wms. 513 ; see Jacob v. Kirk, 2 Mood. & Rob. 776, which overruled Lowther r. CarrO, Ca. 221 ; Sweet v. Lee, 3 Mann. & Gran. 1 Vern. 221. See Shipper v. Derrison, 452. 5 Esp. Ca. 190. (.7) Selby r. Selby, RoUs, 1817, MS. ; (f) Marquis of ToA\-nsend v. Bishop of Hubert v. Turner, 4 Scott, 48G. Norwich, supra, p. 124 ; and see Doe r. (r) I7ffcs(//jr«, and Hodgson r. LcBret, Rdgriph, 4 Carr. & Pay. 312. Camp. Ca. 233; PliUlimore r. Barry, ib. (m) Ithel v. Potter, 1 P. Wms. 771, 613 ; Goom v. Afflalo, 6 Barn. & Cress, cited. (1) The mark of one unable to write is a sufficient signature. 2 Kent, (6th ed.) 511. See I Jarman, "Wills (2nd Am. ed.) 112 in note. The signature mav be with a lead pencil. 2 Kent, (6th ed.) oil ; Chitty Cont. (8th Am. ed.) 72 ;' Clason r. Bailey, 14 John. 484 ; Merrit v. Clason, 12 John. 102; McDowel c. Chambers, 1 Strobh. Eq. 347. 148 WHAT AMOUNTS TO A SIGNATURE. *of Stokes V. Moore (x) ; where the defendant wrote instructions for a lease to the plaintiff in these words ; viz. -' The lease re- newed ; Mrs. Stokes to pay the King's tax ; also to pay Moore 24/. a year, half-yearly ; Mrs. Stokes to keep the house in good tenantable repair, &,c." Stokes, the lessee, filed a bill for a spe- cific performance, and the Court of Exchequer held it not to be a sufficient signing to take the agreement out of the statute ; although it was not necessary to decide the point (1). Lord El don is reported to have said, that he had some doubt of the doctrine in this case (y). Mr. Baron Eyre appears to have put it on its true grounds. He said, that the signature is to have the effect of giving authenticity to the whole instrument ; and if the name is inserted so as to have that effect, he did not think it signified much in what part of the instrument it was to be found ; it was, perhaps, difficult, except in the case of a letter with a postscript, to find an instance where a name inserted in the middle of a writing can well have that effect ; and then the name being generally found in a particular place by the common usage of mankind, it may very probably [qu. properly] have the effect of a legal signature, and extend to the whole ; but he did not understand how a name inserted in the body of an instrument, and applicable to particular purposes, could amount to such an authentication as is required by the statute. 17. A draft of an agreement not signed, may be given in evidence without a stamp, although a memorandum is written upon it, " We approve of the within draft," and is signed by both parties ; for those words do not import an agreement, but merely an evidence of something they intended to agree to (r). Still where the parties themselves, not being professional persons, sign such a memorandum, it is a question to be decided in each case, whether they signed in that form as simply approving of the draft as such, or whether they intended to give validity to it as an agreement. (x) Stokes V. Moore, 1 Cox, 219 ; Cox's Taunt. 38, and observe how the purcha- n. to 1 P. Wms. 771. See 1 Smith's Rep. ser's name Avas signed there. See also 244 ; Hubert r.Treherne, 3 Man. & Gran. Morrison r. Tumour, 18 Yes. iun. 175 ; 743 ; 4 Scott, N. li. 4SG ; Lobb v. Stan- AVesternr. KusselJ, 3 Yes. & Bea, 187 ; ley, 5 Adol. & Ell. N. S. 574. 6gilvie v. Foljambe, 3 Mer. 53. (y) And see Emmerson v. Heelis, 2 (c) Doe i. Rdgriph, 4 Carr. &Pay. 312. (1) See Irvine v. Thompson, 4 Bibb, 295. [*129j AGENT, HOW APPOINTED. 149 *SECTION V. OF SIGNATURE BY AGENTS. 1. Agent appointed by parol good. 4. Clerk of agent requires distinct authority. 5. Revocation of authority. 7. Signature for one party sufficient, xohether lands or goods. 6. 8. Auctioneer and clerk agents for both parties. 13. Although an agent bid. 14. Where auctiotieer can sign for a jmrty and sue him. 16., Ratification of act of assumed agent. 1. In considering what signature satisfies the requisition of the statute, we have necessarily adverted to signatures by agents ; and it will now be proper to consider who will be deemed an agent lawfully authorized, within the statute of frauds, to sign an agree- ment for the sale or purchase of an estate. 2. In the first and third sections of the statute of frauds, which relate to leases, &£c. the writing is required to be signed by the parties making it, or their agent authorized by writing. This latter requisite is omitted in the fourth and seventeenth sections of the statute (I). The Legislature seems to have taken this dis- tinction, that where an interest is intended to be actually passed, the agent must be authorized by writing ; but that where a mere agreement is entered into, the agent need not be constituted by writing ; and therefore an agent may be authorized by parol to treat for, or buy an estate, although the contract itself must be in writing (n) (1) It is, however, in all cases, highly desirable that (a) "Waller r. Hendon, 5 Yin. Abr. .521, more, 1 Sch. & Lef. 2S, cited ; Clinan r. pi. 45 ; Wedderburne v. Carr, in the Ex- Cooke, ib. 22 ; Emmerson v. Heelis, 2 chequer, T. T. 1775 ; 3 Wooddes. 423, Taunt. 38 ; see 2 Nev. & Per. 530 ; Gra- cited ; Kucker v. Carameyer, 1 Esp. Ca. ham i-. Musson, 5 Bing. N. C. 603 ; Cal- 175 ; Coles v. Trecothick, i) Vcs. jun. 234 ; laghan v. Pepper, 2 Ir. Eq. Rep. 399. 1 Smith's Rep. 233 ; Barry r. LordBarry- (I) In a note to Mr. East's 7th vol. p. 565, it is said, that by the fourth section, to aifect lands, the note must be signed by an agent thereunto lawfully authorized by writing, &c., which words, " by writing," are omitted in the sevcntccntli section, touching the sale of goods. This mistake must be attributed to the hurry of the press, for the agent is in neither section required to be authorized by writing. (1) Where a statute, such as the statute of frauds, requires an instrument to be in writing in order to bind the party, he mnv, without Avriting, authorize an f*1.30l 150 AGENT, HOW APPOINTED. the agent should have a written authority. Where he has merely a parol authority, it must frequently be difficult to prove the exist- ence *and extent of it (b) ; although it may be observed that his testimony will be received with great caution against his signature as agent. If, however, at the time of signing, he make a declara- tion that he has no authority, his principal will not be bound (c). But of course, although he purchase in his own name, yet the fact of the agency so as to charge the principal may be made out by parol evidence (c/). 3. In a case in Ireland (e), where upon a parol offer, the owner wrote to a third person, stating, that if he thought the proposal the value of the place, he (the owner) was satisfied, and the pur- chaser deposited the purchasVmoney with the third person, who made a memorandum of it, and stated that he considered it a great price, and signed it; the agreement was enforced upon the ground that the third person was acting in the place of the seller, and every dealing with the one was a dealing with the other. 4. Although an agent is authorized to sell at a particular price, yet it seems that his clerk cannot contract without a special authority or agree- ment for that purpose (/) ; which, however, need not be in writing. 5. The principal may revoke the authority of the agent at any time before an agreement is executed according to the statute, although the agent has previously agreed verbally to sell the pro- perty (^) ; and an intended purchaser may in like manner revoke his authority to his agent to purchase (h) (1). And, on the other hand, he may adopt the act of a man acting as his agent (i). (6) Mortlock v. Bullcr, 10 Vcs. jun. (/) Coles v. Trccotluck, 9 Ves. jun. 292. Sec Dauiel r. Adams, Ambl. 490 ; 234 ; Blore r. Sutton, 3 Mer. 237 ; see Charlewood v. The Duke of Bedford, 1 4 Barn. & Adol. 446. Atk. 497 ; and sec 5 Yin. Abr. 022, jil. (y) See Farmer v. Robinson, 2 Camp. 3o ; Wyatt v. Allen, MS. App. No. 9. Ca. 339, n. (c) liowai-d V. Braithwaite, 1 Ves. & (A) As to sales by auction, see Blagden Beam. 202. r. Bradbear, 12 Yes. jun. 467 ; Mason i'. (d) ^Yilson v. Hart, 1 Moore, 4o ; see Annitage, 13 Yes. jun. 25. Marston r. Koe, 8 Adol. & Ell. 14. (<) Yide infra, p. 134 ; De Beil v. (e)Field v. Boland, 1 Dru. & Walsh, 37. Thomson 3 Beav. 469. agent to sign it in his behalf, unless the statute positively requires, that the au- thority also should be in writing. Story, Agency, ^^.50 ; Blood v. Hardy, lo Maine, 61; Champlin r. Parish, 11 I'aigc, 40o ; Alna r. Plummer, 4 Grccnl. 258; Epis. Church of Macon r. Wiley, 2 Ilill Ch. 428 ; Anderson r. Chick, 1 Bailey Eq. 118 ; McComb r. Wright, 4 John. Ch. 6o9 ; Mortimer c. Corn\vcll, 1 Hoff. Ch. 351; Botts V. Cozine, ib. 80; Lawrence v. Taylor, 5 HiU, 107, 112; Shaw v. Nudd, 8 Pick. 9 ; Chitty Contr. (8th Am. ed.) 195, 196 and notes ; Dunlap's Paley's Agency, 159, 160 and notes ; Ewing ?•. Tees, 1 Binney, 450; Talbot v. Bowen, 1 Marsh." (Kentucky) 436. But see Nicholson i\ Mifliin, 2 Hall, 246 ; Meredith v. Mucoss, 1 Yeates, 200 ; Yanhorn v. Prick, 6 Serg. and R.. 90. (1) See Stors', Agency, §§465 — 467 ; Dunlap's Paley's Agency, 185. I I AUCTIONEER AGENT OF BOTH PARTIES. 151 6. The auctioneer and his clerk may be considered as the con- stitued agents of the vendor; he appoints the former to announce the biddings, and the latter to take down the names of the pur- chasers and the prices of the lots. 7. The statute requires every agreement as to lands, or some memorandum or note thereof, to be in writing, and signed hy the party to he charged, or some other person thereunto, (that is, to the signing thereof) (k) by him authorized. And that as to goods, some note or memorandum in writing of the bargain shall be made *and signed by the parties to be charged by such contracts, or their agents thereunto authorized. And yet it has been decided, that the signature of the party to be charged by himself or agent is sufficient, even in a contract for goods (I), although the other party has not signed, and consequently is not bound ; so that there appears to be no difference between the two clauses of the statute, in regard to the appointment and power of an agent. 8. It has, however, been repeatedly decided, that an auctioneer is the agent of both parties upon a sale of goods, so as to be en- abled to bind them both under the statute Qn) (I) ; whilst, on the contrary, it had been decided, and lately seemed to be the prevailing opinion, that the auctioneer was not the agent of the purchaser upon a sale by auction of estates, so as to be authorized to bind him by setting down in writing the terms of the contract (ji) ; but in a late case, upon the sale of an interest within the fourth section, the Court of Common Pleas held, that the auctioneer was an agent (A) See 1 Yes. & Beam. 207. observations iiitlie 2d edit, of tliis work, {l) Allen V. Bennet, 3 Taunt. 169. p. 57— 6-1. (?») Simon v. Motivos, 3 Burr. 1921 ; (/() Stansfield v. Johnson, 1 Esp. Ca. BuU. Ni. Pri. 280 ; 1 Blackst. o99 ; 101 ; Walker v. Constable, 2 Esp. Ca. Rucker r. Cammeyer, 1 Esp. Ca. lOo ; 6.)9 ; 1 Bos. & Pul. 306 ; Buckmaster v. Hinde i'. "Whitehouse, 7 East, 558; and Ilarrop, 7 Ves. jnn. 341 ; 13 Yes. jun. see Rondeau r. Wvatt, 2 H. Blackst. 67 ; 456; Coles v. Trocotliick, 9 Yes. jun. and 1 Ca. & Opin." 142, 143 ; Phillimore 234 ; 1 Smith, 257 ; see 13 Yes. jun. 473. V. Barry, 1 Camp. Ca. 513 ; and see the (1) The auctioneer or his clerk may be the agent of both parties ; and the sig- nature of either to an entry, otherwise sufficient, in the auctioneer's book, or to a memorandum stating the tcnns of the contract and the parties thereto, or which refer to the particulars or conditions of sale, or is indorsed thereon, will satisfy the act. Chitty, Contr. (8th Am. ed.) 272; Cleaves i\ Foss, 4 (ircenl. 1 ; Jen- kins 1-. Hogg, 2 Const. Ct. Eep. 821 ; Gordon v. Sims, 2 M'Cord Ch. 104 ; Pugh V. Chesseldine, 11 Ohio, 109 ; Baj^tist Church r. Bigelow, 16 Wendell, 28 ; Burke V. Haley, 2 Oilman, 614; Hart r. Woods, 7 Blackf. 568; M'Comb v. Wright, 4 John. Ch. 659 ; Episcopal Church of Macon v. Wiley, 2 Hill Ch. 428 ; Ander- son V. Chick, 1 BaUey Eq. 118 ; Alna v. Plummer, 4 Greenl. 258 ; 2 Kent, (6th ed.) 540 ; Buckmaster v. Harrop, 7 Ycsey (Sumner's cd.) 341, note (c) ; Bennett V. Carter, Dudlev S. C. 142; Meadows v. Meadows, 3 M'Cord, 458: Adams r. M'Millan, 7 Porter, 73 ; Entz v. Mills, 1 M'Mullan, 453 ; Brent v. Green, 6 Leigh, 16. 1*132] 152 AUCTIONEER AGENT OF BOTH PARTIES. for the purchaser, even upon a sale of estates. Lord C. J. Mans- field, in delivering judgment, asked, By what authority does he write down the purchaser's name ? By the authority of the pur- chaser. These persons bid, and announce their biddings loudly, and particularly enough to be heard by the auctioneer. For what purpose do they do this ? That he may wr.te down their names opposite to the lots ; therefore he writes the name by the authority of the purchaser, and he is an agent for the purchaser (o). In a later case (p), the Court of Common Pleas adhered to their former decision, and they considered the signature by the auctioneer of the purchaser's name alone, sufficient, although he was only an agent, to bind the principal ; and the conditions expressly required that the highest bidder should sign a contract for the purchase. The principal, however, was present, and did not object to the signature by the auctioneer until after it was made. The action in tliis case was brought for the auction duty. Upon a bill filed by the seller for a specific performance, the Master of the Rolls decreed it, following the decisions in the Common Pleas, although his own opinion was, that an auctioneer is not the agent of the pur- chaser (5-). *The rule, therefore, may now be laid down generally, that an auctioneer is an agent lawfully authorized by the purchaser. 9. And an auctioneer's clerk who takes down the biddings openly is considered the agent of both the seller and purchaser (1). The clerk is constituted deputy by the whole room, and the pur- chasers, by their silence when the hammer falls, give him their authority to execute the contract on their behalf, and this prevents the necessity of each purchaser coming to the table to make the entry for himself. It is not necessary to suppose that the vendor rested a particular confidence in the auctioneer for the purpose of putting down the names in the sale-book. He may be taken to have constituted that person his agent for the making of such entries whom the auctioneer might choose to appoint (r). 10. But upon a sale of goods by an executor, who before the sale agreed with a legatee that he might bid at the sale, and the price should be set off against the legacy, which the legatee did, it (0) Emmcrsou r. Heelis, 2 Taunt. 38. 57 ; 1 Jac. & Walk. 3.50 ; Kenworthy v. See 1 Cas. and Opin. 1 1L>, U3. Schofiekl, 2 Bana.& Cress. 945 ; 4 Dowl. (;;) "White v. Proctor, 4 Taunt, 209. & Kv. 55G. (g) Kemys v. Proctor, 3 Yes. & Bea. (r) See p. 134. (1) Ante, 132, in note. r*i33i XUCTIONEER S CLERK AGENT OF PARTIES. 153 vas held that an action by the seller for the price, under the con- ditions of sale, could not be maintained ; that the auctioneer is not ex vi termini agent for both parties, and that he was not so here ; and that his putting down the name was merely to fix the price, and not to bind this purchaser to the conditions : the purchaser under conditions of sale cannot give evidence to vary the contract, but here, properly speaking, the legatee did not so purchase (5). 11. And this principle of implied agency in an auctioneer is not extended to other cases (t). 12. It was always clear, that an auctioneer, appointed by a vendor, was a good agent for him within the statute (w). 13. And although a purchaser bid by an agent, yet the auction- eer is still duly authorized to sign the agreement (^iv). 14. The agent must be a third person ; neither of the contract- ing parties can be the agent of the other (x) ; and therefore, although a purchaser is bound by the signature of the auctioneer, yet the auctioneer himself, cannot, although the seller could, main- tain an action upon such a contract, because the agent whose sig- nature *is to bind the defendant must not be the other contracting party upon the record (y) (1). 15. This, however, has since been doubted (r) ; and it was held that the auctioneer's clerk can bind the purchaser by an entry made in his presence ; and as the clerk had made the entry, the auctioneer was allowed to maintain the action. It was not neces- sary to overrule Farebrother v. Simmons ; but the opinion of the Court was in favor of the auctioneer's power to maintain an action, although he signed as agent of the other party. It was certainly irregular, it was said, that the contracting parties should act as each other's agents, but it was v'ery different where the contract is signed by an individual who was not either of the contractors. 16. Finally, a contract by one as agent for another is valid under the statute, although the alleged agent had no authority at the (s) Bartlett v. Pumell, 4 Adol. & Ell. (x) See Wright v. Dannah, 2 Camp. 283 792. (17th section). {t) Lord Glengal v. Barnard, 1 Kee. {>/) Farebrother v. Simmons, 5 Barn. 769. & Aid. 333 (17th section). (m) Vide supra. (;) Bird v. Boulter, 1 Xev. & Mann. Iw) Emmerson v. Heelis, 2 Taunt. 38 ; 313 ; 4 Bam. & Adol. 447 (17th section) ; White V. Proctor, 4 Taunt. 209. see Graham v. Musson, 5 Bmg. N. C. 603. (1) See Story, Agency, §9 ; Dunlap's Paley'a Agency, 33 in note (3), 160, in note (7). Vol. 1. 20 [*134] 154 REQUIRE WRITTEN AGREEMENTS. time, provided that the alleged principal afterwards ratifies the- contract (a)(1). (a) Maclean v. Dunn, 4 Bingh. 722 ; 1 Moo. & Pay. 761 ; see Gosbellv. Archer, fe Adol. & EU. 500. (1) See Dimlap's Paley's Agency, 171 and note ; Chitty Contr. (8tli Am. ed»)» 202 and note. SECTION VL OF PAROL AGREEMENTS NOT WITHIN THE STAtUl"*:. 2. Sales by aucticm within the statute. 3. Sales before a Master not, 6. Agreements confessed not. 10. But agreement may be admitted and statute insisted upon. 12. Conviction of perjury. 1. We have seen what is considered a sufficient agreement to take a case out of the statute ; but there are cases in which the performance of an agreement will be compelled, although the terms of it are not reduced to writing : for though the statute provided that no agreement should be good, unless signed by the party to be bound thereby, or some person authorized by him, yet on all the questions upon that statute, the purport of making it has been considered, viz. to prevent frauds and perjuries ; and where there *has appeared to be no danger of either, the courts have endeavored to take the case out of the statute (a). 2. Upon this ground it was that in the case of Simwi v. Motives, Lord Mansfield and Mr. Justice Wilmot expressed a clear opinion, in which Mr. Justice Yates was inclined to concur, that sales by auction were not within the statute, because the solemnity of that kind of sale precludes all perjury as to the fact itself of sale. The case, however, which arose upon the sale of goods, was determined upon the ground of the constructive agency of the auctioneer (b), who had set down in writing the name of the purchaser, Sic. (c). Succeeding Judges have entertained a different opinion on the (a) See 1 Ves. 221. (c) 3 Burr. 1921 ; BuU. Ni. Pri. 286 ; (6) Vide supra. 1 Blackst. 599- ri35) I i REQUIRE WRITTEN AGREEMENTS. ]l5l great question, whether sales by auction are within the statute of frauds ; and it has accordingly been since frequently decided, that sales by auction of estates (d), and even of goods, are within the statute (e) (I). 3. But on the ground that there is no danger in such a trans- action of either fraud or perjury, a sale before a Master, under the decree of a court of equity, will be carried into execution, although the purchaser did not subscribe any agreement. The judgment of the Court, in confirming the purchase, takes it out of the statute (/)(2). 4. So if, under a reference to a Master, an agreement be made to lay out trust-money in the purchase of particular lands, and the Master make his report accordingly, and the report be confirmed without any opposition by the owner of the estate, the purchase will be carried into a specific execution, although no agreement was signed by the vendor. The sale is a judicial sale, which takes it entirely out of the statute (§•) (3). 5. It has been repeatedly determined in equity (Ji), that if a bill be brought for the execution of an agreement not in writing, nor so stated in the bill, yet if the defendant put in his answer, and confess the agreement, that takes the case entirely out of the mis- chief intended to be prevented by the statute ; and there being no *danger of perjury, the Court would decree it ; and if the defendant should die, upon a bill of revivor against his heir, the same decree would be made as if the ancestor were living, the principle going throughout, and equally binding the representatives (i) (4). 6. Lord Bathurst, however, held that an agreement, not in part performed, could not be carried into execution, although confessed (rf) Stansfield v. Johnson, 1 Esp. Ca. (e) Ken-n-ortliy v, Schofield, 2 Barn. & 101 ; Walker v. Constable, 2 Esp. Ca. Cress. 945 ; 4 Dowl. & Ry. 556. 659 ; 1 Bos. & Pul. 303 ; Buckmaster v. (/) Attorney General v. Day, 1 Ves. Harrop, 7 Ves. jun. 341, affirmed on ap- 218 ; and see 12 Ves. jun. 472. peal, Dec. 1806 ; Blagden v. Bradbear, (5-) S. C. 12 Ves. jun. 466: and Coles v. Tre- (A) Croyston r. Banes, Free. Cha. 208 ; cothick, 9 Ves. jun. 249 ; Hinde v. and see 1 Ves. 221, 441 ; Ambl. 086 ; Whitehouse, 7 East, 558 ; Mason V Arm- Mose. 370 ; and Symondson v. Tweed, itage, 13 Ves. jun. 25 ; Higginson v. Free. Cha. 437 ; Gilb. Eq. Rep. 35 ; Clowes, 15 Ves. jun. 516. The case of Wanby v. Sawbridge, 1 Bro. C. C. 414, Symonds v. Ball, 8 Term Rep. 151, cited. turned on the particular provisions of (*') Per Lord Hardwicke, see 1 Ves. another act of parliament. 221. (1) 2 Kent, (6th ed.) 539, 54() ; Chitty Contr. (8th Am. ed.) 272 ; Dunlap's Paley's Agency, 313, 314 and notes ; ante, 131, 132 and in notes ; Jackson v. Cat- lin, 2 John. 248 ; 8 John. 406 ; Simonds v. Catlin, 2Caines Rep. 61, 64. (2) See Boykin v. Smith, 3 Muni". 102. (3) See Per Kent, J. in Simonds t\ Catlin, 2 Caines Rep. 64. (4) See note, post, 138.'- r*i36] 156 ADMISSION OK PAROL AGREEMENTS by the answer. In Eyre v. Popham (Jc), addressing himself to Mr. Ambler, he asked if there was any case in which there had been a decree founded upon a confession generally without a part performed ? and Mr. Ambler replied, that in some of the cases, the Chancellor had been mentioned to have said it, but he never found a decree. In giving judgment, he is reported to have said, " This is not an agreement in writing, upon the statute of I'rauds ; but the question is, whether it is an agreement which so appears as that the Court will decree a performance. It has been said, that it is a known rule in this Court, that where an agreement appears con- fessed, the Court will decree a performance though no part has been performed ; some diciums there have been, but Mr. Ambler confesses that he has found no decree — that where the substance clearly appears, though in parol, wilhout any part performed, the Court will decree an agreement to be executed. I think it cannot pe possible ; this Court cannot i^epeal the statute of frauds, or any statute. The King has no such power, by the constitution, in- trusted to him ; and therefore there can be no such power in his delegates. The only case I know that takes a contract out of the statute is of fraud, and the jurisdiction of this Court is principally intended to prevent fraud and deceit. Where a party has given ground to another to think he had a title secured, the Court will secure it to him. The ground, therefore, in making and refusing decrees, has been fraud. It can never be laid down by the Court, that where the substance appears it shall be executed. It would not have been so at common law." 7. In the discussion of the foregoing case, neither the har nor the Court appear to have been aware of a case before Lord Macclesfield (/), in which the defendant having pleaded the statute of frauds to a bill seeking a specific performance of a parol agree- ment, he said, the plea was proper, but then the defendant ought, by answer, to deny the agreement; for if he confessed the agree- ment, the Court would decree a performance, 7iot withstanding the statute ; for that such confession would not be looked upon as per- jury, *or intended to be prevented by the statute. And he there- fore confirmed an order,, that the plea should stand for an answer, with liberty for the plaintiff to except thereto, and that the benefit thereof should be saved to the defendant until the hearing of the {k) Lofft, 808, 809 ; and see Eyre r. Bro. C. C. o6Q, cited ; and see Haxtley Iveson, 2 Bro. C. C. 563, cited. v. Wilkinson, Irish Term Rep. 357. (0 ChUd V. Godolphin, 1 Dick. 39 ; 2 [*137] BY ANSWER. 157 cause. And Lord Hardvvicke appears to have entertained the same opinion (m) (1). 8. In Whitchurch v. Bevis (n), Lord Thurlow at first expressed his opinion, that the only effect of the statute was, that an agree- ment should not be proved aliunde. No evidence that could be given would sustain the suit if the defendant answered and denied ihe agreement. In this case the agreement was confessed, but the statute was pleaded, and it was ultimately decided on its own particular circumstances. Lord Thurlow said, he meant to deter- mine upon the ground of this particular case ; because it might become to be more seriously considered what sort of a verbal agreement, notwithstanding the plea of the statute of frauds, mignt be sustained, as being confessed by the answer, so as the Court would carry it into execution. He added, that he was pre- pared to say, if there were general instructions for an agreement, consisting of material circumstances to be hereafter extended more at large, and to be put into the form of an instrument, with a view lobe signed by the parties, and no fraud, but the party takes ad- vantage of the locus pcznitenticE, he should not be compelled to perform such an agreement as that, when he insists upon the statute of frauds. 9. It is curious to observe the different opinions which have pre- vailed on this point. Lord Macclesfield held, that if the agree- ment was confessed, even a plea of the statute would not protect the defendant ; in which opinion he seems to have been followed by Lord Hardwicke. On the other hand, Lord Bathurst thought that, unless there were fraud, an admission of the agreement by the defendant would not enable the Court to decree it, although the defendant did not insist on the statute. Lord Thurlow appears to have been of opinion, that if the agreement was admitted, the statute could only be used as a defense where there was a clear locus pcenitcntia, but that evidence could not be admitted to falsify the defendant's answer. 10. None of the foregoing opinions has, however, been attended to._ Mr. Baron Eyre seems to have led the way in holding, that if the defendant, by his answer, insisted upon the statute of frauds, *a specific performance could not be decreed, although he confessed (m) Sec Cottinj;ton v. Fletcher, 2 Atk. (n) 2 Bio. C. C. 550 ; rPerkins's cd. 155 ; and see 3 Atk. 3 ; but see 1 Vcs. 5G9 note (/)] 2 Dick. 064. ' jun. 24. (1) See Smitli v. Braiisford, 1 Desaus. 350. [*138] 15$ WRITTEN AGKEEMENT PREVENTED BY FRAUD. the agreement (o). And Lord Thurlow, notwithstanding his opinion in Whitchurch v. Bevis, said, in the prior case of Whit- bread V. Brockhurst, that it should rather seem that if the defen- dant confesses the agreement in his answer, but insists upon the statute, it would be more simple and conformable to reason to say, that the statute should be a bar to the plaintiff's claim (p) : and these opinions have been adopted by Lord Rosslyn and Lord Eldon (^q) ; and Sir William Grant actually decided, that the statute may be used as a bar to the relief, although the agreement be admitted (r). It is immaterial, he said, what admissions are made by a defendant insisting upon the benefit of the statute, for he throws it upon the plaintiff to show a complete written agree- ment ; and it can no more be thrown upon the defendant to supply defects in the agreement, than to supply the want of an agree- ment (1). IL Where, however, a defendant has, by answer, admitted the agreement, and submitted to perform it, he cannot, by an answer to an amended bill, plead the statute of frauds (s) (2). 12. If the defendant deny the agreement, he may be tried for perjury ; but a conviction will not enable equity to decree a per- formance of the agreement (t) (I) ; and therefore, as the plaintiff (0) Stewart v. Careless, 2 Bro. C. C. 46G ; [Sumner's ed. note (c)] see also 2 564, 565, cited ; Walters v. Morgan, 2 Ball & Beat. 349. Cox, 369. (s) Spurriers. Fitzgerald, 6 Ves. jun. (p) Sec 1 Bro. C. C. 416. 548. ((?) Moore r. Edwards, 4 Yes. jun. 23; (t) Bartlett v. Pickersgill, 4 Burr. Cootli». Jackson, 6 Yes. jun. 12; Row 2255; 4 East, 577, n. (/>) ; 1 Cox, 15. V. Teed, 15 Yes. jun. 375 ; see Rondeau See Rastel v, Hutchinson, 1 Dick. 44, c. Wyatt, 2 H. Blackst. 63 ; and 1 Rose, and Fell r. Chamberlain, 2 Dick. 484 ; 300. Burden v. Browning, 2 Taunt. 520. (r) Blagden v. Bradbcar, 12 Yes. jun. (1) It appears that the plaintiff in Fell v. Chamberlain did prefer a bill of in- dictment for perjury against the defendant ; and the Master of the Rolls granted an order to the six clerks to deliver the bill and answer, interrogatories, and depo- sitions of witnesses to a solicitor, in order to be produced at the trial. Reg. Lib. A. 1772, fo. 496. (1) It is now settled, that a party, Avho admits a parol agreement by answer, may nevertheless have the benefit of the statute, if he, by his answer, prays the benefit of it. If he does not thus insist on the benefit of the statute, he must be taken to renounce it. Woods r. Dike, 11 Ohio, 455, 2 Story Eq. Jur. §755 to §758 ; Flagg v. Mann, 2 Sumner C. C. 528, 529 ; Newton r. Swazey, 8 X. Hamp. 9 ; Thompson r. Todd, 1 Peters C. C. 388 ; Talbot r. Bowen, i Marsh, 437 ; Rowton V. Rowton, 1 lien. & Munf. 91 ; Stearns r. Hubbard, 8 Greenl. 320; Story Eq. PI. §763 ; Ontario Bank r. Root, 3 Paige, 478 ; Cozine v. Graham, 2 Paige, 177; Thornton i-. Henry, 2 Scammon, 219 ; Argenbright ?•. Campbell, 3 Hen. & Muiif. 144; Givens r. Caldcr, 3 Dcsaus, 171; Harris c. Knickerbocker, 5 Wendell, 638 : Allen v. Chambers, 4 Iredell Eq. 125 ; Smith v. Brailsford, 1 Desaus. 350 ; Kerr v. Love, 1 Wash. 172 ; Fowler v. Lewis, 2 Marsh. 445. (2) Story Eq. PI. §763; 2 Story Eq. Jur. §755 ; Cozine v. Graham, 2 Paige, OF PART PERFORMANCE. 159 cannot avail himself in any civil proceedings of the conviction of the defendant, he is a competent witness to prove the perjury (m). 13. But in Rex v. Dunston (x), where the agreement was by parol, and the defendant pleaded the statute, and by answer de- nied the agreement itself, upon an indictment for perjury, Abbott, C. J., said that it did not appear from the note of Bartlett v. *Pickersgill whether the statute of frauds was there pleaded and relied on. But in this case, as the defendant had pleaded the statute, he was of opinion that his denial of an agreement, which by the statute was not binding upon him, was immaterial. It is necessary that the matter sworn to, and said to be false, should be material and relevant to the matter in issue. (m) The King v. Boston, 4 East, 572. (x) Ry. & Mood. 109. 177 ; Ontario Bank v. Root, 3 Paige, 478 ; Woods v. Dike, 11 Ohio, 45-5 ; 2 Daniell Ch. Pr. (1st Am. ed.) 751 and in note ; Vaupell v. Woodward, 2 Sandf. Ch. 143. Where the defendant has neglected to put in an answer, in compliance -n-ith a rule of the court, it was held a sufficient admission, to charge a party ujjon a con- tract, withm the statute of frauds, set forth in the bill. NeAvton v. Swazey, 8 N. Hamp. 1. SECTION VII. OF FRAUD AND PART PERFORMANCE. 1. Agreement in writing prevented by fraud, 2. Part performance, parol agreement enforced, 3. What acts are a part performance, 4. Delivery of abstracts or the like, not. 5. Delivery of possession sufficient, 6. Unless referable to another title, or wrongfully obtained. 7. Payment of rent, where sufficient, 8. Expenditure in improvements. 10. Payment of purchase-money insuf- ficient, semble, 16. Payment of auction duty insufficieJit. 17. Acts done to a man's oum prejudice. 18. Distinct lots, 19. Where terms of agreement are un- certain, 29. Representatives bomid where part performance, 30. Whether remainder-man hound. 31. Issue directed. 1. There are other cases taken out of the statute, not so much on the principle of no danger of perjury, as that the statute was not intended to create or protect fraud. Lord Keeper North ap- [*139] 160 DELIVERY OF POSSESSION pears to have entertained a floating opinion, although he never actually decided the point, that if the plaintiff laid in his bill that it was part of the agreement that the agreement should be put into writing, it would take the case out of the statute (a). In a case before Lord Thurlow (b), this doctrine was stated at the bar; and in answer to it he said, he took that to be a single case, and to have been overruled. If you interpose the medium of fraud, by which the agreement is prevented from being put into writing, he agreed to it (1), otherwise he took Lord North's doctrine, 'that if it had been laid in the bill, that it was a part of the agreement that it should be put into writing, it would have done,' to be a single "^decision, and contradicted, though not expressly, yet by the current of opinions. 2. So where agreements have been carried partly into execution, the Court will decree the performance of them, in order that one side may not take advantage of the statute, to be guilty of fraud (c) (I) (2). (a) HoUis V. Whiting, or Edwards, 1 C. 565. Vern. 151, 150; Leake v. Morriee, 2 (c) See 1 Ves. 221 ; Taylor v. Beech, 1 Cha. Ca. 135. Yes. 297. (6) Whitchurch v. Bcvis, 3 Bro. C. (I) The ground of relief in these cases is fraud, and that species of fraud which is conusabie in equity only ; although it seems that the Court of King's Bench once held, that where an agreement was partly executed, it was totally out of the statute. See 1 Bro. C. C. 417. (II) In this case the plaintiff not only purchased the house, but also the furni- ture, for which she had actually paid ; and it appears by the decree, that there was a receipt given by the defendant, the contents of wliich, however, are not stated in the Registrar's book. The defendant positively denied the agreement, and insisted that the plaintiff' was only tenant at will. Reg. Lib. A. 1785, fo. 552, by the name of Denton r. Seward ; ibid. 717, by the name of Denton v. Stewart. (1) See Jenkins r. Eldredge, 2 Story C. C. 181, 290 to 293; Taylor v. Luther, 2 Sumner C. C. 228 ; ante, 125 ; 2 Story Eq. Jur. §768 ; Phyfe v. Wardell, 2 Edwards Ch. 47 ; Kennedy i\ Kennedy, 2 Alabama, 571; Blanchard y. Moore, 4 J. J. Marsh. 471 ; Wesley r. Thomas, 6 Harr. & John. 24 ; Watkins v. Stockett, 6 Harr. & John. 435 ; Chetwood r. Brittian, 1 Green Ch. 438. The laAV is other- wise in Mississippi, Box v. Stanford, 13 Smcdes & Marsh. 93. (2) 4 Kent, (6th ed.) 451 ; Phillips v. Thompson, 1 John. Ch. 131 ; Eaton t>. Whitakor, 18 Conn. 222 ; Rhodes r. Rhodes, 3 Sandf. Ch. 279 ; Maryland Sav- ings Bank v. Schroeder, 8 Gill, & John. 94 ; Carlisle v. Fleming, 1 Harr. 421 ; Til- ton V. Tilton, 9 N Hamp. 385 ; Jenkins v. Eldredge, 3 Story C. C. 181 ; 2 Story Eq. Jur. §759 ; Annan v. Merritt., 13 Conn. 479, 491 ; Newton v. Swazey, 8 N. Hamp. 9, 13 ; Smith r. Patton, 1 Serg. & R. 80 ; Wetmore v. White, 2 Caines Cas. 87 ; Billington r. Welsh, 5 Binney, 129, 131 ; Chitty Contr. (8th Am. ed.) 272, 273, in notes ; Niven v. Belknap, 2 John. 573, 587. The ground on which courts of equity proceed in decreeing specific perform- ance of parol contracts, within the statute of frauds, partly executed, is, that it would be a fraud upon the party, who has acted under the agreement, if the transaction were not completed. Hamilton v. Jones, 3 Gill, & John. 127 ; Hethv. Wooldridge, 6 Randolph, 605, 607 ; Carlisle v. Fleming, 1 Harr. 421, 430 ; Towns- [*140] A PART PERFORMANCE. 161 3. An agreement will not be considered as partly executed, unless the acts done are such as could be done with no other view or design than to perform the agreement, or perhaps, to speak more correctly, with the view of the agreement being performed ; and if it do not appear but the acts done might have been done with other views, the agreement will not be taken out of the statute (d) (1). 4. Neither will acts merely introductory, or ancillary to an agreement, be considered as a part-performance, although attended with expense. Therefore, delivering an abstract, giving directions for conveyances, going to view the estate, fixing upon an appraiser to value stock, making valuations, &ic. (e), will not take a parol agreement out the statute (2). (d) Gunter 1'. Halsey, Ambl. 586 ; La- Whitchurch v. Bevis, 2 Bro. C. C. 559 ; con V, Mertins, 3 Atk. I ; and see 19 Ves. Whaley v. Bagenal, 6 Bro. P. C. 645 ; jun. 479. Cooke v. Tombs, 2 Anst. 420 ; and see (e) Clerk v. Wright, 1 Atk. 12 ; Whit- Cooth v. Jackson, 6 Yes. jun. 12 ; and bread v. Brockhurst, 1 Bro. C. C. 412 ; Redding v. Wilkes, 3 Bro. C. C. 400. Cole V. AVhite, 1 Bro. C. C. 409, cited ; endr. Houston, ib. 532, 540 ; Andersons. Chick, 1 Bailey Eq. 118, 124 ; M'Kee v> Phillips, 9 Watts, 95, 96 ; Allen's estate, 1 Watts & S. 383, 385 ; Parkhurst v. VanCortlandt, 1 John. Ch. 274, 284. In some of the States the courts do not undertake to decree specific perform- ance of parol agreements -within the statute, although there has been a part per- formance. See Patton ?'. M'CIure, Martin & Yerger, 333 ; Ridley v. M'Nairy, 2 Humph. 174; Dwight v. Pomeroy, 17 Mass. 303, 327 ; Brooks v. Wheelock,' 11 Pick. 439 ; Ellis i. Ellis, 1 Dev. Eq. 341 ; Albea v. Grifiin, 2 Dev. & Batt. Eq. 9 ; Dann v. Mdmc, 3 Iredell E i. 334 ; Allen v. Chambers, 4 Iredell Eq. 130 ; Box V. Stanford, 13 Smedes & Marsh. 93 ; Beaman v. Buck, 9 ib. 210. In Massachusetts and Maine, the equity powers of the court, by statute, extend only to the specific performance of icrittcn contracts. Dwight v. Pomeroy, 17 Mass. 303, 327 ; Brooks v. Wheelock, 11 Pick. 439 ; Bubier v. Bubier, 24 Maine, 42 ; Rev. Stat. Mass. Ch. 81, §8 ; Rev. Stat. Maine, Ch. 96, ^UO ; and they have no jurisdiction to decree a specific performance of a parol contract under any circumstances. Stearns v. Hubbard, 8 Greenl. 320 ; Wilton v. Harwood, 23 Maine, 131. An agreement for the conveyance of land, not reduced to writing, although performed in part by each party, cannot be enforced by an action at law, for the recovery of damages. Norton v. Preston, 15 Maine, 14 ; Adams v. Townsend, 1 Metcalf, 483 ; Sherburne r. Fuller, 5 Mass. 138 ; Kidder v. Hunt, 1 Pick. 328 ; Griswold r. Messenger, 6 I'ick. 517 ; Thompson r. Gould, 20 Pick. 134 ; Jackson V. Pierce, 2 John. 223 ; Frceport i\ Bartol, 3 Greenl. 340 ; Barickman v. Kuyden- dall, 6 Blackf. 22, 24 ; Cliitty Contr. (8th Am. ed.) 273 ; Eaton v. Whitakcr, 18 Conn. 222, 231. At law, however, if lands are actually conveyed in execution of a parol contract, such iierformance will take the case out of the statute, so far as to enable the grantor to recover the consideration promised to be paid by the grantee. Linscott v. M'Intire, 15 Maine, 201; Wilkinson i'. Scott, 17 Mass. 249; Dillingham v. Runnels, 4 Mass. 400 ; Sherburne v. Fuller, 5 Mass. 133. (1) Phillips v. Thompson, 1 John. Ch. 131, 149; Blakeneyr. Ferguson, 3 Eng- lish, 272; Carlisle r. Fleming, 1 Ilarr. 421; Goodhue r. Barnwell, Rice, 198; Anderson ». Chick, 1 Bailey Eq. 118 ; Keats v. Rector, I Arkansas, 391 ; 2 Story Eq. Jur. ^S761, §762 ; Hatcher v. Hatcher, 1 McMuUan Eq. 311, 318 ; Smith v. Smith, 1 Richardson Eq. 130, 133 : Robertson r. Robertson, 9 Watts, 32, 42 ; Anthony e. Left-v\'ick, 3 Randolph, 238, 247, 277. (2) 2 Story Eq. Jur. §760 ; Smith v. Smith, 1 Richardson Eq. 130, 132. Vol. I. 21 162 DELIVERY OF POSSESSION 5. But if possession be delivered to the purchaser, the agree- ment will be considered as in part executed (/)(1) ; especially if he expend money in building- or improving according to the agree- ment *(§■), for the statute should never be so turned, construed, or used, as to protect or be a mean of fraud (h) (2). 6. Possession, however, must be delivered in part-performance; for if the purchaser obtain it wrongfully, it will not avail him (i) (3). And a possession which can be referred to a title distinct from the agreement will not take a case out of the statute. Therefore, pos- session by a tenant cannot be deemed a part-performance. The delivery of possession, by a person having possession, to the per- son claiming under the agreement, is a sirong and marked circunv stance ; but a tenant of course continues in possession, unless he has notice to quit ; and the mere fact of his continuance in pos- session (which is all that can be admitted, for quo animo he con- (/) Butcher v. Stapely, 1 Vern. 363 ; Rolls, Feb. 1818,. MS. ; 1 Swanst. 172. Pyke V. Williams, 2 Vern. 465 ; Lockey (r/) Foxcraft r. liister, 2 Vern. 456 ; t'." Lockey, Prec. Cha. ol8 ; Earl of Gilb. Eq. Rep. 4, cited; Col. P. C. 108,. Aylesford's case, 2 Stra. 783 ; Binstead rejiortcd ; Floyd i\ Buckland, 2 Freem. t). Coleman, Bunb. 65 ; S. C. MS. in tot. 268 ; Mortimer v. Orchard, 2 Ves. jun. verbis ; Barretts. Gomeserra, Bunb. 94 ; 243; Toole r. Medlicott, 1 BaU& Bea;ty> Lacon v. Mertins, 3 Atk. 1; WiUs v, 393. See Wheeler r. D'Esterre, 2 Dow, Stradling, 3 Ves. jun. 378 ; Bowers v. 359 ; and see 19 Ves. -jun. 479 ; Suther- Cator, 4 Ves. jun. 91; Denton v. Stew- land v. Briggs, 1 Hare, 26. art, 4th July 'l786, cited in Mr. Fonbl. (//) See 3 Burr. 1919. note to 1 Trea. Eq. 175 ; Gregory v. (i) Cole i\ White, 1 Bvo. C. C. 409, Mighell, IS Ves. jun. 328 ; Kine v. Balfe, cited. 2 Ball & Beat. 343 ; Morphett v. Jones, (1) Eaton V. Whitkaker, 18 Conn. 222; Tilton v. Tilton, 9 N. Hamp. 386, 39a; Allen's estate, 1 Watts & S. 383 ; Pugh v. Good, 3 ib. 56 ; Johnson v. Glancv, 4 Blackf. 94, 98. (2) Lowry v. Tew, 3 Barbour, Ch. 407 ; Blakeney v. Ferguson, 3 English, 272; Brock V. Cook, 3 Porter, 464 ; Annan v. Merritt, 13 Conn. 479 ; Massey v. M'll- wain, 2 Hill Ch. 426 ; Anderson i\ Chick, 1 Bailey Eq. 118 ; Moore v. Beasley, 3 Ham. (Ohio,) 294; Wilber r. Paine, 1 ib. 251; Shirley r. Sj^encer, 4 Oilman, 583; Keats r. Rector, 1 Arkansas, 391; Thornton v. Henry, 2 Scammon, 216; Allen's estate, 1 Watts & Serg. 383 ; Ne^vton r. Swazcy, 8 N. Hamp. 9 ; 4 Kent, (6th ed.) 451 ; Parkhurst r. Van Cortlandt, 1 John. Ch. 274 ; 2 Storv Eq. Jur. §761 ; Pugh r. Good, 3 AVatts & Serg. 56 ; DruiwtJ. Conner, 6Harr. & John. 288 ; Ellis r. EUis, Dev. Eq. 180; Tibbs r. Barker, 1 Blackf. 58 ; Town r. Needham, 3 Paige, 545 ; Wetmorc r. White, 2 Caines Cas. 87 ; Moreland r. Lemasters, 4 Blackf. 383 ; Byrd r. Odem, 9 Alabama, 756 ; Finucane v. Kearney, 1 Freeman, 65, 69 ; Simmoiis v. HiU, 4 Harr. \: M'Hen. 252. But in North Carolina, part performance, such as payment of the whole of the purchase money, and the delivery of possession to the vendee, will not dispense with a writing, if the statute of frauds be insisted on, nor admit parol proof of a contract different from that stated in the answer to a bill for spec-ific performance. Allen i\ Chambers, 4 Iredell Eq. 125. (3) See Jervis v. Smith, 1 Hoff. Ch. Rep. 470 ; 2 Story Eq. Jur. §763 ; Givens V. Calder, 2 Desaus, 171 ; Ander.son r. Chick, Bailey Eq."ll8, 124 ; Hood r. Bow- man, 1 Freeman, Ch. 290, 293 ; Robertson v. Robertson, 9 Watts, 32, 42 ; Loixl V. Underdunck, 1 Sandford, 46, 48 ; Thom]>son v. Scott, 1 M'Cord Ch. 32, 39. [*1411 A PART PERFORMANCE. 163 linued in possession, is not a subject of admission) cannot weigh with the Court (k) (1). 7. But if he pay an additional rent, although that is per se an equivocal circumstance (for it may be that he shall hold only from year to year, the lease being expired), yet there may be other inducements. If, therefore, it be averred that the landlord accepted the additional rent upon the foot of the agreement, the acceptance upon the ground of the agreement will not be equivocal at all. The landlord, in such a case, must answer whether it was accepted upon a holding from year to year, or any other ground (I). 8. If it be part of such a contract with a tenant in possession, that money shall be laid out, and it is one of the considerations for granting the lease (the laying out which must be then with the privity of the landlord), it is very strong to take it out of the sta- tute (m) (2). But it is necessary that the act should unequivocally refer to and result from the agreement, and be such that the party would suffer an injury amounting to fraud, by the refusal to execute that agreement. Therefore, where upon the faith of a promise of a renewal, a tenant rebuilt a party-wall, the agreement was held to be within the statute. The act done was equivocal (3) ; for rt would have taken place equally if there had been no agreement ; it was such also as easily admitted of compensation, without executing the agreement. The money expended might be recovered from *the land- lord, if it was by the landlord that the expense was to be borne (/?). 9. In a late case, Lord Redesdale thought that it was absolutely necessary for courts of equity, in these cases, to make a stand, and not carry the decisions farther (o) (4). (/,;) Wills V. Stradling, 3 Ves. jun. 378 ; (n) Frame v. Dawson, 14 Ves. jun. 386. Smith V. Turner, Free. Cha. 561, cited; See Lindsay v. Lynch, 2 Scho. & Lef. 1 ; Savage v. Carroll, 1 Ball & Beatty. 265 ; O'Reillys. Thompson, 2 Cox, 271 ; Par- see Dowell V. Dew, 1 You. & Coll. C. C. ker v. Smith, 1 Coll. 624. 345 ; Lord Desart v. Goddard, 1 Wall. & (o) See 2 Scho. & Lef. 5 ; Brennan v. Lyne, 347. Bolton, 2 Dm. & War. 349. See Palmer {I) Wills V. Stradling, uhi sup. r. White, 1 Wall. & Lj-nc, 10, ^vhere the (»i) S. C. agreement is by an agent. (1) Jones r. Petcrman, 3 Serg. & Rawle, 543 ; Smith v. Smith, 1 Richardson, Eq. 130, 133, 136 ; Johnston v. Glancy, 4 Blackf. 94 ; Anthony v. Leftwick, 3 Randolph, 238; Hatcher r. Hatcher, IMcMullan Eq. 311, 318. (2) Sec Mundy c. Jollefi'ee, 5 My. & Cr. 167 ; Southerland v. Briggs, 1 Hare, 26. (3) Byrne v. Romaine, 2 Bdw. 445, 446 ; German v. Machin, 6 Paige, 289, 293. (4) 2"StoryE(i. Jur. ^^766 ; Phillips r. Thompson, 1 John. Ch. 131; Grant v. Naylor, 4 Cranch, 234; King r. Riddle, 7 Cranch, 171; Clcmentson r. Williams, 8 Cranch, 74; Massey v. M'lhvain, 2 Hill Ch. 421, 426; Johnson i: Glancy, 4 Blackf. 94, 99 ; Hood r. Bowman, 1 Freeman, 290, 294 ; Anthony r. Lcftwick, 3 Randolph, 238, 244 ; Allen's estate, 1 Watts & Serg. 383 ; Frye v. Sheplcr, 7 Barr, 91 ; German r. Machin, 6 Paige, 289, 293, . 1*142] 164 PAYMENT OF PURCHASE-MONEY 10. It is generally understood, that payment of a substantial part of the purchase-money will take a parol agreement out of the statute. How far this opinion is well-founded, appears to be deserving of particular consideration (1). 11. There are four cases in Tothill, which arose previously to the statute of frauds, and appear to be applicable to the point under consideration ; for equity, even before the statute of frauds, would not execute a mere parol agreement not in part performed. In the first case (p), which was heard in the 38th of Eliz., relief was denied, " because it was but a preparation for an action upon the case." In the two next cases (5-), which came on in the 9th of Jac. 1, parol agreements were enforced, apparently on account of the payment of very trifling parts of the purchase-money, but the particular circumstances of these cases do not appear. The last case reported in Tothill (r) was decided in the 30th of Jac. 1, and the facts are distinctly stated. The bill was to be relieved concerning a promise to assure land of inheritance, of which there had not been any execution, but only 55s. paid in hand, and the bill was dismissed. This point received a similar determination, in the next case on the subject before the statute, which is reported in Cha. Rep. (s), and was determined in the 15th Cha. 2. So the same doctrine was adhered to in a case which occurred three years afterwards, and is reported in Freeman (t) ; for although a parol agreement for a house, with 20s. paid, was decreed without further execution proved, yet it appears by the judgment, that the relief would not have been granted if the defendant, the vendor, had demurred to the bill, which he had neglected to do, but had pro- ceeded to proof. The last case which 1 have met with previously to the statute, was decided in the 21st Car. 2 (u), and there a parol agreement, upon which only 20s. were paid, was carried into a specific execution. This case probably turned, like the one imme- diately *preceding it, on the neglect of the defendants to demur to the bill. It must be admitted, that the foregoing decisions are not easily reconcilable, yet the result of them clearly is, that payment of a trifling part of the purchase-money was not a part- performance of a parol agreement. Whether payment of a consid- erable sum would have availed a purchaser, does not appear. In (.P) William v. NevUl, Toth. 135. (s) Simmons v. Cornelius, 1 Cha. Rep. Iq) Feme v. Bixllock, Toth. 206 ; Clark 128. V. Hackwell, ibid. 228. (t) Anon. 2 Freem. 128. (r) Miller v. Blandist, Toth. 85. (m) VoU v. Smith, 3 Cha. Rep. 16. (1) J»ost, 146 note ; Jackson v. Outright, 5 Munf. 308. [*1431 i NOT A PART PERFORMANCE. 165 Toth. 67, a case is thus stated : " Moyl v. Home, by reason 200/. was deposited towards payment, decreed." This case may, per- haps, be deemed an authority that, prior to the statute, the pay- ment of a substantial part of the purchase-money would have enabled equity to specifically perform a parol agreement ; but it certainly is too vague to be relied on. 12. Our attention is now called to the statute itself. The clause relating to lands declares generally, that no contract, not in writing, shall be enforced by action ; there is also a clause in the act, which relates to sales of goods, which are declared to be binding if something is given in earnest or part payment to bind the bargain. 13. The first case in the books, subsequently to the statute, is in Freem. (x), where it is stated, that a contract for land, and a great part of the money paid, is void since the statute of frauds, and perjuries; but the party that paid the money may, in equity (I), recover back the money. And for this Freeman states he saw Sir William Jones's opinion under his hand. This was about four years after the act. The next case is Leak v. Mor- tice (y), which occurred in the same year: the bill was to have an agreement performed by the defendant ; which was, in effect, that the defendant should assign a term of years in his house and cer- tain goods, for two hundred guineas, whereof he paid one in hand as earnest of the bargain, and three days after nineteen guineas more ; and part of the bargain was, that it should be executed by writings, by a certain time. The defendant pleaded the statute (x) 1 Freem. 486. ca. 664 b. (ij) 2 Cha. Ca. 135 ; 1 Dick. 14. (I) At this day it may be recovered at law. [Chitty Contr. (8th. Am. ed.) 273, in note ; Gillett v. Maynard, 5 John. 85. Expenses incurred in faith of a parol agreement, Avhich is violated by the party receiving the benefit, may, at /aw, be recovered in an action of indebitatus assumpsit. Kidder v. Hunt, 1 Pick. 328 , Richards r. Allen, 17 Maine, 296 ; Luey c. Bundy, 9 N. Ilanip. 298. If money has been paid to him, it may be recovered back. If labor has been performed for him, a compensation for it may be recovered. Lane v. Shackford, .5 X. Hamp. 133 ; Holbrook v. Armstrong, 1 Fairf. 81 ; Cabot c. Haskins, 3 Pick. (2nd ed.) 95, note. See also Squire r. Whipple, 1 Vermont, 69 ; Kidder r. Hunt, 1 Pick, 328 ; Little V. Martin, 3 Wendell, 219 ; Shute v. Dorr, 5 Wendell, 204 ; Burlinghame v. Burlinghame, 7 Cowcn, 92 ; Frecport r. Bartol, 3 ( jreenl. 340 ; Lockwood v. Barnes, 3 Hill, 128 ; I'arkhurst r. Van Cortlandt, 1 John. Ch. 273. A contract for the sale of lands though not in writing, seems not to be void, but voidable merely. Sims r. Hutchins, 8 Smedes & Marsh. 328 ; Minns v. Morse, 15 Ohio, 588 ; Whitney v. Cochran, 1 Scammon, 210. While the vendor is able and ■willing to comply, the purchaser can maintain no action to recover back the con- sideration paid. Duncan c. Bakd, 8 Dana, 101 ; Lane r. Shackford, 5 N. Hamp. 133 ; Shaw v. Shaw, 6 Vermont, 75 ; Oldliam v. Sale, 1 B. Monroe, 78 ; Coughlin t\ Knowles, 7 'Metcalf, 57 ; Sims v. Hutchins, 8 Smedes & Marsh. 328]. 166 PAYMENT OF PURCHASE-MONET of frauds, and alleged the money was only paid for the lease, but confessed the receipt of the twenty guineas, and offered to repay them. Lord Keeper North said, it was clear that the defendant ought to repay the money, but overruled the plea on another ground. In this case it does not ap])ear to have occurred to either the bar or the court, that payment of money would take a parol contract for lands out of the statute. The case of Alsop v. *Patten (z), arose about fifteen years afterwards. There a joint lessee of a building lease agreed to sell his moiety to the other lessee for four guineas, and accepted a pair of compasses in hand to bind the bargain. The vendor pleaded the statute to a bill filed by the purchaser for a performance in specie. Lord Chancellor JefFeries ordered him to answer, and saved the benefit of the plea to the hearing, as the agreement was, in some part, executed. In this case, unless there was a part-performance of the agreement, independently of the mere delivery of the compasses, it is clear that the Court confounded the section of the statute by which personal contracts are binding, if earnest is paid, with the clause relating to land. The next case is Seagood v. Meale (a), which arose thirty-four years after the case of Alsop v. Patten. The case was, that upon a parol agreement for sale of an estate for 150/., a guinea was paid, and the payment of the guinea was agreed to be clearly of no consequence in case of an agreement touching lands or houses, the payment of money being only binding in cases of contracts for goods. In this case we find the doctrine laid down generally, that the payment of money is not a part-performance of a parol agreement for lands, and no distinction was taken, as seems sometimes to have been thought, between the payment of a substantial part of the purchase-money, and of a trifling portion. Then comes the case of Lord Fingal, or Lord Pengal v. Ross, which was decided by Lord Cowper, in the 8th of Anne (b) (I). A agreed with 13 to make him a lease for twenty- one years of lands rendering rent, B paying A 150/. fine. B paid 100/. in part, then A refused to execute the agreement ; and upon a bill filed for a specific performance, the agreement was held to be within the statute ; but the 100/. was decreed to be refunded. (;) 1 Yern. 472. {h) 2 Eq. Ca. Abr. 46. pi. 12. (a) Prec. Cha. 560. (I) It has been said, that this case is not to be found in the Registrar's book. See 4 Yes. jun. 721. The author himself has searched the Registrar's calenders for 1709 and 1710 ■without success. The search was made under the letters L (the plaintiff being a lord) P and F. [*144] NOT A PART PERFORMANCE. 167 The Lord Chancellor said, the payment of this lOOZ. was not such a performance of the agreement on one part, as to decree an execution on the other ; for the statute of frauds makes one sort of contracts, viz. personal contracts, good, if any money is paid in earnest. Now that statute says, that no agreement concerning lands shall be good, except it is reduced into writing ; and there- fore, a parol agreement, as it was in that case, would not be good by giving money by way of earnest. Thus far no room is left for doubt ; but in Lacon v. Merlin (c), Lord Hardwicke laid it down, ^that paying money had always been considered as a part-perform- ance. This, however, was a mere dictum ; it was not necessary to decide the question ; the cases on the subject were not cited ; and another rule is laid down too generally in the same report. A case, indeed, is said to have been decided in 1750 ((/), at which time Lord Hardwicke was Chancellor, where the bill was to compel the acceptance of a lease under a parol agreement upon a fine of L50Z., and 161. paid in part of the same ; and the plea was overruled, without hearing the counsel for the plaintiff, and the decision, it is said, appears by the Registrar's book (I). But it does not appear from this statement, whether there was or ,was not any other act of part-performance ; and it is a sufficient ob- jection to this decision, that the plaintiff's counsel were not heard, as no one can deny that the point was open to argument. The next case is a recent one (e), in which Lord Rosslyn held, that the payment of a small sum, as five guineas, where the purchase- money is 100/., would not take the case out of the statute; but he seemed clearly of opinion, that payment of a considerable part of the purchase-money would be sufficient ; and he treated the case of Lord Fingal v. Ross as ill determined. However, it was not necessary to decide the question. The opinion was clearly extra-judicial. In the late case of Coles v. Trecothick (/), where the purchase-money was 20,000/. and 2.000/, were paid in part. (c) 3 Atk. 1. (f) Main r. Melbourn, 4 Yes. jun. 720. (d) Dickinson r. Adams, 4 Ves. jun. ( /") 9 Yes. jun. 234; Kx parte Hooper, 722, cited. 1 Mer. 7. (I) Tlic aiithor has searched the Registrar's calendars for 1750, -with great at- tention, but without success. He met with only one case whore the plaintiff's name was Dickinson, and there the defendant's name was Baskcrville ; and the case is on a different point. Keg. Lib. A. 1750, fol. 545. Neither does a case in the same book, fol. 514, by the name of Davis v. Adams, embrace the point in question. The search was made under the letter A as well as the letter D. — Note, the case perhaps turned on the principle stated in page 146, infra. [*1451 168 PAYMKNT OF PURCHASE-MONEY the point was treated at the bar as doubtful, and the Court evi- dently declined giving an opinion on the subject. 14. Upon the whole, it appears clearly, that since the statute of frauds, the payment of a small sum cannot be deemed a part-per- formance. The dicta are in favor of a considerable sum being a part-performance, but this construction is not authorized by the statute, and it is opposed by a case, in which the contrary was decided, upon the most convincing grounds. On this subject. Sir William Grant's admirable judgment in Butcher v. Butcher (§•), must occur to every discerning mind ; it turns on a subject so ^applicable to the present, that his arguments, with a slight altera- tion, directly bear upon it. To say that a considerable share of the purchase-money must be given, is rather to raise a question than to establish a rule. What is a considerable share, and what is a trifling sum ? Is it to be judged of upon a mere statement of the sum paid, without reference to the amount of the purchase- money ? — If so, what is the sum that must be given to call for the interference of the Court ? What is the limit of amount at which it ceases to be trifling, and begins to be substantial ? If it is to be considered with reference to the amount of the purchase-money, what is the proportion which ought to be paid ? Mr. Booth also was impressed with this difficulty, although his sentiments are not so forcibly expressed. Where, he asks, will you strike the line ? And who shall settle the quantum that shall suffice in payment of part of any purchase-money, to draw the case out of the statute ; or ascertain what shall be deemed so trifling as to leave the case within it (/() ? 15. Since the above observations were written, a decision of Lord Redesdales has appeared, in which he held clearly that payment of purchase-money is not a part-performance ; and although he did not advert to all the cases on the subject, yet his decision it is to be hoped will put the point at rest. He said, that it had always been considered that the payment of money is not to be deemed a part-performance, to take a case out of the statute. Seagood v. Meale is the leading case on that subject ; there a guinea was paid by way of earnest ; and it was agreed clearly, that that was of no consequence in case of an agreement touching lands. Now, if payment of fifty guineas would take a case out of the statute, pay- ment of one guinea would do so equally ; for it is paid in both {g) 9 Ves. juii. 382. (A) 1 Ca. and Opin. 136. [*146J NOT A PART PERFORMANCE 169 cases as part-payment, and no distinction can be drawn (i) ; but the great reason, he added, why part-payment does not take such an agreement out of the statute, is, that the statute has said, that in another case, viz. with respect to goods, it shall operate as a part- performance. And the Courts have therefore considered this as excluding agreements for lands, because it is to be inferred, that when the Legislature said it should bind in case of goods, and were silent as to the case of lands, they meant that it should not bind in the case of lands (k) (1). 16. But, even admitting that the payment of purchase-money may be deemed a part-performance, yet it was held that the pay- ment of the auction duty, however considerable, would not enable *the Court to decree a specific performance of a parol agreement; as the revenue laws could not be held to operate beyond their direct and immediate purpose, to affect the property and vary the rights of the parties not within the intention of the act (/). 17. In some cases it has been decided, that acts done by the defendant to his own prejudice, could be made a ground for com- pelling him to perform the agreement ; but Sir William Grant held the contrary, where there is no prejudice to the plaintiff (w), because the ground on which the Court acts, is fraud in refusing to perform, after performance by the other party (n) (2) ; but where the defendant (j) See ace. Cordage v. Cole, 1 Saund. (?«) Buckmaster v. Harrop, nbi sup. 319. See Hawkins r. Holmes, 1 P. Wms. 770; (k) Clinan ». Cooke, 1 Scho. & Lef. 22; and see /)os^ eh. 4, n. observations on and see O'Herlihy v. Hedges, ib. 123 ; li Potter v. Potter. Ves. jun. 388. (h) See Popham v. Eyre, LofFt. 786 ; (Z) Buckmaster v. Harrop, 7 Yes. jun. Clinan v. Cooke, 1 Scho. & Lef. 22 ; and 341 ; 13 Yes. jun. 456. O'Herlihy v. Hedges, ibid. 123. (l)"The more modern doctrine now is," says Mr. Chancellor Kent, "that payment of part, or even of the whole, of the purchase money is not of itself and without something more, a part performance that will take the case out of the statute, for the money may be repaid. 4 Kent, (6th ed.) 451 ; Sites v. Keller, 6 Ham. (Ohio,) 483 ; Pollard v. Kinner, ib. 528 ; Keats v. Eector, 1 Arkansas, 392 ; 2 Cruise Dig. by Mr. Greenleaf, Tit. 32, Ch. 3, ^37 and note ; 2 Story Eq. Jur. ^760, ^^761, §762 ; Allen r. Booker, 2 Stewart, 21 ; Meredith v. Naish, 3 Stewart, 207 ; i3arickman v. Kuydendall, 6 Blackf. 21 ; M'Kee v. Phillips, 9 Watts, 85 ; Parker v. Wells, 6 Wharton, 153 ; Hatcher v. Hatcher, 1 M'Mullan, 311 ; Smith V. Smith, 1 Richardson Eq. 130, 132, 135 ; Eaton v. Whitaker, 18 Conn. 222 ; Finucane v. Kearney, 1 Freeman Ch. 65, 68 ; Hood v. Bo^^-man, ib. 290, 294 ; M'Kee r. Phillips, 9 Watts, 85, 86 ; Parker v. Wells, 6 Wharton, 153. See Wetmore v. White, 2 Caines Cas. 87 ; Billington v. Welsh, 5 Bimiey, 131 ; Smith V. Patton, 1 Serg. &llawle, 80 ; Bassler i\ Niesly, 2 Serg. & Rawle, 355 ; Thomp- son V. Todd, 1 Peters, 388 ; Bell v. Andrews, 4 Dallas, 152 ; Townsend v. Hous- ton, 1 Harring. 532. In this last case it was held that the payment of a substan- tial part of the purchase money, was in chancci-y, a sufficient part performance. (2) Maryland Sayings Institute v. Schi-oedei', 8 (iill & John, 94 ; Carlisle v. Fleming, 1 Harr. 421 ; Keats v. Rector, 1 Arkansas, 391 ; 2 Story Eq. Jur. §759. 4 Kent, (6th ed.) 451. Vol. I. 22 [*147] 170 WHERE THE TERMS ARE UNCERTAI^r. has, for instance, paid the auction duty or purchase-money, it i>5 no fraud on the vendor, hut a loss to himself, which ought not to be made a ground for a specific performance against liimself. 18. Where a person purchases several lots of an estate, included in distinct articles of sale, a part-performance as to one lot will not be deemed a part-performance as to the other lots, and will therefore only take the agreement out of the statute as to the lot in respect of which there was a part-performance (o) (I). 19. It may happen, that although an agreement be in part performed, yet the Court may not be able to ascertain the terms, and then it seems the case will not be taken out of the statute (2). If, however, the terms be made out satisfactorily to the Court, contrariety of evidence is not material (j?), and the Court will use its utmost endeavors to get at the terms of the agreement (3). 20. In the case of Mortimer v. Orchard (y), where a parol agree- ment with two persons had been in part performed, the plaintiff^s witness proved an agreement different from that set up by the bill, and the defendants stated an agreement different from both. The Chancellor thought in strictness the bill ought to be dismissed ; but as tliere had been an execution of some agreement between the parties, and there were two defendants who proved the agree- (0) Buckmaster i\ HaiTop, 7 Yes. jun. Lvnch, 2 Sclio. & Lef. 1 ; Mundy v. 341. Joliffe, 9 Sim. 413 ; London and Bir- (jO) See 1 Yes. 221. mingham Rail-way Co. v. Winter, 1 Cra. {q) 2 Yes. jun. 243. See Lindsay r. & I'lul. 57. (1) But it would seem to be otherwise, in New York, where Ihe contract is entire and indivisible, though relating to different parcels of land. Smith r. Un- derdunck, 1 Sandford, .579, ,581. But see contrary in Pennsvlvania, AUcn's estate, 1 Watts & Scrg. 384, 389 ; McClure v. McClure, i Barr, 374, 379 ; Pugh v. Good, 3 Watts & Serg. o6. (2) 2 Story Eq. Jur. §764 ; Colson v. Thompson, 2 Wheaton, 336, 341 ; Park- hurst V. Yan Cortlandt, 1 John. Ch. 274, 284 ; German v. Machin, C Paige, 288 ; Anthony v. Lcftwick, 3 Kandolph, 238, 246 ; Miller f. Gotten, 5 Georgia, 341, 351 ; Massey v. M'llwain, 2 Hill Ch. 421, 426 ; Allen r. Chambers, 4 Iredell Eq. 125 ; Hatcher v. Hatcher, 1 M'Mullau Eq. 311, 315 ; Tilton v. Tilton, 9 N. Hamp. 385 ; Sage v. M'Guire, 4 Watts & Serg 228, 229. The existence of the contract must be made out by clear and satisfactory evi- dence, to entitle a party to take the case out of the stal^ite of frauds, on the- ground of part pciibrmance. The act of part performance must clearly appear to be of the identical contract set up by him. It is not enough that the act is e\-i- dence of some agreement, but it must be unequivocal and satisfactory evidence of the particular agreement charged to have been made. Phillips v. Thompson, 1 John. Ch. 131 ; Hall r. Hall, 1 GiU, 383 ; Chambers v. Lccompto, 9 Missouri, 575 ; Carlisle v. Fleming, 1 Harr. 421 ; Goodhue r. Barnwell, 1 Kice, 198 ; German v. Machin, 6 Paige, 288 ; 2 Story Eq. Jur. §763, §764 ; Simmons v. Hill, 4 Harr. & M'Hen. 252; Phyfe v. Wardwell. 1 Edw. Ch. 51, 52; Moale v. Buchanan, 11 Gill & John. 314 ;" Graham v. Yeates, 6 Harr. & John. 229. (3) See Mundv v. Jolliffe, 5 Mylue & Cr. 177 ; Khodes v. Rhodes, 3 Sandford, 279 ; Burns v. Southerland, 7 Barr, 103, 106. WHERE THE TERMS ARE UNCERTAIN. 171 rnent set up by their answers, he decreed a specific performance of the agreement confessed by the answers. 21. In one case where, upon the faith of a parol agreement, a man entered and built, it was proved that the defendant told the *plaintifF that his word was as good as his bond, and promised the plaintiff a lease when he should have renewed his own from his landlord. Lord Chancellor Jefferies said, that the defendant was guilty of a fraud, and ought to be punished for it ; and so decreed a lease to the plaintiff, though the terms were uncertain. It was^ he said, in the plaintiff's election for what time he would hold it, and he elected to hold during the defendant's term at the old rent, but the plaintiff was to pay costs (r). 22. And in a case from Yorkshire, possession having been delivered in pursuance of a parol agreement, and a dispute arising upon the terms of the agreement. Lord Thurlow sent it to the Master, upon the ground of the possession being delivered, to inquire what the agreement was. The difficulty was in ascertaining what the terms were. The Master decided as well as he could, and then the cause came on before* Lord Rosslyn, upon further directions, who certainly seemed to think Lord Thurlow had gone a great way, and either drove them to a compromise, or refused to go on with the decree upon the principle upon which it was made (s). 23. Lord Thurlow, however, appears to have formed a settled opinion upon this point. For in Allen v. Bower (i), where he con- sidered the written memorandum as evidence of a parol agreement, which was in part performed (whether rightly or not (u) is imma- terial to the present question), he directed the Master, tvho had refused to admit parol evidence, to inquire and state what the promise was, that was mentioned in the memorandum, and at what time the promise was made, and what interest the tenant was to acquire in the premises under such prom,ise ; and the Master was to be at liberty to state specially any particular circumstances that might arise on such inquiries, and the parties were to be examined on interrogatories. In consequence of this order, evidence was received, which proved that the tenant was to hold during his life ; and Lord Thurlow decreed a lease to be executed accordingly. (r) Anon. 5 Vin. Abr. 523, pi. 40 ; and Lord Eldon. see Anon. ib. o22, pi. .38. {i) 3 Bro. C. C. 149. (s) Anon. 6 Yes. jmi. 470, cited by (m) See 1 Sch. & Lef. 37. [*148] I 172 WHERE THE TERMS ARE UNCERTAIN. 24. So in a case before Lord Rcdesdale, where an agreement in writing was held to be within the statute, because the term for which it was to be granted was not expressed, he said, he should have had great difficulty if there were evidence of part-perform- ance. He must have directed a further inquiry, for the party had not suggested by his bill, that the agreement was for any specific term, and the case stood both on the pleadings and evidence im- perfect *on that head (x). And in a late case before Lord Eldon, he thought the Court must at least endeavor to collect, if they can, what are the terms the parties have referred to (y). 25. But in the case of Symondson v. Tweed (z), it was laid down that in all cases wherever the Court had decreed a specific execution of a parol agreement, yet the same had been supported and made out by letters in writing, and the particular terms stipu- lated therein, as a foundation for the decree ; otherwise the Court would never carry such an agreement into execution. And in a case before Lord Alvanly, when Master of the Rolls {a), he is reported to have said, " I admit my opinion is, that the Court has gone rather too far in permitting part-performance, and other cir- cumstances, to take cases out of the statute, and then, unavoidably perhaps, after establishing the agreement, to admit parol evidence of the contents of that agreement. As to part-performance, it might be evidence of some agreement, but of what, it must be left to parol evidence. I always thought the Court went a great way. They ought not to have held it evidence of an unknown agree- ment, but to have had the money laid out repaid. It ought to have been a compensation. Those cases are very dissatisfactory. It was very right to say, the statute should not be an engine of fraud, therefore compensation would have been very proper. They have, however, gone farther, saying, it was clear that there was some agreement, and letting them prove it ; but how does the circumstance of having laid out a great deal of money, prove that he is to have a lease of ninety-nine years? The common sense of the thing would have been to have let them bring an action for the money. I should pause upon such a case." And Lord Eldon has said, that perhaps if it was res integra, the soundest rule would be, that if the party leaves it uncertain, the agreement {x) Cliuan v. Cooke, 1 Scho. & Let. 22. (r) Free. Cha. .374 ; Gilb. Eq. Kep. 35. (y) Boardmaii v. Mostyn, 6 Ves. iun. {«) Forster v. Hale, 3 Ves. jun. 712, 467. 713. [*149] WHERE THE TERMS ARE UNCERTAIN. 173 is not taken out of the statute sufficiently to admit of its being enforced (1). 26. In a late case in Ireland, where after a part-performance of a parol agreement the purchaser died, and there was no evidence of the amount of the price agreed on, or of the quantity of estate to be conveyed, Lord Manners refused to grant a reference for the purpose of ascertaining the terms of the contract. There was, he said, no evidence whatever of the terms, and the reference was sought to supply the entire absence of this very material part of the case. Where there is contradictory evidence in a case that raises a doubt in the mind of the Court; that is to say, where the *case is fully proved by the party on whom the onus of proof lay, but that proof shaken or rendered doubtful by the evidence on the other side, there the Court will direct a reference or an issue to ascertain the fact ; but where there is no evidence whatever, would it not, he asked, be introducing all the mischiefs intended to be guarded against by the rules of the Court, in not allowing evidence to be gone into after publication, and holding out an opportunity to a party to supply the defect by fabricated evidence, if he were to direct such an inquiry ? He therefore did not think himself at liberty from the evidence in the case to direct the reference or issue desired (b). 27. And in a later case (c), a bill for a specific performance was dismissed with costs because the agreement was by parol, and although part performed, the terms of it could not be made out by reason of the variance between the witnesses for the plaintiff. 28. We cannot but observe the growing reluctance manifested to carry parol agreements into execution, on the ground of part- performance, where the terms do not distinctly appear ; and al- though, according to many authorities, the mere circumstance of the terms not appearing, or being controverted by the parties, will not, of itself, deter the Court from taking the best measures to ascertain the real terms (f/) ; yet the prevailing opinion requires the party seeking the specific performance in such a case to show the distinct terms and nature of the contract. We may however remark, that it rarely happens that an agreement cannot be dis- (6) Savage v. Carroll, 1 Ball & Beatty, See Mundv r, Joliffe, 9 Sim. 413. 265. See ibid. 40i, ooO, .551. {d) See Savage v. Carroll, 2 Ball & (c) Reynolds v. Waring, You. 346. Beat. 444. (1) See Phillips v. Thompson, 1 John. Ch. 131, cited ante, 140, in note ; 4 Kent, (6th ed.) 451 ; 2 Story, Eq. Jur. §764, §767 ; Ronton v. Rowton, 1 Hen. & Munf. 92 ; Parkhurst r. Van Cortlandt, 1 John. Ch. 281. 1*150] 174 PAROL AGREEMENTS PART PERFORMED tinctly proved where the estate is sold. Most of the cases on this head have arisen on leases, where the covenants, &;:c. are generally left open to future consideration (1). 29. Where a parol agreement is so far executed as to entitle either of the parties to require a specific execution of it, it will be binding on the representatives of the other party in case of his death, to the same extent as he himself was bound by it (e) (2). 30. In a case before Lord Redesdale (/), he held that a con- tract by a tenant for life with a power of leasing, to grant a lease under his power, was binding on the remainder-man. In the course of the argument, a question was put from the bar, whether, if this had been a case of a parol agreement in part performed, it could be enforced ? In answer to which. Lord Redesdale expressed *himself thus : " That, I think, would raise a very distinct question, a question upon the statute of frauds ; and perhaps a remainder- man might be protected by the statute, though the tenant for life would not. For the party himself is bound by a part-performance of a parol agreement, principally on the ground of fraud, which is personal. Such a ground could scarcely be made to apply to the case of a remainder-man, unless money had been expended, and there had been an acquiescence after the remainder vested, which were held by Lord Hardwicke, in Stiles v. Cowper, 3 Atk. G9'2, in the case of an actual lease under a power, but with covenants not according to tlie power, to bind the remainder-man to grant a lease for the same term with covenants according to the power (^q-). 31. In a case where it was alleged on the one side, that under a parol airreement the purchase-money had been paid and posses- sion delivered ; and on the other, that there was no sale, but that possession was delivered to make a qualification, and the alleged (e) Vide infra, ch. i, 529 ; Dowell c. Dew, 1 You. & Coll. C. (/) Shamioii v. IJradstrcct, 1 Scho. & C. 345. Lei". 52 ; Lowe & Swilt, 2 Ball & Beat. (ff) See 2 Sugd. Tow. 111. — f . (1) "In order," says Mr. Justice Story, " to take a case out of the statute, up- on the ground of ])iirt ];cntormance of a parol contract, it is not only indispensa- ble, that the acts done should be clear and definite, and referrilile exclusively to the contract ; but the contract should also be established by competent proofs, to be clear, deiinitc, and unciiuivocal in all its terms. If the terms are uncertain, or ambiguous, or not made out l^y satisfactory proofs, a specific performance will not (as, indeed, upon principle it should not) be decreed. The reason would seem obvious enough ; for a court of equity ought not to act upon conjectures ; and one of the most important objects of the statute was to prevent the introduc- tion of loose and indeterminate proofs of what ou^httobe established by solemn written contracts." 2 Story, .Iv|. Jur. §76i ; Phillips r. Thompson, 1 John. Ch. 131, cited ante, 140, in note'; Phyfe v. Wardwell, 1 Edw. Ch. 51, 52. (2) See Grant c. Craigmiles, 1 Bibb, 203. r*i.5ii a BIND REPRESENTATIVES, ETC. 175 purchaser was a mere agent, and both the seller and purchaser were dead ; an issue was directed whether the purchaser was, at his death, beneficially entitled to the premises in question (A). 32. These remarks may be closed by observing, that equity seems to have been guided by nearly the same rules in compelling a specific performance of parol agreements before the statute (?'). as have been adhered to since ; but still, the student cannot be too cautious in distinguishing the cases which were decided before the statute from those decided subsequently. Much confusion has arisen from inattention to this point. (/)) Bui-kett r. Randall, 3 Mer. 466. (i) See Miller r. Elandist, Toth. 8o ; William v. Xevill, ibid. 13.7 ; Feme r. Bullock, ibid. 200, 238 ; Clark r. Hack- well, ibid. 260 ; Simmons v. Cornelius, 1 Cha. Rep. 128 ; Anon. 2 Freem. 128 ; Toll V. Smith, 3 Cha. Rep. 16 ; and see Marquis of Normanby v. Duke of De- vonshire, 2 Freem. 217. ^SECTION VIII. OF THE ADMISSIBILITY OF PAROL EVIDENCE INSTRUMENTS. TO VARY AVRITTF.N 1. Parol averments to support a deed. 2. Parol addition rejected. 5. So of rchat ])assed upon the treaty. 7, 11. Parol declaration of auctioneer rejected. 10. Parol addition also rejected in eqvit\i. 14. Or to diminish the rent. 18. Unless on behalf of a defendant in equity. 20. Where there is fraud. 21. Or mistahe or surprise. 23. But not to explain the i7istrument. 24, 2o. Cloices v. Higginson considered. 26, 27. Croome v. Lediard considered. 28. Parol variations after the contract, without consideration, rejected. 32. Xegative icords of the statute. 33. Where written agreement correct, parol addition rejected altogether. 36. Parol evidence of collateral matters, as taxes, S\-c., rejected. 41. Waiver of stipulation for good title rejected. 42. Contra in equitg. 43. Time cannot be waived by parol at law. 4.5. Contra in equity. 46. Parol variation part performed en- forced in equity. oO. Result as to 2)arol variations. 5\. Entire agreement for realty and jicr- sonalty. Of this learning we may treat under three heads, 1st, where there is not any ambiguity in the written instrument ; 2dly, where there is an ambiguity ; and 3dly, where a term of an agreement is [*1521 176 OF PAROL EVIDENCE omitted or varied in the written instrument by mistake or fraud. — And, 1. Previously to the statute of frauds, parol evidence might have been given of collateral and independent facts, which tended to support a deed. Thus, although a valuable consideration was always essential to the validity of a bargain and sale, yet Rolle laid it down that («) upon averment that the deed was in considera- tion of money, or other valuable consideration given, the land should pass, because the averment was consistent with the deed. The same rule has prevailed since the statute of frauds. Where in a conveyance 28/. only were stated to have been received, parol evi- dence was admitted to prove that 2/. more were actually paid (6)(1). And in a later case parol evidence was received, that a sum of money was paid as a premium in order to constitute the relation of *master and apprentice, although no mention of it was made in the written agreement entered into between the parties (c) (2). In all these cases we observe, that the evidence is not offered to con- tradict or vary the agreement, but to ascertain an independent fact, (a) 2 Ro. Abr. 786, (N.) pi. 1 ; and {c) Bex r. the Inhabitants of Laindon, see 1 Rep. 176, a. 8 Term Rep. 379 ; and see 2 Cha. Ca. (6) Rex v. the Inhabitants of Scam- 143 ; TuU c. Parlett, 1 Mood. & Malk. monden, 3 Term Rep. 474. 472. (1) This was a question of settlement ; and the object of the proposed evidence ■was not to contradict the indenture, but to ascertain an independent collateral fact, namely, whether thirty pounds had been bona fide paid, as a consideration for the purchase of the estate, upon which fact the settlement Avould depend. 1 Phil. Ev. (4th Am. ed.) 551 ; 1 Greenl. Ev. v^285. It is remarked by the learned editors of Phil. Ev. Part. 2 p. 1444, in note, 965, that " a more obvious ground for the decision in Rex v. Rcammonden, cited in the text, is, that the party offer- ing the evidence was a stranii-er to the deed ; and, as such, had a right to avail himself of the truth, independent of any conventional arrangements of the parties. In tliis light it has been generally viewed, both in England and in the United States. .See Grcslcy Eq. Ev. 204"; 2 Stark. Ev. (Gth Am. ed.) 575 ; Per Taylor J. in Brooks v. I\Ialtbie, 4 Stewart & Porter, 106 ; Per Huntington J. in Johnson T. lilackman, 11 Conn. 351, 352, 353 ; Beiiinr. Norwich, 10 John. 229, 230 ; Read- ing V. Weston, 8 Conn. 117. (2) If no consideration is expressed in a written agreement, or it purports to have been made on divers good considerations, the true consideration may be proved aliunde. Arms r. Ashley, 4 Pick. 71 ; Tingley v. Cutter, 7 Conn. 291 ; Cummings t. Dennett, 26 Maine, 397 ; "White r. AVeeks, 1 Penns. 486 ; Daven- port V. Mason, 15 Mass. 85 ; Hartley v. M'Anulty, 4 Yeates, 25 ; Stevens r. Grif- fith, 3 Vermont, 448 ; Jones v. Sasser, 1 Dev. & Batt. 466. But it has been held, that where a consideration is set forth, evidence is not admissible to show that a greater or a different consideration was intended. Scher- merhorn v. Vanderheyden, 1 John. 139 ; Maigley r. Hauer, 7 John. 341 ; Howes v. Barker, 3 John. 500 ; Emery v. Chase, 5 Greenl. 232 ; "NVinchcll v. Latham, 6 Cowen, 690. Unless the words, "for other considerations," or equivalent M'ords are used. Maigley r. Haucr,7 John. 341 ; Benedict r. I>ynch,l John. Ch. 370. See also Elliott v. Giese, 7 Harr. & John. 457; I^eonard r. Yredenburgh, 8 John. 29; Hyne v. Campbell, 6 Momoe, 291 ; MiUer r. Bagwell, 3M'Cord, 568 ; Mead r. Stege'r, 5 Porter, 506. This, however, is not the settled rule upon the subject. The cases have been materially conflicting. And in reference to the consideration clause in a deed [*153] TO VARY WRITTEN INSTRUMENTS, 177 which is consistent with the deed, and which it is necessary to ascer- tain, with a view to effectuate the real intention of the parties (d) (1). 2. It is, however, clearly settled, that parol evidence is not admissible to disannul and substantially vary a written agreement ; for, as Lord Hardwicke observes, to add anything to an agree- ment in writing by admitting parol evidence, is not only contrary to the statute of frauds and perjuries, but to the rule of the com- mon law before that statute was in being (e) (2). 3. Thus, in a leading case on this subject (f), it appeared that (d) Rex V. Inhabitants ef Wickham, 2 (/) Meres v. Ansell, 3 Wils. 275 ; and Adol. & Ell. 517. see Mease v. Mease, Cowp. 47 ; Lofft, (e) Parteriche v. Powlet, 2 Atk. 383; 457 ; Cuff v, Penn, 1 Mau. & Sehv. 21 ; and see Tinney «, Tinney, 3 Atk. 8 ; Bin- Greaves v. Aslilin, 3 Camp. Ca. 426; stead V, Coleman, Bunb. 65 ; Hogg v. Hope v. Atkins, 1 Price, 143. Snaith, 1 Taunt. 347. acknowledging the receipt thereof, Mr. Justice Cowen, after having examined and discussed many of the leading- authorities in England and in the United States, in the case of M'Crea v. Pm-mort, 16 AVendell, 460, 475, says in conclu- sion : " Looking at the strong and ovcrwhelrEing balance of authority, as collect- ed from the decisions of the American Courts, the clause in question, even as be- tween the immediate parties, comes dowK to the rank of j^rima facie evidence, except for the purpose of giving effect to the operative words of the conveyance. To that end and that alone is it conclusive. Such effect I have no doubt has long been ascribed to it by conveyancers and dealers in real estate. It is a construc- tion, which violates no rule of law, but harmonizes with well settled principles, and should be steadily maintained and applied whenever the ends of substantial justice may require it." See Shepherd v. Little, 14 John. 210 ; Bowen v. Bell, 20 John. 3'38 ; Wilkinson v. Scott, 17 Mass. 249 ; Goodwin ®. Gilbert, 9 Mass. 510, 514 ; BuUard v. Briggs, 7 Pick- 533; Griswold v. Messenger, 6 Pick. 517 ; Whitbeck v. Whitbeck, 9 Cowen, 266 ; Sinclair v. Jackson, 8 Cowen, 543 ; Wat- son V. Blaine, 12 Serg. & liawle 131 ; Belden v. Seymour, 8 Conn. 304 ; Morse v, Shattuck, 4 N. Hamp. 229 ; Schillinger v. M'Cann, 6 Greenl. 364 ; 0'Ne;xl v. Lodge, 3 Harr. & M'Hen. 433 ; Cummings v, Dennett, 26 Maine, 397 ; Linscott V. Mclntke, 15 Maine, 201. In Belden v. Sejonour, 8 Conn. 304, Daggett J. held that the only operation of the clause in a deed regarding the consideration, is, to prevent a resulting trust in the grantor, and to estop him forever to deny the deed for the uses therein mentioned. See Higdon v. Thomas, 1 Harr. & Gill, 139, 145 ; Lingan v. Henderson, 1 Bland Ch. 249 ; Hutcliinson v. Sinclair, 7 Monroe, 291, 293 ; Curry v. Syles, 2 Hill Ch. 404 ; Steele v. Worthington, 2 Ham. 182, 186. 187 ; Swisher v. Swisher, Wright. 755, 756 ; Harvey v. iUexandcr, 1 Kand. 219 ; Brown v. Maltbie, 4 Stew. & Porter, 96 ; Byers o. MuUen, 9 Watts, 266 ; Lazell c. Lazell, 12 Vermont, 443 ; 2 Cruise Dig. by Mr. Greenleaf, Tit. 32, Ch. 2, ^^38, note, Ch. 20, §52 note, 4 vol. pp. 23, 24, 253. In reference to the admissibility of parol testimony respecting the consideration of an agreement or deed, much must depend on the jiurpose for which, and the parties between whom, the testimony is offered. Morse v. Shattvick, 4 N. Ilamp. 229, 231, 232 ; Part 1 Cowen & HlLI's Notes to Phil. Ev. p. 215, in note 194 ; Part 2 ib. p. 1441, in note 964, p. 1448, in note 969 ; Henderson v. Dodd, 1 BaUcy Eq. 138; Kinzie v. PenrosCj 2 Scammon, 516 ; Nixon v. Hamilton, 2 Dru. & W. 364; S. C. 1 Irish Eq, 55. (1) See 1 Greenl. Ev. ^^285 ; Clifford v. Turrill, 9 Jurist, 633 ; Lobb v. Stanley, 5 Adol. & EU. N. S. 574 ; 1 Phil. Ev. (4th Am. ed.) 549 to 551. (2) 1 Greenl. Ev. §275 ; Stackpole v. Arnold, 11 Mass. 30, 31, Per Parker J. ; McLellan v. Cumberland Bank, 24 Maine, 566 ; Irnham v. Child, 1 Bro^\'n C. C. <'Perkins's ed.) 92 to 95 in notes ; llich v. Jackson, 4 ib. 514 and notes ; 1 Phil. Ev. (4th Am. ed.) 547, et seq. 559, 561 and notes ; Portmore r. Morris. 2 Brown C. Vol. 1. 2:3 178 OF PAROL EVIDENClf: by an agreement in writing, the grass and vesture of hay from off a close of land, called Boreham Meadow, were to be taken by one j^nsell. The subscribing witness to the agreement proved the written agreement, and he and another person deposed, that it was at the same time (when the written agreement was made) agreed by the parties by parol, that Ansell should not only have the hay from off Boreham Meadow, but also the possession of the soil and produce of that and another close of land. The cause was tried at nisi prius before Lord Mansfield, who admitted the evi- dence, and afterwards reported that he was not dissatisfied with the verdict in consequence of it. But Lord Chief Justice De Grey, and the other Judges of the Court of Common Pleas, held clearly, that the evidence was inadmissible, as it annulled and substan- tially altered and impugned the written agreement. 4. So in Preston v. Merceau (^g^, by an agreement in writing a house was let at 261. a year ; and the landlord attempted to show, by parol evidence, that the tenant had agreed to pay the ground- rent for the house to the original landlord, over and above the 26Z. a year ; but the Court of Common Pleas rejected the evi- dence. 5. In a late case in the King's Bench, the Chief Justice, in delivering the opinion of the Court, observed, that by the general rules of the common law, if there be a contract which has been ^reduced into writing, verbal evidence is not allowed to be given of what passed between the parties either before tlie written instru- ment was made, or during the time that it was in a state of pre- paration, so as to add to or subtract from, or in any manner to vary or qualify the written contract (1). But after the agreement has been reduced into writing, it is competent to the parties, at any time before breach of it, by a new contract not in writing, either altogether to waive, dissolve, or annul the former agreement, or in any manner to add to or subtract from, or vary or qualify the terms of it, and thus to make a new contract, which is to be proved partly by the written agreement, and partly by the subsequent verbal terms engrafted upon what will be thus left of the written (.7) 2 Blaekst. 1249. C. (Perkins's ed.) 218, and notes; WooUam v. Hearn, 7 Vesey Jr. (Sumner's ed.) 211 and notes ; Per Wilde J. in Cummings v. Arnold, 3 Metcalf, 489. (1) 1 Greenl. Ev. §275; Part 2 Cowen & HiU's notes to Phil. Ev. p. 1467 ra note 984, and numerous cases there cited- [*154] TO VARY WRITTEN INSTRUMENTS. 179 agreerfient (h) (1). But this refers only to an agreement at com- mon law (2). 6. And in an earlier case (i), the Lord Chief Baron observed, that the foundation of the rules for rejecting parol evidence is in the genei-al rules of evidence, in which writing stands higher in the scale than parol testimony, and when treaties are reduced into writing, such writing is taken to express the ultimate sense of the parties, and is to speak for itself. Indeed, nothing was so familiar as this idea. At nisi prius, where an agreement is spoken of, the first question always asked is, whether the agreement is in writing ; if so, there is an end of all parol evidence ; for when parties ex- press their meaning with solemnity, that is very proper to be taken as their final sense of the agreement. In the case of a contract respecting land, this general idea receives weight from the circum- stance that you cannot contract at all on that subject but in writ- ing, and that therefore is a further reason for rejecting the parol evidence. In this way only is the statute of frauds material, for the foundation and bottom of the objection is in the general rules (A) Goss V. Lord NugoAt, 2 Nev. & the latter part ; see pi. 19, i^ost. Man. 33, 34 ; 5 Bam. & Adol. 65 ; sed qu. (t) Davis t\ Symonds, 1 Cox, 402. (1) Cummings v. Arnold, 3 Metcalf, 489 Per "Wilde J. ; 1 Greenl. Ev. §302, §303 ; Chitty Contr. (8th Am, ed.) 105, 106, and notes ; Brewster v. Country- man, 12 Wendell, 446 ; Dearborn v. Cross, 9 Cowen, 48 ; Richardson v. Cooper, 25 Maine, 450, 452 ; Howard v. Wilmington and Susq. Rail Road, Co. 1 Gill, 311; Richardson v. Hooker, 13 Pick. 446; Monroe r. Perkins, 9 Pick. 298; Rogers v. Atkinson, 1 Kelley, 12 ; Neil v. Cheves, 1 Bailey, 537 ; Franklin v. Long, 7 Gill & John, 407 ; Delacroix v. Bulkey, 13 "Wendell, 71 ; Vicary v. Moore, 2 Watts, 456, 457 ; Watkins v. Hodges, 6 Harr. & John. 28 ; Brock v. Sturdivant, 3 Fairf. 81; Clement v. Diirgin, 5 Greenl. 9; Marshall v. Baker, 19 Maine, 402. The alteration of a sealed contract by parol makes it all parol. Vicary v. Moore, 2 Watts, 421, 456, 457. See MUl Dam Foundry v. Hovey, 21 Pick. 417. In order to render the parol variation available, the action should be grounded on the subsequent agreement, with -"-'hich the specialty is, in such cases, considered as incorporated. Vicary v. Moore, 2 Watts, 451, 456, 457 ; Mead v. Degolyer, 16 WcndelL, 635; Baird v. Blairgrove, 1 Wash. 170; Lang- worthy V. Smith, 2 Wendell, 587 ; Marks v. Robinson, 1 Bailey, 89 ; Cox v. Bennett, 1 Greenl. 165 ; Mill Dam Foundry v. Hovey, 21 Pick, 417 ; Monroe v. Perkins, 9 Pick, 298 ; Lattimore v. Harsen, 14 John. 330 ; Dearborn v. Cross, 7 Cowen, 48 ; Fleming r, Gilbert, 3 John. 358 ; LcFevre v. LeFevre, 4 Serg. & R. 24l. (2) The terms of a written contract for the sale of goods within the statute of frauds may be varied by a subsequent parol contract, which is not Avithin the statute of frauds. Cummings v. Arnold, 3 Metcalf, 486. See 1 Greenl. Ev. §302. But sec Blood v. Goodrich, 9 Wendell, 68 ; Chitty Contr. (8th Am. ed.) 106. The case of Cummings v. Arnold, was a suit for breach of a written agreement to manufacture, and deliver weekly to the plaintiif, a certain (quantity of cloth, at a certain price per yard, on eight months' credit, and it was held that the defendant might give in evidence, as a good defence, a subsequent parol agreement between him and the plaintiif, made on a legal consideration, by which the terms of pay- ment were varied, and that the plaintifl' had refused to perform the parol agree- ment. See Harvey v. Grabham, 5 AdoL & Ell. 61, 74 ; Marshall v. Lymi, 6 Mees. & Welsh. 109. 180 CFF PAROIi EVIITETVCE: of evidence. He took the rule to apply in every case where the question is, what is the agreement ? 7. And upon the general rule of law, independently of the statute of frauds, it has been determiiaed that verbal declarations by an auctioneer in the auction-room, contrary to the printed con- ditions of sale, are inadmissible a& evidence, unless perhaps the purchaser has particular personal i»formation given him of the mistake in the particulars (A:) (1). *8. In a late case (J), upon the sale of timber by a written parti- cular, which was silent as to the quantity, it was attempted to show that the auctioneer verbally warranted the quantity to be eighty tons, and it was insisted that this evidence was admissible, because it did not contradict the particular, but merely supplied its defect in not stating the quantity. But it was held that the evidence wa» f. not admissible(2). Lord Ellenborough said, that the purchaser ought to have had it reduced into writing at the time, if the representa- tion then made as to the quantity swayed him to bid for the lot. If the parol evidence were admissible in this case, he knew of no instance where a party might not, by parol testimony, superadd any term to a v/ritten agreement, which would be setting aside all written contracts, and rendering them of no effect. There was no doubt, he added, that the warranty as to the quantity of timber would not vary the agreement contained in the written conditions of sale. 9. So, since the Act of Parliament for altering the style, a demise from Michaelmaa must be taken to be from new Michael- mas, and parol evidence cannot be admitted to show that the parties intended it to commence at old Michaelmas {m), unless the demise is by parol (n) (3). 10. The rules of evidence are universally the same in courts of law and equity. Therefore parol evidence, which goes to substan- (/>;) Gunnis v. Erhart^ 1 H. Blackst. (/) Powell v. Edmunds, 12 East, 6 ; 289. See 13 Ves. jun, 471, and infra ; Jones v. Edney, 3 Camp. Ca. 285. and Fife f. Cla^-ton, 13- Ves. jun. 546 ; (m) Doe v. Lea, 11 East, 312; see Higginson v. Clowes, 15 Ves. jun. 516 ; Ford v. Yates, 2 Mann. & Grang. 549. supra, p. 22. (?i) Doe «?. Benson, 4 Bam. & Aid. 588, (1) Ante, 22 ; "Wright v. Deklyne, Peters C. C. 199 ; Morton v. WaldrvTi. Free. Dec. 137 ; 1 Phil. Ev. (4th Am. ed.) 560; Wainwright v. Read, 1 Desaus. Eq. 573 ; Pew v. Lividais, 3 Miller (Louis.) 459 ; Livingston v. Byrne, 11 John, 555 ; Carmon v. Mitchell, 2 Desaus. 320. (2) See Wright v. Deklyne, 1 Petei-s C. C. 199, 204 ; Wainwright v. Eead, 1 Desaus. 573. (3) See Wilcox v. Wood, 9 Wendell, 346, [*155] TO VARY WRITTEN INSTRUMENTS. 181 tially alter a written agreement, cannot be received in a court of equity any more than in a court of law (o) (1). 11. Thus in a case of Lawson v. Laude (p), a bill was brought to carry into execution an agreement between the plaintiff and defendant, for granting to the defendant a lease of a farm. The defendant objected to execute the lease, because some land called Oxlane, agreed to be demised, was left out of the lease. The plaintiff offered evidence to prove, that it was left out by the par- ticular and joint direction of the plaintiff and defendant. Sir Thomas Clarke held the evidence to be in direct contradiction to the statute of frauds, and therefore dismissed the bill. 12. So in a case before Lord Bathurst (^q), the bill was filed for an injunction to stay proceedings at law for a breach of covenant, in not assigning all the premises, which the defendant insisted, by *an agreement in writing, and a lease in pursuance of it, were to be assigned. The plaintiff stated by his bill, that though the agree- ment was for all the premises, yet the defendant at the time of the execution of the lease, agreed that three pieces of land should be excepted, and the plaintiff examined several witnesses to prove the fact, which they did ; but the defendant by his answer denied the fact, and insisted upon the extent of the written agreement ; and the parol evidence being objected to at the hearing, it was not permitted to be read. 13. Neither can it be proved by parol evidence that an agree- ment to sell to two jointly, was really a contract with one only, and the other was to have a security for the money he might advance ; for that would contradict the written agreement (rj. 14. And in an important case before Lord Eldon (.s), he refused to execute an agreement with a variation attempted to be intro- (0) See 3 Wils. 276 ; and sec Foot v. {>•) Davis r. Symonds, 1 Cox, 402. Salwaj-, 2 Cha. Ca. 112. TSec Jenkins v. Eldrcdgc, 3 Story C. C. (;;) 1 Dick. 346. 181.] (<7) Fell V. Chamberlain, 2 Dick. 484. (s) Marquis of Townsend v. Stan- I could not meet with the facts in the groom, 6 Yes. jun 328. [Sumner's ed. Registrar's book ; see Reg. Lib. A. 1772, 328 note («)]. See 1 Yes. & Bea. 526, fol! 1. 496. 527 ; 2 Dru. & War. 232. (1) Chitty Contr. (8th Am. ed.) 97 and notes ; 1 Fhil. Ev. (4th Am. ed.) 567, et seq ; 2 Story Eq. Jur. ^^767 et scq. ^U531 ; D\\-ight v. Pomeroy, 17 Mass. 303 ; Bradbury r. White, 4 Greenl. 394 ; Stevens r. Cooper, 1 John. "Ch. 429 ; Movan V. Hays," 1 John. Ch. 339 ; Steere v. Steere, o John. Ch. 1 ; Church v. Church, 4 Ycates, 280 ; Harrison v. Talbot, 2 Dana, 258, 259 ; Timbcrlakc v. Parish, 6 Dana, 350, 351, 352; Brown v. Haven, 3 Fairf. J79 ; Ilohnes r. Simons, 3 Desaus. 149, 152; Dujjrce r. M'Donald, 4 Dcsaus. 209; Tilton r. Tilton, 9 N. Hamp. 392, Per Wilcox J.; Eveleth v. Wilson, 15 Maine, 109; Richardson r. Thompson, 1 Humph. 151 ; Chetwood v. Brittian, 1 Green Ch. 439. [*156] 182 OF PAROL EVIDENCE duced by parol, on the ground of mistake, or at least of surprise, which was denied by tlie answer. So in the late case of WooUam V. Hearn (j), where a specific performance was sought of an agree- ment for a lease, at a less rent than that mentioned in the agree- ment, which variation was introduced by parol, on the ground of fraud and misrepresentation in the landlord ; the evidence was read without prejudice, and the Master of the Rolls thought it made out the j)laintifF's case ; but he held himself bound by the autho- rities, and accordingly rejected the evidence, and dismissed the bill. And this doctrine has been distinctly recognized by Lord Redesdale (u) (1). 15. So verbal declarations, in opposition to printed conditions of sale, are inadmissible as evidence in equity as well as at law (x). (t) 7 Vcs. jun. 211. [Sumner's cd. 330, cited; 15 Ves. jun. 521; 1 Yes. & note (6)]. 15ea. 528 ; see 15 Ves. jun. 171, 546 ; (it) 1 Scho. & Lef. 39. Iligginson v. Clowes, 15 Ves. jun. 516. (x) Jenkinson v. Pcpj'^s, G Ves. jun. (1) See Westbrookv. Harbeson, 2 M'CordCh. 115; Wardf. Ledbettcr, 1 Dev. & Batt. 490 ; Grcsley Eq. Ev. 206, 207. In Gillcsiiic v. Moon, 2 John. Ch. 585, it was held, by Mr. Chancellor Kent, that equity •svill relieve against a mistake, as well as against a fraud, in a deed or contract in writing ; and parol evidence is admissible to prove the mistake, though it is denied in the answer ; and tliis, cither where the plaintiff seeks relief affirmatively, on the ground of the mistake, or where the defendant sets it up as a defence, or to rcbvit an equit}-. The same doctrine was maintained by the same high authority in Keisselbrack v. Livings- ton, 4 John. Ch. 144. The evidence in such case must be clear and strong, so as to establish the mistake to the cntii-e satisfaction of the court. Gillespie r. Moon, 2 John. Ch. 5So ; Tilton v. Tilton, 9 N. Ilamp. 392, 393. Where there was an agreement to execute a lease for lives, " containing the usual clauses, restrictions, and reservations, contained in leases given by the defendant," it being necessary to resort to proof dehors the agreement, to ascertain what were the usual clauses, &c. in such a lease ; it was held to be open to the plaintifi', also to show hy jjurol that it Avas agreed and understood, in the time, that a particular reservation was not to be inserted in the lease, which the defendant was to execute. Keisselbrack V. Livingston, 4 John. Ch. 144. The court said, the statute of frauds had no bear- ing on the case, ib. Mr. Justice Story, in 1 Story Eq. Jur. §1G1, discusses this subject and seems fully to agree with Mr. Chancellor Kent, in the above doctrines. See also in sup- port of the same, Tilton v. Tilton, 9 N. Ilamp. 391 — 393 ; Langdon v. Keith, 9 Ver- mont, 290; Cleaveland r. Burton, 11 Vermont, 138; Hunt v. liousmanier, 8 Wheaton, 211 ; S. C. 1 Teters, 13 ; Wesley v. Thomas, G Ilarr. & John. 24 ; New- som V. Bufferlow, 1 Dev. Eq. 379 ; Gower r. Sterner, 2 Wheaton, 75, 79 ; Abbe V. Goodwin, 7 Conn. 377 ; 1 Phil. Ev. (4th Am. ed.) 570 to 575 ; Inskoe v. I'l-oc- tor, G Monroe, 31G ; Lyman v. United Ins. Co. 2 John. Ch. G30; 1 Arnould Ins. (Perkins's ed.) 51 note ; I'ember c. Mathers, 1 Brown C. C. (Perkins's ed.) 52, 54 and note; Irnham v. Child, ib. 92, 95, and notes; liich v. Jackson, 4 ib. 514 and note; Jordan v. Lawkins, ib. 477, 478, note (a). The i^oAver of a court of ec^uity of gener;d jurisdiction to reform or rectify con- tracts is not within the equity jurisdiction of the Supreme Court of Massachu- setts. Leach v. Leach, 18 Pick. G8 ; Dwight v. Pomerov, 17 Mass. 303 ; Babcock V. Smith, 22 Pick. Gl, 70. But the correction of a mistake in a deed is within the equity powers of the Court in Maine, Peterson v. Grover, 20 Maine, 3G3. So in New Hampshire, Til- ton V. Tilton, 9 N. Ilamp. 392 ; Vermont, Langdon v. Keith, 9 Vermont, 299. See Elder t'. Elder, 1 Fairf. SO. i TO VARY WRITTEN INSTRUMENTS. 183 16. And if a material term be added by one party to a written agreement after its execution, he destroys his own rights under the instrument. But although this doctrine has been referred to the statute of frauds, yet it seems rather to depend on the principles of the common law (*/) (1). 17. In the late case of Besant v. Richards (z), where the purchaser was plaintiff, the contract described the property as held by one Watson, and the sale was to be completed at Michaelmas. Watson held an agreement for a lease for ten years, but the seller repre- sented to the purchaser that this agreement was void, and that he *had served Watson with notice to quit at Michaelmas, and that he would give possession at that time. The tenant refused to quit, and the Master of the Rolls held that the purchaser ought not to be bound by the agreement, purchasing as he did on the faith of that representation. He was entitled to be released from the agreement altogether, or if he chose he might perform it and have compensation, and the plaintiff electing to take the agreement with a compensation, a decree was made accordingly ; but it seems difficult to sustain this decision consistently with the authorities, although there might have been sufficient ground to have released the purchaser altogether. 18. But when equity is called upon to exercise its peculiar juris- diction, by decreeing a specific performance, the party to be charged is to be let in to show, that, under the circumstances, the plaintiff is not entitled to have the agreement specifically performed (a) (2). (y) Powell V. Divett, 15 East, 20. («) See 7. Yes. jun. 219. \z) Tamlyn, 509. (1) See this subject fully considered in Chitty Contr. (8th Am. ed.) 677 to 680 and in notes. (2) See the cases cited in note to ante p. 156 ; Ellis v. Burden, 1 Alabama (N. S.) 458 ; Miller v. Chetwood, 1 Green Ch. 199. In 1 Phil.Ev. (-Ith Am. ed.1 568, it is said that " the statute of frauds has not altered the situation of a defendant, against -whom a specilic performance is prayed ; and he may give the same evi- dence now, which he might have given before." Chu'k v. Grant, 14 Yesey (Sum- ner's ed.) 519, 524 ; Per Sir ^Ym. Grant, blaster of the Rolls. See the sugges- tions upon this point bv Mr. Justice Wilde, in Cummings v. Arnold, 3 Metcalf, 490, 491 ; 2 Story Eq. Jur. ^^770. It is further said in I Phil. Ev. 509, that " the general principle, to be deduced from the various authorities on this subject, ap- pears to be, that a defendant, in answer to a bill for a specific performance, may suggest, and prove by parol evidence, that, by reason of fraud, surprise, or mis- take, the written instrument docs not correctly and truly express the agreement, but that there is an omission or insertion of a term, or some material variation, contrary to the intention and understanding of the parties." Sec "NVoollam v. Hearn, 7 Yesey (Sumner's ed.) 211 note (a) and cases cited; Irnham v. Child, 1 Brown C. C. (Perkins's ed.) 92, 93 note and cases cited: 2 Story Eq. Jur. 6769, §770 ; Kendall r. Almv, 2 Sumner, C. C. 278 ; King v. Hamilton, 4 Peters S. C. 311 ; Cathcart v. Robinson, 5 ib. 264; 2 Pt. Phil. Ev. (Cowen & Hills' notes) f*1571 184 OF PAROL EVIDENCE 19. For the rule applies no furtlun- than this precise question. What is the agreement ? Where the question is, what were the collateral circumstances attending the agreement ? they may be proved by parol evidence. If any of these collateral circumstances are reduced into writing, the same rule applies to them as to the original agreement ; but if not, both at law and in equity such collateral circumstances may be proved by parol ; for example, duress at law, fraud and circumvention in equity. When it is said that parol evidence shall not affect written instruments, the vice ol the argument turns upon the use of the word " affect ;" for if it means to vary it, it is true, and if it is to be carried beyond that meaning it is not true ; there is nothing so clear as the jurisdiction of the court to affect a written instrument by parol testimony : the courts of law do it every day, and in truth set them aside ; courts of equity do it on other grounds, and take a larger field (6). 20. Therefore a defendant resisting a specific performance of an agreement, may prove by parol evidence, that by fraud the written agreement does not contain the real terms (c)(1). Such evidence was admitted by Lord Hardwicke in Joynes v. Statham (d) ; and in the case of Woollam v. Hearn (e), before cited, the Master of the Rolls said, that if it had been a bill brought by the defendant for a specific preformance, he should have been bound by the decisions to admit the parol evidence, and to refuse a specific preformance. *2I. So Lord Hardwicke admitted, that an omission by mistake or surprise, would let in the evidence as well as fraud ; and Lord Eldon actually admitted parol evidence of surprise, as a defence to a bill seeking a performance in specie; but he said, that those producing evidence of mistake or surprise, in opposition to a specific performance, undertake a case of great difficulty (/). In a later case, the Master of the Rolls admitted parol evidence on behalf of a defendant, to show a parol promise at the time of signing the agreement to vary the terms of it, and upon the evidence he dis- (6) Per Ld. C. Baron, Davis v. Sy- (d) 3 Atk. 388. monds, 1 Cox, 40o, -lO?- (e) 7 Ves. jun. 211. [Sumner's ed. (c) See the cases cited infra, as to dis- note («)]. charging or varying a -written agreement (/) Marquis of Townshcnd r. Stan- by parol ; and see Walker r. Walker, 2 groom, G Ves. jun. 328. [See Sumner's Atk. 98 ; and see 6 Ves. jun. 334, n. ed. notes]. 1184, note, 996 and cases cited ; Ward v. Ledbetter, 1 Dev. & Bat. Eq. 496 ; West- brook V. Harbeson, 2 MCord Ch. 1 lo ; Wood v. Lee, 5 Monroe, 57. (1) Best V. Stow, 2 Sandt'ord, 298, .300; Dwight r. Pomcrov, 17 Mass. 303, 328 ; Brooks v. Wheelock, Jl Pick. 439, 440. [*158] TO VARY WRITTEN INSTRUMENTS. 185 missed the bih for a specific performance of the written agree- ment (§■). 22. So where by the mistake of the solicitor the agreement only required the purchaser to bear the expense of the conveyance, whereas the real agreement was, that he should also bear the expense of malan- out the title, the Master of the Rolls admitted parol evidence of the real agreement and of the mistake (1) ; and upon the strength of it, he gave the plaintiff, the purchaser, his option to have his bill, which was for a specific performance according to the terms of the written agreement, dismissed, or to have the agreement performed in the waj. contended for by the seller (K). 23. But in a case before Sir W. Grant, where an estate was sold in lots, and at the end of some of the lots only it was stated that the timber was to be taken at a valuation, but there was a general condition that the timber should be paid for ; the seller's bill for a specific performance, requiring the purchaser of several lots to pay for all the timber, was dismissed, and parol evidence of the de- claration of the auctioneer that the timber on all the lots was to be paid for, was of course rejected. But the Master of the Rolls (y) Clarke V. Grant, 14 Yes. jun. 510 . & Beatty, 9 ; Lord William Gordon v. [Sumner's ed. notes] and see 15 Ves. juu. Marquis of Hertford, 2 Madd. 106 ; Gar- 523. - rard v. Girling, 1 "WUs. Ch. Gas. 460 ; (A) Ramsbottom v. Gosden, 1 Ves. & 2 Swanst. 244. Beam. 165. See Flood v. Finlay, 2 Ball (1) See Gower v. Sterner, 2 "NVhart. 75 ; Gillespie v. Moon, 2 John. Ch. 585 ; Christ V. Diffenbach, 1 Serg. & 11. 464 ; Miller v. Henderson, 10 Serg. & R. 292 ; Stevens v. Cooper, 1 John. Ch. 429 ; Lemater v. Buckhart, 2 Bibb, 28 ; Wesley V. Thomas, 6 Harr. & John. 24 ; Jones v. Sluby, 5 Harr. & John. 372. Parol evidence has been held admissible to show, that a deed absolute upon its face was really intended as a mortgage, or that the defeasance has been destroyed by fraud or mistake. Marks v. Tell, 1 John. Ch. 594 ; Strong v. Stewart, 4 John. Ch. 167 ; James v. Johnson, 6 John. Ch. 417 ; Clark v. Heiuy, 2 CoAven, 324 ; Whittick v. Kane, 1 Paige, 206 ; Washburn v. Merrdl, 1 Day,' 1 39 ; Murphy v. Tripp, I Monroe, 73; 2 Story Eq. Jur. §768, §1018; Irnham" r. Cliild, 1 Brown C. C. (Perkins's ed.) 93, in note to this point; Reading v. Weston, 8 Conn. 117, 120 — 122; Van Buren v. Olmstead, 5 Paige, 9 ; Stewart v. Hutchins, 13 Wendell, 485 ; May r. Eastm, 2 Porter, 414; Green r. Bomicll, 1 Green Ch. 264; Blan- chard v. Keaton, 4 Bibb, 451 ; Todd v. Rivers, 1 Desaus. 155 ; Ross v. NowcU, 1 Wash. 14 ; King r. Newman, 2 Munf. 40 ; 1 Cruise Dig. bv Mr. Greenlcaf, Tit. 15, Ch. 1, §20, in note ; Fonbl. Eq. Bk. 1, Ch. 3, §11, p. 200'in note. Where a deed is absolute in its terms, but the grantor claims it to be in truth only a mortgage, the burthen of jiroof is on him, to shoAv the real intent of the parties, and that the jirescnt form of the transaction arose from ignorance, acci- dent, mistake, fraud, or undue advantage taken of his situation. McDonald r. Mclicod, I Iredell Eq. 221 ; Lewis v. Owen, ib. 291. But in Massachusetts, Maine, and New Hampsliire, parol evidence seems to be regarded as inadmissible to vary the terms of an absolute deed so as to make of it a mortgage. See Flint r. Sheldon, 13 Mass. 443; Bodwell r. Webster, 13 Pick. 411, 413 ; Erskinc v. Townsend, 2 Mass. 493 ; Wliitaker v. Sumner, 20 Pick. 404 ; Hale V. Jewell, 7 Grcenl. 435 ; French v. Sturdivant, 8 Grcenl. 250, 251 ; Lund V. Lund, 1 N. Hamp. 39. Vol. I. 24 186 or PAROL EVIDENCE said he desired not to be understood as delivering any opinion whether, supposing these plaintiffs had been defendants, the evi- dence would or would not be admissible, but his opinion was, that clearly upon the part of a plaintiff seeking performance, it could not be received (i). The purchaser then filed a bill against the seller for a specific performance, according to his construction that he was to pay for the timber on the lots only to which a stipulation to that effect was added. The seller, as defendant, offered parol evidence of the declaration by the auctioneer. The Vice-Chancellor, *Sir T. Plumer, agreed that fraud would let in the evidence as a defence. He added, that upon clear evidence of mistake or sur- prise, that the parties did not understand each other, it is introduced, not to explain or alter the agreement, but, consistently with its terms, to show circumstances of mistake or surprise, making a specific performance, as in the case of fraud, unjust, and there- fore not conformable to the principles upon which a court of equity exercises this jurisdiction. There was, however, considerable difficulty in the application of evidence under this head, calling for great caution, particularly upon sales by auction, lest under this idea of introducing evidence of mistake, the rule should be relaxed, by letting it in to explain, alter, contradict, and in effect, get rid of a written agreement. In sales by auction, the real object, he said, of introducing declarations by auctioneers or other persons, is to explain, alter, or contradict the written agreement, in effect to substitute another contract ; and, independent of authority, he should be much disposed to reject such declarations, as open to all the mischief against which the statute was directed, and also violating the rule of law which prevailed previously, whether offered by a plaintiff seeking a performance, or by a defendant to get rid of the contract, a distinction which it was difficult to adopt, where the evidence is introduced to show that the writing purporting to be a contract is not the contract ; that there is no contract between them if that which was proved by parol did not make a part of it. That does not depend upon the principle on which a defendant is permitted to show fraud, mistake, or surprise, collateral to and independent of the written contract, the object in the other case being to get rid of the contract by explaining it away. He did not recollect any instance that evidence offered in that view had been received, but there were cases in which it had been rejected ; and he referred to Jenkinson v. Pepys, without noticing the dis- {i) Higginson v. Clowes, 15 Ves. jun. 616. [*159] OP MISTAKE, ETC. 18T Cmction that there the parol evidence was offered by the plaintiff, and admitted that in Rainsbottom v. Gosden the parol evidence seemed to have had the effect, in some degree, of altering the written contract ; but if the evidence there offered could fairly be brought under the head of mistake, that did not infringe upon the principle that parol evidence of fraud, mistake, or surprise, might be received as a defense. But no authority having decided that 'evidence could be received, except upon one of those grounds, and the declarations in this case being offered where the parties had contracted in writing upon a subject distinctly adverted to in their written contract, which made a provision for it (whether explicit and satisfactory was not material), the evidence of these declarations, he said, must be rejected, because there was no fraud, mistake, or ■^surprise, and the evidence was offered to contradict, explain, or vary the written contract (k). 24. This judgment does not seem to be warranted by the prin- ciples of the Court. It is manifest that the learned judge was disposed to overrule the settled distinction. It is not necessary, in order to render the evidence admissible, that its object should be to show fraud, mistake, or surprise, collateral to or independent of the written contract, although that usually is its tendency ; but the evidence is admissible where, by way of defense, the object is to get rid of the contract, by showing that it is not the contract really entered into by the parties, although where, even as a de- fense, the evidence is used to show that the terms of the contract are not the real ones, the evidence, when admitted, must be very powerful to induce the Court to believe that the terms expressed are not the real ones. In Ramsbottom «. Gosden, as the contract was silent as to the expense of making out the title, that of course would have fallen on the vendor ; but that was a mistake, and contrary to the real contract, and parol evidence really to con- tradict the written agreement on this head was admitted as a defense. 25. So where lands, which upon admeasurement did not con- tain thirty-six acres, were described in a particular to contain forty-one acres by estimation, were the same more or less, and the purchaser, in answer to a bill for a specific performance, set up parol declarations of the auctioneer that he sold it for Ibrty-one acres, and if it was less, an abatemeat should be made, the Master {k) Clowes V. Higgiuson, 1 Yes. & Bca. 2 My. & Kee. 20 1. •524 ; see and consider Croome i". Lediard, J [*160] 188 OF PAROL EVIDENCE OF MISTAKE, ETC. of the Rolls, Sir W. Grant, admitted the evidence and dismissed the bill, because, after such a declaration made by the auctioneer, it was fraudulent and unfair in the seller to insist upon the exe- cution of the contract, not giving the defendant the benefit of that declaration (/). And yet the subject was distinctly adverted to in the written contract, and indeed the provision was free from ambi- guity, and the parol evidence contradicted it ; whereas, in Clowes V. Higginson, there was an ambiguity — two statements, which might be considered at variance with each other — which the parol evidence would have explained. The evidence, it is submitted, in the latter case, was admissible in equity as a defense, simply on the ground that the plaintiff, who ought to come into equity with clean hands, sought to commit a fraud in evading to pay for the timber, although the auctioneer declared that it was to be paid for. *26. Yet in a later case (m), where there was a contract by each of two persons to buy an estate of each other, both estates to be valued by the same person, and both purchases to be completed on the same day ; the case was a peculiar one, but it was decided that the contracts were distinct, although contained in the same paper, and notwithstanding the difference between having to pay for one estate with the price of another, and having to retain your own estate and yet to pay for another ; and it was held by the Master of the Rolls, Sir John Leach, that no evidence aliunde could be received to give a construction to the agreement contrary to the plain import of those expressions, and he therefore rejected evidence tendered by the defendant to show that the real intention was to exchange the estates ; and Lord Brougham, upon appeal, without hearing the respondent's counsel, afHrmed the decree. Parol evidence of matter collateral to the a). This was an imperative rule, previously to the statute of frauds. That Act provides that no action shall be brought upon any agreement made upon any contract or sale of lands, or any interest in or concerning the same, unless the agreement is in writ- ing and signed by the party to be charged. A parol waiver, like a written agreement not under seal, is a simple contract ; and a parol waiver not being a contract for sale, may be said not to fall within the provision of the statute. But Lord Hardwicke ob- served, that an agreement to waive a purchase contract is as much an agreement concerning lands as the original contract (c). The statute excludes parol agreements as to lands, and makes written agreements 'prima facie valid. No action is to be brought upon 'any agreement made upon any contract or sale of lands, &;c., unless in writing. Now a waiver is an agreement made upon a contract or sale of lands, viz., an agreement to relinquish the benefit of such an agreement ; and although the statute only prohibits the bringing any action unless the agreement is in writing, yet that may well be construed to prevent the setting up a parol agreement as a defense to an action upon a valid written agreement. The agree- ment *must be in writing, or no action can be mantained upon it. Does not this, by a necessary implication, exclude a parol agree- ment which is to waive a written one ? Is not the like mischief to be guarded against in each case (1) ? {b) Countess of Rutland's case, .3 Co. 23i. 25 b; Blemerhiasset V. Pierson, 3 Lev. (cj 2 Eq. Ca. Abr. '6o. of Lattimore v. Harsen, there should have been not only an avowed refusal to per- form, but a subsequent executed substituted agreement ; and so, also, as to the case of Dearborn v. Cross." " It will be seen, then, that there has been no inno- vation upon established principles, and that the law remains as it has always ex- isted, thai a sealed executor ij contract cannot be released or rescinded hi/ a imrol executory contract ; but that, after breach of a sealed contract, a right of action may be waived or released by a new parol contract in relation to the same subject matter, or by any valid parol executed contract." Sec Suydam v. Jones, 10 "Wendell, 180, 18-1 ; Barnard r. Darling, 11 ib. 27, 30. Mr. Greenleaf says, "K the agreement be by deed, it cannot, in general, be dissolved by any executory agreement of an in- ferior nature ; but any obligation by -\rating not under seal may bo totally dis- solved, before breach, by an oral agreement. And there seems little room to doubt, that this rule Avill apply even to those cases where a writing is by the statute of frauds made necessarv to the validitv of the agreement." 1 Grcenl. Ev. ^^302. (1) See Swan r. Di-ury, 22 Pick. -ISo. See the statement of the rule by Mr. Greenleaf in the last preceding note ; 1 Pliil. Ev. (4th Am. ed.) 568 ; Cummings V. Arnold, 3 Metcalf, 486 ; Bullard v. AValkcr, 3 John. Cas. GO ; :Marshall v. Ba- ker, 19 Maine, 402; Chitty Contr. (8th Am. ed.) 107. Vol. I. 26 , [=*I72] ^iiOii OF A f'AKOL W Alt Eft 2. In a case of wliich tliere is a short note in Vernon (d), the? precise point occurred, and the Lord Keeper held, that the agree- ment might be discharged by parol, and therefore dismissed the bill, which was brought to have the agreement executed in specie, 3. Then came the case of Backhouse and Crossby, before Lord Hardwicke (e), where, to a bill filed by a purchaser for a specific performance, the vendor insisted the contract had been discharged by parol, and the case of Gorman v. Salisbury was cited by his counsel as an authority in his favor. The Lord Chancellor, under the circumstances, decreed for the plaintiff, with costs ; and de- clared, that though he would not say that a contract in writing would not be waived by ])arol, yet he should expect, in such a case, very clear proof; and the proof, in the present case, he thought very insufficient to discharge a contract in writing; and observed, that the statute of frauds and perjuries requires that " all con- tracts and agreements concerning land should be in writing." Now, an agreement to waive a purchase contract is as much an agreement concerning lands as the original contract. However, he said, there was no occasion then to determine this point. Lord Hardwicke's observation, that the statute requires all contracts to be in writing, is correct ; for, if they are not, they cannot be enforced ; but the clause is, as we have seen, merely negative- that no agreement concerning land shall be enforced unless it is in writing. 4. In another case. Lord Hardwicke is reported to have saidy that it was certain that an interest in land could not be parted with, or waived by naked parol, without writing ; yet articles might, by parol, be so far waived, that if the party came into equity for a specific execution, such j)arol waiver would rebut the equity which the party before had, and prevent the Court from executing them specifically (/) (I). (d) Gorman r. Salisbury, 1 Vcrn. 240. Ir. Eq. Hep. 180. I could not discover any trace of this (/) Eell «. Howard, 9 Mod. 302 ; and cause in the llcgistcr's book. see Earl of Anglesea v. Anneslev, 4 Bro. (e) 2 Eq. Ca. Abr. 32, pi. 44 ; 10 Geo. P. C. 421. 2. See Garrett v. Lord Besborough, 2 (1) In Stevens v. Cooper, 1 John. Ch. 429, 430, 3Ir. Chancellor Kent, said; — " There is another rule -which has some connection with this branch of the law of evidence, and which will in certain ca.'^es, and on certain terms, admit an agree- ment in writing, concerning lands, to be (lisdian/ed by parol. But the evidence in such cases is good only as a defense to a bill lor a specific performance, and is totallv inadmissible, at law or cc^uity, as a ground to compel a perfonnance in specie." Botsford v. Burr, 2 John. Ch. 416. I OF A WRITTEN AGREEMENT. 203 5. In Davis v. Symonds (^g), where it was insisted that the agree- ment was waived, and that such waiver might be by parol, the Chief Baron observed, that it certainly might be so ; the waiver *was, in its own nature, subsequent to and necessarily collateral to the agreement, and therefore could never bear any relation to the rule of evidence forbidding parol evidence to alter the agreement. There might, indeed, he added, have been another rule that a written agreement should not be waived by parol, but, in fact, courts of equity did not consider themselves as bound by any such rule ; and it was then clear that a written agreement might be waived so (1). 6. And it has been the prevailing opinion that a written contract may, in equity, be discharged by a parol agreement (A). And in the case of Price iJ. Dyer (i), before referred to, Sir William Grant said, that he inclined to think the effect of a clear abandonment by parol, would be to discharge the written agreement. But in the cases which had occurred, the parol agreement put an end to the transaction, and restored the parties to their original situation (-2). (<7) 1 Cox, 402, 1787. Wooddes, 428 ; s. 4. Rob. stat. of frauds, (A) 1 Yes. jun. 404 ; 4 Bro. C. C. 519 ; 89 ; Inge v. Lippingwell, 2 Dick. 469. 6 Ves. jun. 337, n. ; 9 Yes. jun. 250 ; 3 (t) MS. Rolls ; S. C. 17 Yes. jun. 356. But where an absolute deed of land is given, accompanied by a simultaneous instrument, which is not recorded, operating by way of defeasance, and after- wards the parties, by mutual stipulations, agree that the defeasance shall be sur- rendered and cancelled, with intent to vest the estate unconditionally in the gran- tee, by force of the Hrst deed, by such surrender and cancellation the estate becomes absolute in the mortgagee, provided the transac^tion is conducted ■v\'ith fairness, both as between the parties and as against the creditors of the mortga- gor, and that the rights of third persons had not intervened before the completion of the transfer by the cancellation. Trull i\ Skinner, 17 Pick. 213 ; Harrison v. Phillips Academy, 12 Mass. 456 ; Rice v. Rice, 4 Pick. 349. In the above case of TruU V. Skinner, 17 Pick. 215, Mr. Chief Justice Shaw said ; — " Such cancellation does not operate by way of transfer, nor strictly speaking by way of release working upon the estate, but rather as an estoppel arising from the vohmtary surrender of the legal evidence, by which alone the claim could be supported ; like the can- cellation of an unregistered deed, and a conveyance by the hrst grantor to a third person Avithout notice. The cancellation reconvcys no interest to the grantor, and yet taken together, such cancellation and conveyance to a tliird person make a good title to the latter by operation of law." See also Farrar v. Farrar, 4 X. Hamj). 191 ; Tomson jJ.Ward, 1 X. Ilamp. 9 ; \Yoodbury J. in Chesley v. Frost, 1 X"'. Ilamp. 147 ; BuUen v. Runnels, 2 X. Ilamp. 260 ; Commonwealth r. Dudley, 10 Mass, 408 ; Barrett v. Thorndike, 1 Greenl. 73; Xason v. Grant, 21 Maine, 160 ; Hol- brook v. TirreU, 9 Pick. 105 ; 2 Cruise Dig. by Mr. Greenleaf, vol. 4, Tit. 32, eh. 1, ^15 note. But it is clear from the above cases and others, that the mere cancellation of the deed, by the grantee, without more, does not divest his title or revest it in the grantor." Hatch v. Hatch, 9 Mass. 311 ; Dando v. Tremper, 2 John. 87 ; Lew- is V. Payn, 8 Cowen, 75 ; Botsford v. Morehouse, 4 Conn. 550 ; Gilbert r. Bulk- ley, 5 ib. 262. An agreement to cancel a deed, without an actual cancelling, has no effect as an estoppel, or a re-conveyance. Farrar r. Farrar, 4 X. Ilamp. 191 ; Morse v. Child, 6 X". Ilamp. 521. (1) 2 Story Eq. Jur. §770 ; Wood v. Perry, 1 Barbour, 114. 12) See ante, 172. in note. 204 OF A PAROL WAIVER, KTC. 7. And in a case before Lord Lyndhurst, when Master of the Rolls (k), he observed, that it was said, and authorities were cited to show that parol waiver and abandonment might be set up as a defense to a bill for specific performance. Unquestionably, he added, waiver even by parol would be a sufficient answer to the plaintiff's claim, but the circumstances of waiver and abandonment must amount to a total dissolution of the contract, placing the parties in the same situation in which they stood before the agree- ment was entered into. 8. In a late case at law (I) the Court observed, that the statute does not say in distinct terms that all contracts concerning the sale of lands shall be in writing ; all that it enacts is, that no action shall be brought unless they are in writing, and as there is no clause in the act which requires the dissolution of such contracts to be in writing, it should rather seem that a written contract con- cerning the sale of lands may still be waived and abandoned by a new agreement not in writing, so as to prevent either party from recovering on the contract which was in writing (1). It was not, how- ever, necessary, the Court added, to give an opinion upon that point. 9. The result is, that an abandonment of the whole agreement clearly made out — for the Court will look at the evidence with great jealousy — is a good defense in equity, but that it is doubtful ^whether such a defense is available at law ; perhaps the better opinion is that it is inadmissible at law (2). 10. In considering the point under discussion, the reader will be careful not to confound the foregoing cases with the case of Walker v. Constable (?«). There the original agreement was a parol agreement ; and the question was, whether, being abandoned, parol evidence could he given of it. Lord C. J. Eyre held, that the existence and the terms of the agreement must be proved before it could be proved to be abandoned, and upon that it was sufficient to say, that being in writing (I) the instrument itself must be pro- duced, and parol evidence of it was inadmissible. {k) Robinson r. Page, 3 Russ. 119. upon the 17th section. {l) Goss r. Lord Nugent, b Barn. & {;m) 2 Esp. Go9 ; 1 Bos. & Pull. 30f>. Adol. 58 ; 2 Nov. & Mann. 34 ; see Stead See Adams r. Fairbain, 2 Stark. 277. V. Dawber, 10 Adol. & Ell. 57, a case • (I) That is, in contemplation of law, for it is not deemed an agreement unless reduced into ■writing. (1) Ante, 157, 163, and notes. (2) See ante. l7l. in note. 1*174] OF PAROL EVIDENCE TO EXPLAIN AMBIGUITIES. '205 ^SECTION X. OF PAROL EVIDENCE TO EXPLAIN AMBIGUITIES. Siorts of ambiguities. Latent ambiguity cleared vp hg parol evidence. Patent ambiguity not. Explanation of words of trade in Act of Parliament. General words not restrained by parol. 12. Contra in equity upon mistalcc. 13. Situation of parties, «e. looked at where there is ambiguity. Ancient statute : contemporaneous usage. Whether price can be looked at vhere there is an ambiguity. lo 1(5 1. This branch of our subject, although the most trite, is not perhaps, therefore, less difficult. Bacon says («), there are two sorts of ambiguities of words, the one is ambiguitas patens, and the other latens. , Patens, he adds, is that which appears to -be ambi- guous upon the deed or instrument ; latens is that which seems certain, and without ambiguity, for anything that appears upon the instrument, but there is some collateral matter out of the deed that breeds the ambiguity (1). *2. A latent ambiguity may be assisted by parol evidence, be- cause the ambiguity being raised by parol, may fairly be dissolved (a) Max. p. 82 ; Ilcg. 23. (1) Sec Pcisch v. Dickson, 1 Mason C. C. 9. In this case Mr. Justice Story <;aid ; — " There seems indeed to be an intermediate class of cases, partaking of the nature both of patent and latent ambiguities ; and that is, where the words arc aU sensible, and have a settled meaning, but at the same time consistently admit of two interpretations, according to the subject matter in the contemplation of the parties. In such a case I should think parol evidence might be admitted, to show the circvimstanccs, under which the contract was made, and the subject matter tw which the parties referred. l''or instance, the word "freight" has several mean- ings in common parlance ; and if, by a written contract, a party were to assign his freight in a particular ship, it seems to me, that parol evidence might be ad- mitted of the circumstances, under which the contract was made, to ii.scertain, whether it referred to goods on board of the sliip, or an interest in the earnings of the sliip ; or, in other words, to show in which sense the parties mtendcd to use the term." 1 Mason, 11, 12. Sec alsoDupree v. McDonald, -t Dcsaus. Eq. 211 ; I'cr Bayley J. in Smith v. Jersey, 2 Brod. & Bingh. ol9, 5-53 ; Master of the liolls, in Colpoys r. (Jolpoys, Jacob, 4ol ; Spencer Ch. J. in Ely r. Adams, 19 (ohn. 317 ; 2 Part Cowen i-v:" Hill's notes to riiil. Ev. note 938, pp. 13.JS etseci. ; 1 (jrecnl. Ev. ^288, ^V297 et set}.; Gresley Eq. Ev. 278 ct scq. : l^ail Uoad Co. r. Ormsbv, 7 Dana, 277. (*1751 ;206 OF PAROL EVIDENCE by the same means, according to the general rule of law (1). There- fore, if, previously to the statute, a man having two manors, both called Dale, had conyeyed the manor of Dale to another, evidence might have been given to prove which manor was intended to pass (b), and such evidence is still admissible ; this has been re- peatedly decided (c). So, on the same principle,, parol evidence is always received to show what is parcel or not of the thing con- veyed (d). And if an agreement refer to a plan as an existing document upon which the contract is founded, parol evidence is admissible for the purpose of identifying the plan (e). 3. In some cases a latent ambiguity may be fatal. Parol evi- dence may be adduced to prove the ambiguity, where none suffi- ciently satisfactory can be offered to explain it (/). And to render parol evidence admissible in these cases, a clear latent ambiguity must be first shown (2). Evidence which merely raises a conjecture is insufficient (^g). 4. But although a latent ambiguity may be aided by parol evidence, yet a patent ambiguity cannot be aided by extrinsic evidence, because that would in effect be to pass without deed, what by the law can be passed by deed only. Of this. Bacon observes, infinite cases might be put ; for it holdelh generally, that all ambiguity of words by the matter within the deed, and not out of the deed, shall be helped by construction, or in some (h) 2 Ro. Abr. 676, pi. 11 ; and see there is property to satisfy the words of liOrdChcney'scase, ollep. 68 ; Altham's the -will, it cannot be shown by parol case, 8 Kep. loo a; and Harding r. Snt- evidence that the testator meant to pass folk, 1 Cha. Hep. 74. some not within the description. See (c) Jones I'. Newman, 1 Blackst. 63 ; Doe v. Oxcndon, 3 Taunt. 147 ; and see 3 WiJs. 276 ; 2 Atk. 239, 240, 373 ; 1 and consider IJovs v. Williams, 2 Russ. liro. C. C. 341 ; [Pritchard v. Hicks, 1 & Myl. 689. Paige, 270.] (e) Ilodges r. HorsfaU, 1 Russ. & Mvl. {(I) Quaintrell v. Wright, Bunb. 274 ; 116. Longchamps r. Fawcett, Peake's Ca. 71 ; (/) Thomas v. Thomas, 6 Term Rep. Doe V. Burt, 1 Term Rep. 701 ; Anon. 1 671 ; see Bradshaw r. Bradshaw, 2 You. Str. 9o. [See Hatch v. Hatch, 2 Havw. & Coll. 72 ; Alexander v. Crosbie, Rep. t. 32 ; Wlrite c. Egan, 1 Bay. 247 ; Mid- Sugd. 145. dlctou r. Perry, 2 Bay. ;539 ; Lofter i-. (//) See Lord Walpole r. Earl of Choi- Heath, 2 Ilayw. 347 ; Baker v. Beck- moiideley, 7 Term Rep. 138. right, 1 Hen. & Mumf. 177]. But where (1) See Wooster v. Butler, 13, Conn. 309 ; Storer v. Freeman, 6 Mass. 440, 441 ; Webster V. Atkinson, 4 N. Hamp. 23; Mann v. Mann, 1 John. Ch. 231, 234; Vernon c. Henry, 3 Watts, 38,5 ; 1 Phil. Ev. (4th Am. ed.) o31 ; Gresley Eq. Ev. 284 et seq; Picsch v. Dickson, 1 ^Mason, 11 ; Patrick v. Grant, 14 Maine, 233; Doe V. Jackson, 1 Smedcs & Marsh, 494 ; Paysant v. Ware, 1 Alabama, 160 ; Brainerd c. Cowdrv, 16 Conn. 1 ; ^lead v. Steger, 5 Porter, 498 ; Cole v. Wendell, 8 John. 92; Stone r.' Clark, 1 Metcalf, 381, 382, Per Wilde J. ; Brown v. Haven, 3 Fairf. 164 ; Evelcth v. Wilson, 1.5 IMaine, 109. (2) Paysant r. Ware, 1 Alabama. 160. TO EXPLAIN AMBIGUITIES. 207 cases by election, but never by averment, but rather shall make the deed void for uncertainty (1). 5. In Mansell v. Price, personal estate was settled in trust for Price the defendant, and Catherine his wife, for their lives, and the life of the survivor of them, and then for their issue, with a power to the wife to dispose of 1,500/., part of the moneys, to any persons she pleased. She exercised this power, by giving the money to Sir Edward Mansell, in trust to pay 1,000/. to A, when *she should attain twenty-one, or marry ; but if she died before twenty-one, or marriage, then it should be to such uses as B should appoint. And the other 500/. she directed to be paid to C, in exactly the same terms as before. The bill was filed by the guardian of A and C, infants, to have the money paid, and to be put out for them to have the interest thereof immediately. For the defendant Price, it was insisted that he was entitled to the interest of 1,500/., until it should become payable. The first question was, whether parol evidence could be admitted to ex- plain the intention of Catherine Price what should become of the interest till the times of payment ; for if that could be admitted, there was sufficient to prove the husband should not have it. And the Master of the Rolls was of opinion that such evidence could not be read (h). 6. So in Kelly v. Powlett (i), the question was, whether plate passed under a bequest of household furniture. The drawer of the (A) M.S. T. Term, 8 & 9 Geo. 2 ; and reported, -which I conceive has overruled see Hart r. Durand,:i Anstr. 684 ; Cham- Pendleton c. Grant, 1 Eq. Ca. Abr. 2:iO, berlaijie v. Chamberlaine, 2 Freem. .32 ; pi. 2; 2 Yern. oil ; and see 1 Bro. C ('. XJlrich 1-. Ditchheld, MS. 2 Atk. 372, ;^.70, 3.51 ; Seymour r. Kapier, Bunb. 28'; where the evidence was not received. Doe r. Bland, 11 East, iil. (t) 1 Bro. C. C. 476, cited ; Ambl. G05, (I) Stackpolc V. Arnold, 11 Mass. 29, 30, Ter Parker J. ; Webster f. Atkinson, 4 N. Ilamp. 22, 23 ; Peisch r. Dickson, 1 Mason, 11 ; Fish?-. Hubbard, 21 Wendell, G.51 ; Lett c. Ilomcr, ■'> Blaclcf. 296. " The patent ambiguity," says Mr. Greenlcai", " of wliich Lord Bacon s]ieaks, must be understood to be that -which remains iincer- tain to the court, after all the evidence of surrovmding circumstances and colla- teral facts, which is admissible under the rules already stated, is exhausted. His illustrations of this part of the rule are not cases of misdescription, either of the person or of the thing to which the instrument i-elates ; but arc cases, in which the persons or things being sufficiently described, the intention of the jiarty in relation to them is ambiguously expressed. Where this is the case, no parol evidence of expressed intention can be admitted." 1 Grecnl. Ev. ^^300. For a citation of cases, which seem to have been regarded as. falling within Lord Bacon's detinition of a patent ambiguity, sec, 2 Part Cowen & Hill's Notes to Phil. Ev. note, 938 pp. 1360, 1361; Storer r. Freeman, 6 Mass. 43.); King r. Khig, 7 Mass. 496 ; Mann v. Mann, 1 John. Ch. 231 ; Jackson r. Sill, 11 John. 101 ; llothmaler r. Myers, 4 Desaus. 21.5 ; Duprec i: M'Donald, 4 Desaus. 212 ; Ham- ilton V. Cawood," 2 Harr. & M'llen. 437. [ni6] 208 OF I'AKOL EVIDENCE will said, it was not intended ; but his evidence was refused, and the plate was held to pass (1). 7. Again, in a case in the Exchequer (/v), it appeared that, by an act of Parliament, cast plate-glass was directed to be squared into plates of certain dimensions. The question was, whether cer- tain plates were in the shape directed by the act. The Attorney- general at the trial produced books explaining the process and terms of the art in the manufacture, and the defendants offered evidence to prove the technical meaning in the trade of the word squaring glass ; the evidence was however, refused, and a verdict found against the defendants ; and upon a motion for a new trial, Lord Chief Baron Eyre said : In explaining an act of parliament, it is impossible to contend that evidence should be admitted, for that would be to make it a question of fact, in place of a question of law. The judge is to direct the jury as to the point of law, and in doing so must form his judgment of the meaning of the Legis- lature, in the same manner as if it had come before him on demurrer, when no evidence would . be admitted. Yet on a de- murrer a judge may well inform himself from dictionaries or books, on the particular subject concerning the meaning of any word. If he does so at iiisi ijrius, and shows them to the jury, *they are not to be considered as evidence, but only as the grounds on which the judge has formed his opinion, as if he were to cite any authorities for the point of law he lays down. 8. So jiarol evidence is inadmissible to restrain the legal opera- V\on of general words in an Instimnent (2). Therefore it cannot be admitted to prove, that a particular estate was not intended to pass under general words sufficient to comprise it. 9. Thus, in Davis v. Thomas (Z), a husband and wife being seised of settled estates in the county of Pembroke, bought an estate in the same county, called Rigman Hill, which was conveyed to them, and the survivor in fee. The husband having prevailed on the wife to join with him in suffering a recovery of the settled estates, in order to enable him to mortgage them, gave the attorney em- ployed to suffer the recovery a particular description of the settled estates, which did not comprise Rigman Hill ; and it clearly ap- (/t) Attorney- General v. The Cast (Z) Reg. liib. 1757, fol. 33, 34. See Plate Glass Company, 1 Anstr. 39 ; see Thomas v. Da\-is, 1 Dick, 301, et infra. Claj-ton r. Gregson.'o Adol. & Ell. 302. (1) 1 Jarraan Wills, eh. XIV, (2d Am. ed.) 351 and note (1) and cases cited. (2) Pierson v. Hooker, 3 John. 68 • Hoes v. Van Iloesen, 1 Barbour Ch. K. 379 ; Rice v. Woods', 21 Pick. 30 ; HcU-ris r. Dinkins, 1 Dcsaus, 60. [*177] II TO EXPLAIN AMBIGUITIES. 209 peared, from several circumstances, that he had not any intention to comprise that estate, the title-deeds of which were in his wife's custody. The attorney, fearful of not comprising the whole estate, and not knowing that Rigman Hill had been purchased, added general words sufficient to comprise that estate. The recovery was suffered to the use of the husband in fee, who afterwards mortgaged the estate by the same description. The husband by his will gave all his estates to his wife for life. She survived him, and after her death the heir at law of the husband brought an ejectment against the persons claiming Rigman Hill, under the wife, which came on to be tried at the April Great Sessions for Pem- brokeshire, in 1756. Parol evidence was offered by the defendant, to show that it was not intended to comprise Rigman Hill in the recovery and mortgage : but it was refused, and the plaintiff had a verdict. 10. So in Shelling v. Farmer (rti), where to a release in pursuance of an award, the plaintiff would have called the arbitrators to prove that they refused to take into consideration a particular fact, although the award and release contained general words sufficient to take in all : Eyre, C. J., would not suffer any evidence to be given to contradict the deed (1). 11. And in the recent case of Butcher v. Butcher (ii), general words in a release were held not to extend to a certain bond of in- demnity : and Chief Justice Mansfield, at Guildhall, refused to *admit parol evidence to show the intention of the releasor to release the bond. And upon a motion for a new trial, the Court of Common Pleas intimated a strong opinion, that no evidence could be admissible to explain the release, since the doubt, if any, was amhiguitas patens ; and in consequence of this intimation the counsel for the plaintiff declined arguing the case. 12. But, as we shall presently see, the effect of general words may be restrained in a court of equity, on the ground of mistake, where it is satisfactorily proved. 13. It still remains to observe, that courts both of law and equity constantly advert to the situation of the parties, &;c. in order to enable them to construe ambiguous or ill-penned instruments (2), al- (m) 1 Str. 646. See Strode r. Lady and Goodingcr. Goodiiige, 1 Ves. 231. Falkland, 2 Vem. 621 ; 3 Cha. Kep. 90 ; (m) 1 New Rep. 113. (1) DeLong v. Stanton, 9 John. 38 ; Monroe v. Alaicr, 2 Caincs, 320; Sessions V. Bartiekl, 2 Bav. 94. (2) 1 Phil. Ev". (4tli Am. od.) .543 ; New York v. Butler, 1 Barbour, 325 ; 1 Jarman, Wills (2d Am. ed.) 342 in note, ch. XIV ; 1 Phil. Ev. (4th Am. ed.) 643. Vol. I. 27 [*178] 210 OF FAROl. EVlDKNCi: though parol evidence of the intention of the j>arties could not he received (I), and this has been sanctioned by a leading case in the House of Lords (o). 14. In one case (p), where i-t was doabtful whether a covenant for renewal extended to a perpetual renewal, and the parties had renewed four times successively under the covenant, Lord Mansfield and the other Judges of the King's Bench held, that the parties themselves had put a construction upon the covenant, and were therefore bound by it. Lord Alvanley, who was in the cause, said, when Master of the Rolls, that he was never more amazed than at this decision, and that Mr. Justice Wilson, who argued with him, was astonished at it (^q) ; and he more than once expressed his- marked disapprobation of this doctrine (r). Lord Eldon (s), and Sir Wm. Grant (^), have both also dissented from it ; and C. J„ (0) Sir John Eden v. the Earl of Bute, Ves. 295 ; and see 2 Ves. jun. 448. ml 7 Bro. P. C. 745. See Countess of Shel- (r) See Eaton v. Lyon, 3" Ves. jun. *■ burne v. the Earl of Inchiquin, 1 Bro. C. 690. C. 338. (s) See Iggulden v. May, 9 Ves. jun.. (p) Cook r. Booth, Cowp. 819 ; and 325. see Blackst. 1249 ; 1 New Rep. 42. See {t) See Moore v. Foley, 6 Ves. jun. Peak onEvid. ch. 2. 232. (q) Baynham v. Guy's Hospital, 3 Mr. Greenleaf, says ; — " The rule," in reference to the admission of parol evidence to explain -written instruments, " is directed only against the admission of any other evidence of the language, employed by the parties in making the contract, than that which is furnished by the writing itself. The writing, it is true, may be read by the light of sm-ronnddng circumstances, in order more perfectly to under- stand the intent and meaning of the parties ; but, as they have constituted the ■writing to be the only outward and visible expression of their meaning, no other words are to be added to it, nor substituted in its stead. The duty of the court in such cases is to ascertain, not wliat the parties may have secretly intended, as contra-distinguished from what then' words express ; but what is the meaning of the words they have used." 1 Grecnl. Ev. ^^277. Again he says ; — "The object is to discover the intention. And to do this, the court may jiut themselves in the place of the pcniij, and then see how the terms of the instrument affect the prop- erty, or subject matter. With this view, evidence must be admissible of all the circumstances surrounding the author of the instrument," ib. §287. See Smith V. Bell, 6 Peters S. C. 75 ; Wooster x. Butler, 13 Conn. 318, Per Church J. Again Mr. Greenleaf says ; — " It is only in this mode that parol evidence is admissible, (as is sometimes, but not very accurately, said,) to c.rplain written instruments; namely, by showing the situation of the party in all his relations to persons and things around him, or as elsewhere expressed, by proof of the surrounding cir- cumstances." 1 Greenl. Ev. §288. Again ; — " A written instrument is not ambig- uous merely because an ignorant or uninformed person may be unable to interpret it. It is ambigttous only, when found to be of uncertain meanintj, bi/ perso?is of com- petent skill and information." "A distinction is farther to be observed, between the ambiguity of language and its inaccuracy," ib. §298, §299. The learned reader will find this whole subject, of the admissibility of parol evidence to affect that which is written, discussed with the most unexampled clearness and perspicuity in 1 Greenl. ch. XV. §§ 275 et seq. (1) See 1 Jarman, WiUs (2d Am. ed.) [358] 351, and cases cited in note ; Tucker V. Seaman's Aid Society, 7 Metcalf, 204 to 208 ; Ambler r. Norton, 4 Hen. & Munf. 23 ; Kennon r. M'Koberts, 1 Wash. 102 ; Sherraer v. Shermer, 1 Wash. 272 ; Dabney v. Green, 4 Hen. & Munf. 101 ; Gay r. Ihmt, 1 Murphey, 141. TO EXPLAIN AMBIGUITIES. 211 Mansfield, in a late case, observed, that it was a case which had been impeached upon all occasions (u). It appears to be now clearly settled, that in the construction of an agreement or deed, the acts of the parties cannot be taken into consideration (a:) (1). 15. Where, however, the words of an ancient statute or instru- ment are doubtful, contemporaneous usage, although it cannot ■overturn the clear words of the instrument (2), will be admitted to explain it; (or jus et norma hquendi is governed by usage, and the *meaningof things spoken or written must be as it hath constantly been received to be by common acceptation (?/). This has been 'determined in many cases, and such evidence accordingly re- ceived (z). And in a late case on this subject. Lord Ellenborough said, it was in constant practice at nisi prius to receive evidence of usage to explain doubtful words in old instruments ; and it would be difficult to show any just ground of distinction between the information which a Judge might receive to aid his judgment in bank and at nisi prius (a) (3). 16. In a late case (b), where a question arose upon the meaning of the words " keep in order," in an agreement to plant trees upon land, Mr. Baron Bayley said, that he should not have thought that the price ought to have been taken into consideration, (u) See 2 New Rep. 452. ney-general v. Parker, 2 Atk. 576 ; At- (x) See Clifton v. Walmsley, 5 Term torney-g«neral v. Forster, 10 Ves. jun. Rep. 564 ; and see Iggulden v. May, 7 335 ; Kitchin v. Bartch, 7 East, 53 ; East, 237. ' Bailiffs, &c. of Tewkesbury v. BrickneU, (y)Slieppard r. Gosnold, Yaugh. 169. 2 Taunt. 120. (s) Rex V. Yarlo, Cowp. 246 ; Gape v. (a) Rex v. Osbourne, 4 East, 327 ; and Handley, 3 Terra Rep. 228, n. ; Blankley see Stammers v. Dixon, 7 East, 200. V. Winstanley, 3 Term Rep. 279 ; Rex (6) Allen v. Cameron, 1 Crompt. & V. Belli-inger, 4 Term Rep. 810; Rex v. Mees. 832. Miller, 6 Term Rep. 268 ; andsee Attor- (1) Allen r. Kingsbury, 16 Pick. 239. In Stone v. Clark, 1 Metcalf, 381, Mr, Justice Wilde said ; — " Where the language of a conveyance is unambiguous, no parol evidence to vary or control its import is admissible. But where the lan- guage is doubtful, especially in the description of the land conveyed, then evi- dence of the practical construction by the parties is admissible to explain and remove the doubt." And he cites Codman v. Winslow, 10 Mass. 149 ; Adams v. Frothingham, 3 Mass. 362 ; AUen v. Kingsbury, 16 Pick. 239 ; Livingston v. Ten Broeck, 16 John. 14. See also Childress r. Ford, 10 Smedes & Marsh. 25 ; Beacham V. Eckford, 2 Sand. Ch. 116. So, evidence of former transactions between the same parties, has been held admissible to explain the meaning of terms in a written contract, respecting subseciuent transactions of the same character. Bourne v. Gatliff, 11 Clark & Fin. 45, 69, 70. See Souverbye v. Arden, 1 John. Ch. 240; Revere v. Leonard, 1 Mass. 93 ; Cortelyou v. Van Brunt, 2 John. 357 ; Living- ston V. Ten Broeck, 16 John. 14. (2) Per Wilde J. in Allen v. Kingsbury, 16 Pick. 239 ; Cortelyou r. Van Brunt, 2 John. 357. (3) 1 PhU. Ev. (4th Am. ed.) 540 to 543 ; 1 Amould Ins. (2d ed.) 75 to 79 and in notes ; 1 Greenl. Ev. §292, §293, $294 ; Atty GenL r. Boston, 9 Jur. 838 ; Farrar V. Stackpole, 6 Greenl. 154. f*n9i 212 OK PAROL EVIDENCK unless, '' keeping in order " had been an equivocal expression, but the price must be an ingredient from which a construction of such an agreement as that might be come at. He thought the price was an ingredient in the construction of an agreement, in which equivocal words were used, and Mr. Baron Vaughan was of the same opinion ; but Mr. Baron BoUand did not concur in that opinion, because a party may enter into a contract, and undertake to do work for much less than its value. He thought it a dan- gerous doctrine that the price might be imported into the consi- deration of the construction of the agreement. Mr. Baron Bayley added, that he should certainly think that the price was not admissible in construing the agreement, had it not been that there was an ambiguity in it ; but even with this explanation, Mr. Baron Bolland's appears to be the sounder opinion. *SECTION XL OF PAROL EVIDENCE IN EQ.UITY TO CORRECT MISTAKES OR FRAUDS. Settlejnent to prevent a forfeiture. Omission of provision on supposed il- legalitrj. Fraud corrected. What amounts to fraud. Third person drawing up minutes con- trary to intention. Promise to rectify an accidental omis- sion etiforced. Effect of fraud. Xo relief against bonafde purchaser. 1. Mistakes and frauds corrected by parol 15. evidence. 16. 2. Effect of defendant's denial. 4. Issue directed. 19. 6. Whether settlement can be corrected 20. by jmrol evidence alone. 21. 10. Mistake proved by instructions and parol evidence. 23. 13. Mistake of purchaser's attorney in conveyance corrected. 26. 14. Proposals to correct by, must be final 27. contract. n The last division of our subject relates to the jurisdiction of equity, in correcting mistakes and fraudulent omissions in agree- ment and deeds (1). (I) Even at law the palpable mistake of a -word -will not defeat the intention of the parties. In a case in the Common Pleas, where the condition of a bond was, that it should be void if the obligor did 7wt pay ; and performance being pleaded on the ground of literal expression, the Court held the plea bad. Anon. Dougl. [*180] TO CORRECT MISTAKES OR FRAIJi)S. 213 1. In Henkle i'. the Royal Exchange Assurance Office (c), Lord Hardwicke said, that no doubt but equity had jurisdiction to reheve in respect of a plain mistake in contracts in writing, as well as against frauds in contracts ; so that if reduced into writing contrary to the intention of the parlies, on proper proof that would be rectified(l); he thought, however, that in these cases there should be (a) 1 Ves. 317. 384, cited, 2cl edition. See 1 Dow, 147. It seems clearly settled, that words evidentlj- omitted iii a will by mistake maybe supplied, both, at law and in equity, Tollett r. ToUett, Ambl. 194 ; Coryton v. Hellier, 2 Bur. 923, cited; and Doc r. Micklem, 6 East, 486 ; see Lane v. Goudge, 9 Yes. jun. 225 ; MeUish v. Mellish, and Phillips v. Chamberlain, 4 Ves. jun. 4.5, .31. [1 Jarman, Wills (2d Am. ed. ) 405 et seq. Ch. XYII ; Covenhoven v. Shaler, 2 Paige, 122 ; Deakms r. HoUis, 7 Gill & John. 311 ; Cress well r. Lawson, 7 GiU & John. 227 ; Pickermgr. Langdon, 22 Maine, 429 ; Geiger r. Geiger, 4 M'Cord, 418 ; Lynch r. IliU, 6 Muni'. "114 ; Hamilton r. Boyles, 1 Brevard, 414.] But hoAvever evident the mistake may be, the words will not be supplied if the testator's uianitest intention would be defeated by the insertion of them. Chapman v. Brown, 3 Burr. 1626. See 2 Ves. jun. 36.5. But now words of inheritance arc siipplicd by the 1 Vict. c. 26, s. 28, 29. (1) Ante, 156, in note; Wooden v. Haviland, 18 Conn. 101 ; Clopton v. ilartin, 11 Alabama, 187; 1 Arnould Ins. (2d ed.) 51 and notes; Gillespie r. Moon, 2 John. Ch. 585; Keisselbrack t'. Livingston, 4 John. Ch. 144; Graves r. Boston Marine Ins. Co. 2 Crancli, 441 ; Ilogan v Del. Ins. Co. 1 Wash. C. C. 419 ; S. C. 2 Wash. C. C. 4 ; 1 Story Eq. Jur. ^155 et seq. ; Ijangdon v. Keith, 9 Vermont, 299; Avery v. Chappel, 6 Conn. 274 ; Perry v. Pearson, 1 HumjDh. 431 ; Chct- wood V. Brittan, 1 Green Ch. 438 ; In.skoe v. Proctor, 6 Monroe, 316 ; Gibson v. Watts, 1 M'Cord Ch. 505 ; Lingan v. Henderson, 1 Bland, 249 ; Bcardsley v. Knight, 10 Vermont, 185 ; GoodcU v. Field, 15 Vermont, 448 ; Webster v. Har- ris, 16 Ohio, 490 ; White r. Dcnman, 16 Ohio, 59. In Tilton v. Tilton, 9 N. Hamp. 392, Mr. Justice Wilcox, delivering the opinion of the court said ; — " In our opinion, a court of equity is competent to correct aiKl reform any material mistake in a deed or other written agreement, Avhether that mistake be the omis- sion or insertion of a material stipulation ; and whether it be made out by parol testimony, or be conlirmed by other more cogent proofs. And the same rule applies to contracts witliin the operation of the statute of frauds. The principle is apparently at variance with a well established rule of evidence, that when the parties have reduced their agreement toAvritmg, the written instru- ment is the only admissible evidence of the teiins of that contract, and is not to be controlled, added to, altered, or varied by parol. Fraud is, however, an ex- ception to the rule, and so, in our judgment, is a ca.se of mistake clearly made out. For it would be a reproach to the jurisprudence of the country, ii' it were not in its power to relieve from the consequences of a mistake unequivocally established." In Peterson v. Grovcr, 20 Maine, 363, it was held, that a mistake made in a deed of land should, according to the rules of equity, be reformed, and the mis- take corrected, so as to make the deed read as it should have done. See also Marks v. Pell, 1 John. Ch. 598, 599 ; Washburn r. Merrills, 1 Day Cas. Err. 139 ; BaUey r. Bailey, 8 Humph. 230 ; liichardson c. Blcight, 8 B. Monroe, 5S0 ; lUod- gett V. Hobart, 18 Vermont, 414 ; MUes v. Stevens, 3 Barr, 21 ; Alexander v. New- ton, 2 Grattan, 266 ; Parham v. Parham, 6 Humph. 287 ; O'Ncil '•• Teague, 8 Alabama, 345; Christ v. Diffenbach, 1 Scrg. & 11. 464; Miller v. Henderson, 10 Serg. & 11. 292. The power of a court of equity to refoitn or rectify contracts is held to be clearly not withiii the equity jurisdiction of the Supreme Judicial Court of Massachusetts. Leach r. I,each, 18 Pick. 68 ; Dwight r. I'omcroy, 17 Mass. 303 ; Babcock v. Smith, 22 Pick. 61. In this last case Mr. Justice Morton said ; — "The general power of reforming contracts never has been exercised by 214 OF PAROL EVIDENCE the strongest proof possible (1). In a case wliich was much agitated *berore Lord Tlnirlow, he laid down the rule with great latitude, that if a mistake appears, it is as much to be rectified as fraud (b). So in another case before the same Chancellor, he said that he thought it impossible to refuse, as incompetent, evidence which went to prove that the words taken down were contrary to the concurrent intention of all parties. To be sure, he added, it must be strong, irrefragable evidence, but he did not think he could reject it as incompetent (c). 2. Lord Eldon, observing upon these dicta, said, that Lord Thurlow seemed to say that the proof must satisfy the Court what was the concurrent intention of all parties ; and he added, it must never be forgot to ivhat extent the defendant, one of the parties, admits or denies the agreement. In the case before Lord Eldon (d), a specific performance of an agreement was sought with a varia- tion attempted to be introduced by parol on the ground of mistake (i) Taylor r. Radd, o Vcs. jun. 595, {d) Marquis of To-\vnshcnd r. Stan- cited, groom, 6 Yes. jun. 328 ; see Attorney- (c) Countess of Shelburne v. the Earl general t. Commissioners of Woods and of Inchiquin, 1 Bro. C. C. 338 ; and see Forests, 1 You. & Coll. 559, 583. Cock V. liichards, 10 Yes. jun. -l-il. this court, and it cannot be pretended that as a distinct branch of equity jurisdic- tion, we possess it ; whether under the head of specihc performance, we may not in some cases, exercise a portion of this general authority, we do not think it necessary to inquire. AYhcn there is a written executory contract, to be carried into effect by a farther assurance, settlement, conveyance, or specific agreement, and it is imperfectly, or but partially executed, it is not improbable that the court would conijiel a full execution of the first contract by rectifying and reforming the articles made in pursuance of it, or compelling a more perfect and complete execution of it." 22 Pick. 69, 70. Sec Elder r. Elder, 1 Eairf. 80 ; Kogers v. Atkinson, 1 Kelly, 12 ; Collier v. Lanier, 1 Kelly, 238. A Court of Chancery cannot reform a contract on the ground of the complain- ant's ignorance of the law, where the allegation of ignorance is denied by the answer. Hall i\ lieed, 2 Barbour Ch. R. 500. See Becbe v. Swartwout, 3 Gilman, 162 ; Champlin r. I,aytiii, 18 AVendcll, 407; Wheaton r. Wheaton, 9 Conn. 96; Irnham r. Child, 1 15rown C. C. (I'erldns's ed.) 93, cases in note (a) ; Crosier v. Acer, 7 Paige, 138. (1) llelief Avill be granted in cases of written instruments, only where there is a ])lain mistake, cleaidy made out by satisfactory proofs. Gillesjne v. Moon, 2 | John. Ch. 595, 597 ; I>yman r. United Ins. Co. 2 John. Ch. 630 ; 1 Story Eq. Jur. §157; Tilton v. Tilton, 9 X. llamp. 392, 393 ; Griswold v. Smith, lOYermont, 452 ; Clcaveland v. Burton, 11 Yermont, 138 ; Goodell v. Field, 15 Yermont, 448 ; Lyman v. Little, 15 Yermont, 570; United States r. Munroe, 5 Mason, 577; Hunt V. Rousmanierc, 1 Peters S. C. 13 ; Babcock v. Smith, 22 Pick. 69, Per Morton J. ; Gesley Eq. Ev. 289 ; Coles r. Bowne, 10 Paige, 526 ; Harrington v. Harrington, 2 How. 701 ; Gray r. "SYood, 4 Blackf. 432 ; Whitney r. Whitney, 5 Dana, 330 ; Getman v. IJeardslcy, 2 John. Ch. 274 ; 1 Phil. Ev. '(4th Am. ed'.) 577 ; Garter r. Chandler, 2 Bibb, 246. In reference to the above rule Mr. Justice Story says ; — " It is true, that this, in one sense, leaves the rule somewhat loose, as every court is still left free to say, what is a jilain mistake, and what are proper and satisfactory jnoofs. But this is an infirmity belonging to the administration of justice gcnerallv." 1 Storv Eq. Jur. 1^157. [*18l] TO COKRl!:c;T MISTAKES OR KKAUUS. "ilo and surprise, which was positively denied by the defendant. And the Chancellor said, that he would not say, that upon the evidence without the answer, he should not have had so much doubt whether he ought not to rectify the agreement, as to take more time to consider whether the bill should be dismissed ; but as the agree- ment was to be considered with reference to the answer by which he had positively denied it, he dismissed the bill, but without costs (I). 3. Lord Eldon's decision precisely accords with Lord Thurlow's opinion, which he rightly construed. For in Lord Irnhain v. Child (e), it was observed by Lord Thurlow, that if a mistake be admitted, the Court would not overturn the rule of equity by vary- ing the deed ; but it would be in equity dehors the deed. Then it should be proved as much to the satisfaction of the Court, as if it were admitted : " The difficulty of this is so great, that there is no instance of its prevailing against a party insisting there was no mistake^^ (2). 4. Where the Court cannot satisfy itself of the fact, an issue may be directed to try the question. Thus, in the case of the South Sea Company v. D'OlifF (/), D'OlifF agreed not to carry goods under certain circumstances ; and if information was given *in two months after his return home that he had done so, he was to pay certain stated damages. The instrument was not drawn up until on board the ship, and in a great hurry, and executed there by D'Olift' ; who when he got out to sea, and read it over, found it was six months instead of two ; and brought a bill to be relieved against that variation in the instrument, the company having brought ail action on it. Lord King sent it to an issue ; it was tried on a (|ueslion, whether it was the original agreement it should be two instead of six months. A verdict was given in favor of the plaintitt', that the agreement was designed to be in two, and in consequence of that. Lord Talbot made a decree to relieve the plaintiff against any difficulty by the variation. (e) 1 Bro. C. C 02 ; and sec Hare r. (/) 2 Vcs. ;577, cited; ■'> Vc-. jun. Shcarwood, 3 Bro. V. C. 108; 1 Yes. 601, cited ; and see Pember r. Mathers, jun. 211; and Hayncs v. Hare, 1 Hen. 1 Bro. C. C. .52. [Perkins's ed. notes]. "Blackst. 659. (1) Parol evidence is admissible to prove the mistake thoup;h»it be denied by the answer. Gillespie v. Moon, 2 John. Ch. 585 ; Gray r. Woods, 4 Blackf. 432 ; Whitney v. Whitney, 5 Dana, 830; Peters v. Goodrich, 3 Conn. 146; ante, 156, in note. (2) Sec Irnham r. Child, 1 BroAvn C. C. (Perkins's cd.) 93 and cases in notes; Gillespie r. Moon, 2 John. Ch. oSo, cited in last preceding note, andante 156, in note. [*182J "216 OF PAROL EVlDENCi; 5. The hesitation with which parol evidence is received in equity to correct even mistakes in aojreements and deeds, is strongly exemplified by a case before Sir William Fortescue(jg-)(l). Previously to marriage an estate was agreed to be settled on the intended husband for life, remainder to the wife for life, remainder to the sons successively in tail male, remainder to all the daughters. Instructions were given to an attorney to draw the settlement, who drew it as far as the limitations to the sons, where he stopped, and wrote, then go on as in Pippin v. Ekins ; which was a precedent he delivered to his clerk, to go on from that limitation, and was a right settlement to the issue male and daughters by that wife ; but the clerk drew the settlement to all the daughters of the husband, without restraining it to that marriage : it was executed with this mistake : the question arose between an only daughter of that marriage and children of the husband's by the second wife. The draft of the attorney was proved, and the settlement in Pippin v. Ekins ; but the Court would not admit parol evidence of the attor- ney to be read, and held that the other evidence would not do ; that nothing appearing in writing under the hands of the parties, the settlement could not be altered. And Sir Thomas Clark is reported to have said (h), that as to the head of the mistake, he did not give a positive opinion, but he did not think the Court had relied upon parol evidence singly (2). 6. But whatever difficulty there may be of admitting parol evi- dence singly, yet it is always admitted where it is corroborated by other evidence. 7. This doctrine was carried a great way in the case of Dr. Cold- cot V. *Serjeant Hide (i). Dr. Coldcot having purchased church- lands in fee, under the title of Cromwell, sold them to the defen- (ff) Harchvood r. "SVallis, 2 Vcs. 19-3, Sid. 238, cited ; 1-iCar. 2; see Alexander cited ; sec licp. t. Sugd. 1.30. v. Crosbie, 1 IJoy. & Goo. x. Sugd. 145 ; (A) 1 Dick. 29(3. " Mortimer v. Shortall, 2 Dru. & War. 363. (i) 1 Cha. Ca. 15; 2 Freem. 173 ; 1 (1) See Dviprec r. ^McDonald, -i Desaus. 211. (2) But parol evidence, if entii-ely satisfactory in other respects, Avill be relied on as sufficient for this purpose, (lillcspie v. Moon, 585, C02 ; Tilton v. Tilton, 9 N. Ilamp. 392 ; 2 Story Eq. Jur. ^^531 ; 1 ib. §1G1 ; Baugh r. Itamsey, -1 Monroe, 158 ; Inskoe r. Proctor, G ;Monroe, 310 ; Perry v. Pearson, 1 Humph! 431 ; Chet- Avood V. Brittaix 1 Green Oh. 438. Still Mr. Justice Story says, that courts of equity interfere w-ith far less scruple to correct mistakes in -written agreements where they are made out mainly, or -wholly by other preliminary -written instru- ments or memorandums of the agreement, than they do to correct mistakes -where parol evidence is admitted for that jjurpose. 1 Story Eq. Jur. ^160. See llandaU V. "Willis, 5 Yesey (Sumner's ed.) 262 and notes; Babcock v. Smith, 22 Pick. 69, 70 ; Kogers v. Atkinson, 1 Kelly, 12 ; Collier v. Lanier, 1 Kelly, 238. [*183] TO CORRECT MISTAKES OR FRAUDS. 217 dant's testator, and entered into general covenants for the title. Upon the Restoration the estate was avoided, and upon an action on the covenants, damages to the value of the purchase-money were recovered. A bill was then filed to be relieved against the recovery at law, which suggested a surprise upon the plaintiff, in getting him to enter into general covenants, and that it was de- clared by the parties, when the deed was executed, that it was intended Dr. Coldcot should not undertake any further than against himself; and there being some proof of this declaration, it was de- creed by the Lord Chancellor and Master of the Rolls, that the defendant should acknowledge satisfaction on the judgment, and pay costs. And the reporter says, a like case to this between Farrer v. Farrer was heard and decreed after the same manner, about six months ago. 8. A case, nearly similar, occurred about eleven years after- wards (k) ; but it appeared that all the covenants except the one upon which judgment had been obtained at law, were restrained to the acts of the vendor, and that the vendor sold only such estate as he had. 9. This last case was quoted in a case in the Common Pleas before Lord Eldon (I), who thought the decision must have been made on the ground of the intent of the parties appearing on the instrument, since that intent, and the consequent legal effect of the instrument, could only be collected from the instrument itself, and not from any thing dehors. In a still later case in the same Court (m). Lord Alvanley thought, under the circumstances of the case, that the application was made to the Court of Chancery to correct the mistake, in the same manner as applications are made to that Court to correct marriage articles where clauses are inserted contrary to the intent of the parties. It seems clear, however, that the relief in this case was founded on parol evidence that the vendor sold only such estate as he had, corroborated as it was by the form of the deed and the subject of the contract. Such evidence was received in the prior case of Dr. Coldcot and Serjeant Hide, and is still clearly admissible. 10. Thus in Young v. Young (n), the plaintiff married Lucy, a defendant, and an infant ; the husband stated, or drew by way of (k) Fielder v. Studlcy, Finch, 90. 575. (l) Browning v. Wright, 2 Bos. & Pul. (n) 1 Dick. 295, cited. See 1 Dick. 303, 26. 304. (wi) Hesse v. Stevenson, 3 Bos. & Pul. Vol. 1. 28 2t^ OF PAROL EVIDENCE ♦instructions to his attorney, what the wife's fortune then was, and agreed to add as much to be settled in strict settlement, and like- wise stated that the intended wife had a prospect of an additional fortune ; to which he agreed, provided it did not exceed 1,000/.,. to add a like sum, to be likewise settled strictly^ and he to have the excess. The settlement was pre}xiTed according to the instruc- tions ; but the solicitor having, in the margin of the draft, added double the sum, the settlement was prepared and executed accord- ing to that mistake. Parol evidence was admitted to prove the mistake ; that is, the settlement was first shown to differ from the written instructions, and parol evidence of the counsel and attorney was then received, to prove the mistake. 11. This equity was administered in the case of Thomas v. Davis, before cited (o), where it clearly appeared, that the estate in question was not intended to be comprehended in the general words. This appeared from many circumstances, but particularly from the description of the estate given by the husband to the attorney by way of instructions, which described the lands, and did not include Rigman Hill ; and the attorney proved that he did not know of this estate, and that be introduced general words, merely to guard against any wrong or imperfect description of the lands actually intended to pass. It was objected, that the admis- sion of the attorney's evidence was in direct contradiction to the statute of frauds ; but Sir Thomas Clark was clear it might be read, and accordingly admitted it (I) (1). (o) Supra, p. 177 ; 1 Dick. 301 ; Reg. Lib. B. 1757, foL 33, 34. (I) The j-udgment is very inaccurately stated in the report. After addressing himself to the general words, the Master of the lioUs is stated to have said, Do these words comprise Redmond [Rigman] Hill ? I do not think they do include Redmond IliU ; but other words do. If Redmond Hill was not intended, why Avas the wife to join ; and why did she join ? — This is absolute nonsense. The wife joined because she was interested in the settled estates ; and the opinion of the Court was, that the general words did include Rigman HUl. The editor's marginal abstract of this ease shows how difficult it is to understand the report of it. (1) "Where a marriage settlement does not conform to the intention of the par- ties, either thi-ough mistake, or the fraud of one of the parties, it will be corrected by a court of equity. Scott v. Ihincan, Dev. Eq. R. 403. See Allen zj. Rumph, 2 Hill Ch. 3 ; 1 Story Eq. ^UGO; Randall v. Willis, 5 Sumner's Vesey, 262 and notes ; Babcock v. Smith, 22 Pick.^69, 70 ; Flemings v. Willis, 2 CaU, 5 ; 1 Phil, Ev. (ith Am. ed.) 577 ; Tabb v. Archer, 3 Hen. & Munf. 399 ; Gaillardt'. Porcher, 1 M'Mullan, Eq. 358 ; Smith v. Maxwell, 1 HillCh. 101 ; Gause v. Hale, 2 Iredel Eq. 241, 243. [*1841 TO CORRECT MISTAKES OR FRAUDS. 219 12. So in Rogers v. Earl (p), instructions were given, previously to marriage, for a settlement of the wife's estate on the husband during his life, if he and his wife should so long live, remainder to the wife for life, remainder to the issue of the marriage in strict •settlement, remainder to such uses as the wife should appoint ; and *a draft of a settlement was drawn accordingly. And after the limitation to the husband, it stood thus : And immediately after the decease of the husband, then to the wife, &£c, ; and proper limitations were inserted to trustees to preserve contingent re- mainders. When the wife saw the draft, thinking she was past child-bearing, she objected to the limitations to the issue, and they were directed to be struck out. The attorney, by mistake, not only struck out those hmitations, but also the limitation to the wife for iife, and the subsequent limitation to ti^istees to preserve, and the ■deed was executed without the mistake being discovered, whereby, as the bill stated, the said power for appointing the reversion of the premises was made to take place on the decease of the plaintiff generally, though the limitation to him was only during the joint lives. The wife exercised her power by deed in favor of her husband during his life, and then by will gave him the fee, and then died in his life-time. Her heir at-law insisted that the use resulted to him during the husband's life, and that there being no trustee to preserve contingent ren)ainders, the devise in the will as an execution of the power, not taking effect till the determination of the particular estate, was void, and brought an ejectment against the husband, and obtained a verdict (I). The husband then filed a bill for an injunction, and to rectify the mistake in the settle- ment. The defendant, by his answer, urged that the draft of the settlement might have been altered with a view to support the husband's claim, and insisted that parol evidence could not be received ; but Sir Thomas Clark decreed, that the power appeared to have been designed so far to extend as to enable her to dispose of the interests in the estates after the determination of the cover- ture, and during the life of her husband, as well as to dispose of (j}) 1 Dick. 294. Note, the facts are jun. 593 ; and sec Nelson r. Nelson, Ncls. not stated in the report ; they arc extract- Cha. Rep. 7 ; Shaw r. Jakeman, 4 East, ed from the Registrar's book ; sec lleg. 201 ; Duke of Bedford r. Marquis of Abe- Lib. B. 1756, fol. 205 ; sec Pritchard v. corn, 1 My\. & Cra. 312 ; Marquis of Exe- Qumchant, Ambl. 147 ; 5 Ves, jun. 596, ter v. Marchioness of Exeter, 3 Myl. & n. (a) ; and Barstow v. Kilvington, 5 Ves. Cra, 321. (I) The first point at least was clear at law, but the defendant set up an old term as a bar to the plaintiff's right to recover. The defense, however, did not suc- ceed. See Farmer dem. Eai-1 v. Rogers, 2 Wils, 26. [*I85] 220 OF PAROL EVIDENCE the inheritance of the estates after her husband's decease, and ordered the settlement to be rectified accordingly ; but without costs on either side. 13. In the last case upon this subject (jq), a conveyance of a portion of church-tithes upon a purchase was made, contrary to what was considered to be the true construction of the written agreement, subject to a proportion of the rent reserved by the lease of the tithes ; and upon proof that this was done by the mistake of the purchaser's attorney, and that the rent had not been demanded *for several years, the deed was after the lapse of several years rectified, and made conformable to the written agreement. 14. To enable equity to amend an instrument by proposals, it must of course be shown that they constituted the final contract of the parties, for they may have been varied by subsequent agree- ment before the execution of the deed ; in which case there would be no mistake to rectify (r). 15. If a settlement be made contrary to the intention of the parties, merely to prevent a forfeiture (I), parol evidence is admis- sible of the real intent of the parties (s), and the settlement will be rectified in conformity with it. 16. Where parties omit any provision in a deed, on the impression of its being illegal, and trust to each other's honor, they must rely upon that, and cannot require the defect to be supplied by parol evidence. 17. Thus in Lord Irnham v. Child (^), it appeared that Lord Irnham treated with Child for sale of an annuity. Upon settling the terms, it was agreed that the annuity should be redeemable ; but both parties supposing that this appearing upon the face of the transaction would make it usurious, it was agreed that the grant should not have in it a clause of redemption ; and it was accordingly drawn and executed without such a clause. Lord (y) E,ob V. Buttenvick, 2 Price, 190 ; bottle Grimston, then by Lord Notting- and see Beaumont v. Bramloy, Turn, & ham, and aftcrAvards by Lord Chancel- Russ. 4L lor Jefferies; and see Fitzgib. 213, 214 ; (r) Marquis of Breadalbane v. Mar- see Stratford v. Powell, 1 Ball & Beat- quis of Chandos, 2 Myl. & Cra. 711. ty, 1. (s) Harvey v. Harvey, 2 Cha. Ca. 180, ' (<) 1 Bro. C. C. 92. [Perkin's ed. notes.] decided the same "vvay, first by Sir Har- (I) In this case the settlement was to prevent the estate from being sequestered on account of the husband having been in arms for Charles the First. The decree was made in the reign of James lus son. So that as to the nature of the forfeiture, it is evident that the rehef of equity would not have been afforded, for the pur- pose of upJiolding the settlement, except under the Restoration ! [*186] I TO CORRECT MISTAKES OR FRAUDS. 221 Thurlow refused to supply the omission. A similar decision was made by Mr. Justice Buller, when sitting in Chancery for the Lord Chancellor (m) ; and two similar determinations were made by Lord Kenyon, when Master of the Rolls (x). 18. Upon these cases Lord Eldon observes, that they went upon an indisputably clear principle, that the parties did not mean *to insert in the agreement a provision for redemption, because they were all of one mind that it would be usurious : and they desired the Court to do not what they intended, for the insertion of that provision was directly contrary to their intention ; but they desired to be put in the same situation as if they had been better informed, and consequently had a contrary intention. The answer is, they admit it was not to be in the deed ; and why was the Court to insert it, where two risks had occurred to the parties ; the danger of usury, and the danger of trusting to the honor of the party (1) ? 19. But fraud is in equity an exception to every rule. In the case of Lord Irnham v. Child, Lord Thurlow distinctly said, if the agreement had been varied by fraud, the evidence would be ad- missible (2). If the bill stated that the clause was intended to be inserted, but it was suppressed by fraud, he could not refuse to hear evidence read to establish the rule of equity. Lord Kenyon advanced the same doctrine in the cases before him, and Mr. Justice Buller also thought that parol evidence was, in such cases, admissible (y). 20. The only difficulty in these cases is, to ascertain what shall be deemed fraud. If parties merely agree to a term, and then execute an instrument in which that term is omitted, without objecting to the omission of it, the Court cannot relieve the injured (m) Hare v. Shearwood, 1 Ves. jun. Melsington, 3 Vcs. jun. 40, n. 241; 3 Bro. C. C. 168. [Perkins's ed. (?/) And see Taylor r. lladd, o Yes. jun. notes.] See and consider Haynes v. Hare, 395, cited ; Henkle r. R. E. A. Office, 1 1 Hen. Blackst. 659 (I). Yes. 317 ; and see Pitcaii-ne v. Ogbourne, (x) Lord Portmore r. Morris, 2 Bro. 2 Yes. 375 ; Countess of Shelburnc r. the C. C. 219 ; [Perkins's ed. notes.] 1 Hen. Earl of Inchiquin, 1 Bro. C. C. 338. Blackst. 663, 664 ; Rosamond v. Lord (I) Perhaps this case does not belong to this line of cases, but should be classed with those in which a term is omitted by mistake ; of which vide supra. (1) See Gunter v. Thomas, 1 Iredell Eq. 199. (2) 1 Brown C. C. (Perkins's ed.) 93 note (b) and cases cited ; Pembcr r. Math- ers, 1 ib. 54 and note ; Phyfe r. Wardell, 2 Edw. Ch. 47 ; 1 Story Eq. Jur. ^166 ; O'Neil V. Teague, 8 Alabama, 345 ; Jarvis v. Palmer, 11 Paige, 650; Renshaw v. Gans, 7 Barr. 117. [*187] 222 OF PAROL EVIDENCE party (2;). So where a lessor drew a lease for one year, instead of twenty-one, and then read it for twenty-one years, the lessee brought his bill to be relieved ; but as he could read, it was deemed his own folly ; and as the case was within the statute, his bill was dismissed with costs (rt). Again, where in a lease the right to enter, cut, and carry away the trees, was reserved to the lessor, the lessee went into parol evidence to show that that was contrary to the original agreement, and proved a conversation previously to the execution of the lease, in which the landlord assured the lessee he should not cut the timber, and only reserved it in order that all his leases might be uniform. The plaintiff's counsel, however, gave up this part of the bill at the hearing (b), and Lord Rosslyn treated it as clearly wrong. So I am told that in a very recent case at law (c), where a warrant of attorney was given to confess *judgment on the assurance of the creditor that no execution should issue for three years, and execution was, contrary to this parol agreement, issued immediately, the Court inclined, that as the defendant knew the contents, and had sufficient time to read the warrant of attorney, they could not relieve ; and yet a court of law considers itself to have considerable controlling power over its own judgments entered up under warrants of attorney, where the party entering them up has been guilty of a fraud (d). The case, however, went off on another ground. 21. In the Countess of Shelburne v. the Earl of Inchiquin (e). Lord Thurlow said, if two persons entrust a third person to draw up minutes of their intention, and such person does not draw them according to such intention, that case might be relieved, because that would be a kind of fraud. 22. And it is said, that in the case of Jones v. Sheriffe (/), there were heads of an intended lease taken by an attorney in writing ; but upon proof that some other clauses were agreed on between the parties at the same time, the Court decreed that those clauses should be put into the lease, notwithstanding the counsel on the other side strenuously insisted on the statute of frauds. 23. And if either party object to a conveyance, on the ground of a term of the agreement being omitted, and the other party (c) See Rich v. Jackson, 4 Bro. C. C. (cl) See 1 II. Blackst. 63, 664. 514 ; et supra, p. 164. (e) 1 I3ro. C. C. 350 ; and see Crosby (rt) Anon. Skin. 159 ; but qii. the au- r. MidcUeton, 3 Cha. Rep. 99 ; Langley v. thority of this case. Brown, 2 Atk. 195; Baker f. Payne, 1 (6) "Jackson v. Cator, 5 Yes. jun. 688. Yes. 6. (e) Gennor v. Macmahon, M. T. 1806, (/) 9 Mod. 88, cited. B. K. [*188] TO CORRECT MISTAKES OR FRAUDS. 223 promise to rectify it, whereupon the deed is executed, a specific performance of the promise will be enforced. 24. Thus in Pember v. Mathers (§•), a bill was filed for a specific performance of a parol agreement by a purchaser of a lease under written conditions, to indemnify the vendor against the rent and covenants ; and it was objected, on the part of the defendant, that the evidence was inadmissible, upon the ground, that where the parties have entered into a written agreement, no parol evidence can be admitted to increase or diminsh such agreement. The rule. Lord Thurlow said, was right ; but where the objection was originally made, and promised by the other party to be rectified, it comes amongst the string of cases where it is considered as a fraud. Then the evidence is admissible. There being some doubt as to the fact. Lord Thurlow ordered it to go to law upon an issue, whether there was such a promise on the day of the execution of the agreement. Upon the trial, the jury found there was such a promise, and the plaintiff had a decree for a specific performance. *25. So we have before seen, that where it is stipulated that the agreement shall be reduced into writing, and either party fraudu- lently prevents the agreement from being put into writing, equity will perhaps relieve the injured party (h) (1). 26. And it is perfectly clear, that where fraud is distinctly proved, or the jury infer it from the circumstances, an agreement is invalid at law, as well as in equity (i) (2) ; but the reducing the agreement to writing is, in most cases, an argument against fraud. 27. But it must be remarked, that a deed will not be rectified in equity on the ground of mistake or fraud, to the prejudice of a bona fide purchaser, without notice. 28. Thus in the case of Thomas v. Davis (fc), although the lands passed at law, yet as the mistake was clearly proved, the words were restrained as between the person claiming under the wife, (.<7) 1 Bro. C. C. 52 ; [and notes] see 319 ; Emanuel v. Dane, 3 Camp. Ca, 14 Ves. jun. 524. 299 ; Solomon i\ Turner, 1 Stark. Ca. 51. (/t) Vide supra, p. 139. {k) Supra, p. 177 ; lleg. Lib. B. 1757, (i) Haigh V. De la Cour, 3 Camp. Ca. fol. 33, 34 ; 1 Dick. 301. (1) Jenkins v. Eldridge, 3 StorA' C. C. 181, 290, 293 ; ante, 125 and notes, 139; 2 Story Ecj. Jur. ^^7G8 ; Phyib r. Wardell, 2 Edwards Ch. 47 ; Kennedy r. Kenne- dy, 2 Alabama, 571 ; Blanchard v. Moore, 4 J. J. Marsh. 471 ; Wesley v. Thomas, 6 Ilarr. & Jolm. 24 ; Watkhis v. Stockett, 6 Ilarr. & John. 435. The law is other- wise in Mississippi. Box v. Stanford, 13 Smedes & Marsh. 93. (2) Chitty Contr. (8th Am. cd.) 587 et seq. and notes ; Daniel v. Mitchell, 1 Storv 0. C. 172. [*18<)] 224 OF PAROL EVIDENCE TO CORRECT MISTAKES, ETC. whose estate was comprised by mistake, and the heir of the hus- band, to whom the estate had passed by the error ; but the same equity was not administered against the mortgagee, who was left in possession of the legal right which the generality of the con- veyance had invested him with. [ 225 ] ^CHAPTER IV. OF THE CONSEQUENCES OF THE CONTRACT. SECTION I. OF THE purchaser's TITLE FROM THE TIME OF THE CONTRACT. 1. 2. 3. 5. 6. 7. 8, 9. 10. 11. 13. 14. 15 to 42 21. 22. 24. 25. 26. 27. 29. 30. 31. 32. 34. 37. 38- 39. Seller trustee of estate for purchaser. Bankruptcy does iiot discharge the contract. Assignees put to their election. Extent prevails over co7itract. Purchaser without notice also. Death of party immaterial. Purchase-money assets of vendor. Mortmain Act. Purchaser not to cut timber. Operation of contract %chere the pur- chaser is tenant. Conveyance destroys covena7its in lease. Purchaser's power over the estate. r His power of devising before 1 t Vict. c. 26, viz. Effet^ of devise where the purchaser had a term of years. Revocation of previous bequest of term. Conveyance did not operate a revoca- tion. Unless new uses introduced. Estates contracted for after the will not affected by it. Republication. Heir put to his election. Cautions in purchasing from heir. Copyholds. Contract revoked seller's will. Where the agreement could not be en- forced in equity, qu. Or has been abandoned, qu. Devise by seller after the contract. Estate converted, although election to buy given to purchaser. Vol. I. 29 41. But devisee by description entitled. 43. So of timber. 45. Right of pre-emption enforced. 47. Right of next of kin of vendor. 49 "i • • f Purchaser's right to devise since ^° I 1 Vict. c. 26. 69 J 52. OjJeration of Acton Atcherley Y. Ver- non. 54. Operation upo7iprevioiis bequest where the purchaser teas a termor. 56. Operation of the Act zipon general be- quest and general devise, where the purchaser is a termor. 57. Where the fee is conveyed or the term assigned to attend. 58. Where the term is specifically be- queathed. 60. Operation q/" 8 § 9 Vict, upon satis- fied terms. 61. No form of conveyance a revocation. 62. Cautions in purchasing of heir. 63. Contract to sell revokes the seller's xoill. 64. Agreement void in equity not a revo- cation. 65. Nor an agreement abandoned. 66. Operation of Act on Knollys v. Shep- herd. 67. And on Lawes v. Bennett. 68. General operation of Act. 69. Operation of Act on Arnold v. Ar- nold. 70. Demonstrative legacy. 71. Where heir of purchaser entitled. 72. His power over estate. [*1901 226 BANKRUPTCY OF EITHER PARTI*. 73. Executor must pay for the estate, 76. Death of vendor or purchaser and no title. 76. Where estate directed to be baaght cannot he obtained. *1. Equity looks upon things agreed to be done, as actually performed (a), (I) ; consequently, when a contract is made for sale of an estate, equity considers the vendor as a trustee for the pur- chaser of the estate sold (6) (1), and the purchaser as a trustee of the purchase-money for the vendor (c). [And every subsequent pur- chaser from either, with notice, becomes subject to the same equities, as the party would be, from whom he purchased (2). So that, if a person, who has contracted to sell land, sells it to a third person, the second purchaser, if he have notice at the time of the purchase of the previous contract, will be compelled to convey the property to the first purchaser (3).] 2. Therefore the contract will not be discharged by tlie bank- ruptcy of either the vendor (^)(4) or vendee (e), and the observation of the Chief Baron in Goodwin v. Lightbody(/), that if one were to sell an estate, and, before the conveyance should be complete, were to become a bankrupt, his assignees might choose whether (a) Francis's Maxims, max. 13 ; 1 fen v. Moore, 3 Atk. 272. Trea. Eq. chap. 6, sec. 9. See Callaway (rf) Orlebar r. Fletcher,! P. Wms, 737. V. Ward, 1 Ves. 318, cited. (e) See 3 Yes. jun. 2.35 ; and Bowles v. (6) Atcherley r. Vernon, 10 Mod. 51&; Kogers, 6 Ves. jun. 95, n. ; Whitworth Davie v. Beardsham, 1 Cha. Ca. 39 ; and v. I)a\-is, 1 Ves. & Bea. oio. Lady Fohaine's case, cited ihid.; and see (/) Dan. 156 ; the observation was,. 1 Term. Rep. 001 ; and Green v. Smith, 1 perhaps, made with reicrence to an act of Atk. 572. bankruptcy prior to the contract. (c) Green r. Smith, uhi supra ; Pollex- (I) A lessee insured his house, the lease expired, and he contracted for a new lease. Then the house was burned, and the office insisted that at the time of burning it was not the plaintiff's house ; but Lord Chancellor King; and after- wards the House of Lords, held otherwise. See printed cases, Dom. Proc. 1730'. (1) Kidd V. Dennison, 6 Barbour Sup. Ct. Rep. 9 ; Swartwout v. Burr, 1 ib. 499; 1 Story Eq. Jur. ^^G-1 g ; 2 ib. ^^789, ^^790, §1212; Waddington v. Banks, 1 Brock. 97 ; Craig r. Leslie, 3 Wheaton, 563 ; Van Wyck r. Alliger, 6 Barbour Sup. Ct. Rep. 511 ; Edgarton v. Peckham, 11 Paige, 359; McKay v. Carrington, 1 McLean, 50 ; Crawford r. Bertholf, Saxton, 458. (2) 2 Story Eq. Jur. ^^789 ; Champion v. Brown, G John. Ch. 398, 403: Mul- drow r. Muldrow, 2 Dana, 387 ; Hampton r. Edelen, 2 Harr. & John. 64 ; Hoag- land V. Latourctte, 1 Green Ch. 254; Langdon v. Woodfolk, 2 B. Monroe, 105. (3) Hoagland v. Latourettc, 1 Green Ch. 254 ; Langdon v. Wooliolk, 2 B. Monroe, 105. See Cox v. Osborn, 1 A. K. Marsh. 311 ; Frailty i-. Langford, ib. 363 ; Liggett r. Wall, 2 ib. 149 ; Pugh v. Bell, 1 J. J. Marsh'. 403 ; Hunter v, Wallace, 1 Tenn. 239 ; Dunlap v. Stetson, 4 Mason, 349 ; post, 254 ; Wadsworth V. WendeU, 5 John. Ch. 224. (4) See Tj-ree f. Williams, 3 Bibb, 366. [*191] purchaser's power under contract. 227 they would perform the contract or not, is not well founded. But an act of bankruptcy, although no commission had issued, here- tofore prevented the execution of the agreement, as neither a buyer nor a seller could be assured that a commission might not issue in due time, in which case he could not retain the estate or money against the assignees (§•). But this is now in part altered by an act (h), which protects a purchaser who bought without notice of a prior act of bankruptcy (^). And a payment (not being a fraudulent preference) to a seller who had not notice of any act of bankruptcy committed by the purchaser, seems to be protected (y). 3. The Bankrupt Act, 6 Geo. 4 (k), enacts, that if any bank- rupt shall have entered into any agreement for the purchase of any estate or interest in land, the vendor thereof, or any person claiming under him, if the assignees of such bankrupt shall not (upon being thereto required) elect whether they will abide by and execute such agreement, or abandon the same, shall be entitled to apply by petition to the Lord Chancellor, who may thereupon *order them to deliver up the said agreement, and the possession of the premises, to the vendor, or person claiming under him, or may make such other order therein as he shall think fit. 4. Where a contract for sale is overreached by an act of bank- ruptcy before the conveyance, it seems to have been supposed that the assignees may compel the purchaser to complete the con- tract (/) ; but the case in which this point arose was decided upon the ground that the purchaser submitted to perform the contract, provided a good title could be made. 5. An agreement for sale, even with part of the money paid, has no effect against an extent by the Crown ; for whilst no conveyance having been executed, the fee is in the seller, the agreement has no operation against the extent (m). 6. And if one agree to purchase an estate, and take a contract or covenant that the owner will sell that estate, and the latter should sell or mortgage it to another person who has no notice, the first purchaser has not any right to call on the second purchaser ((7) Lowes V. Lush, Franklin v. Lord 82 ; 2 & 3 Vict. c. 29. Brownlow, 14 Ves, jun. 547, ooO. (k) C. 16, s. 76. (A) 2 Vict. c. 11, s. 12 ; and see 2 & 3 (/) Seethe marginal abstract of Good- Vict. c. 29, and 7 & 8 Vict. c. 90, as to win c. Lightbody, Dan. 153. Ireland. (w) Hex v. Snow, 1 Price, 220, n. See (0 See post, ch. 12, and ch. 21. 2 Vict. c. 11, s. 8, 9, 10. O') See and consider 6 Geo. 4, c. 16, s. [*192] 238 PURCHASER S POWER UNDER CONTRACTS. for the legal estate, but the latter may protect himself by the legal estate against the former (71) (1). 7. The death of the vendor or vendee before the conveyance (0), or surrender (^), or even before the time agreed upon for com- pleting the contract, is in equity immaterial (5-) (2). 8. If the vendor die before payment of the purchase-money, it will go to his executors, and form part of his assets (r) (3), and even if a vendor reserve the purchase-money, payable as he shall appoint by an instrument, executed in a particular manner, and afterwards exercise his power, the money will, as between his creditors and appointees, be assets(s). If the contract is to be performed at a period which takes place after the vendor's death, his heir at law, and not his executor, is entitled to the intermediate rents (t). 9. If the estate is under a contract for sale at the date of the will, a devise of it to be sold for a charity, will not give the purchase-money to the charity, in consequence of the mortmain act, as it is called (u), although this point was in the first instance otherwise decided (y). *10. A vendee being actually seised of the estate in contempla- tion of equity, must, as we shall hereafter see, bear any loss which may happen to the estate between the agreement and conveyance, and will be entitled to any benefit which may accrue to it in the interim (w) ; but if he obtain possession of the estate before he has paid the purchase-money, and begin to cut timber, equity will grant an injunction against him (oc). 11. If the purchaser was tenant at will of the estate, the con- tract determines the tenancy (y). And even if he was tenant for a term certain, the agreement determines the relation of landlord and (n) 8 Price, 488, 489, per Richaids, C (s) Thompson v. TowTie, 2 Vem. 319. B. 466. (0) Paul V. Wilkins, Toth. 106. (0 Lumsden v. Eraser, 12 Sim. 263. (p) Barker r. Hill, 2 Cha. llcp. 11-3. (n) Harrison v. Harrison, 1 Russ. & (q) Winged v. Lefebury, 2 Eq. Ca. Myl. 71; 1 Taimt. 273. Abr. 32, pi. 43 ; cases cited a«fc, note (b). (y) Middleton v. Spicer, 1 Bro. C. C. (r) Sikes v. Lister, 5 Vin. Abr. 541, pi. 201. 28 ; Baden v. Earl of Pembroke, 2 Vem. (w) See 2>osf, ch. 6. 213; Bubb'scase, 2 Freem. 38 ; Smithi'. (x) Crockford v. Alexander, 15 Ves. Hibbard, 2 Dick. 712 ; Foley r. Percival, jun. 138. 4 Bro.C . C. 419 ; and see Gilb. Lex Prte- (1/) Seepost, that a purchaser generally tor. 243 ; Eaton r. Sanxtcr, 6 Sim. 517. cannot be charged as tenant. (1) See Dennison v. Robbinett, 2 Harr. John. 55 ; Frost v. Beekman, 1 John. Ch. 298 ; Benzien v. Lenoir, 1 Car. Law Rep. 508. (2) Muldrow v. Muldrow, 2 Dana, 387 ; Livingston v. Newkirk, 3 John. Ch. 312, 316 ; Rutherford v. Green, 2 Lredell Ch. 121. (3) 1 Story Eq. Jur. ^64 g ; Craig v. Leslie, 3 Wheaton, 563, 577. [*193] OPERATION OF PURCHASE BY TENANT. 229 tenant; and in equity the landlord cannot call for rent (2:). Lord Eldon laid down the rule thus generally, in a case in which he had not to decide the point. But in a late case (a), where a tenant from year to year agreed to purchase, and was, by the impUed terms of the contract, entitled to a good title, it was held that his tenancy did not cease. For where the purchaser is already in possession as tenant from year to year, it must depend upon the intention of the parties, to be collected from the agreement, whether a new tenancy at will is created or not, and from what time. If, the Court observed, by the true construction of the agreement, the defendant at a certain time was to be absolutely a debtor for the purchase-money, paying interest on it, and to cease to pay rent as tenant, a tenancy at will would probably be created after that time, and the acceptance of such new demise at will would then operate as a surrender of the former interest by opera- tion of law. But if the agreement is conditional to purchase only provided a good title should be made out, and to pay the purchase- money when that should have been done and the estate conveyed, there is no room for implying any agreement to hold as tenant at will in the meantime, the effect of which would be absolutely to surrender the existing term, whilst it would be uncertain whether the purchase would be completed or not. 12. This case proves that the Courts will not hold a lessee's interest to have determined to his prejudice, unless compelled to come to that conclusion by the form of the contract ; nor would the tenant be allowed to baffle the seller, and to withhold both the rent and the purchase-money. But it is proper upon a sale of an estate to the tenant to provide for the payment of the rent until the com- pletion of the purchase, if that be the intention. When the pur- chase *is completed, there will no longer be any difficulty, for the purchaser will be made to pay interest or rent for the time past, according to the provisions of the contract or the rights springing out of it. 1.3. Where the relation of vendor and purchaser is formed by a conveyance of the inheritance, that puts an end to the covenants in the lease, though ever so large and general, which existed between the parties as lessor and lessee (6), and it is immaterial whether the lease was granted by the one to the other or not ; it is sufficient (z) Daniels v. Da\T.soii, 16 Ves. jun. (a) Doe v, Stamion, 1 Mces. & Wels. 252, 263. 695. (6) See 1 Bligh, 69. |*194J 230 OF THE POWER OF DEVISING. that the relation of landlord and tenant subsisted between them under the lease. Lord Eldon observed, that undoubtedly the vendor may concede the advantage which by law he derives from tlie new relation of vendor and vendee, and the vendor may warrant at the risk of damages, the privileges which he as lessor had agreed to give to the lessee before he became purchaser. But he added, such a contract between vendor and vendee must be expressed in terms which are free from all doubt or ambiguity. The terms of a contract so special must indicate unequivocally what was the intention of the parties (c). 14. It is a consequence of the same rule, that a purchaser may sell or charge the estate, before the conveyance is executed (<^)(1) ; and a judgment will bind his equitable interest (e) ; but a person claiming under him must submit to perform the agreement m toio, or he cannot be relieved {/)■ 15. The power of devising is so greatly enlarged by the 1st Vict. c. 26, whilst the old law is still applicable to all titles where the will was made before the 1st of January 1838, and not since re- published or revived by any codicil executed as required by the above statute, that it may be expedient, first, to consider the old law, as it applies to the latter class of cases ; and secondly, the new law, which applies to all wills executed upon or subsequently to the 1st of January 1838. 16. First, then, as to the law applicable to wills executed before the 1st of January 1838, and not republished or revived by any codicil since that date. 17. A man having contracted for an estate, might devise it, if freehold (,§•), before the conveyance ; and if copyhold, before the ^surrender (A) ; and that, although the estate was contracted for at (c) 1 Bligh, 7G. Mose. 262 ; Atcherley v. Vernon, 10 Mod. {d) Sctonr. Slade, 7 Yes.jun. 265 ;and 518; Gibson v. Lord Montfort, 1 Ves. see 1 Ves. 220 ; and 6 Ves. jun. 352 ; 485. Woodr. Griffith, 12 Feb. 1818 ; MS. see (h) Davie v. Beardsham, 1 Cha. Ca. post ; 2 Ball & Beat. 522. 39 ; Ncls. Cha. Rep. 76 ; 3 Cha. Hep. 2 ; (e) Baldwin r. Belcher, 1 Jo. & Lat. 18. Grcenhill v. GreenhiU, 2 Vern. 679;Frec. (/) See Dyer r. Pulteney, Barnard. Cha. 329 ; Atcherley f. Vernon, 10 Mod. Hep. Cha. 160 ; a very particular case. 518 ; Robsonr. Brown, Oct. 1740, S. P. ; (g) Darri's case, 3 Salk. 85; MUner andsee 9 Ves. jun. 510 ; Marston r. Roe, V. Mills, Mose. 123; Alleyn r. AUeyn, 8 Adol. & EU. 14. ^ . \ (1) See Barton v. Rushton, 4 Desaus. 373 ; 2 Story Eq. Jur. ^^790, §793, ^^1212 ; Craig V. Leslie, 3 AVheaton, 563 ; Peter v. Beverlv, 10 Peters (S. C.) 532, 533. P195] OP A DEVISE OF AN ESTATE CONTRACTED FOR. 231 a future day (i), or the contract was entered into by a trustee for him (k) ; and the devisee would be entitled to have the estate paid for out of the personal estate of the purchaser (/) (1). 18. The rule that an estate contracted for might be devised be- fore it was conveyed or surrendered to the purchaser, had become a land-mark, and could not have been shaken without endangering the titles to half of the estates in the kingdom. The applicability of the rule to freehold estates had, I believe, never been questioned but in Ardesoife v. Bennet (m), where the point arose as to a copy- hold estate, Sir Thomas Sewell decided the case on another ground, and appears to have avoided sanctioning the rule in question ; and in a manuscript note of this case by the name of Wilson v. Bennet, it is said that the Master of the Rolls was of opinion that the copy-hold estate did not pass by the will. This opinion was clearly extra-judicial, and cannot be deemed subversive of the numerous cases which have established the contrary doctrine ; and indeed, in a case before Sir Thomas Sewell, a few years after that of Arde- soife V. Bennet, he seems to allude to a devise of a copyhold estate contracted for, as sanctioned by practice (n). 19. An estate contracted for will pass by a general devise of all the lands purchased by the testator, although he may have pur- chased some estates which have been actually conveyed to him, and would therefore of themselves satisfy the words of the will (o). 20. On the other hand, it seems that estates recently purchased and actually conveyed, will pass with estates contracted for, by a general devise of all the manors, he. for the purchase whereof the testator has already contracted and agreed (p), (I). But a devise *of estates " for the purchase whereof the testator has only con- tracted and agreed," would not pass estates actually conveyed to (jjComTnissionerTrimuel's case.Mose. 391, 392, n. 265, cited ; and see Atcherley t. Vernon, (ii) Floyd r. Aldridge, 1777,5 East, 10 Mod. 518 ; Gibson v. Lord Montfort, 137, cited; and see Vernon v, Vernon, 7 1 Ves. 185. East, 8. (k) Grcenhill v. Greenhill,2 Vern. G79. (o) Atcherley v. Vernon, 10 Mod. 518. (0 Milner r. 'Mills, Mose. 123 ; Broome (p) 8t. John r. Bishop of Winton, V. Monck, 10 Ves. jun. 597. Cowp. 9i ; Lofft, 113, 349, S. C. ; and 2 (m) 2 Dick. 403 ; and see 15 Ves. jun. Blackst. 930. (I) This, however, must depend upon the particular circumstances of each case. The case referred to can scarcely be cited as a binding authority establishing a gen- eral rule. It seems that the House of Lords was taken by surprise in affirming the judgment. (1) Livingston v. Newkirk, 3 John. Ch. 312 ; M'Kinnon r. Thompson, 3 John. Ch. 307, 310 ; Malin v. Malin, 1 Wendell, 625. [*1961 5^32 OF A DEVISE OF AN ESTATE CONTRACTED FOR. him before the will, unless perhaps they were recently purchased, and the testator had not contracted for any other estate. ^1. If a man possessed of a term of years contract for the pur- chase of the inheritance, the term by construction of equity, in- stantly attends the inheritance; and therefore, by a devise of the estate subsequently to the contract, the fee-simple would have passed although not actually conveyed, and the term as attendant on it ( 1 Jarman, Wills (2d Am. ed.) 200 [175] in note (2) ; Havea v. Foster, 14 Pick. 541. [*199] BErORE THE IST VICT. c. 26. 235 28. It was thought that this rule would not apply where the devise in the will was of" the estate of which I am now seised ; " but the codicil made the will speak as from the date of the codicil (1), and therefore there seemed to be no solid grotrnd for the supposed ■distinction. 29. And if a purchaser, previously to a contract, by a will duly executed according to the statute, directed his after-purchased lands to be conveyed to the uses of his will and made a provision for his heir at law, and afterwards died without republishing his will, and the after-purchased lands devolved on the heir at law, equity would put the heir to his election, and not permit him to take both the descended estate, and the provision made for him by the will (/). But to raise a case of election the words were required to be unequivocal ; and therefore a direction to executors to sell whatever real estates the testator might die possessed of, was held not to mean after-purchased estates (^), And yet a devise and bequest of all my estate, rent and effects, real and personal, which I shall die possessed of, was decided to have that opera- tion (A) (2). 30. In purchasing, therefore, of an heir at law who claims an estate conveyed to his ancestor after the date of his will, when that will was executed before the 1st January 1838, and not revived or republished since that day, the purchaser should be satisfied of three points ; viz. 1st, That the contract was not entered into by the testator previously to making his will, 2dly, That no codicil was afterwards executed by him, according to the statute of frauds, by which the lands, although not in contemplation, passed. And, 3dly, If the will affects to pass all the estates which the vendor might thereafter acquire, that the heir at law does not take any interest under the will ; and these observations of course apply to titles depending upon purchases made under those circumstances from heirs at law, although completed by conveyance. 31. As to copyholds, — by the old law, if a man made a dis- position by will of all his copyhold estates generally, and afterwards (/) Thellusson v. Woodford, MS. 13 () 1 Vict. c. 26, s. 24; vide itifra, (m) Curre v. Bowyer, 5 Bear. 6, n. ch. 11, s. 3. (1) In most of the United States, it has been provided by statutes, that after- acquired land shall pass bv the will, if such was the intent of the testator. In [*206] SINCE THE 1st VICT. c. 26. 243 And it passes all property, legal as well as equitable, and contingent as well as vested interests, even a hope of succession, if it be realised in the testator's lifetime, and also rights of entry, and copyholds as well as freeholds, and whether there is any custom to devise them or not, and although the devisor shall not have surrendered the same to the use of his will, or not have been admitted. And of course all such estates, rights and interests pass, although the tes- tator became entitled to them subsequently to the execution of his will (q) (1). 50. And no conveyance or other act done subsequently to the execution of a will relating to any estate comprised in it (except an act of revocation by a subsequent marriage (r), or by another regular will or codicil, or by destroying the will,) (5), will prevent the operation of the will with respect to such estate or interest as the testator has power to dispose of by will at the time of his death (t) ; in short, the will speaks, as we have already observed, *as to the property, as if it had been executed immediately before the testator's death (u). 51. The operation of the Act is to confirm the right to devise an estate accquired by contract, whether the estate be copyhold or freehold. 52. But words of actual description, like the cases of Atcherley V. Vernon and St John v. Bishop of Winton, must still be decided according to the intention. The power to devise in such cases is unquestionable : the intention to do so is to be collected from the terms of the devise (x). 53. The law is still the same as to a devise by a man who has contracted for the inheritance having already a term of years. The equitable fee would pass, and the term would attend it (i/). 54. Whether, if such a purchaser had, previously to the pur- chase, made his will under the new law, by a general bequest in which the term would have passed, the legatee will be entitled to {q) Sect. 3. (ti) Sect. 24. (>•) Sect. 19. (x) Supra, p. 195. (s) Sect. 20. (y) Supra, p. 196. See 8 & 9 Vict. c. (0 Sect. 23. 112. some of the States this intent must appear on the face of the will. In others it is inferred from a general devise of all the testator's estate, or unless a contrary in- tention appears. 3 Cruise, Dig. by Mr. Greenlcaf, vol. 6, Tit. 38, Devise. Ch. 3 §32 in note ; 1 Jarmau, Wills (2d Am. ed.) 85 to 87 [43 to 45,] in notes ; 289 et seq. {277] 301, 302, [293, 294] in note ; Gushing r. Ayhvin, 12 MetcaLf, 169 ; post, 563, in note. (1) 1 Jarman, Wills (2d Am. ed.) 85, 86, and notes. f*207] 244 OF A DEVISF. OF AN ESTATE CONTRACTED FOR it, although the bequest be not expressly revoked, is a point of some nicety (r). The rule of equity, that the teran attends the inheritance immediately on the purchase of the fee, still remains ; but it must bend to the provisions of the Legislature. Now the statute provides that no act done subsequently to the execution of a will of real or personal estate (except a revocation within the terms of the Act, which the purchase of the inheritance would not amount to,) shall prevent the operation of the will with respect to such interest as the testator shall have power to dispose of by will at the time of his death (a) ; and that every will shall be construed with reference to the estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appear by the will (b). 55. Now the rule of equity which denied to the legatee the right to the term, proceeded upon the rule that the term became attendant upon the inheritance, and no longer remained in the view of equity as a term in gross. But the statute, with few ex- ceptions, prevents any act subsequently to the will from operating as an implied revocation of the gift of the estate which the testator has at his death ; and although the case we are now considering was not in the view of the Legislature, yet the statute seems to save the bequest to the legatee for the term of years, because, notwithstanding the subsequent act, viz., the purchase of the inher- itance, *the will is still to operate with respect to the testator's interest at his death as far as that is disposed of by the will. But it may be urged that there is no specific gift of the estate, even for the years in the case supposed, and that it would probably be contrary to the intention of the testator that the term, after he has purchased the inheritance, should pass as part of his personal estate. The reply is, that by the statute the question must be, Does a contrary intention appear by the ivill ? Now, the will only shows an intention to pass all the personal estate, of which this was a part, and at law still is. It may be urged, that by the statute the will is to be construed with reference to the real and personal estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention appear by the will ; and therefore that this will must be so construed as no contrary intention appears by it, and consequently it cannot pass the term of years, because, if a lessee for years, having contracted for the inheritance, were to {z) Siipra, p. 19fi. («) Sect. 23. (6) Sect, 24. 1*208] SINCE THE 1st VICT. c. 26. 245 make his will and simply bequeath his personal estate, the term of years would not in equity pass to the legatee. But it may be thought that the clause in question was intended to enlarge and not to restrict the testator's power, and that the case altogether depends upon the previous section. The term was bequeathed by the will as it stood, and the subsequent act is not to defeat its operation. 56. But a still more difficult case may arise. A lessee for years may make his will and give all his personal estate to A, and all his real estate to B, and afterwards contract for the fee, and then die without republishing his will. At the time he made his will it would have passed the lease to A, at the time of his death it will pass the fee to B. Is the legatee still entitled to the term ? It would, perhaps, be held, that he is not, because it may be said the character of the estate has changed in equity, and as the will by the statute will operate upon the whole fee, no provision of the Act would be contravened, and the will would speak and take effect as to the estate, as if it had been executed immediately before the death of the testator ; for such a will, executed under such circumstances, immediately before the testator's death, would of course pass the fee to B, and the term would attend it. But this is not a clear point, and it might be considered more con- sistent with the statute to allow the term to pass to the legatee, and the fee (subject to the term) to the devisee. 57. But let us suppose that, in the case originally put, there was, after the contract, a conveyance of the fee to the purchaser, or the term was assigned to attend the inheritance, in either case *it seems that the legatee would not take the term ; for, in the first case, the term would have merged by its union with the fee, and no interest in the nature of personal estate would have remained to be acted upon by the will ; in the latter case, there would be a new destination of the term ; it would no longer be personal estate of the testator, either at law or in equity ; but at law would belong to the trustee, and in equity would be attached to the inheritance. 58. If the term had been specifically bequeathed, the rule before the statute would, we have seen, have been the same (c). But that circumstance now would make a difference : not, however, in the cases last supposed ; for an actual conveyance of the fee to the testator merging the term, or an assignment of the term to (c) Supra, p. 196. [*209] 246 OF A DEVISE OF AN ESTATE CONTRACTED FOR attend, would have the same operation, whether the term had been specifically bequeathed, or would have passed under a general bequest. 59. But where the term is specifically bequeathed, a contract for the fee would not now, it is conceived, defeat the bequest ; and if there were a specific bequest of the term to A, and a general devise of real estate to B, although the latter would pass the fee to B, by force of the statute, notwithstanding that there was no republication after the contract, yet the bequest of the term would, it seems, remain valid, for the thing itself would still subsist, and the testator, at his death, had power to dispose of it ; and a similar gift in a will executed immediately before the testator's death, would have the same operation ; and in this case no con- trary intention would appear by the will. Indeed, it will perhaps be contended in such a case that the legatee of the term takes the fee ; because the estate is given by the will, and the statute sup- plies words of inheritance (d), and makes the will speak as if executed immediately before the death ; but this could not be maintained, because in such a case the term is given to the legatee, which prevents the operation of the clause in the statute vesting the fee, and a contrary intention would appear on the face of the will. 60. In considering these questions upon the right of a legatee to a term of years where the termor, the testator, has contracted for the fee subsequently to the will, it will now be necessary to consider also the operation of the 8 &t 9 Vict. c. 112, for rendering the assignment of satisfied terms unnecessary : the operation of which act is in terms confined to satisfied terms by express *declaration, or by construction of law attendant upon the inher- itance. 61. The statute of 1 Vict. c. 26, altogether alters the law as to revocation by the mode of conveyance in pursuance of a contract ; if there are sufficient words to pass the estate in the will, although made before the contract, no possible form of conveyance giving to the purchaser the beneficial interest in the estate can prevent it from passing by the will : it is unimportant, therefore, that the estate is conveyed to uses to bar dower ; for whatever interest the testator has in the estate at his death, will pass by the will whenever executed. And questions cannot arise upon the new act in regard to putting an heir to his election, where the testator assumes to (d) Sect. 28. [*2101 SINCE THE 1st VICT. c. 26. 247 devise his after-purchased estates (e), for they will actually pass, even under a general gift, and the heir at law will have no title. 62. In purchasing, therefore, from an heir at law, whose ancestor survived the 31st of December 1837, whether there was a contract or not, it must be ascertained that he did not execute at any time after that date any will or codicil in the presence of two witnesses, and attested by them and signed by them in his presence and in the presence of each other (_/") ; for if he did by such a will devise his real estate, it is not likely that the heir at law has any right, for not only are words of inheritance now supplied, but lapsed devises of real estates fall into the residue, and the will, when- ever executed; passes the property which the testator has at his death. 63. As to dispositions by vendors, under the old law, a contract by a man to sell his estate revokes his will in equity, although not at law (o"), and the rule has been held not to be varied by the statute (^). 64. If an agreement be such as a court of equity will not carry into execution, it is clear that the property will by the new law pass to the devisee, whatever might have been the true rule be- fore (i). 65. So of course where the contract is abandoned, the devise will not now be affected (k), because, notwithstanding the act done, the will still operates on all the interest which the testator had power to dispose of by will at the time of his death, and speaks as to the property as at that time. 66. The leading object of the act being to pass to the devisee whatever devisable interest the testator had in the estate at the *time of his death, notwithstanding any act done by the testator subsequently to the will, other than a revocation by another will or by marriage, it would now seem that a devise to a man of an estate contracted by the devisor to be sold would require stronger words than those used in Knollys v. Shepherd, to make the devisee a mere trustee instead of taking beneficially (/). 67. The law does not appear to be altered in such cases as Lawes V. Bennett (m), for there the will operates according to the inten- tion at the testator^s death, and its operation is afterwards changed (e) Supra, p. 199. H. SurcI. WUis, 53 ; 3 Drii. & War. 99. (/) Sec H. Sugd. Wills. (j) Supra, p. 200. {g) Supra, p. 200. (A) Supra, p. 201. {h) Farrar r. I>ord Wintcrton, 5 Reav. (/) Supra, p. 203. ; Moor c. Raisbeck, 12 Sim. 123. Sec (»h) Supra, p. 203. *211J 248 RIGHTS OF HEIRS AND EXECUTORS by the subsequent conversion of the property, with which operation, or its effect upon the will, the statute does not seem to interfere. 68. But, in conclusion, we may observe, in the words of another writer (n) that the act goes much further than simply to leave the will to operate on such interest as the testator has left in him by the effect of a conveyance subsequently to his will, for the will is to operate upon such estate or interest as the testator has power to dispose of by will at the time of his death. If, therefore, a man were to make his will disposing of his real estate, and afterwards were to convey the whole fee to uses or upon trusts, relimiting or leaving any interest in himself, that interest will pass by his will ; but still further, if he were afterwards to convey to a purchaser his remain- ing interest in the estate, and at a subsequent period to re-purchase the property, and die seised of it, it would pass by his will to the devisee. 69. In a case like that of Arnald v. Arnald, where the testator devises his estate to trustees to sell, and pay the money to certain legatees, and afterwards sells the estate himself, this will still, as under the old law, be an ademption (o). 70. If a legacy be given as demonstrative one, to be paid out of the proceeds of the sale of an estate for which the testator has contracted, it will be payable out of the general assets if the con- tract be rescinded (p). 71. In regard to cases common to the old and the new law, where an estate contracted for after the will does not pass by it, the heir at law will be entitled to have the estate purchased for his own benefit, out of the personal estate of his ancestor (j), and that, althougli he unite in himself the three characters of vendor, heir, *and executor (r). The estate will, however, be assets in the hands of the heir. 72. So if the purchaser die intestate, the heir will in like manner be entitled to have the estate purchased for him : and if his an- cestor die before the conveyance is executed, the heir may devise, charge, or sell the estate, in the same manner as the ancestor him- self might have done (s), and it will now be subject to the power of the purchaser's widow, unless he has deprived her of that right (t). («) H. Sugd. WiUs, o2. see 2 P. Wms. 632 ; 3 P. Wms. 224 ; (o) Moor V. Raisbeck, 12 Sim. 123. Broome v. Monck, 10 Ves. jun. 597. (p) Fowler v. AVilloughby, 2 Sim. ic (r) Coppin r. Coppin, Sel. Cha. Ca. Stu. 35i ; (pi. When was the contract 28 ; 2 P. Wms. 291. rescinded- Xewbold v. Roadknight, 1 (s) Langford i-. Pitt, 2 P. Wms. 629. Russ. & Myl. 677. (t) 3 & 4 Will. 4, c. 105, s. 2, a.ndpost, (5) Milner v. Mills, Mose, 123 : and oh. 11, s. 2. [*212] WHERE NO TITLE. 249 73. If the executor complete the purchase, and take the convey- ance in his own name, he will be a trustee for the heir or devisee (u). And if the assets cannot be got in, and the real representative pay for the land out of his own pocket, he may afterwards call upon the personal estate to reimburse him (x). So, if the personal estate is insufficient to perform the contract, and the agreement is on that account rescinded, yet the heir or devisee will, it should seem, be entitled to the personalty as far as it extends. And it has been decided, that if by reason of the complication of the testator's affairs, the purchase-money cannot be immediately paid, and the vendor for that reason rescinds the contract, yet on the coming in of the assets, the devisee of the estate contracted for, may compel the executor to lay out the purchase-money in the purchase of other estate for his benefit (y). 74. But if the heir not being entitled to have the estate paid for out of the personal estate, actually obtain and apply the personal estate in payment of the purchase-money ; the persons entitled to the personal estate will not be entitled to the lands, but only to a charge on it for the amount of the money wrongly applied (s). 75. But — to return to the point under consideration — if upon the death of the vendor a title cannot be made, or there was not a perfect contract, or the Court should think the contract ought not to be executed, in all these cases there is no conversion of real estate into personal in consideration of the Court, upon which the right of the executor on the one hand, and of the heir or devisee on the other, depends ; and therefore the estate will go to the heir at law of the vendor, in the same manner as if no contract had been ^entered into (a). So if upon the death of the purchaser a title can- not be made, or there was not a perfect contract, his heir or devisee will not be entitled to the money agreed to be paid for the lands, or to have any other estate bought for him (b). For although the purchaser himself, if alive, might elect to take the estate with the bad title (c), or where there is an outstanding interest with a com- pensation (c?) ; yet where he is dead the Court cannot speculate (u) AlleJ^l V. Allcj-n, Mose. 262. and see 8 Ves. jun. 274 ; Rose v. Cun- (x) See 10 Vcs. jun. 614, 615. ynghame, 11 Ves. jun. 550. (?/) Whittaker c. "Whittakcr, 4 Bro. C. (6) Green r. Smith, 1 Atk. 573; C. si ; Broome r. Monck, 10 Vcs. jun. Broome r. Monck, 10 Ves. jun. 597 ; Sav- 697. Vide infra. age v. Carroll, 1 Ball & Beatty, 265. Vide (z) Savage r. Carroll, 1 Ball & Bcatty, supra. 265. Sce;;c(4■^ eh. 20. " (c) "Westerns, llussell, 3 Ves. & Bea. (n) Lacon v. Mertins, 3 Atk. 1 ; At- 187. torney-General v. Day, 1 Vcs. 218; (rf) Collier ». Jenkins, Yo. 295. Biickmaater v. Harrop, 7 Ves. Jun, 341 ; Vol. I. 32 [*213] 250 RIGHTS OF HEIKS AND EXECLTOKS upon what he would or would not have done ; but, in these case?^ the enquiry must be, whether at his death a contract existed, hj which he was bound, and which he would be compelled to per- form. That alone can give the heir of the purchaser a right to call for the personal estate to be applied, or to the personal repre- sentative of the vendor, a right to call upon his heir. The question must be the same, whether a purchase or a sale is insisted on. Was the ancestor himself bound ? Was there such an agreement as converts the real estate into personal, or the personal estate into real ? (e) (I). On this ground it has been decided, that where a man had a right of pre-emption of an estate under a will, and did not accept the offer in his life-time, or denote any intention by his will to do so, there was no subsisting contract, by virtue of which the right passed to the real representative, so as to enable him to call upon the personal estate to pay for the estate, as if it had been contracted for (/). So where upon a parol treaty, the purchaser filed his bill for a specific performance of it, and the vendor sub- mitting to perform it, a decree was made, that the purchaser should pay the money into the bank by a given day, or the bill should be dismissed ; and the purchaser paid the money according to the decree : in a question between his heir and devisee it was deter- mined, *that the estate did not pass by a general devise in his will, which was made p^ior to the payment of the money (^). It will be observed, that in this case, neither of the parties was bound at the time the bill was filed ; and if the purchaser had not paid the money, his bill would have been dismissed, and, in that event, no contract would ever have existed. It was therefore clear, that the inception of the contract was ujwn payment of the money, and the will, therefore, having been made before the contract, could not affect the estate. But now such a will would operate to pass the estate contracted for, although the contract was concluded after the execution of the will (A). (e) Per Sir Wm. Grant, 7 Ves. juii. (y) Gaskart i-. Lord I^wther, 12 Yes, 344, 345. jun. 107; and see Buckler. Baines, 8 (/) Earl of Radnor r. Shatto, 11 Ves. Sim. o2J. jun. 448. (A) 1 Vic. c. 26. \ide supra. (I) Note, in Potter v. Potter, 1 Ves. 438, a bill was filed to compel execution of the parol agreement in the testator's lifetime ; his agent gave a note for payment of part of the purchase-money, and let the estate as he pleased. Possession of the estate mus^t, therefore, have been delivered to him. And the Master of the IloUs expressly said, that the agreement was so far carried into execution, even before the will, as to supply the want of writing. This case, therefore, like the others, ordy proves, that a binding contract in the testator's life-time will be enforced^ [*214] WHERE NO TITLE. 251 76. But if an estate directed to be bought, but not actually con- tracted for, is not, or cannot be bought, yet the money must be laid out in other lands, for the benefit of the devisee (i). And where a testator intends that the devisee of the contracted estate shall have another estate of equal value, in case a good title can- not be made to the one contracted for, an express declaration to that effect should be inserted in the will. 77. By this time we must have observed, that the foregoing rules, as to the conversion of the estate, apply to those cases only where a court of equity will decree a specific performance : for if equity will not interfere, and the vendee be left to his remedy at law, the rules of law, and not those of equity, must then prevail, and consequently neither the vendor nor his heir would be con- sidered as a trustee for the purchaser, but would only be subject to an action for breach of contract. (0 Whittaker v. Wliittaker, 4 Bro. C. Monck, 10 Ves. jun. 597. C. 31 ; and see 2 Atk. 369 ; Broome v. Vide supra. *SECTION IL or OTHER RIGHTS AND LIABILITIES ARISING OUT OF CONTRACTS. 2. Where purchaser liable to existing mortgage debt. 17. . 4. Stopping proceeditigs in ejectment. 19. 5. Further advances to mortgagor after a sale by him. 20. 6. Redemption of mortgages on distinct 21. ■estates. 22. 7. Loss of mortgage deed. S. Production of mortgage deed. 23. 9. Assignee of mortgagee subject to the account. 24. 11. Annuity the price of an estate, Iww 25. to be secured. 26. 12. Purchaser te indemnify against charges. 27. 13. As where he buys a lease. 28. 14. Or an equity of redemptiofi. 29. 15. Remedy of surety against purchc^er. 16. Liability of sub-purchaser. 30. Agreement to give real security en- enforced. PurchasB'r's remedy for rent and covenants. Ap2)ortiomnent of rents. Liquidated damages. Ptcrchaser of legacy entitled to stock investment. Fraud in sale of life policy. Where power to re-purchase makes a loan. Payment to be made on conditio?!. Re-purchase on a condition. Notice to purcliase binding under Act of Parliament. Railway Act ; costs of making out title. Purchaser bound by grant of stew- ardship for life. Sfetoard of manor. I. We have already considered the operation of a contract f*215] "252 PURCHASE OF EQUITY OF KEDEMPTION. upon an existing tenancy, and we shall, in considering the remedy at law upon a contract, have occasion to show that the giving of possession to purchaser before the conveyance does not create a tenancy (a). 2. Disputes often arise between the real and personal represen- tatives, where a person purchases an equity of redemption ; the real representative mostly claiming to have the mortgage money paid off out of the personal estate, and the personal representative resisting the demand. Unless the mortgage money form part of the consideration money for the estate, or the purchaser, by com- munication with the mortgagee, clearly take the mortgage debt on himself, as between his heir and executor, it will be considered a charge on the land ; the mere covenanting with the mortgagor to pay the debt, will not make it his personal debt ; and consequently *his personal estate, as between the heir and executor, will only be the auxiliary fund for payment of it (b) (1). 3. In cases of this nature equity always adverts to the intention of the purchaser, and disputes on this subject may therefore be prevented, by the insertion of a short declaration in the purchase- deed, whether the personal estate of the purchaser shall or shall not, as between his heir and executor, be the primary fund for pay- ment of the mortgage money. 4. It seems that where a mortgagor has agreed to convey his equity of redemption to the mortgagee, the proceedings in an ejectment by the mortgagee cannot be stopped under the 7 Geo. 2, c. 20, for the effect of it would be to strip the mortgagee of his legal title, which might let in a posterior equitable right to the pre- judice of the mortgagee, though he should thereafter obtain a decree for the performance of the agreement (c). But the relief will be («) Post, sect. 4. Ves. jun. 670 ; and 7 Ves, jun. 332 ; (6) On this point see Evelyn ij. Evelj'n, Lord Oxfprd r. Lady Rodney, 14 Yes. 2 P. Wms. C)')9 ; and the cases in Mr. jun. 417; Barham ?•. Lord Thanet, 3 Cox's note ; to -which add, Hamilton v, Mvl. & Kec. 607 ; Bickham r. Crutwell, Worley, 2 Ves. jun. 62 ; Woods v. Hun- ?, Myl. & Cra. 763 ; Roclifort v. Lord tingford, 3 Vos. jun. 128 ; Bullcr v. Bui- Bch-idere, 1 Wall. & Lyne, 45. ler, 5 Ves. jtm. 517 ; Waring v. Ward, (c) Cioodtitle v. Pope, 7 Term Rep. 185. (1) See 1 Story Eq. Jur. §576 ; 4 Kent (6th ed.) 421 ; Tweddell v. Tvreddell, 2 Brown C. C. (Perkins's cd.) 101, 108, notes; Billinghurst r. Walker, ib. 608 and note (a) ; Cumberland v. Codrington, 3 John. Ch. 229 ; Butler r. Butler, 5 Yesey (Sumner's ed.) .534 note (a) ; 2 Story Eq. Jur. H248 ; Fonbl. Eq. Bk. 3, Ch. 2 §1 and notes; Keyzey's case, Serg. & R. 72 ; 2 Jarman AVills (2d Am. ed.) 559 and notes ; McLeam v. McLellan, 10 Peters, (S. C.) 625 ; King v, WTiitely, 1 Hoff. Ch. Rep. 477 ; Ancaster r. Mayer, 1 Brown C. C. 454, in White's Lead. Cas. in Eq. 415 et seq. and notes. [*216] PURCHASE OF EQUITY OF REDEMPTION. '253 granted to the mortgagor, where the mortgagee has not taken any steps to complete his contract for the purchase of the equity of re- demption (d). 5. A mortgagee lending a further sum of money to the mort- gagor, without notice of the sale of the equity of redemption, would bind the purchaser although his conveyance is registered (e) ; and therefore a purchaser of an equity of redemption of an estate should, immediately after the sale, give notice of it to the mort- gagee, although the estate is in a registered county, and his convey- ance is duly registered (1). 6. Another powerful reason why a purchaser cannot safely buy an equity of redemption without the concurrence of the mortgagee, even where the mortgage is not intended to be paid off, is, that he may be compelled to redeem another estate, for a mortgagee of two distinct estates upon distinct transactions from the same mort- gagor is entitled to hold both even against the purchaser of the equity of redemption of one of the mortgaged estates, without notice of the other mortgage until payment of the whole money due on both mortgages (/). The mortgages must, however, be of the legal estate (o-), and to the same person ; and although the *doctrine has been sometimes doubted (A), yet it appears to be per- fectly settled (i) (2) 7. If the mortgagee have lost the mortgage-deed, yet the pur- chaser, like every other mortgagor, would be compelled to pay the money upon a reconveyance, and an indemnity against the loss of the deed (k). 8. A mortgagee cannot be compelled to produce his deeds before he is paid off, unless he consents to a sale ; for by that he submits to do everything that is necessary to a sale (I). This has often been ruled. (rf) Skinner v. Stacy, 1 WiLs. 80. deed. Ex parte Carter, Ambl. 733 ; Tri- (e) Infra, ch. 21. boiirc; v. Lord Poinfret, ib. n. (2) ; Roe (f) Ireson v. Demi, 2 Cox, 425; see v. Solcy, 2 Blackst. 726 ; Cator c. Charl- White V. Ilillacre, 3 You. & Coll. oTt. ton, Collett c, Munden, 2 Vcs. jun. 377, {g) Jones r. Smith, 2 Yes. jun. 376. cited. (A) Ex parte King, 1 Atk. 300 ; Willie (A) Stokoe r. Robson, 3 Yes. & Bea. V. Lugg, 2 Ed. 77. 54 ; 19 Yes. jun. 385 ; see Shclmardine (j) Titley r. Da%'i3, Ambl. 733, cited, v. Harrop, 6 Mad. 41. •where both mortgages were by the same (l) Anon. Mose. 246. (1) But registration, under the registry acts in the United States, is held to be constructive notice to all persons. 4 Kent (6th ed.) 174, 175 ; 1 Cruise Dig. by Mr. Grcenleaf, vol. 2, Tit. 15, Mortgage, Ch. 3, ^^36, note, p. lOG, note (1) ; 1 Story Eq. Jut. ^Hd, in note. (2) 1 Cruise Dig. bv Mr. Oreenleaf, vol. 2, Tit. 15. Ch. 3, ^ 54, 55. f*2171 254 PURCHASE OF EQUITY OP REDEMPTION. 9. And here it may be remarked, than an assignment should not in any case be taken of a mortgage, without the privity of the mortgagor as to the sum really due ; for although it undoubtedly is not necessary to give notice to the mortgagor that the mortgage has been assigned (m), yet the assignee takes subject to the account between the mortgagor and the mortgagee, although no receipt be indorsed on the mortgage-deed for any part of the mort- gage nKjney which has been actually paid off (w) (1). 10. And I cannot refrain from observing, that there have been so many forged mortgages executed by persons in confidential situa- tions, that no man should take a mortjiage or a transfer of one without being well satisfied that it is a genuine instrument : the danger is not diminished now that the severity of the law against forgery has been relaxed. 11. Where a man sells an estate for an annuity without any agreement being made respecting the security to be given for it, he is entitled to have it secured, not only upon the estate, but also by the bond of the purchaser, and a judgment to be entered up against him (o). In Ker v. Clobery (p), which came before the Court upon a petition between the heir and executor, it appeared that the equity of redemption was sold to the mortgagee for the mortgage money, and a life annuity to be paid to the seller and his wife, and the survivor of them, but nothing was said as to the mode in which the annuity was to be secured. It was held to be *a purchase of the equity of redemption, subject to the annuity, which ought to be charged on the estate. It was an interest reserved by the seller out of the estate. 12. A purchaser of an estate subject to incumbrances must indemnify the vendor against them, although he did not expressly engage to do so. 13. Thus a purchaser of a leasehold estate must covenant with (m) See 9 Yes. jun. 410. (o) Remington v. Deverall, 2 Anstr. (m) Matthews r. "Wallwyn, 4 Yes. jun. 550 ; gu. as to the right to a judgment ; 118. See 9 Yes. jun. 204 ; Ferrall v. Bower v. Cooper, 2 Hare, 408. Boyle, 1 Ir. Eq. Rep. 391. (p) V. C. 27 Mar. 1819, MS. (1) The assignee of a mortgage takes it subject to all the equities existing be- tween the mortgagor and mortgagee at the time of the assignment ; and payments made after an assignment, but before notice of the assignment is given to the mortgagor, must be allowed to him. James v. Morey, 2 Cowen, 24G. In this case, it was held that, as the registry acts did not require the registration of the assignment of a mortgage, such registration, in fact, made, would be no notice to a mortgagor, so as to render payment made by him to the mortgagee in Ids own •wrong, lb; S. C. 6 John. (;h. 417; 4 Kent ((Jth ed.) 174 and note; Jackson v. Blodget, 5 Cowen, 202 ; Matthews v. Walwyn, 4 Yesey (Sumner's ed.) 1 18 and note. [*218] I SECURITY TO BE GIVEN ON AN ANNUITY. 255 the vendor to indemnify him against the rents and covenants in the lease, although he is not required to do so by the agreement for sale (g). 14. So, although a purchaser of an equity of redemption enter into no obligation with the party from whom he purchases, to in- demnify him from the mortgage-money, yet equity, if he receives the possession, and has the profits, would, independently of con- tract, raise upon his conscience an obligation to indemnify the vendor against the personal obligation to pay the mortgage-money ; for having become owner of the estate, he must be supposed to intend to indemnify the vendor against the mortgage (;•). 15. But where the mortgage was secured upon the estate sold, and also by a surety, and upon the sale the purchaser covenanted with the seller and his surety to pay the money, and to indemnify the seller and his security from the payment of it, it was held that the surety having been compelled to pay, could not recover in an action of assumpsit against the purchaser, but his only remedy was by an action by the seller upon the covenant. It was considered that it might have been otherwise, if there had been a mere con- veyance without any covenant, for then the purchaser would ha\e been the seller's substitute, and the surety would have been the surety of the purchaser (s). 16. And if a purchaser who has not obtained a conveyance sell to another, the second purchaser is, without entering into a cove- nant, bound to indemnify him against any costs incurred in pro- ceedings for his benefit (t). 17. If a seller agree to give a real security as an indemnity to a purchaser upon his accepting the title, he will be compelled speci- fically to perform it, although he has not sufficient real estate, and offers a sufficient security upon personal estate (u). 18. Upon a sale of minerals, where the payment depends upon *the quantity gotten, the vendor is entitled by implication to power to enter, &tc., to ascertain the quantity gotten (r). 19. A purchaser of an estate let to a tenant from year to year may, without a new contract, or any act corresponding to attorn- ment, recover the rent ; and nothing would be a good defense in an action brought for it but the fact that he did not know of the sale, (ry) Pember v. Mathers, 1 Ero. C. C. Moo. 411. o2, et Kupra, p. 38. (t) I'cr Lord Eldon, iii Wood v. Grif- (;•) See 7 Vus. jun. 337, ;jer Lord El- tith, 12 Feb. l.Sl«, M.S. don. («) Walker r. Barnes, 3 Madd. 247. (?) Crafts r. Tritton, 8 Taimt. 365 ; 2 (o) Blakeslev^.Whieldon, 1 Hare,176. [*219] 256 purchaser's right to rent and covenants. and had paid his rent before to his lessor (x). So, if the estate is in lease the purchaser is entitled to the benefit of covenants entered into by the lessee with the vendor (y) and may recover for a breach of the covenants before his time, if he is seised of the reversion during the continuance of the term (z) ; and he may, after notice to the tenant of the conveyance, distrain for rent in arrear (a), whether the estate be freehold or leasehold (I). But he cannot *recover arrears of rent due before the assignment, although it will carry the right to the whole of the accruing quarter or half-year (b), which of course would not be controlled by a contemporaneous (x) See 1 Vern. & Scriv. 289 ; Birch reversion, see now 7 & 8 Vict. c. 76, s. V. Wright, 1 Term llcp. 378. See Lum- 12 ; 8 & 9 Vict. c. lOG, s. 9. lev r. llcisbeek, lo East, 99 ; Rogers v. («) See Moss r. Gallimorc, Doug. 2o9 ; Ilumplu-evs, 4 Adol. & Ell. 299 ; Evans Pope v. Biggs, 9 Barn. & Cress. 24-5 ; 4 V. Elliot, 9" Adol. & Ell. 342; sec Guinness Man. & Ily. 193 ; Waddilovc v. Barnett, V. Burr, 1 Hayes & Jo. 735. 2 Bing. N. C. 538 ; Brook r. Biggs, ib. (i/) ^cc post, ch. 14. 572; Partmgton i-. Woodcock, 6 Adol. {:) Davis's case, M. T. 42 Geo. III. & Ell. 690 ; Brown v. Storey, 1 Mann. Woodfall's Land. & Ten. 529, 2d edit. & Grang. 117 ; Doe v. Barton, 11 Adol. See Lefroy v. Lee, 1 Hayes & Jo. 721. & Ell. 307. As to the necessity of having the same {b) Flight v. Bentley, 7 Sina. 149. (I) It was recently proposed to deprive all middle men, even in England, of the right to distrain for rent in arrear. Thus, suppose a building lease to be granted by John to James for ninety-nine years, at lOl. a year ; James builds a valuable house, and underlets to Joseph, for forty years, at 100^ a year ; and Joseph under- lets to Jacob, for thirty years, at 120/. a year ; it is manifest that James has the greatest interest in the property ; and, as the law now appears to stand, he can distrain for his rent, notwithstanding the last underlease. This right was pro- posed to be taken from him, but the measure was dropped. In support of the measure, it was contended, that none but the original lessor is entitled to distrain for rent, according to the law of England ; and therefore that, ill the case which I have put, James Avould not be aifected by the act ; because he would not, as the law now stands, be entitled to distrain. The argument, which was managed with great ingenuity, was rested upon the statute of guia cmptores, and some passages in Coke ujjou Littleton. When it is considered, that the right of distress, in the case above supposed, has never been disputed, it will not be matter of surprise, that the attempt to show that the practice is illegal did not succeed. That rent may be distrained for, although fealty is not incident to it, is laid down in Co. Litt. 142, b. ; and it seems to be clear, that distress is incident to every rent at common law, where the lessor has a reversion ; and that a rever- sion of a single day is, for this purpose, as operative as a reversion in fee. In the year book, 14 Edw. III. p. 8. Finchdcn thought, that if a lessee leased all his estate rendering rent, ho could not distrain ; he had no reversion. In the 2d Edw. IV. p. 11, the very objection was taken, where the lessor had a reversion ; because it was only the reversion of a chattel ; but it was held, that he had a right to dis- train. In Brooke's Abridgment, Distress, case 45, and Rents, case 17, it is laid down, on the authority of this casC; that if a man lease for twenty years, and the lessee leases over for ten years, rendermg rent, there, if he grant the rent over to another man, he cannot distrain ; because he has not the reversion of the term, which gives the right to distrain : contrary, if he had granted to him, the reversion and the rent. Note the diversity. In Wade r. Marsh, Latch, 211, it Avas held, that the lessor having only a reversion for years, may, by the common law, dis- train for the rent, by reason of the reversion, which causes privity. These cases appear to be quite decisive. The only difficulty has been to lind a case ; for the point has not been doubted for centuries. [*220] OF APPORTIONMENT OF RENTS. 257 parol agreement to divide the accruing rent (c) ; nor can he recover if he purchase after the term ended for a breach during the term, although there has been a continuing tenancy, for the tenant is hable to his original landlord on his breach of covenant, and cannot also be liable to the purchaser, the new landlord, for the same damage arising from the breach of his implied undertaking. If the seller has sold the estate for a lower price because he is to have the remedy against the tenant, he may sue on his own account : if he has received the full price, on the ground that the damage is to be made good, he may sue as a trustee for his vendee (rf). 20. And here we may observe, that by a late act (e), all rents service reserved on any lease by a tenant in fee, or for a life interest, or by any lease granted under any power (and which leases shall have been granted after the passing of this act), and all other rents, Stc, made payable or becoming due at fixed periods under any instrument executed after the passing of the act, or (being a will or testamentary instrument) that shall come into operation after the passing of the act, are upon the death of any person interested in such rents, or on the determination by any other means, of the interest of any such person, made apportionable in favor of such person or his personal representatives, unless it shall be expressly stipulated that no apportionment shall take place. 21. Where a business is sold with a house, as in the case of a public-house, it is sometimes usual to insert an agreement that in case the seller carry on a similar business during a limited period within a specified distance of the house, he shall pay a sum named as liquidated damages. Where the agreement is properly framed and the instrument is under seal, and even perhaps if it be not under seal, the whole sum, in case of a breach may be recovered, *and at all events, although no damage is proved, yet the jury may give as damages the whole amount of the sum fixed (/)• Where the parties have expressly stipulated that in case of a breach by either, he shall pay a sum named as liquidated damages, the whole sum may, if the agreement be broken, be recovered at law (»•) (1). (c) Fliun V. Calow, 1 Man. & Grang. Browne r. Amyot, .'} Ilai-e, 173. 689. (/) Crisdcc r. Bolton, 3 Cair. & Pay. (d) Johnson v. Churchwardens of St. 240 ; see Randall v. Everest, 2 Carr. & Peter, 4 Adol. & Ell. 520. Pav. o77, 1 Mood. & Malk. S. C. (e) 4 & 5 Will. 4, c. 22 (16 June 1834). (fj) Rcilly r. Jones, 1 Bing. 302 ; 8 See in re Markby, 4 Myl. & Cra. 484 ; Moo. 244. (1) Chitty Contr. (8th Am. ed.) 758 et seq. and notes ; Dakin v. Williams, 17 Wendell, 447 ; AVilliams v. Daldn, 22 Wendell, 201 ; Pearson v. Williams, 26 Vol. 1. 33 [*221] 258 AGREEMENTS UPON A CONDITIOW. 22. Arr assignment of a iegacy as sterling money will carry the stock in which it is invested under a will, and the purchaser will be entitled to the rise,, or must bear the fall, as the case may be^ if the money was at the time of the sale invested in the funds, and the intention was to sell the fund in its actual state of invest- ment (A). 23. Where a policy of assurance on a life was sold by auction ^ and the particulars did not state that the seller bad only a redeem- able interest in the life assared, and the interest was afterwards redeemed, it was held that after the purchase was con)pleted the purchaser could not recover damages for the fraud, as it was proved that the practice of the office was to pay such jX)licies, although of course there was no legal right to recover under the ]X)licy (i). 24. A bona fide purchase of an interest will not be converted into a loan, on account of a jx>\ver to repurchase being given to- the seller, although at an advanced price ; but, if the purchaser, instead of taking the risk of the subject of the contract (e. g. an annuity) on himself, take a security for repayment of the principal, that will vitiate the transaction, and render it a mere mortgage security (j) (1), (A) Lucas r. Bond, 2 Kee. 136. (,/) Verner r. Wiustanlcy, 2 Sch. & {i) Barber v. Morris, 2 Moo. & Malk. Lei". 393. Sec Sevier v. Grcemvay, 19 62. Ves.jun. 413. "Wendell, fi30 ; Slosson v. Beadle, 7 John. (2d ed.) 72 note (a) ; Ha-sbroiich v. Tajjpen, 15 John. 200. The question, what is liquidated damages, and what a penalty, is often a difficult one. It is not always the calling of a sum, to be paid for breach of contract, liq\iidatetl damages, which makes it so. Li general, it is the tendency and preference of the law, to regard a sum, stated to be payable if a contract is not fulfilled, as a penalty and not as liciuidatcd damages ; because then it mav be apportioned to the loss actually sustainetl. Per Shaw Ch. J. in Shute V. Taylor, 5 Metcalf, 67. (1) A sale, with an agreement for a re-purchase A\-ithin a given time, is totally distinct from, and not applicable to mortgages. Such conditional sales or defeasi- ble purchases, though narrowly watched, arc valid, and to be taken strictly as independent dealings between strangers. 1 Kent (6th ed.) 114. If it be doubt- ful whether the parties intended a mortgage, or a conditional sale, courts of equity incline to consider the transaction a mortgage, this being the more just and equitable construction, and one which tends to prevent oppression. Poin- dexter v. McCannon, 1 Dev. Eq. Cas. 373 ; Skinner v. Miller, .5 Litt. 8i; Sccrest V. Turner, 2 J. J. Marsh. -171 ; Ediington v. Harper, 3 J. J. ^Marsh. 354 ; Crane v. Bonnell, 1 Green. Ch. 264. If a debt still subsists, and the relation of debtor and creditor remains, it is a mortgage ; but if the debt be extinguished by the agreement of the parties, or the money advanced is not by way of loan, and the- grantor has the privilege of refunding, if he pleases by a given time, and thereby entitle himself to a reconveyance, it is a conditional sale. Sice i\ Manhattan Co.. 1 Paige Ch. 56 ; Flagg v. Mann, 14 Pick. 467 ; S. C. 2 Sumner, 534; Goodman v. Grierson, 2 Ball & Beat. 274 ; Conway r. ^Vlexandcr, 7 Cranch, 237 ; Kobinson v. Cropsey, 2 Edwards, 138 ; Holmes v. Grant, 8 Paige, 243 ; Webb v. Patterson, 7 Humph. 431; Page v. Foster, 7 N. Hamp. 392 ; I'orter r. Xelson, 4 N. Hamp. 130 ; Rice v. Rice, 4 Pick. 349 ; Wharf v. HoweU, 5 Binney, 499 ; Glover v. Payn,, 19 Wendell, 518. Adequacy of price paid, and want of an obligation to repay the AGREEMENTS UPON A CONDITION. 259 i25. If a purchaser agree to pay an addition to the purchase- ^noney, provided the adjoining property be improved in a stipulated manner before a day named, the money cannot be recovered if the seller do not make all the improvements before that day ; in other words, the condition must be performed to entitle him to the money (Z:), 26. If a power to re-purchase be given upon a condition, for example, that rent be in the meantime regularly paid, the right cannot be enforced unless the condition has been complied with, for it is not a stipulation for penalty or forfeiture, but a privilege conferred (/) (1). *27. Where a power is given by an Act of Parliament to purchase the estate of a third person for a public purpose, with the usual provisions for ascertaining its value, if the terms offered are not accepted ; the party empowered to purchase, if he give a regular notice to purchase, cannot withdraw from it, but will be compelled to take the estate (m). 28. A provision in a railway act that the costs of the contracts, sales, and conveyances shall be borne by the purchasers, includes the vendor's costs of making out his title (n). 29. If a man has agreed to grant a lease, he should be cautious in purchasing the interest of an under-lessee or of an assignee of part, that he do not subject himself to the liabiUties of the seller, and release the original lessee from his obligations (o). 30. It may here be observed, that the grant of the office of a steward of a manor for life is not revoked by a subsequent sale of the manor, but is binding on the purchaser ; although, as lord, he (^) Mary on r. Carter, 4 Carr. & Pay, Company, I Nev. & Mann. 112. 295 : see the form of the pleadings. (») Ex parte Feoffees of Addie's Cha- (i) Davis V. Thomas, 1 liuss. & MyL rity, 3 Hare, 22. As to expenses of in- 506. Sec and consider "Williams r. vestment, see Ex parte Bishop of Dur- Owen, 10 Sim. 386; Perry v. Meddow- ham, 3 You. & Coll, 690. croft, 4 Beav. 197. (o) Jenkins v. Portman, 1 Kee. 435. (»») The King i'. Hungerford Market purchase money, are important facts tending to show a conditional sale, though not conclusive. B^o^vn v. Dewey, 2 Barbour Sup. Ct. R. 28 ; Flaggc. Mann, 2 Sum- ner, 534 ; Smith v. Peoples Bank, 24 Maine, 185. On the other hand, gross inad- equacy of price is a strong circumstance to show that the transaction was intended as a mortgage. Conway i-. Alexander, 7 Cranch, 218, 241 ; Oldham r. Ilalley, 2 J. J. Marsh. 114 ; 1 Cruise Dig. by Mr. Greenleaf, vol. 2, Tit. 15, ch. 1, f38, "and note. In "Waters r. Randall, 6 Metcal^ 482, Mr. Justice Hubbard said ; — " We have no doubt, that conditional agreements may be made for the purchase of lands, and that sales of estates also, upon good consideration, may take place, in which the vendor may contract for the repurchase of the same. But such contracts must be bona fide, and not a mere cover for a loan of money." (1) See 4 Kent (6th ed.") 144 and note; Robinson r. Cropsey, 2 Edwards, 138- (*2221 260 OF SPECIFIC PERFORMANCE. will be entitled to the custody of the court-rolls. In purchasing a manor, therefore, the instrument by which the steward was ap- pointed should be called for. This is a precaution which has never been attended to. SECTION III. OF SPECIFIC PERFORMANCE. 1. No specific performance by Court of Revieio. 2. Form of decree. I. Against the vendor. 3. Heir at law bound. 4. Infant heir of vendor. 5. Devisees in strict settlement of vendor. 6. Tetiant in tail. 7. Provisio7is by statute. 8. Equitable tenant in tail. 9. Tenants in tail of copyholds. 12. Doweress. 13. Joint tenant. 14. Feme covert. 15. Where she has a power. 16. Decree against the husband. 20. Feyne covert icith separate estate, purchasing. 22. Lunatic ; effect of lunacy on con- tract. 23. Trustees under power. 24. Infant. n. As regards the agreement. 28. Sale of annuity, stock, S^c. 29. Discretionary. 30. ) Misrepresentation by purchaser or 31. S seller. 32. General statements, *33. Value. 34. Intoxication. 36. Where the action is lost. 37. Datnages recoverable at law. 38. Hardship of sale upon seller. 39. Want of cotnpetency. 41. Purchase of lease or under lease. 42. Suppressio veri : stiggestio falsi. 43. Mistake. 44. Surprise. 45. Fraudulent misrepresentation. 46. Sale by agent contrary to authority. 47. Breach of trust. 49. Discretionary power in trustees. 50. Sale by tenant for life. 52. Seller not owner. 54. Want of title. oC. Equitable title, 57. Purchaser nominal contractor. 61. Seller pretending to be an agent. 62. Sale of annuity for lives not named. 63. Specific performance where no action will lie. 69. Penalty: specific performance. 70. Penalty : action. The observations in a preceding section (a), lead us now to inquire, in what cases a court of equity will decree a specific per- [*223] (a) Section I. DECREE FOR SPECIFIC PERFORMANCE. 1^61 formance ; which, for the purposes of this work, may be comprised under two heads. First, with respect to the vendor ; secondly, with respect to the agreement itself. 1. I may premise that the Court of Review in bankruptcy has not jurisdiction to compel a specific performance where an estate is sold under the common order of the court on the petition of an equitable mortgagee (b). 2. As to the form of the decree. Lord Eldon observed, that, according to the old practice, there were two ways of framing a decree for specific performance. The one was to declare that the plaintiff was so entitled to a specific performance if a good title could be shown, and then to direct a reference as to the title ; the other to refer the title to the Master, and to follow up that direction by a declaration, that if a good title was shown the agreement ought to be specifically performed ; and he added, that in his opinion difliculties may often arise from omitting to make a declaration in the decree (c). And upon another occasion he observed, that in suits for specific performance, where the question of title is not the only issue, but the defendant insists that, whe- ther the title be good or bad, the plaintiff is for any reason not entitled to specific performance, it is specially necessary that there should be in the first instance a declaration that the plaintiff is entitled to have the contract specifically performed if a good title be shown (d). But still it is quite settled, that in the com- mon case a mere reference of the title is an implied declaration of the plaintifTs right to a specific performance if the title prove to be good (1). *3. In regard to the vendor, — if a man, seised in fee-simple, or pur autre vie (e), contract for the sale of his estate, and die before the conveyance is executed, his heir at law will be decreed to perform the agreement in specie, although he covenanted for him- self only, and not for his heirs (/) (2). 4. It was a point of great controversy whether the 7 Anne, c. 19, enabled an infant heir at law to convey in performance of a con- tract made by his ancestor. It is now sufficient to refer to the (6) Ex parte Cutts, 3 Dcac. 212. cited; Nels. Cha. llcp. 106, reported; (c) 3 Russ. 182. see Anon. 2 Freem. loo. (d) Pitt V. Davis, 3 Swanst. 182, n. (/) Gell v. Vermedum, 2 Freem. 199. (e) Stevens v. Baily, 2 Freem. 199, (1) See Seaton's Forms of Decrees, 209 etseq. ; 2 Danicli Ch. Pr. (Perkins's od.) 1195 et seq. (2) See Rev. Stat. Mass. Ch. 74, §8 et seq. ; Glaze v. Drayton, 1 Desaus. 190 ; Swartwout r. Bnrr, 1 Barbour, 49o. [*224] 262 INFANT TRUSTEES. cases (§•), for that act was repealed by the 6 Geo. 4, c. 74; but even the latter act was held not to embrace constructive trusts (A). The law now depends upon the 1 Will. 4, c. 60, which enables conveyances to be made by committees of trustees and by luna- tics, although not found so by inquisition, and by infant trustees (1) ; and (?*) it provides that every person, being in other respects within the meaning of the act, shall be, and be deemed to be, a trustee within the act, notwithstanding he may have some bene- ficial estate or interest in the same subject, or may have some duty as trustee to perform. And it expressly enacts (k), that where any land shall have been contracted to be sold, and the vendor, or any of the vendors, shall have died, either having received the purchase-money for the same, or some part thereof, or not having received any part thereof, and a specific performance of such con- tract, either wholly or as far as the same remains to be executed, or as far as the same, by reason of the infancy, can be executed, shall have been decreed by the Court of Chancery (I), in the life- time of such vendor, or after his decease (I), and where one person shall have purchased in the name of another, but the nominal purchaser shall on the face of the conveyance appear to be the real purchaser, and there shall be no declaration of trust from him, and a decree of the Court, either before or after the death of such nominal purchaser, shall have declared him to be a trustee for the real purchaser, then in every such case the heir of such vendor, or of such nominal purchaser or his heir, in whom the *premises shall be vested, shall be a trustee for the purchaser within the act. 5. The act then provides (//i), that where any land shall have been contracted to be sold, and the vendor or any of the vendors shall have died, having devised the same in settlement, so as to be vested in any person for life or other limited interest, with any remainder, limitation or gift, and which may not be vested, or may ((7) See Ez parte Vernon, 2 P. Wms. Oneby r. Price, Fearne's Post. 239. 549 ; Sikes v. Lister, 5 ,Vin. Abr. .541, (k) Dewr. Clarke, 4 Russ. 511 ; King pi. 28 ; Goochvin v. Lister, 3 P. Wms. v. Turner, 2 Sim. 650. 387 ; S. C. MS. ; Hawkins v. Obcen, 2 (i) Sec. 15. Vcs. 559 ; Fearne's Posthuma, 236 ; Jer- (k) Sec. 16. don r. Forster, 1 Sand, on Uses, 283, ci- (/) Prytharch v. Havard, G Sim. 9. ted, 3d edit. Ex 2}arte Janaway, 7 Price, (?«) Sec. 17. 679 ; Smith v. Hibbard, 2 Dick. 730 ; (I) The powers are extended to the Court of Exchequer, &c. &c. See 26, 31 ; and see 3 Vic. c. 60. (1) See Swartwout v. Burr, 1 Barbour, 495. [*225] TENANT FOR LIFE TO CONVEY. 263 be vested in some person from whom a conveyance of the same cannot be obtained, or by way of executory devise, and a specific performance of such contract, either, wholly or so far as the same remained to be executed, shall have been decreed by the Court, it shall be lawful for the Court to direct such tenant for life, or other person having a limited interest, or the first executory devisee thereof to convey the fee-simple or other the whole estate con- tracted to be sold to the purchaser, or in such manner as the court shall think proper. The act is then (ji) extended to other cases of constructive trusts, but is not to extend to a vendor, except in any case before expressly provided for (o) (I). (m) Sec. 18. (o) See King v. Leach, 2 Hare, 57. (I) The general powers of this act are extended to the heirs and devisees out of the jurisdiction, or the like, of a mortgagee where the latter was not in possession of the estate, or in receipt of the rents, and the money due shall have been paid or shall be paid to his executor or administrator. 1 & 2 Vict. c. 69. And by the 4 & 5 Will. 4, c. 23, the powers are extended to cases of trustees and mortgagees dying without an heir ; and escheats and forfeitures as to trustees and mortgagees are aboHshed except to the extent of any beneficial interest ; and even jDrevious escheats and forfeitures are, within certain limits, relieved against. Considerable difficulty has arisen in regard to mortgagees under these acts, and further provision apjiears to be necessary in order to clear uji all doubt on this head. The G Geo. 4, c. 74, s. .5, included expressly persons seised by way of mort- gage, as well as those seised upon any trust within its general proAdsions. In the 1 Will. 4, c. 00, s. 8, the words, by way of mortyage, were purposely omitted, and it was accordingly repeatedly decided that the latter act did not embrace mort- gagees or their heirs : see Jemmett on the Statutes, p. loO. The 4 & 5 WUI. 4, c. 23, wliich rebated to escheat and forfeiture, referred to the 1 Will. 4, c. 60, as if it did ii^clude the heir of a mortgagee. This was a palpable error, but it was deci- ded that it had the effect of enlarging the previous statute of Will. 4, so that the heirs of mortgagees were included within its ojieration. In re Stanley, 7 Sim. 170 ; Ex parte Whitton, 1 Keen, 278. But this is a very doubtful point, and if this be the true construction, the remedy would apply to the mortgagee himself, which clearly was not intended, and this was the objection to the 6 Geo. 4, which, although it included mortagees, made no provision for the payment of the mort- gage-monev. Ex 2)arte Whitton has, however, been followed bv In re Thomson, 12 .Sim. 392. In order to remove the existing difficulties, the 1 & 2 Vict. c. 69, was passed. It provides that where any mortgagee shall have died without haviny been in pos- session/ of the land, or in the receipt of the rents and jjrofts thereof and the money due in respect of such mortgage shall have been or shall be paid to his executor or administrator, and the devisee, or heir, or other real representative, or any of the devisees, or heirs, or real representatives of such mortgagee shall be out of the jurisdiction, or not amenable to the process of the Court, or it shall be uncertain, where there were several devisees or representatives, Avho were joint tenants, which of them was the survivor, or it shall be uncertain whether any such devi- see, or heir, or representative be living or dead, or if known to be dead it shall not be known who Avas his heir ; or where such mortgagee, or any such devisee, or heir, or representative shall have died without an heir, or in case of neglect to convey, itc, the Court may appoint a person to convey, in like manner as, by the act of I Will. 4, c. 60, the Court is empowered in the place of a trustee or the heir of a trustee. But it is provided that the acts of 1 Will. 4, c. GO, and the 4 & .5 Will. 4, c. 23, or either of them, should not be construed to extend to any case of any person dying seised of any land by way of mortgage other than sucli as were tlierein be- fore expressly provided for. 264 CONTRACT BY TENANT IN TAIL. *6. An agreement by a man seised in tail was, of course, binding on himself, but it could not be enforced against the issue in tail, if *the entail was not effectually barred, although the ancestor cove- nanted for that purpose (p), and received part, or even the whole of the purchase-money, and a decree was made against him, and he died in contempt, and in prison, for not obeying the decree ((7) : the ground of which determinations was, that the issue in tail claim (p) Cavcnclish v. Worsley, Hob. 203 ; (17) Powell v. Powell, Prec. Cha. 278 ; Ross r. Koss, 1 Cha. Ca. 171; Sayle y. Weal «. Lower, 2 Vorn. 306, cited ; San- Freeland, 2 Ventr. 350 ; Jcnkyns v. gon v. Williams, Gilb. Eq. Rep. 104, ci- Keymes, 1 Lev. 237 ; which overruled ted ; and see 1 Yes. 22'! ; Frank v. Main- the dictum in Hill v. Carr, 1 Cha. Ca. wai'ing, 2 Beav. 126. 294. This proviso was added under the impression that the act into which it was in- troduced provided for all the cases in which mortgages were to be affected in the hands of representatives ; but it seems that it does not include cither the case of an infant heir of a mortgagee or the case where it is uncertain whether the mort- gagee has left an heir, and yet it has been held that t\ic former act still embraces both those cases, for the thii-d section, it was said by the Court, was introduced into the act of 1 & 2 Yict. in order to confine its application to those cases which are expressly mentioned in it. That section, it was observed, was not intended to rejieal any part of the two former acts, but that those acts were to be construed just as before, and the act of the 1 & 2 Vict. c. 69, was intended to apply to those cases only wliich it expressly provides for. In re Wilson ; In re Gathorne, 8 Sim. 392. Now the 1 & 2 Vict. c. 69, is properly confined to cases where the mortgagee has not been in possession of the land, or in the receipt of the rents or profits, and the money must have been or must be paid to his executor or administrator, and without those provisions it would not be proper to invest the Court with a summary jurisdiction in such cases, nor did the acts previous to the 1 & 2 Vict, intend to give any such poAvers ; and yet it would follow from the decision above quoted, that the cases not included in the 1 & 2 Vict., but held to be within the acts of Will. 4, would fall within the powers of the latter, although the mort- gagee had been in possession of the land or in the receipt of the rents or profits ; aid there is no provision for the payment of the mortgage-money in the acts of Will. 4. It is submitted, however, that the terms and operation of the proviso in the 1 & 2 Vict. c. 69, were not correctly stated in the cases of Wilson and Gathorne, for the proviso is not that that act shall be confined in its application to the cases which are expressly mentioned in it, but that the acts of the 1 Will. 4, c. 60, and 4 & 5 Will. 4, c. 23, shall not extend to any case of a mortgage other than such as were, by the 1 & 2 Vict. c. 69, expressly provided for. It appears to be still necessary to have an act jjassed to include withui the 1 & 2 Vict. c. 69, the cases of an infant heir, and the cases where it is uncertain whether there is an heir, subject to the same guarch as are provided for the cases already witliiir the act, and the cases of escheat will requii-e to be reconsidered with reference to the 4 & Will. 4, c. 23, and the provisions in the 1 & 2 Vict. c. 69, s. 1, coui)led with the proviso. In the late case of In re Williams, Ex parte Bird, 9 Sim. 426, where the mort- gagee was stated to have left an heir, but it was not known who was his hcu-, the Vice-Chancellor held clearly that the case was not witliin either of the acts of the 4 & Will. 4, c. 23, and 1 & 2 Vict. c. 69, and that as to 1 Will. 4, c. 60, it appeared fi-oni the change of the language of the 8th section, from that used in the oth and Gth sections, that the legislature meant that section to apply to a trustee, and not to the case of a mortgagee, and therefore this case was one ex- pressly intended by the legislature not to ne provided for by the statute ; and yet, upon further consideration, 9 Sim. 642, he held the case to be witliin the 1 Will. 4, coupled with legislative exposition of that enactment given by the 4 & o Will. 4 ; sed qu. 1*226] [*227] CONTRACT BY TENANT IN TAn»„ jJ65 .performam doni, from the creator or author of the estate tail ; and therefore, though the power of tenant in tail by a particular con- veyance, that not being dene, the Court ca-nnot take away the right they derive, not from the tenant in tail, but from the author of the ■estate tail (r). 7. This was the old rule. And now that fines and recoveries have been abolished, and new and simpler forms of barring entails ihave been established, it is specially provided that no dispo- sition by a tenant in tail, resting only in contract either express or implied, or otherwise, and whether supported by a valuable consideration or not, shall be of any force at law or in equity under the act (s), and that in eases of dispositions by tenant in tail under the act, the jurisdiction of equity shall be altogether excluded on behalf of a person claiming for a valuable considera- tion in regard to the specific performance of contracts (f) ; but al- though this prevents a Court of Equity from ti-eating a contract or an invalid disposition as a complete or valid bar upon the ground •upon which contracts are specifically executed, yet it does not pro- hibit the exercise of the old power of enforcing a specific perform- ance of a contract against the t-enant in tail himself ; and by another recent act the Court itself may execute the decree against a tenant in tail in custody for a contempt (u). 8. A distinction, however, was formerly taken, where the ances- tor was only equitable tenant in tail ; and the Court would in that case, it is said, relieve against the issue (x) because equitable ■estates tail are mer^ creatures of the Court, and not within the *statute de donis. But later authorities (y) had settled that an equitable estate tail in freeholds could not be barred by a mere deed, but only by a fine or recovery, and now by the substitution for recoveries act it is proA^ided that no disposition by a tenant in tail in equity shall be of any force unless such disposition would, «n case of an estate tail at law, be an effectual disposition under the statute in a court of law ; and the provisions before referred to, limiting the operation of contracts and excluding the jurisdiction of equity in cases of invalid dispositions, apply equally to a con- (r) See 2 Vcs. 634. (y) Legate v. Scwcll, 1 P. Wms. 91 ; (s) 3 & 4 WilL 4, c. 74, s. 40 ; and see Harvey v. Parker, 10 Yin. Abr. 'ifiG, pi, post, ell. 11, s. 4. 6, artirined in Dom. I'roc. : Kirkham v. (0 3 & 4 Will. 4, c. 74, s. 47 ; and see Smith, Ambl. 318 ; Radford r. Wilson, post, ch. 11. 3 Atk. 815 ; Botelcr v. Allington, 1 Bro. (u) 1 WilL 4, c. 36, s. 15, Rule 15. C. C. 72 : Burnaby r. Griffin, 3 Yes. jun. (x) Norcliff V. Warsley, 1 Cha. Ca. 2G6 ; and see Fletcher v. Toilet, 5 Ves. 234 ; SayLe v. Freeland, 2 Ventr. 350 ; .iun. 13. and see 1 Pow. Contr. 126. Vol. I, 34 [*2281 266 CONTRACT BY TENAPfT IN TAIL. tract or disposition by an equitable tenant in tail (z). It follows, therefore, that equity could not consider the issue of an equitable tenant in tail to be bound by a niere agreement entered into by their ancestor (a). 9. The same observations seemed to apply to legal and equitable estates tail in copyholds, for a legal entail could only before the late act have been barred according to the custom of the manor of which the copyhold estate was holden ; and perhaps the better opinion was, that the same steps must have been taken to bar an equitable estate tail in copyholds, as must have been pursued in the case of a legal entail. Lord Hardwicke, however, appears to have thought (b) that a mere surrender was in every case sufficient to bar an equitable estate tail in copyholds ; but the contrary opinion was entertained by the Profession, and appeared to be authorized by a case cited in several books from the papers of the late Mr. Powell (c), in which it was held, that a covenant by a tenant in tail in equity of a copyhold, in his marriage settlement, to surrender his copyholds to uses in strict settlement, was not of itself suf- ficient to dock the equitable entail ; for if such an entail be created, a recovery in the court baron is necessary to dock it ; it being a rule, that the same steps must be taken to bar an equitable estate in tail, as would be requisite to bar it, were it a legal estate tail (d), (I). ^Indeed the power of tenants in tail, to bind their issue, ought to be the same, whether the estate be freehold or copyhold, and whether the entail be legal or equitable ; the analogy preserved between legal and equitable estates tail, and between limitations in freehold and copyhold estates, should have been adhered to in this instance. 10. But now, by the 3 & 4 Will. 4, c. 74, a surrender is made a sufficient bar of even a legal estate tail, and equitable tenants in tail may bar the entail either by surrender or by deed, accompanied by the solemnities required by the act (e). But in each case the (;) 3 & 4 Wm. 4, c. 74, s. 47. 483. (a) Storey v. Saunders, 1 Hayes & Jo. (r) Hale's case, Ch. llth Dec. 1764; 519. and see Roe r. Lowe, 1 Hen. Blackst. (b) Radford r. Wilson, 3 Atk. 315 ; 446. and see the judgment of Lord Chanc. {d) And see 1 "Walk. Copyh. 181 ; 1 Apsley, in GrajTne v. Grayme, 1 Watk. Preston on Convey. 155. Cop. 180; and' see Tow. Contr. 126. (e) Sec. 50-54. See Pullen v. Lord Middleton, 9 Mod. (I) Note : This appears to be an extract from Mr. Booth's opinion on this case. The case itself appears to have been decided on the ground that the remainder- man claiming in equity under the covenant for the settlement was a m^ere vol- unteer. [*229] i DOWER BOUND BY SALE, 267 provisions of the act must be complied with, or the issue will not be bound (/), 11. Where by the custom of a manor, and it is the custom of most manors, a tenant was complete master of his estate, inde- pendently of his wife, and could by his own act alone bar her free bench ; an agreement by him for sale of his estate would have been enforced against tlie wife, if he died before it was carried into execution (^). 12. But an agreement for sale of a freehold estate could not before the late act have been carried into execution against a widow entitled to dower. The distinction was founded upon this ground ; that a husband had it in his power, during his life, to sell his copyhold estates, and thereby bar his wife's expectancy ; but if a wife's right to dower once attached on a freehold estate, no act of the husband's alone could divest it. By the late act (A), how- ever, a wife's dower is put altogether into the husband's power, and it is specially provided, that no widow shall be entitled to dower out of any land which shall have been absolutlely disposed of by her husband in his life-time, and that all partial interests, and all charges created by any disposition of a husband, and all contracts to which his land shall be subject, shall be valid as against the right of his widow to dower. 13. Equity will enforce an agreement by a joint tenant for sale of his share against the survivor, if the articles amount to an equitable severance of the jointure (i) : and a covenant to sell, though it does not sever the joint-tenancy at law, will in equity (fc). *14. An agreement by a feme covert for sale of her estate, cannot be enforced either at law or in equity (/)(1), unless the estate be (/) Sec. 40, 47, supra. (»") Musgrave v, Dashwood, 2 Vem. ((7) Hintonr. Hinton, -iVes. 631, 638; 45,63. See 2 Ves. 634. Ambl. 277 ; Brown v. Raindlc, 3 Ves, (k) See 3 Vcs. jun. 257 ; Frewen iun. 256, which overruled Musgrave v. Relfc, 2 Bro. C. C. 220. Dashwood, 2 Vein. 45. 63. (/) Emen* v. Wase, 5 Ves. jun. 846. (A) 3 & 4 Will. 4, c. 105, s. 4, 5. (1) It seems to be universally true, that though a wife may convey her estate by deed, she will not be bound by a covenant or agreement to levy a fine or con- vey her estate. The agreement by a feme covnrt with the assent of her husband, for the sale of her real estate, is absolutely void at law, and the courts of equity never enforce such a contract against her. IJutlcr v. Buckingham, 5 Day, 492. See also Watrous v. Chalkcr, 7 Conn. 224 ; 2 Kent (fith cd.) 168 ; Kmcry v. Wase, 5 Sumner's Vcsey, 849 note (4) ; Dunlap r. Mitchell, 10 Ohio, 117. It has been repeatedly held that a wife is not liable on her covenants in a deed. Fowler v. Shearer, 7 Mass. 21 ; Colcordr. Swan.ib. 291 ; Jackson r. Vanderheyden, 17 John. [*230] ^6S SALE B£ HiMK COVERT;. settled to her separate use, so as to enable her to dispose of it as- if she were sole (ni) (1), nor will an agreement by her husband bind' her (re). Of the incapacity of a married woman, or her husband^ to bind her real estate, unless [fonmeriy] by a fine or recovery ;, there is a striking instance in the year books in the reign of Edward the Fourth (c), A woman cestui que use and her husband joined in the sale of her estate ; the wife received the money, and' she and her husband begged her feoffee to convey the estate to the purchaser, which he accordingly did. The husband died, and then' the wife filed a bill against the feoffee for a breach of trust. The cause was heard in the Exchequer Chamber, before the Chancellor and the judges of both benches, who held^ that the sale was in fact the sale of the husband ; that the receipt of the money by the wife was immaterial, and the sale was void ; that the trustee was an- swerable for the breach of trust ; and as the purchaser knew he was buying a married woman's estate, that the wife might recover the estate from him. 15. And i^t is doubtful whether a married woman having a power of appointment can bind herself by a contract to sell the property. Sir Thomas Plumer thought not, because with a mar- ried woman there can be no binding contract, the instrument is not good as an agreement. Her disability as a married woman is taken away if she pursue her power. But where the instrument is not executed according to the power, it is nothing bwt an agree- ment signed by a married woman, and as an agreement it is invalid. But this opinion was extra judicial^ and h& said he did not mean tO' (m) See Da^'idsoll v. Gl ardiuer, MS. Baker r. Child, in Reg. Lib., but it was post, ch. 19. refen-ed to arbitration ; and tMs is con- (n) See Daniel v. Adams, An:ibl. 49o : iirnxid by a MS. in my possession, which 1 Eq. Ca. Abr. 62, pi. 2, side note, -which states the reference to have been to Mr. corrects the dicttim in Baker v. Child, 2 Justice Kawlinson ; and see Martin v., Yern. Gl. It was said by Murray, Soli- Mitchell, 2 Jac. & Walk. 413. citor-general, and agreed to by Lord (o) 7 Edw. 4,. 14, b. Hardwicke, that there was no decree in 167 ; Martin v. Dwelly, 6 Wendell, 1 ; Wadleigh v. Glines, 6 N. Himip. 17. See- Green V. Branton, I>ev. Eq. 500. Whether the 'v\'ife's covenant ndght not oper- ate by way of estoppel. See Colcord v. Swan, 7 Mass. 291 ; HiQ v. West, S Ohio,"22o ; Jackson v. Vanderheydon, 17 John. 167 ; 2 Kent (6th ed.) 168. (1) See Aylett v. xYshton, 1 Mylne & Cr. 105 ; Bunce v. Vandergrift, 8 Paige,. 37 ; Helms v. Franciscus, 2 Blaiid, 544 ; Long v. White, 5 J. J. Marsh. 230 ; Benett r. Oliver, 7 Gill & John. 192. But a. feme covert, with respect to her sep- ai-ate property, is to be considered as a feme sole, to the extent only of the pow- er given to her by the settlement. If she laas a power of appointment by willr she cannot appoint by deed ; or when she is empowered to appoint by deed, the giv- ing a bond, or note, or jiarol promise, without reference to the property, or mak- ing a parol gift of it, is not .such an appointment. Meth. Epis, Chuxch v. Jaques, ■i John. Ch. 77. i SALE BY HUSBAND OF WIFe's ESTATE. 269 give a definitive opinion {p). In a later case (^q), where a legal estate for life was vested in a married woman for her separate use, or to the use of such persons as she by writing under her hand and seal should appoint, and in default of appointment for her separate use, and she and her husband gave a promissory note, and signed and delivered to the creditor a memorandum not under seal, *vvhereby they agreed to appoint and convey in mortgage the pro- perty settled to the creditor in fee to secure the note, the Master of the Rolls held her bound by her contract (1). 16. If, however, a husband agree to convey his wife's estate, he will, according to some cases, be compelled to perform the agree- ment in specie (r) ; because it has been said, it is to be presumed that the husband, where he covenants that his wife shall levy a fine, has first gained her consent for that purpose (s) ; but this does not seem to be the true ground, for although the wife swear by her answer that she never assented to the agreement, yet the husband will not be let off (t). The principle upon which the Court pro- ceeds, seems to be this, that if a person undertakes that another shall do a certain act, he is bound to procure him to perform it ; and, therefore, where a father covenanted that his son, who was then under age, should convey lands to a purchaser, he was decreed to procure the son to convey on his coming of age (ii), (I). 17. There have been instances of committing the husband to the Fleet, until the wife should convey the estate ; but if he should make it appear, that he could not prevail on his wife to join, it seems that he must of necessity be discharged, upon placing the vendee in the same situation as if the agreement had never been executed (x). (p) Martin V. Mitchell, 2 Jac. & Walk. (s) Winter c. Devreux, 3 P. Wms. 190, 413; Daniel v. Adams, Ambl. -lOo ; n. (B). semble in favor of her being bound, see (f) Withers v. Pinchard, 7 Ves. jun. 2 Sugd. Pow. 97 ; and sec post, pi. 21. 47o, cited. (rj) Stead V. Nelson, 2 Bcav. 24^5. («) Anon. 2 Cha. Ca. .33. {>■) Hall V. Hardy, 3 P. Wms. 187 ; {x) See note to Hall r. Hardy, 3 P. Barrington v. Home, 2 Eq. Ca. Abr. 17, Wms. 187 ; Ortread v. Round, -1 Vin. pi. 7 ; Morris v. Stephenson, 7 Yes. jun. Abr. 303, pi. 4 ; 8 Yes. jun. olO ; and 474. See Wheeler v. Newton, Prcc. Emciy v. Wase, 5 Yes. "jun. 846 ; and Cha. 16 ; Iladdon's case, Toth. 20o ; and see Sedgwick r. Hargrave, 2 Yes. 67. see Griffin v. Taylor, ib. 106, edit. 1049. (I) And it is no plea to an action at law for breach of the agreement, to say, that the third person had nothmg to do with it, or no estate in it, for the defen- dant hath undertaken to procure it, and must at his peril Stoughton v. Ilawley, M. 1 W. & ]M. Hot. 0G2, P. P. judgment in H. after. :MS. A ([ucstion has been raised, whether if the husband having contracted to sell his wife's estate as owmer, dies, she may enforce the contract against the purchaser. Ilumphrevs i-. Hollis, Jac. 73. (I) See Meth. Epis. Church v. Jaques, 3 John. Oh. 77. f*231] 270 CONTRACT BY FEME COVERT TO PURCHASE. 18. In a late case (y), Lord Eldon seemed to be of opinion that if this alarming doctrine were perfectly res integra, he should hesi- tate before he would hold the husband bound to procure the wife to join. He said, that if a man chooses to contract for the estate of a married woman, he knows the property is hers. The pur- chaser is bound to regard the policy of the law ; and what right *has he to complain, if she who, according to law, cannot part with her property but by her own free will, takes advantage of the locus panitenticB : and why is he not to take his chance of damages against the husband ? And after showing the absurdity which must arise by adhering to the contrary doctrine, he added, that there was difficulty enough to make him pause, before he should follow the last two authorities ; and he was not sure, whether it was not proper to have the judgment of the House of Lords, to determine which of the decisions on this point ought to bind us. 19. And it now seems perfectly clear, that this jurisdiction is to be very sparingly exercised (I), and that equity will eagerly seize on any reasonable ground as a bar to the aid of the Court (z). — Indeed in a late case (a) in the Court of Common Pleas, where an action was brought on a cov^enant by a husband, that he and his wife would levy a fine, and he could not procure her concurrence, the learned Chief Justice said, that the covenant upon which the action was brought was such as the Court of Chancery would not now enforce ; and he added, that nothing could be more absurd than to allow a married woman to be compelled to levy a fine, through the fear of her husband being sued and thrown into gaol, when the general principle of the law is, that a married woman shall not be compelled to levy a fine. This observation of Chief Justice Mansfield must have considerable influence on this sub- ject, although, as we have seen, it is not settled that equity will, in every case, refuse to compel the husband to procure his wife's concurrence. The substitution for recoveries act (b), although it | alters the mode of conveyance by a married woman, does not inter- fere with the rule in equity on this head (1). (y) Emery v. Wase, 8 Yes. jun. 505 ; («) Davies i\ Jones, 1 New Rep. 267 ; and see 16 Ves. jun. 367; Howell v. and see Martin v. Mitchell, 2 Jac. & George, 1 Madd. 1. Walk. 425. (c/See Ortreadr. Round, 4 Yin. Abr. (6) 3 & 4 Will. 4, c. 74, s. 77, post, 203, pi. 4 ; Emery v. Wasc, ubi sup,; eh. 11, s. 4. Daniel v. Adams, Ambl. 495. (I) Upon this expression Lord Eldon observed, that certainly it was very satis- factory to be informed, that it is, and not to be done. 8 Yes. jun. 516. (1) See 2 Story Eq. Jur. §731 to §735 ; 2 Kent (6th ed.) 169 ; Jane Hunter, 1 Jl LUNACY AFTER CONTRACT. 271 20. An agreement by a married woman having separate estate for the purchase of property, has been enforced against the seller, upon the ground that she may contract as if she were a feme sole for the purchase of an estate, and that her separate property will be bound by the contract although she do not refer to it (c). 21. But in a case (d) berore Sir John Leach, where the contract was entered into by a married woman (living separately from her *husband, and having a separate estate at her own disposal vested in trustees), to purchase a real estate, the contract was in her own name, and described her as the wife of J. Piatt, living separate from her husband, and having a separate estate vested in trustees for her sole and separate use. A deposit was paid, and possession delivered to a servant of the lady's, but she by her answer denied that she had authorized possession to be taken, or had exercised acts of ownership. The bill was filed against the lady, and her husband, and her trustees, and prayed that her personal estate might be declared liable to make good the purchase-money. The answer raised the point of liability. The title was referred to the Master without prejudice to the question of liability. An action had been brought for the recovery of the deposit in the name of the husband, and Sir John Leach, although the Master reported in favor of the title, dismissed the bill without costs, on the ground that a married woman could not by a general engagement bind specficially her separate estate, although she could by an informal instrument, as a bond or note. 22. An agreement by a lunatic cannot of course be carried into a specific execution ; but the change of the condition of a person entering into an agreement by becoming lunatic, will not alter the right of the parties ; which will be the same as before, provided they can come at the remedy (1). As if the legal estate is vested in trustees, a court of equity will decree a specific performance ; and the act of God will not change the right of the parties ; but where the legal estate was vested in the lunatic himself, that would formerly have prevented the remedy in equity, and left it at law (e) ; (c) Bowling V. Maguire, Llo. & Goo., A. 1829, p. 1770 ; see pi. 15, supra. t.Plunkct, 1. (e) Owen v. Dav-ics, 1 Yes. 82. (rf) Chester r. Piatt, Rolls, Leg. Lib. Edwards, 1. In Weed v. Terry, 2 Doug. .344, it was held that equity will not compel a specihc performance, by a husband, of his agreement to procure his wife to join him in the conveyance of real estate. See also Edington v. Harper, 3 J. J. Marsh. SCO. (1) See Swartwout v. Burr, 1 Barbour, 495. [*2331 i 272 LUNACY AFTER CONTRACT. unless the purchaser was satisfied with the enjoyment of the estate which a decree would give him, and chose to encounter the incon- venience of leaving the legal estate outstanding in the lunatic, in which case a" specific performance would have been decreed in his favor (/). But this anomaly is now removed by the 1 Will. 4, c. 65 (o-), which provides, that where any person has contracted to sell an estate, and afterwards becomes lunatic, and a specific performance of such contract, either wholly or so far as the same remains to be performed, has been decreed either before or after such lunacy, it shall be lawful for the committee, by the direction of the Lord Chancellor, to convey in pursuance of such decree, and the purchase-money, or so much as remains unpaid, is to be paid to the committee. 23. If trustees, under a power of sale, make a legal contract for *sale of the estate, the contract binds the estate ; and though, by the deaths of parties, the power should be extinguished, yet the contract must be executed by those who have got an interest by the extinguishment of the power (h). 24. If an infant enter into a contract for the sale or purchase of, an estate, he cannot enforce it in equity, for the remedy is not- mutual (i) (1). 25. But although an infant cannot be compelled to complete a contract for the purchase of a property, yet if he contract for an estate, and pay a deposit, he cannot in the absence of fraud recover it back because he declines to complete the purchase. But if he (/) Hall V. AVarren, 9 Ves. jim. G05. 292 ; and see Shannon v. Bradstreet, 1 Iff) Sec. 27. Scho. & Lef. 52. (h) Mortlock v. Buller, 10 Yes. jun. («) Flight v. Bolland, 4 Russ. 298. "~ I (1) See Benedict v. Lynch, 1 John. Ch. 373 ; Boucher v. Vanbuskirk, 2 A. K. 5, Marsh. 34G. But it is laid do^vn, as a general rule, that infancy is a personal priv- ,5, ilege, of which no one can take advantage but the infant himself. Chitty Contr. Ji (8th Am. cd.) 148 and cases cited in note (1) ; and, that, therefore, although the i{; contract of the infant be voidable, it shall bind the other party, ib. note (2) ; for .'I being an indulgence -which the law allows to infants, to protect and secure them *■ from the fraud and imposition of others, it can be mtended for their benefit only, ^i and is not to be cxtenclcd to persons of the years of dLscretion, who are presumed 4S to act with sufficient caution and security. "Were it otherwise, this privilege, in- ^ stead of being an advantage to the infant, might in many cases turn greatly to _'. his detriment, ib. Therefore an infant may sue an adult tor a breach of promise , of marriage, although the latter could not sue the former on such a promise, ib ; ■ Hunt r. Peak, 5 Cowen, 47o ; Willard v. Stone, 7 Cowen, 22 ; Cannon i'. Alsbury, * 1 Marsh. 78. And where a minor by himself, and his guardian, agreed to let a farm to the defendant, which he refused to hold when the minor came of age, upon the ground that the latter was under age at the time of the contract, it was decreed in equity, that the defendant should take a lease, and shoxild pay all costs, ib [*234] CONTRACT BY INFANTT. 273 could show that fraud had been practised upon him, it would be otherwise (k). 26. Secondly, We are to consider the rules by which equity is guided in granting a specific performance, with reference to the agreement itself. 27. We shall, in the subsequent chapters of this treatise, have occasion to consider rather at large in what cases equity will or will not enforce a specific performance of an agreement for sale of an estate ; and it will in this place, therefore, be sufficient to state the general rules by which equity is guided in compelling the specific performance of agreements. 28. The original foundation of these decrees was simply this, that damages at lav/ would not give the party the compensation to which he was entitled ; that is, would not put him in a situation as beneficial to him as if the agreement were specifically performed. On this ground the Court, in a variety of cases, has refused to in- terfere, where from the nature of the case the damages must necessarily be commensurate to the injury sustained (/) (1), as, for instance, in agreements for the purchase of stock, it being the same thing to the party, where or from whom the stock is purchased, provided he receives the money that will purchase it ; and the Court never gives relief where the act is impossible to be done, but leaves the party to his remedy at law (ni). But the sale of an annuity payable out of dividends of a particular stock (n), or of the (k) Wilson V, Keane, Peake's Add. (m) Green v. Smith, 1 Atk. 572; Cas. 196. [Sears r. Boston, 16 Pick. 358 ; Wood- (^)Errington». Annesley, 2Bro. C.Ca. ward v. Harris, 2 Barbour Sup. Ct. R. 341 ; Flint v. Brandon, 8 Ves. jun. 163 ; 439.] Mitf.Pl. 109. rCuddeei'. Ilutter,Ilcpor- (m) Withy v. Cottle, 1 Sim. & Stu. ted, 5 Yin. Abr. 538, PI. 21 ; White Lead. 174, affirmed iipon the hearing ; 1 Turn. Oas. in Equity, (Am. ed.) 520 et seq.] 78. (1) Sears v. Boston, 16 Pick. 357 ; Hatch v, Cobb, 4 John. Ch. 559 ; Kemp- shall V. Stone, 5 John. Ch. 193 ; Hepburn v. Dunlap, 1 Wheaton, 197 ; Hepburn r. Auld, Cranch, 262 ; Savcry r. Spence, 13 Alabama, 561. The ground of the jurisdiction of courts of equity in such cases. Is, that a court of law is inad- equate to decree a specific performance, and can reUeve the injured party only by a compensation in damages, which, in many cases, would fall far short of the redress which his situation might require. "SVlierever, therefore, the party wants the tiling in specie, and he cannot otherwise be fully compensated, courts of cqiiity ■will grant him a specific performance. 1 Fonbl. Eq. B. 1, Ch. 1, f5, note (o) ; Har- nett V. Fielding, 2 Scho. & Lcf. 553 ; Erriugton r. Annesley, 2 Brown C. C. (Per- kins's ed.) 341—343 and notes; Madison v. Cliinn, 3 J. J. Marsh. 231 ; Cathcart V. Kobinson, 5 Peters, 264 ; 2 Story Eq. Jur. §716 ; Sears v. Boston, 16 Pick. 357. The jurisdiction of courts of eqiiity to decree specific performance may be dis- tinctly traced back to the reign of Edward IV. 8 Ed. IV., 4, b ; Fonbl. Eq. B. 1, Ch. I, §5, in note; 2 Story Eq. Jur. §716 ; Moseley v. Virgin, 3 Sumner's Vesey, 184, note. Vol. I. 35 374 >nSREPRESENTATION', right to a dividend upon a bankrupt's estate (o), or even a contract *ror stock where the object is to obtain deUvery of certificates wliich confer the legal title to it ( p), may be enforced in equity (1). These cases show what were the grounds on which courts of equity first interfered, but they have constantly held that the party who comes into equity for a specific performance, must come with perfect propri- ety of conduct, otherwise they will" leave him to his remedy at law( but it is not an arbitrary, capricious discretion ; it must be regu- lated upon grounds that will make it judicial (r) (2), and the period at which the Court is to examine the agreement between the parties^ is the time when they contracted (s). And undoubtedly every agreement, of which there should be a specific execution, ought to be in writing, certain, and fair in all its parts (3) ; and for adequate (o) Adderley v. Dixon, 1 Sim. & Stu.. 18 Ves. jun. 10 ; [2 Story Eq.Jur. §750.]. 607. (;•) Per Lord Eldon, see 7 Ves. jun. (;j) Doloret v. Rothschild, 1 Sim. & 35; and see 1 Atk. 183; t Burr. 2539 ;. Stu. 590. [Duncuft v, Albrecht, 12 Davis v. S\TniOnds, 1 Cox, 402. Sim. 189 ; Sliaw r. Fisher, 12 Jur. 152.] (s) Kevell v. Hussey, 2 Biill & Beat. (.q) Harnett r. Yielding, 2 Scho. &Lef. 288 ; Ellard v. Lord Llandaff, 1 Ball & 553 ; [misprinted in the book] per Lord Beat. 241. [Moore v. Fitz Randolph, 6 Redesdale ; and see CadmaTi v. Horner, Leigh, 175.] (1) 2 Story Eq. Jur. 6717a, ^^718. The true rule in equity is, that a specific performance of an agi-eement relating to chattels ought to he decreed,, -when equity and conscience require it ; as in case of pictures and other things of peculiar value and attachment, and when the remedy by action at law for damages would be inadequate, and no competent or just relief could be otherwise afforded, 2 Kent (6th ed.) 487, note ; Sarter v. Gordon, 2 Hill Ch. 126, 127 ; Young v. Burton, 1 M'Mullan, (S. Car.) 255 ; Clark v. Flint, 22 Pick. 231. In this last case of Clark V, Flint, Wilde J. stiid ; — " The reasons given for a distinction between real and personal estate are not very satisfactory. All, as it seems to me, that can be fairly inferred from the cases on this point is, that, iu conti-acts respecting personal estate, a compensation in damages is much oftener a complete and satisfactory remedy, than it is in those which i-elate to real estate. But in all cases, if a party has not such a remedy, a court of equity ^•) Younge v. Duncombe, You. 275. (x) Brown v. Kelty, L. I. Hall, July (s) Gibson v. Clarke. 1 Yes. & Beam. 1816, MS. 500. See 1 Madd. 607. (y) Boothby v. Walker, 1 Madd. 197 ; (I) Hall V. Jenkinson, 2 Yes. & Beam, and see Smith v. Lloyd, 1 Madd. 83. 12.5. (::) Buck v. Lodge, 18 Yes. jun. 450. (m) Watson V. Upton, Coop. 92, n. (a) Anon. L. L Hall, 16 July 1816, But see Bonner v. Johnston, 1 Mer. 366; MS. [*250] 292 MOIVEV TO BR PAID INTO fTOURT. derstanding between them that he shall not pay his money until he has a title, the purchaser cannot be called upon to pay the money into court in thia summary way (6), nor can the payment, be compelled where the vendor gives possession without stipula- tion (c), or the purchaser was in possession under another title before the contract (rf) ; or the possession was given independently of the contract, and the seller has been guilty of laches (e), although in such cases the purchaser may make himself liable to the de- mand, by dealing improperly with the estate, e. g. cutting trees, or selling it to another person {/}■ But the purchaser after a long period will not be permitted to keep possession of the estate, and also withhold the purchase-money : if a title has not been made^ he will be put to his election within a reasonable time, e. g. two months, to give up the possession or pay the purchase-money (^). 8. If an agreement be by parol for sale at so much an acre, and possession be given to the purchaser without any understand- ing respecting the period when the purchase-money should be paid, and the bill alleges a quantity of land to be sold, which is ^denied by the answer, and the bill only seeks a performance as to the larger quantity, no money will be ordered into court (A). 9. Perhaps two simple rules may be deduced from the cases : 1st. Where the possession is taken under the contract, or is con- sistent with it, and the purchaser has not dealt improperly with the estate, the cause must take its regular course. 10. But 2d, If the possession by the purchaser, without pay- ment of the money, is contrary to the intention of the parties, or is held according to it, but the purchaser has exercised improper acts of ownership, for example, cutting timber, by which the pro- perty is lessened in value, or selling the estate, by which the first seller's remedy is complicated without his assent ; in such cases, the Court will interpose and compel the purchaser to pay the pur- chase-money into court (1). 11. Where the sum is large, the Court has allowed a long day, (6) Gibson v. Clarke, 1 Ves. & Beam. Bramby v. Teal, 3 Madd. 219 ; GiU v. 500. Watson, ibid. 225. (c) Clarke v. Elliott, 1 Madd. 606. {g) Tindal r. Cobham, 2 My. & Kee. (d) Freebody I'. Perry, Coop. 91 ; Bon- 38o. ner i-. Johnston, 1 Mer. 366. (/;) Benson v. Glastonbury, N. & C. (e) Fox i\ Birch, 1 Mer. 105. Compy. C. Coop. 42 ; this seems to be (/) Cutler V. Simmons, 2 Mer. 103 ; the point of the case. (1) Sees DanieU Ch. Pr. (Perkins's ed.) 2015, 2016. [*2511 MONEY TO BE PAID INTO COURT. 293 ' for instance, three months for payment of the money (?) ; and under proper circumstances, the time will be enlarged (k). Upon a motion for this purpose, affidavits may of course be filed after the purchaser has put in his answer, stating the collateral circum- stances (/). 12. Where a vendor files a bill for an injunction and a specific performance, the Court will, upon granting the injunction, put him upon proper terms, and therefore will in most cases order him to pay the deposit into court. But where the seller at the time of the bill filed is able and willing to make a good title to the estate sold, and the purchaser improperly refuses to complete the con- tract, although the seller is in possession of the estate, he will not be compelled to pay the deposit into court, because it is the fault of the purchaser and not of the seller that the latter retains both the deposit and the estate (?n). 13. Where an estate is sold in lots to different persons, the vendor cannot include them in one bill, for each party's case is distinct, and must depend upon its own peculiar circumstances, and there must be a distinct bill upon each contract (n) (I). In de- murring to a bill against distinct purchasers, as multifarious, the *defendants need not deny combination (o), although that was formerly deemed essential (p) (2). 14. And although by the conditions the purchaser of each lot is to join in the assignment to the purchaser of the other, yet the seller may file a bill against one for a specific performance without making the other a party ( Yes. 492 ; Crutchley r. Jerningham, ib, .502. jun. 148. (1) Story Eq. PI. §272. See Wood v. Perry, 1 Barbour, 114. (2) 1 Danioll Ch. Pr. (Perkins's ed.) 621. [*252] 294 PARTIES TO A BILL. for a specific performance against the owners, make the agent a party, and pray in the alternative that he may pay the deposit and costs ; for his remedy against the agent, if he acted without authority, is at law (s). 17. And as a general rule, a purchaser ought not to make any person a party to his suit, in whom he alleges any adverse right to be vested : the question should be litigated between the seller and him alone. Can a good title be made ? In one case, however, where the seller had obtained a settled estate, under the exercise of a power to substitute another estate of equal value, Lord Hard- wicke compelled him, upon his bill for a specific performance against a purchaser of the estate originally settled, to make the persons who claimed under the settlement parties to the suit. This, however, cannot be relied upon as a precedent (t). 18. The general rule is, that neither the vendor nor the pur- chaser can involve third persons in a proceeding to enforce a spe- cific performance, any more than they could be made parties to an action for a breach of contract (1). Even where a mortgagee, claim- ing under the seller, is not willing to convey to the purchaser without having competent authority for so doing, he cannot be made a defendant to the purchaser's bill for a specific perform- ance, nor can any person entitled to an interest in the equity of redemption be joined. The mortgagee is only subject to be redeemed, and is a stranger to the contract, and has no right to *dispute the title, and the purchaser has no right to redeem until his contract is completed (ii). The purchaser, of course, may, in a suit against the seller alone, if he is entitled to the equity of redemption, compel him to redeem and to obtain a conveyance from the mortgagee. 19. But in a suit by the personal representative of a vendor, for specific performance, the real representative of the vendor is a necessary party (x) (2). 20. Where the plaintiff, in a bill for a specific performance, cannot prove his agreement, as laid ; but the defendant, who proves (s) Sainsbury v. Jones, 2 Beav. 462 ; bertson v. G. W. Railway Company, 10 5 Myl. & Cra. 1. Sim. 3U. (<) Lamplugh v. Hebden, 1 Dick. 78 ; («) Tasker v. Small, 3 Myl, & Cra. 63 ; Barnard, C. C. 371 ; 2 Eq. Ca. Abr. 170, 1 Hare, 5-18. pi. 29. See Tasker v. Small, 6 Sim. 633 ; (x) Koberts v. Marchant, 1 Phill. 370. Wood V. White, 4 Myl. & Cra. 460 ; Ro- (1) 1 DanieU Ch. Pr. (Perkins's ed.) 280. (2) Story Eq. PI. ^U60, sU77, ^^177a; Morgan v. Morgan, 2 ^Vheaton, 297, 298. [*253J DAMAGES IN EQUITY. 295 the agreement to be different, offers to perform specifically the agreement which he represents ; the Court will execute the agree- ment as proved by the answer, without a cross-bill, although the plaintiff should wish to have the bill dismissed (y) (1), if the Court think the defendant entitled to a specific performance (z). 21. But, if a plaintiff insist upon a particular construction of a contract, and the Court decides against him, he will not be allowed a specific performance according to the construction against which he has contended. It is not like the case of a plaintiff calling upon the Court to construe and execute an agreement according to the true constmclion ; suggesting that which he conceives to be so (a). 22. If a bill for a specific performance be dismissed, it would require a clear and distinct case to be made out and j^rayed, to entitle the plaintifi'to an account of rents, or the like (6) (2). 23. If a purchaser have recourse to equity, and it appear that the vendor has, since the filing of the bill, sold the estate to another person, the Court will, it has been determined, refer it to a Master, to inquire what damage the purchaser has sustained ; and the sum which shall be found due, together with costs, will be directed to be paid to him (c). This was decided by Lord Kenyon in Denton V. Stewart, and has since been followed by Sir W. Grant in Green- away V. Adams (3). ((/) Fiie V. Clayton, 13 Ves. jun. 5-16. and Stevens v. Guppy, 3 Russ. 171. {z) Higginson r. Clowes, 15 Ves. jun. (c) Denton v. Stewart, 1 Cox, 2o8 ; 1 516. Ves. jun. 329 ; 17 Ves. jun. 276, cited ; (a) Clowes V. Higginson, 1 Ves. & Keg. Lib. A. 1785, fol. 552, 717 ; supra. Beam. 524. p. 140 n. ; Greenaway v. Adams, 12 Ves. (6) Williams v. Shaw, 3 Russ. 178, jun. 395. (1) 1 Daniell Ch. Pr. (Perkins's ed.) 442; Storv Eq. PL §394 note. (2) 1 Uaniell Ch. Pr. 430. (3) See the remarks of Shepley J. in "Woodman v. Freeman, 25 Maine, 531, 544, 550, 551, upon the cases cited in the text. The princi])le of these decisions was applied and acted upon by ilr. Chancellor Kent in Phillips v. Thompson, 1 John. Ch. 131, 150, 151. See Warner f. Daniels, 1 Woodb. & Minot, 113, 114. But in Hatch V. Cobb, 4 John. Ch. 5o^ ; and in Kemj)shall r. Stone, 5 John. Ch. 193, the learned Chancellor refused to act upon it, in conscciucncc, apparently, of the doubt thrown over it by the suggestions of Lord Eldon in the case of Todd r. Gee, 17 Vcsey, 273. In Hatch v. Cobb, there was a contract for the sale of land, and the pajTnent of the purchase money was made a condition precedent to the convey- ance ; and after a default in payment by the vendee, the vendor accepted a part of the purchase money, but the vendee, though repeatedly called ujjon, refused to complete the payment. The vendor, after giving notice of his intention to do so, sold and conveyed the land to another ; and the vendee, afterwards, tendered the money due on the contract, and fded a bill for its specific perfonnance. The Chancellor said ; — " A specific performance cannot bo decreed. The defendant had fairly disabled himself before the suit was brought, and tliis wa.s known to the plaintiff." " It is doubtful how far the court has jurisdiction to assess dam- 296 ' oAMA(;t:s in khuity. '24. In a recent case, upon a specific performance, where Lord Eldon refused to direct an issue or an inquiry before the Master, ages merely, in such a case, in which the plaintiff was aware, when he filed his bill, that the contract could not be specifically performed or decreed. It is prop- erly a matter of legal cognizance. The case of Denton v. SteAvart, 1 Cox, 258, was hesitatingly followed by Sir Wm. Grant, in (zrecnaway r. Adams, 12 Vesey, 395 ; but it has been much questioned by Lord Eldon, in Todd v. (Jee, 17 Vesey, 273 ; and though equity, in very special cases, may possibly sustain a bill for dam- ages, on a breach of contract, it is clearly not the ordinary jvirisdiction of the court." Kcmpshall r. Stone, was a case somewhat similar to Hatch r. Cobb, and the Chancellor said ; — "The more I have reflected on the subject, the more strongly do I incline to the oi)inion expressed in Hatch r. C;obb. Ivord Eldon intimated, in •Todd i\ (ice, that the whole course of previous authority Avas against the decision of Lord Kcnyon, in Denton r. Stewart, 1 Cox, 258 ; and in that case. Lord Eldon said, the defendant had disabled himself, pendente lite, from jDcrforming the agree- ment ; and that fact materially distinguishes that case from this. When the de- fendant had disabled liimself before the filing the bill, and the plaintiff knetv of that fact before he commenced his suit, (and I consider such knowledge a material circumstance in the case,) 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 remedy is clear and perfect at law, liy an action upon the covenant ; and if this court is to sustain such a bill, I do not see why it may not equally sustain one in every other case sounding in damages, and cognizable at law." See Morss v. Elmcndorf, 11 Paige, 277 ; Bradley v. Basley, 1 Barbour Eq. 125. Where by mistake of both parties, as to the existence of a gore of land, one contracted to sell and convej-, and the other to purchase and pay for, a supposed gore of land, which in fact had no actual ex- istence, the vendor cannot file a bill in equity, for the specific performance of the contract, or for compensation in damages by the vendor, for not making the con- veyance when reqviested to do so. Morss v. Elmendorf, 11 Paige, 277. This sub- ject has been considered by Mr. Justice Story, 2 Story Eq. Jur. ^^796 to §799, and in conclusion he says ; — " In the present state of the authorities, involving as they do, some conflict of opinion, it is not possible to affirm more than that the jurisdiction for compensation or damages does not ordinarily attach in equity, ex- cept as ancillary to a specific performance or to some other relief. If it does attach in any other cases, it must be under very special circumstances, and upon pecu- liar equities ; as, for instance, in cases of fraud ; or in eases, where the party has di-ahled liimself by matters ex post facto from a siDCcific performance ; or in cases, where there is no adequate remedy at law." ib. §799. See Woodcock v. Bennett, 1 Cowen, 711 ; GwUlim??. Stone, 14 Vesey (Sumner's ed.) 128 and note; Eonbl. Eq. B. 1, Ch. 1, § 8 note (z) ; Pratt v. Law, 9 Cranch, 494 ; Hepburn v. Auld, 5 Cranch, 262, 275 ; Sims v. Lewis, 5 Munf. 29 ; Warner v, Daniels, 1 Woodb. & Minot, 113, 114; McFcrran t. Taylor, 3 Cranch, 270; Russell v. Clarke, 7 Cranch, 09 ; Berry v. Vanwinkle, 1 Green Ch. 269. Although the party contract- ing to .convey land to one, has since conveyed it to another, and this is known to the former, yet ijf it is a case of exclusive equity jurisdiction, a bill Avill lie to recover damages. Jervis r. Smith, 1 Hoff. Ch. Rep.' 470. In AV'oodman v. Freeman, 25 Maine, 531, it was decided, that one who has been induced to purchase land of another and to pay him for it, by the fraudulent rep- resentations of a third person, interested to effect such sale, cannot, in a court of equity, recover the amount so paid of svich third person and rcc^uire liim to re- ceive a conveyance of the land. In giving the decision of the court in the above case, Mr. Justice Shepley lays down the proposition, that courts of equity can give relief in equity by compensation in damages, in cases " where specific per- formance ought to have been, and could have been decreed upon the state of facts existing when the bill Avas filed, but cannot be decreed on a hearing of the cause, because the defendant, pending the suit, has voluntarily disenabled liimself to make a conveyance." To this point he cites Denton v. Stewart, Todd r. Gee, and Wood- cock c. Bennett. The learned Judge adds ; "the court Avillnot permit itself to be ousted, by fra\id or contrivance, of a jurisdiction rightfully and legally actjuired, but will proceed against him, Avho thus attemi)ts to injure another and impose upon the court, and Avill, by the assessment of damages, compel him to make »AMAGES IN EQ,tJlTT. 297 ■with a view to damages, he said, that the plaintiff must take that *remedy, if he chooses it, at law. In Denton v. Stewart, the defend- ant had it in his power to perform the agreement, and put it out of his power pending the suit. That case, if it was not to be supported ) Jendw'ine v. Slade, 2 Esp. Ca. 257. Beat. 349. \q) Ileynolds v. Nelson, 6 Mad. 290. (.s) Infra, s. 5. (0 10 Bing. 537, 538, 540. (1) See in next preceding; note. (2) 2 Daniell Ch. Pr. (rcrkins's cd.) 1200, 1201 ; Seton on decrees, 382. (3) Pel- Shepley J. in Ilill v. Ilobart, 10 Maine, 169 ; Hopkins v. I.ee, 6 ^V^lea- ton, 109 ; Buckraa.ster r. (jrundy, 3 Giltnan, 62(i. A recovery of damages, in an [*256] 3fOO ' MONEY HAD AND KECEIT'Eiy. 36. But where a purchaser failed in an action to recover h\s deposit and U(|uidated damages under the contract, upon the/ ground that the vendor had not broken the contract, and the- vendor after the issuing of the writ in that actiorr resold the estate^ it was held that the purchaser might maintain a new action for the deposit, for the former action failed because it was prematurely brought, viz., before the contract was rescinded, and before the seller had disabled himself from completing it. The former judg- ment, therefore, formed no obstacle to the recovery when that event had taken place (m). 37. Where the purchaser Iras paid any part o^ the purchase- money, and the seller does irot complete his engagement, so that the contract is totally unexecuted, he, the purclraser, may affirm the agreement, by bringing an action foi' the non-performance of it, or he may elect to disaffirm the agreen^nt ab initio, and ma};' bring aw action foi* money had and received to his use (x) (I). (m) Palmer v. Temple, 1 Per. & Dav. mgale, 2 Esp. Ca. 639 ; Hunt v. Silk, -j 379 ; 9 Adol. & Ell. 508. East, 449 ; Squire v. Tod, 1 Camp. Ca, (x) See 2 Burr. 1011 ; Farrcr ®. Night- 293. See Levy v. Haw, 1 Taunt. 65. action for the breach of a covenant, by the grantee of land for the purpose of a public square, to grade, enclose, and improve the premises, is a bar to a bill for the specific performance of such covenant. Stuyvcsant v. Mayor, &c. of New York, 11 Paige, 414. But a recovery for the breach of a covenant to forever keep the premises open as a public square, is not a bar to a subsequent bfll for specific performance of the coAxnant, it being a continuing covenant, ib. (1) Sec post, 262 note ; Chitty Contr. (8th Am. ed.) 539 ; AVeavci- r. Bentley,. 1 Caines Rep. 47 ; Gillet v. Maynard,. 5 John. 85 ; Williams r. Keed, 5 Pick. 480 ; Goddard v. Mitchell, 17 Maine, 366. Whei-e money is paid by one party in con- tem'plation of some act to be done by the other, which is the sole consideration of the iJaymcnt, and the thing stipulated to be done is not pcrfonncd, the money may be recovered back. Per Parker Ch, J. in Griggs v. Austin, 3' Pick. 20 ; Carter r. Carter, 14 Pick. 424 ; Harrison i: Chilton, 5 Yerger, 293 ; Lyon v. Annable, 4 Conn. 350. Money paid on an agreement, void under the statute of frauds, Mhich the- defendant cannot or will not complete, may be recovered back. Buck r. Waddle, 1 Ham. (Ohio,) 363 ; Gillett r. Maynard, 5 John, 85 ; Rice v. Peet, 15 John. 503 ; Thompson v. Gould, 20 Pick. 134 ; Laner. Shackford, 5 N. Hamp. 133 ; Richard* V. Allen, 17 Maine, 296 ; Appleton v. Chase, 19 Maine, 74 ; Gcer v. Gcer, IS Maine, 16 ; Beaman v. Buck, 9 Smedcs & Marsh. 207; Abbott v. Drapei-, 4 Denio, 51 ; Sims r. Hutchins, 8 Smedcs & Marsh. 328. But in Fuller v. Hubbard, 6 Cowcn, 13, it was held that, where a v.ilid contract was made to pay for and re- ceive a conveyance of land, and the money was paid, but no deed erxecuted, the- vendee could not rescind the contract and recover back the money, but should sue on the agreement, as one still subsisting. See also Goddard r. Mitchell, 17 Maine, 366 ; Clark v. Smith, 14 John. 326. in an action for money bad and received, it was held, that the cases in which a vendee is allowed to recover back money paid on a contract for the purchase of real estate, where the contract has been rescindetl are — 1st whci-e the rcscision is voluntary and with the mutual consent of the parties, and without default on either side, — 2d where the vendor cannot or will not perfoi-m the contract on his part, — 3d where the vendor has been guUty of fraud in malting the contract. Per Wells J. in Battle v. Rochester City Bank, 5 Barbour Sup. Ct. Rep. 414. But where the vendor is in no default, and the rescision is in consequence of an unex- cused default of the vendee, the A-endoe cnnnot recov'. :Mitchcll', 17 Maine, 366. [*257] 302 INTEREST ON nEPOSlT. 4"2. We. shall elsewhere see that, generally speaking, a purchaser, where a title cannot be made, is not entitled to damages for the fancied loss of his bargain (iIS. Appendix, No. (i) "Walker v. Constable, 1 Bos. & Pull. 7 ; and see Jones i\ Dyke, MS. Appen- 30(3. dix. No. 8 ; Sainsbury v. Jones, 5 Myl. (k) Gosbell v. Archer, 2 Adol. & EU. & Cra. 1. " 500; 1 Nev. & Man. 485. (/) Flurcau v. Tliomhill, 2 Blackst. (/) Tappenden r. Randall, 2 Bos. & 1078. Tull. 472 ; Fruhling v. Schroeder, 2 («7) See ch. 16, infra. Bing. N. C. 77 ; and see DobeU v. Ilutch- (A) riureau r. Thornhill, ubi sup. ; inson, 3 Adol. S: EU. 355, and 3 & 4 Hodges V. Lord Litchfield, 1 Bing. N. S. Will. 4, c. 42, s. 28. (I) Notwithstanding the observation in 2 Bing. N. C. 80, Lord EUenborough, in l)e Bcrnales r. Fuller, 2 Camp. Ca. 42fi, does not appear to have laid down a general rule that interest cannot be recovered in an action for money had and re- ceived ; see also Do llavilland v. Bowerbank, 1 Camp. Ca. 50, and post, ch. 16. (1) See Thayer v. Clemence, 22 Tick. 490 ; King v. Pyle, 8 Serg. & R. IfiG. (2) Chitty Contr. (8th Am. ed.) 277, 278 ; Metcalfe v. Fowler, 6 Mees.& Welsh. 830 ; Robinson v. Hardman, 1 Exch. 850 ; Hopkins v. Grazebrook, 6 Barn. & Cress. 31. (3) See ante, 256, note. (4) See Chitty Contr. (8th Am. ed.) Tit. Interest. In Pease v. Barber, 3 Caines [*258] PARTICULARS OF FACT, ETC. 303 contract is a valid one, the deposit may be recovered as money had and received, and where there is a count for it, interest also, it should seem, as damages sustained by the plaintiff by reason of the money having been withheld from him. 46. Where the agreement is a binding one, the purchaser may also, as we shall hereafter see, recover the expenses of investigating the title (m) (1). 47. Where a vendee brings an action on account of the agree- ment not having been completed, he will be compelled to give the vendor a particular of every matter of fact which he means to relv upon at the trial, as having been a cause of his not being able to complete the purchase ; but he is not bound to state in his particular any of the objections in point of law arising upon the abstract (/?). *48. Butallhough the purchaser assign by way of special damage, that he has incurred certain expenses, yet he will not be com- pelled to furnish particulars of such special damage (o). 49; Where in a single count there were several allegations of damage, the vendor, the defendant, was not allowed to select some of the items and pay the money into court ; the whole count taken together was in substance of a demand of unliquidated damages. As the seller had broken his contract with the plaintiff, the Court would not help him to jDare down the demand so as to compel the plaintiff to go to trial at his own risk (p). 50. Where no particular has been obtained, the plaintiff is not confined to the objections which he may have stated to the defend- ant, but may take advantage of any other, which may entitle him to recover as for breach of the agreement (q). 51. We shall elsewhere consider how the title must be averred in order to sustain the seller's action (r), and whether it is necessary to prove the execution of the title-deeds (s) ; and also, whether a court of law can take notice of equitable objections to a title (/). (m) See post, ch. 8. (;;) Hodges v. Lord litchliold, 9 Bing. (u) Collet V. Thomson, 8 Bos. & rull. 7Vi. 24G ; lloberts v. llowlands, \i Mecs. & (7) 8quirc v. Tod, 1 Camp. Cas. 293. Wels. 543, j)ost, ch. 8. (r) J'o.'if, ch. 8. (o) Retallick v. Ilawkcs, 1 Mecs. & (*) Post, ch. 8, 9. Wels. 573. It) Post, ch. 10. Rep. 26G, it was decided, that interest could be recovered in this action ; whether or not such recovery of interest shall be had in any particular case depends on the circumstances, ib. If the defendant is in default in not i)ayinR over the mon- ey he should be charged with, interest. Dodge v. Perkins, 9 Pick. 3(;9, 38G ; Mar- vin r. McRca, 1 Chcves Law, Gl ; Tortor r. Nash, 1 Alabama, 452, 456 ; Wood V. Robbins, 11 Mass. 504, 50() ; Johnson v. Kicke, 7 Ilulstcd, 31G, 319; Bell f. Dogan, 7 J. J. Marsh. 593, 594 ; Vance v. Vance, 5 Monroe, 521, 525. (1) Chitty Contr. (8th Am. cd.) 277, 278 ; Richardson r. Chtisen, 10 Q. B. 756. t*-259] 304 PARTICULARS OV FACT, ETC. 52. The seller where the contract is not completed cannot of course recover the whole of the purchase-money, and keep the estate too (1) ; he is only to have made good his loss by the diminu- tion in the value of the land, or the loss of the purchase-money in consequence of the non-performance of the contract (w). 53. If the purchaser die, his heir cannot sue at law for a breach upon a mere agreement to sell, but where there has been a breach in the purchaser's life-time, and a loss to his personal property, his personal representative may maintain an action, e. g. for damage incurred by the loss of interest on the deposit, and the expenses of investigating the title (x) (2). 54. If the agreement is in the hands of one of the parties, or his attorney, equity, in case a bill is filed, will compel it to be delivered up to the other party, in order that it may be stamped (y). So, in case of an action, if only one part of the agreement has been exe- cuted, the party, in whose possession it is, shall be compelled to produce it to the other party {z), and it is not important that the contract was made with the auctioneer, and not with the seller, who *is the defendant (a). And if there are even two parts, but one only is stamped, the party having the unstamped part may give secondary evidence of the contents of the agreement, if the other, after notice, refuse to produce the stamped part (6). Where one party produces the agreement, under a notice from the other, the latter need not call the subscribing witness to prove the execution of the agreement, as the defendant takes an interest under it (c) (3). Where the pur- chaser has signed an agreement, he cannot, in an action for the de- posit, avoid producing the agreement, by merely producing the con- ditions of sale and the auctioneer's catalogue of sale (rf). («<) Laird V. Pirn, 7 Mces. & "Wels. 474. (a) Ginger v. Bayly, 5 Moo. 71. (.r) Ormo v. Broughton, 10 Bing. 533 (b) Garnons v. SAvii't, 1 Taunt. 507. [misprinted in report]. Sec Waller v. Ilorsfall, 1 Camp. C'a. 501. (y) Supra, p. 115. ((■) Bradshaw v. Bennett, 5 Carr. & {z) Blakey v. Porter, 1 Taunt. 38G ; Pay. 48. Batcman r. Philips, 4 Taunt. 157 ; King (d) Curtis v, Greated, 2 Nev. & Mann. V. King, ib. GGG ; Street v. Brown, 1 449. Marsh. 610. (1) Nor after such recovery, can the seller claim to have the contract set aside, Nelson v. Carrington, 4 ^lunf. 332. (2) Sec Shaw v. WUkins, 8 Humph. 647. (3) This doctrine has been recognized and acted on in the American Courts. Rhoadcs r. Selin, 4 "Wash. C. C. 715, 719; Bctts r. Badger, 12 John. 223 ; Jack- son t. Kingslcy, 17 John. 158. .See further Jones v. Cooprider, 1 Blackf. 49 ; M'Phcrson v. liathbone, 7 Wendell, 210, 219, Per Savage Ch. J; Stephenson v Dunlap, 7 Monroe, 134, 137, Per Mills J. [*260] 1 DEPENDENT COVENANTS. 306 55. An agreement, as we have seen, may be established by a cor- respondence, and in that case, the letters form the agreement, but one stamp only is required to them all, as constituting one agreement (e). 56. Before quitting this subject, it must be remarked, that in agreements for purchase, the covenants are construed according to the intent of the parties, and they are therefore always considered dependent where a contrary intention does not appear (/*), (I), (1). The true rule, Mansfield, C. J. (g), said, was, that it is not the em- ployment of any particular word which determines a condition to be precedent, but the manifest intention of the parties (2). 57. The old law was certainly in favor of the contrary doc- trine (A) : but if, as Lord Kenyon observed, the Courts were to hold otherwise than they now do, the greatest injustice might be done ; for supposing, in the instance of a trader who had entered into a contract for the sale of an estate, that between the making of the contract and the final execution of it he were to become a bankrupt, the vendee might be in the situation of having had pay- ment enforced from him, and yet be disabled from procuring the property for which he had paid (i), (II). *58. If, therefore, either a vendor or vendee wish to compel the (e) Stead v. Lidclard, 1 Ein<,'. 196. 233. See Havelock v. Geddos, 10 East, See Athcrstone v, 13ostock, 2 Mann. & 555. Grang. 511. (h) 8 Term Rep. 370, 371. (/) [Taylor r. Gallup, 8 Vermont, («) See Duke of St. Alban's r. Shore, 1 340 ; Siddell v. Sims, 9 Smedes & H, Black. 270 ; Goodisson v. Nunn, 4 Marsh. 596.] As to -where covenants Term Rep. 761; Glazebrookr. Woodrow, are precedent, and Avhere dependent, see 8 Term Rep. 366 ; and Heard r. Wadham, Mr. Serjeant Williams's note (4) to 1 1 East, 619; and see Amcourtr. Elever, Saund. 320 ; Dawson v. Dyer, 5 Bam. & 2 Kel. B. R. 159 ; Carpenter v. Cresswell, Adol. 584. 4 Bmg. 409 ; 1 Moo. & Pay. 66. {ff) Smith ». Woodhouse, 2 New Rep. (I) In Morris v. Knight, T. 2 Jac. II. B. R. there were mutual covenants : one agreed to pay a sum of money for a lease for years ; the other covenanted that he should enter in twenty days, and that he would make a demise thereof, from, &c., and the plaintiff brought an action for non-payment of the money before the de- mise made, held not good, for the lease is the consideration : so judgment for the defendant. MS. (II) As to this point in bankruptcy, vide supra, s. 1, and post, eh. 12 & 21. (1) Peques v, Mosby, 7 Smedes & Marsh. 340. (2) The intention of the parties as collected from the language of their contract is the true guide in such cases. Ilowland r. Leach, 11 Pick. 154; Manning r. Brou-n, 1 Pairf. 51; Piatt on Covenants, 72 to 80; Couch r. Ingersoll, 2 Pick. 300 ; Barruso v. Madan, 2 John. 145, 148 ; Balch v. Smith, 12 N. Ilamp. 444 ; Todd V. Summers, 2 Grattan, 167 ; Dwiggins r. Shaw, 6 Iredell, 46 ; Wright v. Smvth, 4 Watts & Serg. 527 ; Adams v. Williams, 2 Watts & Scrg. 227 ; Low v. Marshall, 17 Maine, 232 ; Lawrence v. Dole, 11 Vermont, 549. The intention of the parties is to be discovered, rather from the order of time in which the acta are to be done, than from the structure of the instrument or the arrangement of the covenants. Goodwin v. Lynn, 4 Wash. C. C. 714 ; Speakc r. Shoppard, 6 Harr. & John. 85 ; Gardiner r. Corson, 15 Mass. 504. Vol.1. 39 [*--261] 30G TENDERING OT-' CONVEYANCE. other to observe a contract, he immediately makes his part of the agreement precedent ; for he cannot proceed against the other without an actual performance of the agreement on bis part, or a tender and refusal (1). 59. Thus a vendor cannot bring an action for the purchase- money, without having executed the conveyance, or ofFered to do so, unless the purchaser has discharged brm fro«i so doing (k) (2) ; but if the purchaser give a bill of exchange, or other security, for the purchase-money, payable at a certain day, he mast pay it when due, and cannot resist the payment even in the case of a bill of exchange, on the ground that there was no consideration for the drawing of the bill, because the seller has refused to convey the estate according to the agreement (3), But he will have his remedy (k) Jones V. Barkley, Dougl- 684. ; Phi- Wels. 477 ; this passage was not rntend- lips V. Fielding, 2 H. Black. 123 ; and see ed to refer to the amount to berecov- 3 East, 44:3. See Laird v, Pim, 7 Mecs. & ered. (1) See Chittv Contr. (8th Am. ed.) 273, 274, 275 ; Shii-ley v. Shirley, 7 Blackf. 542 ; Green r. Reynolds, 2 John. 145 ; Ramsay i\ Brailsford, 2 Besaus. 582 ; Tinney v. Ashley, 15 Pick. 546 ; Howe v, Huntington,. 15 Main. Ashley, 15 Pick. 546. When one party demands of the other the performance of a mutual agreement, by which concurrent acts are to be performed by each party, an otter on the part of the party making the demand, to perform his part of the agreement, is implied and understood ; and when the other party refuses to comply, he thereby dis- penses with any other otter. And where he neglects to coaiply without offering, any reason for his non-compliance, the legal effect is the same. Per Wilde J. in Tinney v. Ashley, 15 Pick. 552. (3) Manning r. Brown, 1 Fairf. 49. By articles of agreement between A. amii B. the former covenanted to convey to the latter a certain lot of /and, if certain notes given at the same time, payable at a future day, should be i)aid at maturity by B. ; and by said articles it was therein further agreed, that on failure of pay- ment of said note by B., the agreement was to be void — B. to be liable to pay all the damages that should thereby have accrued to A. — and to forfeit all that should previously have been paid. In a suit on one of the notes, it was held, that the promise on the notes, and the promise or covenant to convey, were inde- pendent, and that a suit on the former might vroUbe maintained without showing a conveyance or offer to convey ; but by enforcing payment of the notes, the ven- dor waived the right to avoid his covenant to convey. Manning v. Brown, ^ Fairfield, 49. See Brashicr v, Gratz, 6 AVhcuto/i, 528 ; Bank of Columbia v. Hag,- TKTfBERING OP CONVEYANCE. 807 upon the agreement for the non-execution of the conveyance (T). And if the purchaser, had he actually paid the money secured by the note as a deposit, would have been entitled to recover it back — as where the agreement could not be performed by the seller — it is not clear that he, the purchaser, might not resist the payment of the note on the ground of want of consideration, but whilst the contract remains open, he cannot resist the payment of the note (m). 60. In a late case (n), although the purchase-money was to be paid as the consideration of such sale and purchase, with interest to the time of the completion of the purchase, yet as a time was fixed for payment and none for the conveyance, it was held that an action for not executing a conveyance might have been maintained by the purchaser before the day oi payment, and no allegation of payment would have been necessary (1) ; and an action by the seller for the money was sustained, although he had not tendered a con- veyance. So where the agreement was to sell and purchase, and the purchaser agreed to pay to the seller the purchase-money be- fore the expiration of four years, with interest half-yearly till paid, the seller was allowed within the four years to recover an arrear of interest for the purchase-money still unpaid, without averring *title, delivery of possession, or readiness to convey, for no time was fixed for the completion of the sale, but a time was limited within which the money was to be paid, with interest in the mean- time (o) (2). {I) See Moggridge v. Jones, 14 East, («) Mattock i'. Kinglake, 10 Add. & 486 ; 3 Camp. Ca. 38 ; and see Swan v. Ell. 60. Qu. if it was incumbent on the Cox, 1 Marsh. 176; Spillerp. Westlake, seller to tender a conveyance; see the 2 Barn. & Adolph. 1.5.5 ; Wilks v. Smith, case. 10 Mees. & Wels. 3.55. (o) Wilks v. Smith, 10 Mees. & Wels. (»i) See 2 Barn. & Adol. 1.57, 158. 355. ner, 1 Peters (S. C.) 455 ; Hepburn v. Auld, 5 Cranch, 262 ; Winter v. Livings- ton, 13 John. 54. (1) Eveleth v. Scribner, 3 Fairfield, 24 ; Chitty Contr. (8th Am. ed.) 633 ; Dox V. Dey, 3 Wendell, 356 ; Dicker v. Jackson, 6 Manning, Grang. & Scott, 103 ; Barksdale v. Toomer, 2 BaUey, 180 ; Bank of Columbia v. Hagner, 1 Peters, 464, 465; Ackley v. Elwell, 5 IlaLsted, 304; Central Turnpike Co. v. Valentine, 10 Pick. 142 ; Bradford c Gray, 3 Yerger, 463 ; Morris v. Sliter, 1 Denio, 59 ; Bab- cock t!. Wilson, 17 Maine, 372 ; Sayre v. Craig, 4 Pike, 10. (2) K a day is appointed for performing a covenant on one part, and it is to happen or may happcMi before the covenants on the other part are to be performed, the covenants arc independent. Per Wilde J. in Couch r. Ingersoll, 2 Pick. 300, 301 ; 1 Williams's Saunders, 320, note (4) ; Seers v. Fowler, 2 John. 272 ; Cun- ningham V. Morrell, 10 John. 204 ; Lord v. Belknap, 1 Cushing, 284 ; Hageman V. Sharkey, 1 Howard (^liss.) 277; Mayers v. Rogers, 5 Pike, 417 ; Duncan v. Charles, 4 Scammon, 561 ; Dicker v. Jackson, 6 Mann. Gr. & Scott, 103. So where the money was to be paid to a third person and not to the vendor, that circum- stance has been supposed to indicate the intention and understanding of the par- [*2621 308 TENDERING OF CONVEYANCE. 61. On tlie other hand, a purchaser cannot maintain an action - for breach of contract, without having tendered a conveyance, and I the purchase-money (p) (1). (p) Sec 1 Esp. Ca. 191; Ex parte Uymaxd, 1 Atk. 147. ties that the pajTiient Avas to be first made, and, in an action by the vendor, a gen- eral averment of readiness on his part to perform was held sufficient in such case. Northup r. Northup, 6 Cowen, 296; Slocum ?7. Dcspard, 8 Wendell, 615, 618; Per Sutherland J. in Johnson r. Wygant, 11 Wendell, .50, 51. (1) Ace. Byers v. Aiken, 5 Pike, 419 ; Drennere v. Boyer, 5 Pike, 497. And see Chitty Contr. (8th Am. ed.) 275 ; Fairbanks v. Dow, 6"N. Hamp. 266 ; Stockton V. George, 7 Howard (Miss.) 172. But in New York and many other states, the purchaser is not bound to tender a conveyance. Ills duty is to tender the pur- chase money and demand a deed, which the vendor must prepare and execute at i his own expense. Sec note next page ; Hudson v. Swift, 20 John. 24 ; Hacket I V. Huson, 3 Wendell, 250 ; Fuller r, Hubbard, 6 Cowen, 13 ; Fuller v. Williams, ' 7 Cowen, 53; Barrett r. Browning, 8 Missouri, 689 ; Brown v. Hart, 7 Blackf. 429 ; Standifer v. Da^-is, 13 Smedes & Marsh. 48. To put the vendor in defaiilt, in New York, it was formerly held to be neces- sary, that the vendee should pay or tender the purchase money, demand a deed, wait a reasonable time for the vendor to have it di'awn, and then present himself to receive it, Hacket r. Huson, 3 Wendell, 250 ; Fuller v. Hubbard, 6 Cowen, 13 ; Fuller v. Williams, 7 Cowen, 53 ; CoimeUy r. Pierce, 7 Wendell, 129, 131 ; Wells V. Smith, 2 Edwards, 78. See Fairbanks v. JDow, 6 N. Hamp. 266 ; Smith v. Rob- inson, 11 Alabama, 840 ; Hunter v. O'Neil, 12 Alabama, 37. And where the vendor died, the same demand must have been made and time allowed to his rep- resentatives. Fuller V, WiUiams, 7 Cowen, 53. But in Carpenter v. Brown, 6 Barbour Sup. Ct. Rep. 147, it was held, that, if, upon the sale and purchase of land, the vendor covenants to deliver a deed of the premises on a certain specified day, and the purchaser has paid the considera- tion and there is nothing for him to do as a condition precedent, the duty of the vendor, to deliver the deed on the day fixed, is absolute. He should, therefore, preiDare the deed, and be ready to deliver it when demanded. One request (even if any request is necessary,) is enough to put him in default. And in an action for the breach of such an agreement, a request or demand need not be laid spe- cially. The general allegation, that the defendant was often requested to execute a deed, is sufficient. And in tliis case, the doctrine stated above, that the vendee should caU on the vendor and request the execution of a deed, and after waiting a reasonable time, call again to receive it, is expressly decltured not to be the law. See the remarks of Gridley J. pp. 148, 149. Under the rule, as it Avas formerly supposed to exist in New York, it was held, that the purchaser might avoid the necessity of a second demand, by tendering, on the first demand, a deed prepared for execution. Conncll v. Pierce, 7 Wendell, 129, 132 ; Wells v. Smith, 2 Edwards, 78. In case the vendor refuses to give a deed, the vendee may sue on the agreement without waiting to have a conveyance prepared or presenting himself to receive it, Footc r. West, 1 Dcnio,' 544. Where the purchaser sues to recover back part of the consideration money, paid by him on the contract, he must show that he has tendered the residueof the purchase money, and demanded a deed, so as to put the vendor in default. Hud- son V. Swift, 20 John. 24. Sec Green v. Green, 9 Cowen, 46 ; FuUer v. Hubbard, 6 Cowen, 13 ; ante, 250 and note. Where no place is fixed for the payment of the purchase money, a tender of the money and demand of a deed at the residence of the vendor, on the day named for the execution of the contract, are a sufficient compliance on the part of the purchaser, and give Irim a right of action against the vendor. If the latter, at the time of such tender and demand, be absent from home, a personal tender is not necessary. Smith v. Smith, 25 WendeU, 405. SeeFranchot v. Leach, 5 Cow- en, 506. If the obligee in a bond for a deed, on the last day of performance, say to the obligor, that the money is ready for him whenever he will give a deed, but pro- duces no money, and the other party replies that he will procure him a deed, but TENDERING OF CONVEYANCE. 309 62. It was always clear that the vendor need not tender a con- veyance where the purchaser was required to prepare it (^q), or to bear the expense of it (r). But the general proposition was ren- dered doubtful by some recent dicta of the Judges (s), that it is incumbent on the vendor to prepare and tender a conveyance, which, as a general rule, certainly seems to have prevailed when the simplicity of the common law prevailed, and possession was the best evidence of title (1) ; but upon the introduction of modifica- tions of estates, unknown to the common law, and which brought with them all the difficulties that surround modern titles, it be- came necessary to make an abstract of the numerous instruments relating to the title, for the purpose of submitting it to the pur- chaser's counsel : and it then became usual for ban to prepare the conveyance. This practice has continued, and is now the settled rule of the Profession : the rule is, indeed, sometimes departed from, but this seldom happens, except in the country, and it al- ways arises from consent, or express stipulation. 63. In a late case (t), this point came distinctly before the Court of Exchequer, and it was, in conformity to the practice of the Pro- fession, decided, that the purchaser, and not the vendor, is bound to prepare and tender the conveyance. In the early case of Webb V. Bettel (u), the same rule was expressly recognized by Windham, J. and denied by no one. He said, '• that where a person is to execute a conveyance generally, there the counsel of the purchaser is intended to draw it, and then the purchaser ought to tender it. 64. It is settled, that if a conveyance is to be prepared at the expense of a purchaser, he is bound to tender it (x). Now it is admitted on all hands, that the expense of the conveyance must *be borne by the purchaser, if there be no express stipulation to the contrary (2). Therefore, where there is no such stipulation, the pur- chaser is bound to tender the conveyance. In a late case in the (y) Hawkins v. Kemp, 3 East, 410. (t) Baxter v. Lewis, 1 Forrest's Rep. (r) Seward r. Willock, 5 East, 198. Exch. 61 ; and see Jlartin v. Smith, 2 (.?) Lord Rosslyn, in I'incke r. (Jurtcis, Smith, 543; Ilallowell v. Morrcll, 1 4 Bro. C. C. 332 ; Macdonald, C. B. in Scott New Rep. 309 ; but sec Standley Growsoek v. Smith, 3 Anstr. 877 ; Lord v. Hemmington, 6 Taunt. 5G1 ; 2 Marsh. Kenyon, in Heard v. Wadliam, 1 East, 276. 627 ; and Lord Eldon, in Seton c. Slade, (u) 1 Lev. 44. 7 Ves. jun. 278. {x) Seward v. Willock, 5 East, 198. immediately goes away, this is not a waiver of the tender thereof. Dnimraond v. Churchill, 17 Maine, 32o. (1) The rule, here said formerly to have prevailed in England, seems to be the one adopted in the United States. See note on next page. (2) B\it sec next note. 1*263] 310 TENDERING OF CONVEYANCE. Court of Exchequer, where a lease was to be prepared at the sole expense of the lessor, it was held that he was to prepare it, and not the lessee. It may be, indeed, that one may be bound by the express terms of a contract to prepare a lease or conveyance, and yet that it shall be paid for by another, for such stipulations are not inconsistent ; but where all that is stipulated for is, that it shall be prepared at the expense of the lessor, and there is no contract to explain it, it must be intended that the lessor is to prepare it also (y). 65. Upon the whole, notwithstanding the recent dicta to the contrary, as the precise point came before the Court of Exchequer, in Baxter v. Lewis, and their decision accords with the uniform practice of conveyancers, which has always met with the greatest attention in courts of justice (z), we may be warranted in saying, that the purchaser, and not the vendor, ought to prepare and tender the conveyance. And so the point has been finally decided (a) (1). 66. It has been said that a stipulation that the purchaser shall bear the costs of the contract, would entitle the vendor to the costs of making out his title (6). 67. But although a purchaser is expressly required to prepare a conveyance, yet if a bad title be produced, he may maintain an action for recovery of his deposit, without tendering a convey- ance (c). So where a vendor has, by selling the estate, incapa- (y) Price v. Williams, 1 Mees. & Wels. («) Stephens v. Medina, 3 Gale & Dav. 6 ; see Mattock v. Kinglake, 10 Adol. & 110. Ell. 50 ; Laird v. Pirn, 7 Mees. & Wels. (b) 3 Hare, 25. 474. (c) Seward v. Willock, ubi sup. ; S. P. (z) See2 Atk. 208 ; 1 Term Rep. 772 ; ruled by Lord Ellenborough, C. J. in Wilmot, 218. Lowndes v. Brav, Sitt. after T. T. 1810. See 11 Adol. & Ell. 933. (1) A different rule prevails in many of the United States. In Massachusetts, a party who contracts to execute and deliver a deed, is bound to prepare the deed, if there be no stipulation that it shall be prepared by the intended grantee. Tin- ney v. Ashley, 15 Pick. 546. " If the law in England, is otherwise," said Mr. Justice WUdo, " it must be founded on custom and practice, and not on any legal principle, independent of practice." ib. 552. See Swan v. Drury, 22 Pick. 485. The rule in Maine agrees with that in Massachusetts. Hill v. Hobart, IG Maine, 164. In New York the vendor who has bound himself to give a deed by a cer- tain day, must be at tlie expense of having it drawn, and must have it prepared and ready on that day. Connelly v. Pierce, 7 Wendell, 129 ; Carpenter v. Brown, 6 Barbour Sup. Ct. Kep. 93. See Ilacket v. Huson, 3 Wendell, 250 ; Fuller v. Hubbard, G Cowen, 13, 18 and note ; Hudson v. Swift, 20 John. 23, 27. In Penn- sylvania the rule is the same, viz. that the vendor must prepai-e and tender the deed. Sweitzer v. Hummel, 3 Surg. & K. 228. So in Mississippi, Standifer v. DavLs, 13 Smedes & Marsh. 48. See Smith v. Henry, 2 English, 207 ; Buckmas- ter V. Grundy, 1 Scammon, 310. In Arkansas the purchaser must prepare and tender a deed and bear the expense of it, according to the English rule. Byers V. Aiken, 5 Pike, 419 ; Drennere v. Boyer, 5 Pike, 497. See Wade v. KiUough, 5 Stew. & Port. 450. PURCHASER TENANT. 311 citated himself from executing a conveyance to the first purchaser, that renders further expense and trouble on his part unnecessary ; and he may accordingly sustain an action without tendering a conveyance, or the purchase-money (d) (1). 68. Where a purchaser is let into possession on a treaty for purchase, he does not become tenant to the seller ; and if the seller cannot make a title, it is doubtful whether an action will, under any circumstances, lie against the purchaser (I). It is *settled that the action will not lie where the occupation has not been beneficial to him (e), beyond the mere protection from the inclemency of the weather, and if he paid the money, of which the seller might have made interest, although the jury expressly find that the value of the house, during the occupation of the pur- chaser, exceeds the interest of the money paid, yet the seller cannot recover (^f) ; for it is impossible to make the rules of law depend on the balance of loss or gain in each transaction : one party must take back his money, and the other take back his house. A contract cannot arise by implication of law, under cir- cumstances, the occurrence of which neither of the parties ever had in their contemplation (2). {d) Knight v. Crockford, 1 Esp. Ca. Bing. N. C. 860. 189. See Duke of St. Alban's r. Shore, (e) Hearne v. Tom1m,Pcakc's Ca. 192. 1 H. Black. 270; Jackson v. Jacob, 3 (/) Kii-tlandt'. Pounsett, 2 Taunt. 45. (I) See supra, s. 1, for the effect of a contract on an existing tenancy. (1) Newcomb v. Brackctt, 16 Mass. 161 ; Eames v. Savage, 14 Mass. 425. Where the vendee has given notice to the vendor of his refusal to perform the contract, no tender of a deed by the vendor is necessary in order to sustain a bill for specitic performance. Crary v. Smith, 2 Comstock, 60. (2) If one enter on land under a contract for a deed, the relation of landlord and tenant does not exist ; and on liis refusing to perform the contract, or on the owner's neglecting to cxecvitc a deed, lie is not liable, in assumjjsit, for use and occupation. Smith r. Stewart, 6 John. 46; Vanderheuvcl v. Storrs, 3 Conn. 203 ; Bell V. Ellis, 1 Stew. & Port, 294 ; I-ittlc r. Pearson, 7 Pick. 301 ; Jones r. Tiftou, 2 Dana, 295 ; Brewer r. Craig, 3 Ilarr. 214 ; Hough r. Birgc, 190 ; Doc v. Cock- ran, 1 Scamraon, 209. But see Clough v. Hosford, N. Ilamp. 234 ; Aver v. Hawkes, 11 X. Ilamp. 148; Davidson v. Ernest, 7 Alabama, 817; Gould i". Thompson, 4 Metcalf, 224. In Clough r. Hosford, 6 N. Hamp. 234, it was held, that a vendee let into pos- session and afterwards refusing to comply with his agreement to purchase, may be sued in trespiiss, or for use and occupation, for the profits of tlie land, at the owner's election. In Smith «-. Stewart, 6 John. 46, it is said that the vendee, in such case, is liable to be turned out, as a trespasser, and is responsible, in that character, for the mesne profits, but cannot be sued for use and occupation. In another case, decided in New Hampshire, the facts were that the defendant, in the month of May, 1838, made a verbal contract with the plaintiff, for the purchase of a farm, for the sum of .$1200. It was agreed tliat .<8(200 or .SjiSOO of the pur- chase money should be paid Avhcn he should take possession ; $500 in the ensu- ing sunimer, and the remainder in two years. The defendant took ]iosssession, and paid the plaintiff $200, for which the plaintiff gave him a receipt, stating [*264J 312 PURCHASER TENANT. 69. But as the possession is in these cases lawful, being with the assent of the seller, an ejectment will not lie against the pur- chaser without a demand of possession, and refusal to quit (o-) ; unless upon possession being given to him, he agreed to quit pos- session if he should not pay the purchase-money on a given day, or the like ; in which case an ejectment will lie, without notice, on non-performance of his agreement (1). The agreement operates in the same manner as a clause of re-entry on breach of covenant in a lease (/i). 70. If possession be given upon payment of part of the pur- chase-money, and interest is paid upon the remainder, twenty years' possession by the purchaser is no bar in ejectment, because his possession was not adverse to the seller (i) ("2). 71. Where the conditions of sale stipulated for the delivery of an abstract, &.c. by the sellers, and that in case the purchaser was let into possession before the payment of his purchase-money, he should be considered as tenant at will to the vendors, and pay interest after the rate of four per cent, upon the amount of his purchase-money, as and for such rent — the seller made default in (f/) Doc V. Jnckson, 1 Barn. & Cress. C. 749 ; Doc v. Staiiion, 1 Mees. & "NVels. 448; Right i-. IJeard, 13 East, 210. Sec 695. Hegan v. Johnson, 2 Taunt. 148 ; Doe v. (A) Doe r.Sayer, 3 Camp. Ca. 8. The Lawder, 1 Stark. 308; Doet". Boulton, 1 same doctrine is extended to an agree- Mood. & Malk. 148 ; Doc r. Waller, 1 me?it for a lease, Doe v. Smith, 6 East, Carr. & Tavn. 59o ; Doc v. Miller, 5 Carr. 530 ; Doc r. Breach, 6 Esp. Ca. 106. & Payn. 595 ; Doe v. Pullen, 2 Bing. N. («) Doe v. Edgar, 2 Bing. N. C. 498 ; see ch. 11, s. 5, post. that it -was in part payment for the land. The defendant took the crops for 1838, hut failing to make any further payment, the plaintilf notified hbn to quit, and he removed from the place in the month of December. The plaintiff then brought an action for use and occupation, and the defendant filed the sum of i|l200, -which he had paid the plaintiff, by "way of set-off. The set-off -was not allowed, be- cause the defendant had neglected to complete tlie contract, by paying or tender- ing the instalment -when it became due ; and it "was also held that the plaintiff could not recover, Avithout paying the defendant the money he had received un- der the contract. Ayer r. Ilawkes, 11 N. Ilamp. 148. In (jould r. Thompson, 4 Metcalf, 224, it appeared, that an oral agreement had been made for the pur- chase of a house, and the vendee advanced the purchase money and took posses- sion, but before he obtained a deed, the house was destroyed by fire, and he there- upon vacated possession of the land, refused to accept a deed which the vendor tendered to him immediately after the fire, and commenced a suit against the ven- dor, in Avhich he recovered back the purchase money, as appears in Thompson v, Gould, 20 I'ick. 134, and it was thereupon held, that the vendee, during his oc- cupation of the house, was tenant at will, and that he was liable to the vendor, in an action of assumpsit, for use and occupation ; and, it was also held, that the vendee, by refusing to accept a deed from the vendor, dctcnnined the tenancy at will, and was no longer liable to him for use and occupation. (1) See Cloiigh v. Ilosf'ord, and Smith v. Stewart, cited in the preceding note. (2) Jackson r. Camp, 1 Cowen, 010 ; Jackson r. Bard, 4 John. 230 ; Kellogg v. Kellogg, 6 Barbour Sup. Ct. Hep. 116, 128 ; Jackson i-. Johnson, 5 Cowcn, 74 ; Cooper V. Slower, 9 John. 331. NE EXEAT. 313 delivering of the abstract, and the purchaser was let into pos- session — it was held, 1. That in the absence of an express con- tract by the purchaser to waive the non-fulfilment of the condition to deliver an abstract, no such contract could be implied at law, from the mere circumstance of the purchaser being let into pos- session : *the remedy was to be sought in equity. — 2. That use and occupation would not lie, for the condition under which the pur- chaser was said to have occupied, supposed that the vendors would have performed their parts of the previous contract, and provided for the case of default after such performance : the law would not imply that the vendee had subjected himself to such a condition by being let into possession while the title remained incertain. — 3. That if the purchaser had agreed to be bound by the condition, the action ought not to have been for use and occu- pation, but the declaration should have been special on the con- tract to pay four per cent, upon the purchase-money, a contract in the nature of an agreement for a tenancy, but not amounting to that (k) (1). 72. And in a case where power was given, in a contract under seal, to a purchaser to leave the purchase-money as a charge upon the property for a given period at interest, and it was stipulated that the purchaser should be deemed tenant to the seller at a rent equal to the interest, and the seller was to have power to distrain, though the agreement was acted upon, yet the instrument was held not to be a lease, but substantially a contract for purchase, and that the power of distress did not alter the nature of the contract between the parties. And this construction was held to prevail even in the event of the bankruptcy of the purchaser (/). 73. A writ of 7ie exeat regno lies against the purchaser who has not paid the purchase-money, upon his threatening to go abroad, if the vendor's title has been accepted (ni), or there has been a decree for a specific performance after the title has been investi- gated (ji). But although the purchaser has taken possession of the property, and received the rents after the delivery of the ab- (k) Seaton v. Booth, 4 Adol. & Ell. (/) Hope v. Booth; 1 Barn. & AdoL 528, -where the purchase was in lots, and 498. the sellers had not a joint title. The (m) Goodwin v. Clarke, 2 Dick. 497 ; statement in the text is from the judf;- and Anon. ibid, note ; see Jackson v. Fe- mcnt of Mr. Justice Littledale ; see the trie, 10 Ves. jun. IGl. opinions of the L, C. J. and Mr. Jus- (?i) Bochni v. Wood, Turn. & Kuss. tice Coleridge. 332. ri) See Welch v. Andrews, 9 Metcalf, 78. Vol. 1. 40 [*265] 314 OF RESCINDING A CONTnACT, stract, yet the writ cannot issue ; for unless the Court can niaku- it out to be quite clear that there must be a specific performance;, it cannot grant the writ (o) (2). (o) Morris v. M'Neil, 2 E,uss. 604. (1) 3 Danicll Ch. Pr. (Perkins's ed.) 1929, 1930 ; Bro\vn v. Haff, 5 Paige, 235 ; Gibbs V. Meraud, 2 Edwards, 482; Cowdiii v. Cram, 3 Edwards, 231 ; De lli- vafinoli r. Corsetti, 4 Paige, 2G4. *SECTION V. OF RESCINDING AND OF CONFIRMING A CONTRACT. 1. Notice of rescinding. 3. Doctrine of rescinding a contract. 5. Concealment of a fact by a pur- chaser. 6. Dealing imduly tcith purchaser. 7. Misrepresentation by a purchaser. 8. Whether fraud be necessary. 9. Seller believing his own misrepresen- tation. 10. Party left to his remedy at law. 12. Rescinding a conveyance for unrea- sonableiiess of price. 13. For inadequacy. 14. Because trustee sold to himself. 15. Where by mistake a man bought Ms own estate. 16. Becaxise iinprovidently made. 19. Because defect in title concealed. 20. Eviction not necessary to relief. 21. Because remainder sold had been barred. 22. Action of deceit. 23. Dobell v. Stevens. 25. Fuller v. Wilson. 27. Rule in eqxiity. 28. Purchaser s general remedy. 29. Acquiescence bars right. 32. Confirmation releases right. 33. Although netc circumstance of fraud discovered. 34. Acquiesceiice where fi-aied and op.- P'/ession. 35. Confirmation where fraud. 37. Whether fraudulent transaction can be purged. 39. Requisites to valid confirmation. 43. Time a bar to relief. 45. Statutory bar. 47, 56, 57. Profit and loss by stock : in- terest. 49. Purchaser, hoic charged. 50. Occupation rent : i7nprovements. 51. Not interest upon interest. 53. Repairs after notice of defect in title. 54. Conversion of shop into jnivate house. 56. Power of Court where biU is dis- missed. 59. After an injunction : interest. 61. Re-transfer of su7ns after reversal of decree. 62. No interest xqwn costs, 63. Power of Court after reversal, and cause remitted. 64. Whether purchase money can he fol- lowed. 1. Where one party fails in performing the contract, the other, [*2661 OF RESCINDING A CONTRACT, 315 if he mean to rescind it, should give a clear notice of his inten- tion (a). 2. The right to rescind a contract arises either before the com- pletion of it — as for the want of title, for example — or after the con- tract is completed. The first class of cases we have already consid- ered generally (6), and we have now only to inquire in what cases a party may require a contract to be deliv^ered up ; and, 2dly, under what circumstances a party may rescind the contract after the exe- cution *of the conveyance (I). And, first, as to the delivering up of contract. 3. Few cases, Lord Eldon observed, turn on greater niceties than those which involve the question whether a contract ought to be delivered up to be cancelled, or whether the parties should be left to their legal remedy (c). 4. Where representations are made with respect to the nature and character of the property which is to become the subject of purchase, affecting the value of that property, and those represen- tations afterwards turn out to be incorrect and false to the know- ledge of the party making them, a foundation is laid for maintain- ing an action to recover damages for the deceit so practiced ; and in a court of equity a foundation is laid for setting aside the contract which was founded upon a fraudulent basis (d) (2). 5. Where a man, knowing of the death of a person, by whose death the value of the property in the hands of assignees of a bank- rupt was improved, purchased the property, and did not disclose (a) Reynolds v. Nelson, 6 Madd. 18. (d) Attwood v. Small, 6 Cla. & Fin. (i) Vide supra, s. 4. 39o,;>er Lord Lvndliurst ; see also p. iH, (c) Jac. 172. ■ 44.3, 4GG, 478, 502. (1) Sec Taylor v. Fleet, 4 Barbour Sup. Ct. Rep. 9.5. (2) A bargain, foundod upon a material misrepresentation of matters of fact, «ven though they were inadvertently made thi-ough the mutual mistake of the parties, or l)y the mistake of the grantors alone, ■will be annulled in equity. Mis- take, as well as fraud, in any representation of a fact material to the contract, fur- nishes a sufficient ground, in ec^uity, to set it aside and declai'e it a nullity. Dan- iel i\ Mitchell, 1 Story C. C. 172 ; Doggett v. Emerson, 3 ib. 700 ; Ilougli v. Richardson, ib. G.59 ; Warner v. Daniels, 1 Woodbury & Minot, 90 ; Smith v. Babcocki 2 ib. 240 ; Tuthill v. Babcock, ib. 298 ; 1 Story Eq. Jur. ^^140 et scq. ; Fonbl. Eq B. 1, Ch. 2, ^^7 and notes; Mason r. Crosby, 1 Woodb. & Minot, 342; ante, IntrodiU'tion, {1 to 33 and notes; Pearson v. Morgan, 3 Brown Ch. 388; Rosevelt v. Fulton. 2 Cowen, 134 ; S. C. 5 John. Ch. 174; Lewis v. M'Lemore, 10 Yergcr, 20(5 ; Cham])lin v. Laytin, 6 Paige, 189 ; S. C. 13 Wendell, 407 ; M'Adoo V. Sublett, 1 Humph. lO.j; Parham r. RaJulolph, 4 How. (Miss.) 435; Brooks r. StoUey, 3 McLean, 523; Person r. Sanger, 1 Woodb. & Minot, 138; Sherwood v. Salmon, 5 Day, 439 ; Coe r. Turner, 5 Conn. 86. [*267J 316 OF llESCINDINO A CONTRACT. the fact, and they were unaware of it, although it was publicly known. Lord Eldon ordered the contract to be deUvered up (e) (1). 6. In a case (y) where, pending the investigation of a point upon the title to a part of the estate, the seller and his solicitor, in the absence of the purchaser's solicitor, went to the purchaser and induced him to pay the purchase-money, and to execute two deeds of covenant for the production of title-deeds to the estate, which were not in his possession, and the seller gave him a written acknowledgment for the money, which he undertook to return in case the title to the premises should not be complete ; the pur- chaser's solicitor disapproved of this proceeding, and the seller then insisted that the purchaser had accepted the title. The Court held, that a case of fraud had been established against the seller ; and as the seller had retained the money and the deeds of covenant after the objection made by the purchaser's solicitor, and had put his defence upon the acceptance by the purchaser of the title, and three years had elapsed since the bill was filed, the purchaser was entitled to have the contract rescinded without reference to the validity of the objection to the title, or to what part of the estate the objection applied. The seller was ordered to repay the pur- chase-money with interest, and to repay the auction-duty paid by the purchaser, and also to pay all costs, charges, and expenses *which had been incurred by the purchaser in consequence of and incident to the purchase and the costs of the suit (g). 7. In the great case of Small v. Attwood (h), which from its com- plicated facts can hardly perhaps be cited as an authority for any- thing beyond the general principle, that in the absence of actual fraud, representations and assertions upon a treaty are concluded by a contract in which no notice is taken of them, the learned Judge who decided the case in the first instance considered that there was a mis-statement of the basis of the agreement ; there was a mis-statement with the knowledge of the party, and therefore it came within the principle, that if a case of deception is made out, which would entitle the purchaser to recover for a deceitful misrep- (e) Turner v. Ilarvey, Jac. 1G9 ; see (ff) See accordingly, Edwards v. post. See Jones v. Keene, 2 Mood. & M'Leay, Coop. 318. Rob. 348. (A) You. 407; 3 You. & Coll. 105, (/) Berry v. Armistead, 2 Kee. 221. infra. (1) Eut where a person, wth. knowledge that a tract of land contained a valu- able mine, purchased the land, without disclosing tlie existence of the mine, it was held that such concealment did not avoid the contract. Smith v. Beatty, 2 Iredell Ch. 4-56. [*268] OF RESCINDING A CONTRACT. 317 resentation, it is a ground in a court of equity, to which an apph- cation may be made to set aside a contract (i) (1) ; but the House of Lords came to a different conclusion, and dismissed the purchaser's bill with costs (k). 8. Unless a clear fraud be established, there ought to be no relief in equity, for there is a great difference between establishing and rescinding an agreement (2). In Small v. Attwood, for example, it was not too much to expect that if, in a purchase of such mag- nitude, in which of course there was previous inquiry, the pur- chasers bought on the representations of the seller as to the costs of producing pig iron, they should have required him to bind him- self by the contract to those representations, and to agree to reduce the purchase-money if they proved to be incorrect. Such a simple precaution would have prevented the vast litigation in that case ; but it is clear that if such a demand had been made, it would not have been acceded to, and that if it had been refused, the pur- chasers would have executed the contract without it. 9. At law, upon a sale of chattels — pictures for example — where there is no express warranty, but only a representation, the seller will not be answerable, although the representation prove to be untrue, if he believed it to be true (I) (3). 10. There are cases, as we have already seen, in which, in dis- missing a bill for a specific performance, the decree is expressly made without prejudice to the plaintiff's remedy at law upon the contract. In Mortlock v. Buller (m), where Lord Ehion refused a specific performance to the purchaser, who was plaintiff, he ^observed that there was nothing in the circumstances whicii could induce him to think the plaintiff could be restrained from using all the remedies he might have at law if a bill had been filed [liy the seller] to have the contract delivered up. It was much too late to discuss then whether a court of equity ought to order a contract that it would not specifically perform to be delivered up, and to decree the performance of a contract which it would not order to (i) See You. 487, 462, 463 ; and see (I) Dc Se-svlianbcrg v. Buchanan, o Lovell V. Kicks, 2 You. & Coll. .51. Carr. & Pavn. 343. (/;) 6 Cla. & Fin. 232. Sec 8 Cla. Si (/») 10 Yes. jun. 308 ; Day v. New- Fin. 650, 651. man, 2 Cox, 77. (1) See Hough v. Richardson, 3 Story C. C. 650, 690. (2) Sec Buck r. Sherman, 2 Douglass, 176 ; Bcobc r. Swai-twout, 3 Cnlman, 162. (3) Stone v. Denny, 4 Mctcalf, 151 ; Ilammatt ;-. Emerson, 27 Elaine, 30S. But where the vendor makes an untrue representation as of his owni knowledge, not knowing whether it is true or false, he will be answerable. Stone r. Denny, Ilammatt v. Emerson, ubi supra ; Hazard v. Irwin, IS Pick. 95. [*-269j 318 OF RESCINDING A CONTRACT. be delivered up, for the distinction was always laid down, that there are many cases in which the party has obtained a right to sue upon the contract at law, and under such circumstances, that his conscience cannot be affected in equity so as to deprive him of that remedy ; and yet, on the other hand, the Court declaring he ought to be at liberty to proceed at law, will not actively interpose to aid him, and specifically perform the contract. 11. So in Cadman v. Horner (n), where Sir W.-Grant refused a purchaser a specific performance on account of a slight misrepre- sentation by him, he observed, that this was not a case where the Court was called upon to rescind an agreement, and to decree the conveyance executed in pursuance of it to be delivered up to be cancelled, which would admit a different consideration (1). 12. Secondly. We have elsewhere shown that there are kw cases in which a purchaser can rescind a contract after the con- veyance is executed, and the purchase completed, on account of the price being unreasonable (o). 13. Nor, on the other hand, can the vendor easily obtain relief on account of the inadequaQy of the consideration after the con- veyance is executed (p) (2). 14. A cestui que trust, whose trustee has sold the estate to him- self, may rescind the sale ; but this subject is fully discussed in a subsequent part of this work (^q) (3). 15. Where a man having aright to an estate, purchased it of another person, being ignorant of his own title, the vendor was compelled to repay the purchase-money, with interest from the time of filing the bill, and costs ; for the report says, though no fraud appeared, and the defendant apprehended he had a right, yet there was a plain mistake such as the Court was warranted to relieve against, and not to suffer the defendant to run away with the money in consideration of the sale of an estate to which he had no right (r) (4). It has been said that if it were necessary to consider (w) 18 Yes. jun. 10. (eay, Coop. 308 ; & Fin. 332 ; Gibson v. D'Este, 2 You. & affirmed by Lord Eldon on appeal, 11 Coll. C. C. 542. July 1818, with a reservation of the (1) See Segur v. Tingley, 11 Conn. 134 ; 1 Story Eq. Jur. $251. [*271] OF RESCINDING A CONTRACT. 321 Lord Eldon affirmed the decision upon appeal ; he observed, that the case resolved into this question, whether the representation made to the plaintiff was not in the sense in which we use the term fraudulent. He was not apprised of any such decision, but he agreed with the Master of the Rolls, that if one party makes a representation which he knows to be false, but the falsehood of which the other party had no means of knowing, the Court will rescind the contract (y). *20. Where a purchaser is entitled to be reheved on the ground of concealment of a fact establishing the invalidity of the title, it is not important that he has not been evicted : if the rightful owner is not barred by adverse possession, though he may never assert his right, the purchaser cannot be compelled to remain during the time to run in a state of uncertainty whether, on any day during that period, he may not have his title impeached (1). A court of equity is bound to relieve a purchaser from that state of hazard into which the misrepresentation of the seller has brought him (z). 21. Where a person sold a remainder expectant upon an estate- tail, and both parties considered that the remainder was unbarred, and it afterwards appeared that a recovery had been suffered before the contract, the purchaser was relieved against a bond which he had given for the purchase-money, and the seller was compelled to repay the interest which he had received (a). This was a strong decision. The purchaser might have ascertained the fact by search. The Chief Baron laid down some very general propositions ; he said, " that if a person sell an estate, having no interest in it at the time, and takes a bond for securing the payment of the purchase- money, that is certainly a fraud, although both parties should be ignorant of it at the time (b). Suppose I sell an estate innocently, which at the time is actually swept away by a flood, without my knowledge of the fact, am I to be allowed to receive 5,000/. and interest, because the conveyance is executed, and a bond given for that sum as the purchase-money, when, in point of fact, I had not an inch of the land so sold to sell (c) ?" Both these cases, when they arise, will, it is apprehended, deserve great consideration before ((/) 2 Swuiist. 287. (6) But sec 2 Cro. 19G ; 2 Ld. llayra. [z) Edwards v. M'Leay, Coop. 308. 1118 ; IT. Hep. loo ; 2 Frccm. 106 ; and (a) Hitchcock v. Giddings, 4 Price, post, eh. 12. 13-5. [See the remarks upon this case in (c) Sec ch. G, post. Bates V. Delavan, o Paige, 307.] (1) See 2 Kent, (Gth ed.) 471 et seq. ; Fecmstcr r. May, 13 Smedes & Marsh. 275 ; Wiggins v. McGimpsey, ib. •532 ; Sage r. lianncv, 2 Wendell, o34. Vol. I. 41 1*27-2] 322 ACTION OF DECEIT. they arc decided in the purchaser's favor. The decision must be the same, whether the money is actually paid or only secured. Lord Eldon, in a later case, expressed considerable doubts as to the doctrine in this case (1). 22. Although as we have seen, the treaty for a contract is con- sidered to be concluded by the terms of the contract itself, and they cannot be added to at all at law by parol evidence, nor even in equity, except as a defence, yet it is laid down that, where a mis- representation of a material fact not within the observation of the opposite party is made, the person making the representation, knowing at the time that his statements are untrue, under such cir- cumstances an action may be maintained at law for the purpose of Recovering a compensation in damages for the injury tlic party has sustained, notwithstanding the contract was in writing, and not- withstanding those particulars may be no part of the terms of the written contract (c/). 23. As an instance, we may refer to Dobell v. Stevens (e), where a purchaser was allowed to recover upon an action on the case for a deceitful representation of the trade and income of a public house, although the purchase had been concluded by the payment of the purchase-money and the assignment of the property. There was negligence, too, on the part of the purchaser, for the seller's books were in the house at the time of the treaty, and might have been inspected by the purchaser, and they would have shown the real state of the concern, but the purchaser did not examine them. The Court, upon a motion for a new trial, relying on the early case of Lysney v. Selby (/), observed, that the purchaser relied upon the assertion of the seller, and that was his inducement to make the ])urchase. The representation was not of any matter or quality pertaining to the thing sold, and therefore likely to be mentioned in the conveyance, but was altogether collateral to it. 24. Where the purchaser has a right to rescind the contract, he (d) Per Lord I.yndliurat, C. 13., Yo\^. scllcr,communicatccl by an intended jmi- 461, 462. chaser to a Hubstituted purchaser, gives (e) 3 Barn. & Cress. 623 ; Pilmorc r. the latter a right of action. See Att- Hood, 6 Bing. N. C. 97 ; 6 Scott, 827. wood v. Small, 6 Cla. & Fin. 232. A false and fraudulent statement by the (/_) 2 Lord llaym. 1118 ; supra p. 1. (1) The case of Hitchcock v. Giddings, was cited -with approbation in Allen v. Hammond, 11 Peters, (S. C) 63, 72. In this last case it was said, arguendo ; if a life estate in land is sold, and at the time of the sale, the estate is terminated by the death of the person in whom the right vested, a court of equity would rescind the purchase. If a horse is sold, which both parties believed to be alive, the pur- chaser would not be compelled to pay the coiij^idcration. Sec Hanmrondr. Allen, 2 Sumner, 387 ; 2 Kent, (fith ed.) 168, 469. [*273] ACTION OF DECEIT. 323 may bring an action for money had and received to recover the purchase-money (^g). 25. In Fuller v. Wilson (A), the facts were considered to be that the seller bein^ the owner of a house in the city, employed her attorney to put it in the course of being sold by auction. He described it to the auctioneer as being free from rates and taxes, and it was bought by the plaintiff on that representation for more than its value. The action by the purchaser was on the case fpr a fraudulent misrepresentation of the value. But the seller had made no representation at all, and her attorney who made it did not know it to be false. The Court of King's Bench held that the action would lie, for whether there was moral fraud or not, if the purchaser was actually deceived in his bargain, the law will relieve him from it. The principal and his agent are for this purpose identified ; and the question is not what was passing in the mind of either, but whether the purchaser was in fact deceived by them or either of them. The agent was not indeed instructed to make any ^representation specifically on the subject of rates and taxes, but he could not sell the house without describing it, and he described it untruly in an essential point. By this false statement the plaintiff was induced to part with his money to the defendant, who could not be allowed to retain it. This decision wholly depended upon the false statement by the agent. But upon error in the Exchequer Chamber upon a special verdict by consent, it appeared that the purchaser was the auctioneer employed to sell the property, that the seller referred her attorney for information to a person who had a lien on the property, and who told him that the rent was 100/. a year. The attorney made no inquiry about rates and taxes, assuming that the tenant paid them, and he did not know tliat they were paid by the seller. The seller herself did not further interfere. The attorney stated to the auctioneer that "the house was let at lOOZ. a year." The auc- tioneer in iiis particulars stated the rent to be clear of rates and taxes. The attorney did not correct this statement, as he thought it true : indeed it did not appear on the verdict when he saw the particulars. Upon these facts, therefore, it appeared, 1st. that tile purchaser himself was an agent ; 2d. that the seller, the prin- cipal, made no representations ; 3d. that the attorney made no mis- {(/) GrefiUe v. Da Costa, Peake's Add. (h) 3 Adol. & Ell. N. S. 58. Ca. 113 ; tupru, s, 4, pi. 37. 1*274] 324 RIGHT TO RESCmO I.OST BY ACqUIRSCKNCF.. representation, and believed the statement in the particulars to be correct, and it was held that the action would not lie (i). 26. It was not doubted in the Exchequer Chamber that the rep- resentation made by the agent, if fraudulent, would have bound the seller, and that a fraudulent concealment by him would have equally bound her Q). It was not found that the seller knowing a material fact, kept it back (k). If she had knowingly referred to an ignorant agent, that would have been fraud (/). The Court con- sidered the immediate cause of the injury sustained by the pur- chaser to have arisen from his own misapprehension of the fact, and not from any misrepresentation or concealment on the part of the defendant (m). 27. It has been considered to follow from the authorities at law, that in a court of equity a party would be entitled to come for- ward for the purpose of obtaining redress, in order to get rid of a contract founded on fraudulent representations (n). But perhaps this rule is too broadly laid down. Cases may occur where a purchaser might recover damages at law for a false representation, and yet be prevented by his own conduct from rescinding the con- tract *in equity, and the relief in equity can only be to rescind the contract. Damages or compensation must be sought at law. In equity, after the contract is executed by payment of the money and a conveyance, a bill cannot be filed for a compensation (o) (1). 28. Generally speaking, a purchaser after a conveyance has no remedy, except upon the covenants he has obtained, although evicted for want of title ; and however fatal the defect of title may be, if there is no fraudulent concealment on the part of the seller, the purchaser's only remedy is under the covenants (p). 29. We may now observe that a right to rescind a contract may, like most other rights, be lost by acquiescence, or relin- quished by confirmation (^q) (2). A party may, of course, by his (0 3 Adol. & EU. N. S. 68. (wt) .5 Adol. & EU. N. S. 1009. Ij) lb. p. 77. Sec Earby i\ Garrett, («) See You. 402, supra ; p. 268. 4 Mann. & lly. 687 ; Stambankf. Fern- (o) Lenham v. May, 13 Price, 749. ley, 9 Sim. 556. (;j) Vide ch. 12, post, (k) 3 Adol. & Ell. N. S. 74. ( KENT AND REPAIRS. too late, at the expiration of six months, on that ground, to file a bill for the purpose of setting aside the contract (/) (I). *45. And now suits in equity are expressly confined to the period allowed for actions at law (•2) (jti), although in the case of a con- cealed fraud, the right to relief is deemed to first accrue at the time when the fraud shall or, with reasonable diligence, might have been known or discovered (3) ; but such relief is not given against a bo7ia fide purchaser for valuable consideration without notice (n). 46. But though this is the limit, yet the act does not interfere with any rule or jurisdiction of courts of equity in refusing relief, on the ground of acquiescence or otherwise, to any person whose right to bring a suit may not be barred by the act (o). The time may be shortened, it cannot be lengthened. 47. In a case where a conveyance was set aside upon inadequacy of consideration and fraud, and the purchase-money had been secured at interest, which had been paid thereon, the Court, beyond the repayment of the principal, went further, and considered the payments of interest as made, not as interest (for the transaction was avoided), but as principal, making the seller, who was relieved from the sale, chargeable with interest on all the sums received by her, whether received as interest or as principal. Avoiding the transaction, she was not entitled to any thing as interest (|^). (0 Small V. Attwood, You. 503 ; 6 («) Sect. 26. Cla. & Fin. 232, 3.57 ; and sec Lovell v. (o) Sect. 27. llicks, 2 You. & Coll. 46. \p) Murray v. Palmer, 2 Scho. & Lof. {in) 3 & 4 Will. 4, c. 27, s. 24 ; sec 488. post, ch. 11, s. 5. (1) "Where a bill in equity was brought to set aside a sale of certain timber lands seven years after the purchase thereof, during which time the agent of the purchasers had made two explorations of the land, and had caused a large quan- tity of timber to be cut therefrom; — it was held that the purchasers had full knowledge, or the means of knowledge, of the condition of the lands, through their agent, which they were bound to exercise, before cutting down timber, and locating the property as their own ; and that the bill Avas not maintainable after so great a lapse of time, particularly as it set forth no new discoveries in relation to the quantity and value of the timber, wliich might not have been obtained within a single year, and as the evidence was obscured as to material points. Hough T. llichardson, 3 Story C. 0. 6G0. See Yeazie r. AVilliams, 3 Story C. C. 611 ; Sanborn r. Stetson, 2 Story C. C. 481 ; Person v. Sanger, 1 Woodb. & Mi- not, 138 ; Pratt v. Carroll, 8 .Craiich, 471. (2) The rule of courts of equity, aside from any statute expressly applied to them, has generally been, in jjroper cases, to act either in obedience to, or upon the analogv of, the general statute of limitations of actions at Law. 2 Storv Eq. Jur. §lo21," §1521 a; 1 Daniell Ch. Pr. (Perkins's ed.) 622, 623, and 2 ib. 729 to 732, in notes where the cases arc cited; Story Eq. PI. §751 et seq. ; Person v. San- ger, Davies's Rep. 252. (o) Ec^uity has always interfered to prevent the bar of the statute of limitations in such cases, aside from any statute iipon the subject. 2 Story Eq. Jur. §1521 ; I'elorainc c. Prownc, 3 Prowu C. C. (I'crkins's cd.) 646 in note (a) and cases cited. (*278J OF INTEREST AND RENT AND REPAIRS. 329 48. And the interest has been ordered to be paid at five per cent (q). 49. But a purchaser, where the contract is rescinded, is not to be charged with what, without wilful default, he might have made : it is not hke the case of mortgagees, who are thus charged in order to make them sufficiently alert in receiving the rents (r). 50. In a case where a sale of leasehold houses was set aside, and the purchaser had been in possession, an occupation rent was set upon the houses, the purchaser being allowed for lasting repairs and substantial improvements, and he was to be repaid the purchase- money with interest, and there was to be a set off ; and ultimately, annual rests were directed, so as to apply the excess of the rent above the interest in reduction of the principal. The purchaser had got possession of the seller's estate, the seller ought to have had it ; on the other hand, the purchaser ought to have had the money ; this was to be set right, and in that view the excess of the rent ought to be set off annually against the principal. The rent, if applied to reduce the principal, would gradually sink the whole of *it. Now the rent belonged to the seller, and ought to have been paid to him ; the purchaser kept it, and had the benefit. Was he to go on receiving the same amount of interest whilst he had this fund in his hands (s) ? 51. But the purchaser in such a case is not to pay interest upon interest after the annual rent has liquidated the whole of the prin- cipal : after that it becomes merely an account of the occupation rent, which is to be taken without interest (t). 52. And although the purchaser is allowed the sums expended for lasting repairs and substantial improvements, with interest, yet the decree in this respect will not go beyond the prayer of the bill (u). 53. A purchaser, after he knows of the defect of the title, cannot, it was said by great authority, claim an allowance for subsequent repairs (x) (1). But this would hardly be extended to such repairs as, during the litigation or preparatory to it, were necessary to the upholding of the premises in common condition. (17) Donovan v. Frickcr, Jac. IGo; (5) Donovan t\ Flicker, Jac. 165. Turner v. Ilarv'ey, Jac. 1G9 ; Edwards (<) S. C. V. M'Leay, 2 Swanst. 287. {u) Edwards v. M'Leay, 2 Swanst. 287. (;•) Murray v. Palmer, 2 Scho. & Lef. (x) S. C. 489. (1) See Barlow v. Bell, 1 A. K. Marsh. 216; M'Kim i-. Moody, 1 Randolph, 58. Vol. I. 42 " [*279] 330 WHERE CONTRACT RESCINDED. 54. If a purchaser of a house, the contract for which is rescinded, have converted a private house into a shop, he may be compelled at his own expense to reinstate it as a private house (y). 55. It next comes in order to consider questions regarding interest and other allowances and costs where a suit is instituted ; and the effect of a reversal of the decree below upon those questions. 56. If pending a suit by a purchaser to rescind a contract, interest on the purchase-money, which by the contract he was to pay at stated periods, is ordered to be paid into court instead of being paid to the seller, the seller, if the bill is dismissed, will be entitled to the stock in which the money may have been invested, and the accumulations of it, so that he will benefit by any rise in the funds, and have interest upon interest (^z) (1). 57. But in regard to the converse of this case, viz. the invest- ment and the accumulations falling short of the amount of the instalments due to the seller, the Court, without giving any definite opinion upon that subject, thought it quite consistent with the opinion as to the reverse of the case, that the seller should be allowed in that case to pursue any remedy he had at law to recover *the balance, and upon this plain principle, that the purchaser having prevented the seller from receiving the money at law, and having brought the money into court, could not bind liim to take less than the amount whenever they paid it, which, by being brought into court, they had admitted he was entitled to (a). 58. A plaintiff in equity, who is under no order or condition im- posed upon him by the Court to do anything for the benefit of the defendant in equity, cannot, if his bill be dismissed, be compelled by a subsequent order to give relief or satisfaction to the defend- ant for some matter not in the jurisdiction of the Court (6). 59. But if, in a suit by a purchaser to rescind a contract, an order be made for an injunction, and postponing the payment of (j/) S. C. (a) Small v. Attwood, ubi sup. (;) Small v. Attwood, 3 You. & Coll. (6) Erowii v. Newall, 3 Myl. & Cra. 105. 558 ; 3 You. & Coll. 124. (1) Where a sale or conveyance is set aside on the ground of fraud in the ven- dor, interest is to be allowed on the money refunded, without reference to any demand, and from the time it was received, and whether such money was received as principal, or as interest on instalments not ])aid as they became due by the original contract. This, in the latter case, would of course give interest on inter- est. Doggett V. Emerson, 1 Woodb. & Minot, 195. See the decree in Daniel v. Mitchell, 1 Story C. C. 172, 197. [*280l Of INTEREST WHERE BILL IS DISMISSED. -331 interest stipulated for by the contract till the hearing of the cause, and the bill ultimately be dismissed, the Court will then order the plaintiff to pay the instalments of interest to the purchaser instead of leaving him to recover them at law (c). But the Court could not order the payment of any instalment which had not become due at the time of the decree. 60. But although the Court by its order has postponed the pay- ment of interest beyond the time stipulated by the contract, and ultimately dismisses the bill, and orders the plaintiff (the purchaser) to pay the instalments due, yet interest cannot be given for the delay, for the Court has allowed the party to retain the money, and therefore cannot at the hearing order interest upon it (d)s The Court therefore ought not to make such an order, except upon terms which may ultimately enable justice to be done to the defendant, 61. If in such a suit, where the purchaser has a decree to rescind the contract, he obtains a transfer of a fund paid into court by him- self, as instalments payable under the contract to the seller, but which the Court has intercepted and secured, and the decree be afterwards reversed, the seller is of course entitled to a retransfer of the fund if it remain unsold, and if the dividends have been received in the meantime by the purchaser, he is entitled to have the dividends also paid to him ; but if the purchaser have in the meantime sold the fund, as he was entitled to do, the Court cannot compel him to pay interest upon it (e). The grounds of the dis- tinction are not very obvious. 62. If a bill by a purchaser to rescind a contract be dismissed *with- costs, which are paid, and upon an appeal the decree is re- versed and the bill dismissed with costs, the Court cannot give interest upon them. The costs were paid under an order which entitled the purchaser to (them, and therefore, although upon the reversal of the order he is bound to repay them, yet he is not responsible for the interest {/)• This rule is of general application, and the law would be the same if the case were reversed, and the plaintiff was the seller and the defendant the purchaser. 63. If a decree in a suit by a seller or purchaser be reversed in the House of Lords, and the cause be remitted to the Court below to do what is just, the Court has no jurisdiction to do what could (c) Small V. Attwood, 3 You. & Coll. When not of essence, time may 5 be fixed by Twtice. Reynolds v. Nelson. Rule in equity where no time limited. 1. It may be laid down as a general proposition, that a delay accounted for on the above ground will not prevent a specific per- VoL. I. 44 [*293] 346 TIME ALLOWED IN EQUITY FOR TITLE.^ formance from being decreed, where the time fixed for completing the contract is not material (I). 2. Where time is not material, and the title is bad, but the defect can be cured, if the vendee is unwilhng to stay, the vendor should file a bill in equity to enforce the performance of the con- tract (a) ; for it is sufficient if the party entering into articles to sell has a good title at the time of the decree ; the direction of the Court being, in all these cases, to inquire whether the seller can, not whether he could, make a title at the time of executing the agreement (2). 3. This principle was followed in a case of frequent reference (b). And in a late case (c), the vendor, at the time he filed the bill fo/ a specific performance, had only a term of years in the estate, of which he had articled to sell the fee-simple, and after the bill was *filed, procured the fee by means of an act of parliament ; and as (o) See 6 Ves. jun. 655 ; 10 Ves. jun. 646 ; Seton v. Slacle, 7 Ves. jun. 205. 315. (c) Wynn v. Morgan, 7 Ves. jun, 202. (6) Langford v. Pitt, 2 P. AVms. 629 ; See Eyston v. Simonds, 1 You. & Col. and see Jenkins v. Hiles, 6 Ves. jun. C. C. 608. (1) In equity, time may be dispensed -with, if it be not of the essence of the con- tract. Hepburn v. Auld, 5 Cranch, 262 ; Brashier v. Gratz, 6 Wheaton, 207 ; Getehell v. Jewett, 4 Greenl. 350; Benedict v. Lynch, 1 John. Ch. 370; Garnett V. Macon, 6 Call, 308 ; Wells v. Smith, 2 Edwards, 78 ; Runnels v. Jackson, I How. (Miss.) 358 ; Wells v. Wells, 3 Iredell Ch. 596 ; Fletcher r. Wilson, 1 Smedes & Marsh. Ch. 376. (2) A court of equity will not decree the specific performance of a contract, and compel the purchaser to accept a title, Avhich the vendor camiot make out to be clearly good and free from incumbrance. Butler v. O'Hear, 1 Desaus. 382 ; Lewis V. Herndon, 3 Litt. 358 ; Kelley v. Bradford, 3 Bibb, 317 ; Seymour v. Delancey, 1 Hopkins, 436 ; Young v. Lillard, 1 Marsh. 482 ; Morgan v. Morgan, 2 ^^^leaton, 290, 299 ; 1 Fonbl. Eq. B. 1, ch. 3, 6 9, note (i). But equity will not aid a purchaser, who had a full knowledge of the defect in the title ; Crad- dock, 3 Marsh. 288 ; or if his conduct has amounted to a waiver of the objection, lloach V. Butherford, 4 Desaus. 126. See Kamsay v. Brailsford, 2 Desaus. 590, 591. It is sufficient, if the vendor be able to make a good title before decree pro- nounced, although he had not a good title when the contract was made ; Hepburn V. Auld, 5 Cranch, 262, 275 ; Finley v. Lynch, 3 Bibb, 566 ; Tyree v. Williams^ 3 Bibb, 366 ; Se^i'mour v. Delancey, 3 Cowen, 445 ; Piercer. Nichols, 1 Paige, 244 ; Cotton V. Ward^ 3 Monroe, 304, 313 ; Baldwin v. Salter, 8 Paige, 473 ; Dutch Church, &c. r. Mott, 7 Paige, 78 ; 2 Story Eq. Jur. §377 ; Clute v. Kobison, 2 John. 595 ; unless the purchaser has sustained an actual and serious injury by the ina- bility of the vendor to give him a good title to the premises at the time requued by the contract. Nodine v. Greenfield, 7 Paige, 545 ; Dutch Church v. Mott, 7 Paige, 78. If there be any doubt or difficulty about the title, it is usually referred to a Mas- ter to be examined and reported on. Pierce v. Nichols, 1 Paige, 246 ; M'Comb v. Wright, 4 John. Ch. 659, 670. See also further on the subject of enforcing spe- cific performance in cases of defective and doubtful titles. Tomlin v. M' Chord, 5 J. J. Marsh. 136 ; Beale v. Seiveley, 8 Leigh, 658; Bryan i'. Keed, 1 Dev. & Bat. Eq. 86 ; Watts v. Waddle, 1 M'Lean, 200 ; Cooper y.'Denne, 4 Brown C. C (Perkins's ed.) 87, 88 and notes. [*294J TIME NOT ALLOWED AT LAW. 347 the day on which the contract was to be carried into execution was not material, a specific performance was decreed. 4. The same rule prevails at law, where no time is fixed for com- pleting the contract, and an application for the title has not been made by the purchaser previously to an action by the vendor for breach of contract For in Thompson «. Miles (d), a man agreed to sell a term of which he stated forty years to be unexpired. It appeared there were only thirty-nine, but by an agreement indorsed on the lease, the lessor agreed to add one year to the unexpired term. This agreement was dated after an action brought by the vendor for damages on breach of agreement ; and Lord Kenyon ruled, that the vendor having at that time a good title was suffi- cient. He said, that it had been solemnly adjudged, that if a party sells an estate without having title, but before he is called upon to make a conveyance, by a private act of parliament gets such an estate as will enable him to make a title, that is sufficient : that here the plaintiff being enabled to make a title, and the defendant never having applied for it, he should not be allowed to set up against the plaintiff a want of title, though the power of making that title was obtained after the action was brought (1). 5. In Willet v. Clarke (e), an agreement for sale of an estate referred to the conditions of sale for the time of completing it, and difficulties arising, a second agreement was executed, by which pos- session, which had already been taken, was further assured to the purchaser, and he agreed to pay the residue of the purchase-money on the 25th of December next, upon the seller making a good title, or otherwise, if such title should not be then completed, upon the seller executing a bond to complete such title as soon as the same could be completed. A title was not made and a bond was not executed on the 25th of December, but one was executed, and it was tehdered nearly two years after that date ; and it was held at law, that no objection could be sustained on that ground, for there was nothing in the agreement requiring the bond to be executed within a given time ; on the contrary, it was an alternative depending upon a very uncertain matter, the completing the title in the meantime. The time in this case was really not of the essence of the contract ; it was not a contract of such a nature as to make the time essential. id) 1 Esp. Ca. 184 ; see "Willett v. (e) 10 Price, 207. Clarke, 10 Price, 207. (1) See Blann v. Smith, 4 Blackf. 517 ; Tarwater v. Davis, 2 English, 153 ; Woodcock r. Bennett, 1 Cowen, 725. 348 TIME NOT ALLOWED AT LAW. 6, But if the vendor cannot verify his abstract at the time ap- pointed, or if he produce a defective title, and the purchaser bring *an action for recovery of the deposit, the vendor having a title at the time of the trial will not avail him. Thus, in Cornish v. Row- ley (y), where a purchaser sought to recover his deposit, it ap- peared that the abstract of the title began in the year 1793, and after reciting that the deeds relating to the estate had been lost, stated a fine and non-claim. Upon inquiry, it was found that the fact of the deeds having been lost was not true. The counsel for the defendant said they were ready to make out a good title. Lord Kenyon said, that the vendor must be prepared to make out a good title on the day when the purchase is to be completed. Indulgence, he was aware, was often given for the purpose of procuring probates of wills, &tc. But this indulgence was voluntary on the part of the intended purchaser. It is the duty of the seller to be ready to verify his abstract at the day on which it was agreed that the pur- chase should be completed (1). If the seller deliver an abstract, set- ting forth a defective title, the plaintiiF may object to it. No man was ever induced to take a title like the present. A fine and non- claim are good splices to another title, but they will not do alone. There are many exceptions in the statute in favor of infants, femes covert, &tc. As a good title was not made out at the day fixed, he should direct the jury to find a verdict for the deposit, with interest up to that day. And a verdict was found by the jury accordingly 7. So in Bartlett v. Tuchin {g), assignees of a bankrupt sold an estate, and no time was fixed for completing the purchase. The purchaser upon a supposed defect of title abandoned the contract ; afterwards the commission was superseded, and a new one issued, under which the same assignees were chosen. It was held that the] purchaser might rescind the contract, for at the time he gave notice! of his abandonment of the contract, the assignees could not make out a good title. And in a late case (K), the facts were, that upor a sale it was agreed that the purchase-money should be paid on oi before Lady-day 1803, on having a good title. The vendors wen assignees of a bankrupt who claimed under a will. They thoughl (/) B. R. Midd. Sitt. after M. T. 40 6 Barn. & Aid. 584. Geo. III. ; 1 Selw. N. P. 160 ; DobeU v. (h) Seward v. Willock, 5 East, 198 ;| Hutchinson, 3 Adol. & Ell. 335. 1 Smith's Rep. 390, S. C. ; and see Rad- ((/) 1 Marsh. 583. See Goodwin v. cliffe v. Warrington, 12 Ves. jun. 326,, Lightbody,Dan. 153 ; Roper ». Coombes, where the purchaser recovered at law. (1) Chitty Contr. (8th Am. ed.) 276 ; Tarwater «;, Davis, 2 English, 153 ; Blannl V, Smith, 4 Blackf. 517. [*295] WHAT TIME ALLOWED IN EQUITY. 549 that he had an estate-tail under the will, and that therefore they could make a title ; but under the devise he only took for life, with contingent remainders over. The bankrupt, however, being heir at law of the testator, could make a title by levying a fine, and was wil- ling to join ; but these facts were not stated in the abstract delivered, or communicated to the purchaser until a fortnight before the ^assizes. The Court, after showing that the bankrupt took only an estate for life under the devise to him, said, as it was stated, that previous to the time fixed for payment of the money, and comple- tion of the purchase, or indeed till near the time of trial, no infor- mation was given to the purchaser that the bankrupt was heir at law of the testator, but the title of the assignees appeared to have been delivered in, on the supposition of the bankrupt being tenant in tail, they thought that the defendant had failed in making good the agreement on his part ; and that thereupon a right of action at law had accrued to the plaintiff. How far the title since communi- cated might in another course of proceeding in another place, render the present proceeding abortive ; and whether the plaintiff might not be ultimately compelled to fulfil his agreement, was not for them in that action to decide. 8. But a seller need not at law, any more than in equity, have those things done in regard to title, which may properly be effected before the completion of the purchase ; therefore, at the time of the contract, the want of a hcense to assign, where one is requisite, or the neglect to register a deed which requires registry, is unimpor- tant (i). 9. In an early case (k) the Court of Chancery carried the doctrine very far ; for at the time of the articles for sale, or even when the decree was pronounced, Lord Stourton, the vendor, could not make a title, the reversion in fee being in the Crown ; and yet the Court indulged him with time more than once for the getting in the title from the Crown, which could not be effected without an act of par- liament, to be obtained in the following session : however, it was at length procured and Sir Thomas Meers decreed to be the pur- chaser (I) ; and even at this day, although the Master report against ({■) llobinson v. Stowell, 3 Bing. N. C. sec Sheffield v. Lord JIuli:;ravc, 2 Ves. 928 ; 5 Scott, 196. jun. .526 ; Ormcrod v. llardiuaii, 5 Vcs. (A;) Lord Stourton v. Sir Thomas jun. 722. Meers, stated m 2 P. Wms. 631 ; and (I) Note, it appears that Sir Thomas Meers was mortgaj^ce of the estate ; (see Sir Thomas Meers v. Lord Stourton, 1 P. Wms. 4G,) and it is therefore probable that at the time he entered into the contract he was aware of the defects in the title. 1*296] 350 WHEN PURCHASER RELIEVED FOR DELAY. the title, yet if it appear that the seller will have a title, upon getting in a term, or procuring letters of administration, &c. the Court will not release the purchaser ; but will put the vendor under terms to complete his title speedily (I). Or if a new fact appear which enables him to make a title when the cause is before the Court on further directions, the contract will be enforced (m). *10. But the Court will not extend the rule which it has adopted of compelling a purchaser to take the estate where a title is not made till after the contract, to any case to which it has not already been applied. Therefore in a case whereupon a creditor's bill filed for sale of the real estate of a trader, the usual accounts were decreed and a sale ordered, and the estates were accordingly sold ; but it afterwards appeared that the fact of the trading was not regularly proved, and then the cause was re-heard, the decree upon which re-hearing was also open to objection ; the purchaser under the decree was upon motion relieved from his purchase, although the parties were willing to take steps to remove the objections (n). 11. Where a testator devised his real estate to trustees to pay debts, with a direction first to sell estate A, and if that were defi- cient, to sell estate B, and the trustees agreed to sell the latter estate, and upon a bill filed against the purchaser, the Master reported a good title, Lord Eldon held, that it was necessary to have a report of debts, in order to show that estate A was insuffi- cient. The sellers then proposed to get a report immediately ; but the purchaser refusing to submit to any delay. Lord Eldon dis- missed the bill. The vendees, however, refused to give up the contract, and they filed a bill to compel the vendors to execute it, praying the accounts, which, although objected to as vexatious. Lord Eldon held to be right, and they got a decree (o). But it may be observed that there was no proper suit in which to take the accounts, and the purchasers had a right to become plaintiffs, in order to obtain a title by their own diligence. If a purchaser were to obtain the dismissal of a bill against him, not on the ground that he would himself file a proper bill, but that he would not wait any longer, the Court would not relieve him if he were afterwards to file a bill. {I) Coffin V. Cooper, 14 Ves. jun. 205. Walk. 287 ; Dalby v. PuUen, 3 Sim. 29 ; (m) Esdaile v. Stephenson, 8 Aug. 1 Russ. & Myl. 296 ; Coster v. Turnor, 1822, MS.; 6 Mad. 367 ; Sidebotham v. 1 lluss. & Myl. 311 ; Magennis v. Fal- Barrington, 4 Beav. 110 ; 5 Beav. 261 ; len, 2 Moll. 566, 580 ; Chamberlain v. infra, eh. 8. Lee, 10 Sim. 444. (n) Lechmere v. Brasier, 2 Jac. & (o) Per Hart, L. C, 2 MoUoy, 566. [*297J PURCHASKR WAIVING DELAY. 351 12. So in a case in Ireland, it was held, that a purchaser cannot be kept without his title until an account of debts is taken. The Court cannot suspend a purchaser until a new decree is made and report had (p). 13. But although a seller has, upon the expressed opinion of the Court, filed a bill to take an account, yet if the purchaser seek to avoid the contract on that ground, the seller may argue the neces- sity of the measure. Conforming to the opinion of the Court does *not bind the party complying not to controvert the necessity of such proceedings as the Court directed to be taken (^q). 14. The general rule is, that if there is not a good title at the date of the report, the purchaser is entitled to be discharged, because a purchaser is not to be kept for future inquiries ; a title is not to be made out by instalments, and not what the title is now, but what it was when the Master ruled the objections is the state of the title to be pronounced upon (r). But if the title is that originally produced, although the evidence to support it has varied, the purchaser is bound ; for the evidence and not the title is altered, and evidence which may satisfy one man's mind may be unsatis- factory to another's (s). 15. Where a purchaser enter into, or proceeds in a treaty, after he is acquainted with defects in the title, and knows that the vendor's ability to make a good title depends on the defects being cured, he will be held to his bargain, although the time appointed for completing the contract is expired, and considerable further time may be required to make a good title (1). 16. Thus in a case (t), where it was agreed upon a purchase, that it should be completed on the 5th April 1792, it appeared that the purchaser had applied for an abstract at the latter end of January, or the beginning of February, which not being sent to him, he, after the expiration of the time for the completion of the purchase, applied for his deposit, saying, that he should not pro- ceed in his purchase. About the 21st of April an abstract was sent him, and it appeared that a suit in Chancery must be deter- (p) Magennis v. Fallon, 2 Mol. 5G1. 329 ; and see Smith ». Burnam, 2 Anstr. {q) S. C. 527 ; and Paine v. Mcller, 6 Vcs. jun. (r) Kinvan r. Blake, 2 Moll. 581, 582, 349 ; Warde r. Jeffcry, 4 Price, 295; cited ; see Cowgill v. Lord Oxmantoun, see Smith v. Sir Thomas Dolman, 6 Bro. 3 You. & Coll. 377. P. C. 291, bv Tomhns. Ex parte Gard- (s) 2 Moll. 582. ner, 4 You. & Coll. 503. (<) Pincke v. Curteis, 4 Bro. C. C. (1) Ante, 293, in note. See Jackson t-. Ligon, 3 Leigh, IGl ; Bamett v. Gaines 8 Alabama, 373. [*298J 352 PURCHASER WAIVING DELAY. mined before a title could be made, upon which he again declared he would not proceed in the purchase, and again required his deposit. In Trinity term he brought an action for his deposit, and, on the 6th of November, the bill was filed. The purchaser, by his answer, stated that the suit was still depending, and that questions of law had arisen, which then stood for argument in the Court of King's Bench. The Lords Commissioners Ashhurst and Wilson granted an injunction, which was continued by Lord Rosslyn, who said, in these contracts (sales by auction) in general, the time of completing the contract is specified, and a deposit is paid ; and if the title is *not made out by the time, the vendee is entitled to take back his deposit. But in this case the vendee was apprised of the title depending on the ability of the vendors to maJce a good title, which itself depended on the event of a Chancery suit, and was, notwith- standing, ivilling to go on with his purchase ; there had been a com- munication of the delay of the suit, and the present bill was fled after great delay (I). If the vendee had called for his deposit at the end of the time limited for completing the purchase, and in- sisted he would not go on with his purchase, the Court would not have compelled him. The cause was afterwards heard before the Master of the Rolls, who was also of opinion, that there had been a sufficient communication of the real state of the delay, and that the purchaser had acquiesced in it, or at least not suffi- ciently declared his dissent to go on with the purchase ; and there- fore it was referred to the Master to inquire as to the title. 17. So in Seton v. Slade (u), it appeared that the purchaser was aware of the objections to the title at the time he purchased the estate, and afterwards accepted the abstract within a few days of the time appointed for completing the contract. He had, however, previously declared, that if the title was not made out by the time, he would relinquish the contract ; and the day after the time appointed he actually applied for his deposit, alleging that the abstract, so far from showing a right in the vendor to convey, stated merely a contract for the purchase by him, without noticing a suit in Chancery. But the purchaser having been aware of the (u) 7 Ves. jun. 265. See Wood v. Bernal, 19 Ves. 220 ; Hipwell v. Knight, 1 You. & Col. 401. (I) The judgment shows the tnic ground of the decree ; but according to the state of facts in the report, the case was similar to that of Lloyd v. Collett, stated supra, p. 290. [*299] PURCHASER WAIVING DELAY. 353 objections to the title, and having afterwards received the abstract, a specific performance was decreed. 18. And even where the Court thought that time was of the essence of the contract, yet the purchaser was held to have waived it by receiving an abstract of an assignment upon which the title depended, and which would not be valid under the bankrupt law until a period subsequently to the time appointed for completing the contract, and by corresponding upon that abstract. The Court said that he ought to have refused to accept the abstract or to have sent it back forthwith (x) (I). 19. Again (y), where personal representatives of a trustee, sup- posing eri'oneously they had power to sell, entered into a contract *for sale, , and when the mistake was discovered, the purchaser was apprised that the sellers would take the necessary steps to make a title, which they did, but before they were completed, the purchaser brought an action for his deposit, which he recovered, and then the sellers filed a bill for a specific performance ; it was held that the purchaser, if he had thought fit, might have declined the contract ,as soon as he discovered that the plaintiffs had no title, and he was not bound to wait until they had acquired a title ; but not having taken that course, it was enough that at the hearing a good title could be made. 20. In a case before Hart, L. C, in Ireland, he observed that it was true, where a man having contracted goes on contesting the title without a protest against the delay, then the waiver is clear. But if he says, " I protest against the delay, but I am not sure my protest is valid, and I shall go on to make the best case I can to be discharged," that would go only to the costs, and not amount to acquiescence (2;). This view, however, does not seem to be war- ranted by the authorities. 21. Altliough a treaty may have lain dormant for some time, yet if the contract is not abandoned, a performance will be decreed in specie. Thus in a case («) where, upon objections to a title, the treaty had proceeded for about two years, when the vendor's solicitor wrote, calling for a distinct answer, saying, that otherwise {x) HiiJwell V. Knight, 1 You. & Col. (a) Marquis of Hertford v. Boorc, .5 iOl. Ves. jun. 719. See Milward r. Earl of (y) Iloggart v. Scott, 1 Russ. & Myl. Thanet, 5 Ves. juil. 720, n. (6) ; Garrett 293. V. Lord Ecsborough, 2 Dru. & Walsh, (:;) Magennis v. Fallon, 2 Moll. 576 ; iil. see p. 297, supra. (I) See Avery i;. Kellogg, 11 Conn. 562. Vol. 1. 45 [*300j 354 ABANDONMENT BV PbHCHASKR t'OH DELAY. he must be under the necessity of filing a bill. No answer waj. returned to the letter, nor was any notice given that the purchaser considered the contract as abandoned ; neither had he brought any action for the deposit. The bill was filed after a delay of about fourteen months, and the defendant resisted a specific performance on the ground of delay, by which, he stated, he had suffered mate- rial inconvenience, having purchased the place as his residence;, and that he was induced to consider the contract as abandoned, A specific performance was however decreed. 22. But if a purchaser object to the title, and declare he wils not complete the contract, and the vendor acquiesce in this declar- ation, he cannot afterwards clear up the objections to his title, and compel the purchaser to perform the agreement. This was decided in the case of Guest v. Homfray (6). The purchasr took objections to the title, and was informed that no better title could be made ; whereupon he said, ho would not proceed in the purchase, and ^afterwards returned the abstract, at the desire of the vendor, at the same time acquainting him that he (the purchaser) still considered the contract was at an end. In about eight months after this the abstract was returned, with the objections answered, and the bill was filed upon the defendant refusing to complele the contract. But the bill was dismissed, although it was clear tbat the purchasei- liad almost all the time wished to be off the bargain. Lord Alvanley.^ Master of the Rolls, said, they should have cautioned the purchaser^ and told him they were going on to make out a title. If they luuJ done all that, and shown a probable ground to the purchaser that they might make a good title, he said, he should perhaps not have thought a year too long. 23. In Watson v. Reid (c), the contract was in June 1826. An abstract was delivered, and a correspondence took place with respect to the title. On the 7th April 1827 the purchaser gave notice that he objected to the title, and abandoned the contract ; and on the 1st May he demanded a return of the deposit. The seller refused to return it; and on the 25th April 1828 filed a bill for a specific performance, and the Master of the Rolls dis^ missed it with costs, upon the ground of unreasonable delay m filing it. 24. Although a time is expressly appointed, within which objec- (5) 5 Ves. juu. 818. (c) 1 Russ. S: Myl. 23(3. [*301] 5>eller"'s rioht to rescind for delay. 355 lions are to be made to the title, it may be enlarged by the conduct of the seller, amounting to a waiver (d). 25. Where circimstances are such that the purchase-money cannot be paid for a length of time, as if the purchaser die, or become bankrupt before the contract be carried into effect, and his executors, or assignees, are not able to get in the assets or effects, the vendor is entitled to require the contract to be rescinded, and he will be allowed his costs (c) ; or he may demand a specific per- formance ; and if the defendants are unable or unwilling to perform the contract, that the estates may be resold ; and if the purchase- money arising by the resale, together with the deposit, shall not amount to the purchase-money, that the defendant may pay the deficiency. — A bill for the latter purposes was filed by a vendor against the assignees of a bankrupt, and a decree was made for resale. The deficiency upon that resale was 5,016/. ; and the cause coming on for further directions, Lord Rosslyn directed that sum to be proved under the commission ; saying, the whole purchase-money *vvas the debt, and the vendor had a lien on the estate (_/") ; which proving by the resale deficient, tlie residue was to be proved under the commission (o-). 26. In Wright v. Wellesley (A), upon a sale it was agreed that part of the purchase-money should be secured by mortgage. There was a decree for a specific performance, and a conveyance and mortgage were directed to be executed and further directions were reserved. The Master made his report, by which it appeared that the purchaser had made default in bringing in the proper deeds, and he found what was due, which was regularly demanded, but not paid. The plaintiff, the seller, presented a petition, which came on with the further directions, praying the sale of the property, in consequence of the purchaser's default. It was objected that this could not be done ; and that at all events a supplemental bill was necessary ; but the Vice-Chancellor made the order as prayed for : as the defendant had evaded the decree of the Court, he would give the relief required by the new state of circumstances, and he thought that the petition was regularly presented. 27. In a late case, where an estate was sold by auction, in order (rf) Cutts V. Thodey, 13 Sim. 206 ; Bro. C. C. 39G ; Dickenson v. Heron, supra, ch. 4, s. 5. infra, eh. 16, s. 1. (e) Mackreth v. Marlar, 1 Cox, 259; (/") Vide sm/;w, ch. 1. €ox's n. (1) to P. Wms. 67 ; Whitta- (r/) Bowles v. Rogers, 6 Yes. jun. 95, ker r.Whittaker, 4 Bro. C. C. 31. See n. See Rome v. Young, 3 You. & Coll. Sir James Lowther v. Lady Andover, 1 199. (/,) \. C. 26 Feb. 1833. MS. 1*302] 356 TIMK THE ESSENCF. OF to pay off incumbrances, under the usual conditions, and the purchase was to be completed on the 25th of March 1805, tlie estate was sold for 123,000/. and the purchaser paid only 4,00OA as a deposit when he ought to have paid 24,000Z. A short time previously to Lady-day he wrote a letter to the vendors, acknow- ledging his inability to pay, and requesting them to join in a resale, offering to pay any loss by the second sale. This they refused ; and he not having the money ready, on the 27th of March 1805, filed a bill for a specific performance, evidently to gain time. The vendors filed a cross-bill ; and afterwards the purchaser became a bankrupt, when the causes were revived. The expenses of the ven- dors, in payment of the auction-duty, &;c. were very considerable. The cross cause came on first ; the assignees of course could not bind themselves to pay the money ; and the contract was decreed to be delivered up and cancelled, so that the vendors became entitled to the 4,000/. deposit (^). 28. We are now to consider whether equity will permit the parties to make time the essence of the contract (1). In Williams v. Thompson, or Bonham (y), the bill was to cairy *into execution the ti'usts of a will, and for a specific performance of an agreement by Bonham to purchase a real estate of the defend- (l) Steadman f. Lord Gallowav, ct e Contr. 238, stated. See the case in lies- contra, RoUs, 9th Feb. 1808. ' Lib. B. 1781, fol. 564. (J) 4 Bro. C. C. 331, cited; Newl. CI) Time is not generally deemed in equity to be of the essence of the contract, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. 2 Story Eq. Jur. ^^77G ; Yoorhces r. De Meyer, 2 Barbour Sup. Ct. Kep. 37. Fonbl. E(i. B. 1, ch. 6, ^2 and notes ; B. 1, ch. 1, ^5 and note (o) ; Ilepburn v. Lundas, o Crauch, 262 ; Brashicr v. Gratz, G Wheaton, 528 ; Taylor r. LonRworthy, 11 Peters, 173, 174 ; S. C. 1 M'Lean, 395 ; Baldwin v. Salter, 8 Paige, 473. It is true, that courts of equity have regard to time, so far as it respects the good faith and diligence of the parties. But if cir- cumstances of a reasonable nature have disabled the party from a strict comjili- ance ; or if he comes, recenti facto, to ask for a specific performance ; the suit is treated with indulgence, and generally with favor by the court. P)Ut then, in such cases, it should be clear that the remedies are mutual ; that there has been no change of cii'cumstanccs affecting the character or the justice of the contract ; 2 Story Eq. Jur. ^^776 ; Pratt r. Law, 9 Crauch, 456,493, 494 ; Brashicr v. Gratz, G Wheaton, 528 ; jSIechaiiics Bank r. I;ynn, 1 Peters, (S. C.) 383 ; Taylor v. Long- Avorth, 14 Peters, 172 ; Doar v. Mathews, 1 Bailey Eq. 371 ; that the chances of gain by delay have not been speculated upon bv the partv asking for indulgence ; liogersv. Saunders, 16 Maine, 92, 99, 100 ; Alley v. Deschamps, 13 Yesey, 228; that compensation for the delay can be fully and beneiicially given ; Pratt v. Law, 9 Cranch, 456, 493, 494 ; that he, who asks a specific performance, is in a condition to perform his part of the contract ; Morgan v. Morgan, 2 Wheaton, 290 ; and that he has shown himself ready, desirous, prompt, and eager to jicrform the contract. 2 Story Eq. Jur. §776 ; King r. Hamilton, 4 Peters, 311. See New- man r. Rogers, 4 Bro^\^l C. C. (Perkins's ed.) 393, note ; Hertford r. Boore, 5 Sumner's Vesey, 719 and note; ante, 289, and note. [*303] CONTRACT IN F.quiTy. 359 ants. By the agreement, dated the 9th of July 1778, it was par- ticularly expressed, " that in case a good title to the prertnises, dis- charged from all claims and demands whatsoever, should not be made out to the satisfaction of Bonham within three years from the date thereof, the agreement thereby made, so far a^s concerned the purchase of the premises (for the agreement contained other stipulations), should from thenceforth become void." The defendant was always ready to have completed his purchase, but the trustees under the will were incapable of making out a title without the aid of equity, and for that purpose the bill in question was filed in Feb- ruary 1781. The cause came to a hearing on the 29th of June 178*2, when the defendant (Bonham) insisted, that the title not having been made out at the time mentioned in the agreement, he was discharged from his purchase. But Lord Thurlow was of opinion, that the time fixed by the articles for making a title to the defendant was only formal, and not of the essence of the agreement ; and, as appears by the Registrar's book, he declared, that the three years being expired was not a sufficient objection to the agreement being performed. 29. This case depends so much on its own complicated circum- stances, as scarcely to admit of being cited as an authority ruling any other case. I find, from the Registrar's book, that it was impossible to make a title without a decree. The agreement, which was very long and special, stated all the facts ; and it was expressly stipulated, that the trustees should use their utmost endeavors to obtain a decree, and the purchaser was immediately let into posses- sion. Now the bill was filed before the expiration of the three years, no laches was imputed to the trustees, and it did not appear that the purchaser had sustained any loss, or been put to any incon- venience. It would therefore have been a strong measure to hold, that the time was of the essence of the contract. The purchaser entered into the contract with full knowledge of all the obstacles in the way of making a title; and unless the purchase was completed, there was no mode of indemnifying the trustees for the expense incurred by the Chancery suit. 30. In the case of Gregson v. Riddle (]{), which was also before Lord Thurlow, the agreement was for a particular day ; with a proviso, that in case the title should not be approved in two months, the agreement was to be void and of no eflect. There *vvas an outstanding legal estate, which could not be got in by that (/.■) 7 Yes. jun. 2(i8, cited. f*301] 358 TIME THF. ESSENCE OF time. A bill was filed for a sjDecific performance. The defendant resisting, a reference was directed, to see whether a good title could be made ; Lord Loughborough, then Lord Commissioner, expressing an opinion that the terms of the agreement were com- plied with (I). The report was in favor of the title. The cause coming on before Lord Thurlow, the performance was still resisted. Lord Thurlow said, it had been often attempted to get rid of agree- ments upon this ground, but never with success. The utmost extent was to hold it evidence of a waiver of the agreement ; but it never was held to make it void. Mr. Mansfield, for the defendant, said the intention was clearly to make it void ; and that it would be necessary to insert a clause, that notwithstanding the decision of the Court of Chancery, it should be void. Lord Thurlow said, such a clause might be inserted ; and the parties would be just as forward as they were then. 3L On this dictum it must be remarked, that the case did not call for it, as the agreement appears to have been substantially performed within the time. And it is said, that in Potts v. Webb, before Lord Thurlow, it being part of the terms that the purchase should be completed by a certain time, his Lordship thought that a good reason for not decreeing a specific performance (J). At the same time it must be admitted, that Lord Thurlow entertained a floating opinion, that time could not in general be made of the essence of the contract. It does not appear, however, that any case ever came before him in which he was called upon to decide the point, and his oj)inion has not been followed in subsequent cases. 32. For in Lloyd v. Collett (m), in which the case of Gregson V. Riddle was cited, Lord Rosslyn said, the conduct of the parties, inevitable accident, &c. might induce the Court to relieve ; but it was a different thing to say the appointment of a day was to have no effect at all, and that it was not in the power of the parties to contract, that if the agreement was not executed at a particular time, the parties should be at liberty to rescind it (1). (l) 4 Bro. C. C. 3G0, cited. (m) 4 Bro. C. C. 4G9 ; 4 Ves. jun. 689 note ; stated supra, p. 290. (I) The stipulation was, that in case the title should not be approved of by the purchaser's counsel within two months, the articles should be void. The diffi- culty upon the title arose upon a settlement which the seller insisted was volun- tary, and not upon a mere outstanding legal estate. The seller insisted upon being at liberty to rescind the contract, under the clause in the articles. (I) See ante, 289, note and cases. CONTRACT IN EtlUITY, 359 *33. And in the case of Seton v. Slade (n), Lord Eldon said, he inclined much to think, notwithstanding what was said in Gregson v. Riddle, that lime may be made the essence of the con- tract. 34. The case under consideration has been assimilated to a mortgage, where, although the parties may have expressly stipu- lated, that if the money be not paid at a particular time, the mortgagor shall be foreclosed, yet equity will permit him to redeem, in the same manner as if no such stipulation had been entered into. There does not appear to be any analogy between the cases. In a mortgage such a declaration is inserted by the mortgagee for his own advantage ; but as the land is merely a security for the debt, equity rightly considers that a mortgagee ought only to require his principal and interest, and not to obtain the estate itself, by taking advantage of the necessities of the mortgagor. Once a mort•) 1 You. & Col. 416. Sim. 78. (•>•) o^Iadd. 18. (7) 1 You. & Col. 410, cited. The [*3()6] WHERE NO TIME IS FIXED. 361 or would act by filing a bill for a specific performance, he left wholly in doubt ; and it was to be observed, that hfe neither returned nor tendered the deposit which he had received. The usual reference as to the title was therefore made. 37. It may be observed, that the time allowed in this case by the notice was too short, being only three days ; but where there has been delay, and the seller gives a proper notice to put an end to the contract in order to quicken the purchaser or to be released from the contract, it must not from the concluding observation in the judgment be inferred, that it is in all cases necessary to return *or tender the deposit, for the purchaser by his neglect may have lost his right to have it returned, and the seller's notice, if dis- regarded, may not revive the purchaser's right to recover. The general operation of such a notice is now settled (^). 38. A condition stipulating that the time appointed after the deliverey of an abstract, for the taking of objections, shall be of the essence of the contract, means after the delivery of a perfect ab- stract (m). 39. Where time from the nature of the contract is essential, and it is disputed that the title was made within the stipulated time, it will be referred to the Master to inquire when it was first shown a good title could be made without prejudice to any question in the cause (r). 40. It remains to observe, that ivhere no time is limited for the ■performance of the agreement, the cases considered under the first division in this chapter will assist the student in forming a judg- ment in what instances equity will assist a party who has been guilty of laches, although every case of this nature must in a great measure depend upon its own particular circumstances. The cases classed under the second division apply, however, with greater force to cases where no time is limited than to those where a day is fixed, for in the former cases, the Court has not to struggle against an express stipulation of the parties. 41. A case came before the Lords Commissioners in 1792 (y), where no time was limited for performing the agreement. The plaintifi:' was one of two devisees in trust to sell, and pay debts, and (0 Taylor v. Brown, 2 Beav. ISO ; (.r) FoxloAve r. Amcoats, 3 Bcav. 406. Xing r. Wilson, G Beav. 124; and sec (y) Tvrcr r. Artingstall, Xewl. Contr. Ilcaphy I'. Hill, 2 Sim. & Stu. 29. 236. See the casein Reg. Lib. B. 1792, («) llohson r. Bell, 2 licav. 17 ; sec to. 28, nom. Tyrer v. Bailey. Cutts f. Thodcv, 13 Sim. 200. Vol. I. ' 46 [*307J 362 WHKRE NO TlMIi; IS FIXKD. had alone sold the estate (1), and entered into articles with the defendant. Tiic co-trustee afterwards refused to join ; and there was a mortgagee who refused to be paid off. Neither of these circumstances was disclosed to the purchaser, and upon this delay in the title he proceeded to bring his action against the vendor for a breach of the agreement. The plaintiff brought his *bill to compel a specific performance, and have the co-trustee join ; and the mortgage redeemed, and to stay the action. The defendant suffered an injunction to go against him for want of an answer ; and having afterwards answered, a motion was made to dissolve the injunction; and the cause shown by the plaintiff was, the possibility of making a good title by this very suit. The Court held the purchaser bound, and continued the injunction. 42. In this case it appears from the Registrar's book, that the purchaser insisted on his purchase, and that the injunction should be dissolved ; which was certainly a very important feature in the cause. It was not the case of a man merely seeking to recover his deposit. It must, however, be repeated, that it is impossible to lay down any general rule applicable to cases where no time is appointed for performing the agreement. Indeed, throughout this chapter, it has been found impossible to treat the subject of it in an elementary manner. (I) The estate -was sold by auction itith the concurrence of the other tnistee. The plaintiff, however, alone signed the agreement. 1*308] I [ 363 ] ^CHAPTER VI. OF THE CONSIDERATION. SECTION T. OF UNREASONABLE AND INADEQUATE CONSIDERATIONS. 1. Unreasonable price, yet specific j)er- formance. 2. Unless there he fraud or concealment. 3. Or tJiere is gross inadequacy. 5. Fall in value immaterial. 6. Purchaser seldom relieved after con- veyance. 8. Inadequacy of price no bar. 9. Sale by aticiion. 10. Life annuity. 11. Concealment by purchaser. 14. Misrepresentation by 2)urchascr. 15. Both i^arties ignorant of value. 18. Seller seldom relieved after convey- ance : gross inadequacy. 20. Unless ignorant of right, and pur- chaser awai-e of it. 21. Or advantage taken of distress. 23. Heir dealing for expectancy favored. 24. Although unprovided for. 25. Purchaser to prove adequacy. 20. Dealings between father and son. 27. Sellers of reversions not heirs. 28. Bulk sold reversionary. 29. Loan under mask of trading : King V. Hamlet. 30. Observations on that case. 31. Where sale of reversion valid. 32. Gowland v. De Faria : value by the tables, and market price. 33. 3G. Observations upon that case. Trye. 34. Dews V. Brandt. 37. Scott V. Dunbar. 38. Hinksman v. Smith. 39. 41. Headen v. Rosher. 40. Potts V. Curtis. 41. Newton v. Hunt. 43. Wardk v. Carter. 44. Lord Aldborou^h v. 45. Ryle v. Swindelh. 46. Evidence of surveyors. 47. Safe 6y auction valid. 48. Or jierson in piossessionjoin. 52. TFAcj-e contingency cannot be valued, 65. Mis-statement of consideratioti. 56. /foMJ adequacy to be slwxcn. 57. Delay and co7ifirmation. 58. Sale set aside, upon wJiat terms. 59. hniirovements allowed for. 60. Price to be fixed by arbitrators. 62. Cannot delegate autlwrity. 63. Where Court willfjc the ^trice. 64. Not where 2iurties chosen. 66. Failure of arbitration : death. 67. Nomination of arbitrator cannot be compelled. 68. Where award after death of party binding. 69. Acquiescence in informal award. 70. Injunction refused, where authority revoked. 72. Attachment . action. It seems that a court of cquitv cannot refuse to assist a [*3091 364 OF AN UNREASONABLE PRICE. vendor merely on account of the price being unreasonable (cr) (1) : *and a specific performance will certainly be enforced, if the price was reasonable at the lime the contract was made, how dispropor- tionable soever it may afterwards become (2). 2. If, however, a man be induced to give an unreasonable price for an estate, by the fraud (b), or gross misrepresentation (c). of the vendor ; or by an industrious concealment of a defect in the estate (d), equity will not compel him to perform the contract (3). 3. And where these circumstances do not appear, but the estate is a grossly inadequate consideration for the purchase-money, equity will not relieve either party. Thus in a case at the Rolls before Lord Alvanley, by original and cross-bill, the estate was represented on the one hand of the value of 9 or 10,000?. ; and on the other of only 5,000/. The contract was for 6,000/., and 14,000/. at the death of a person aged sixty -five. Lord Alvanley said, it was not a case of actual fraud ; but it was insisted the bargain was grossly inadequate ; and the inadequacy was very great : it was impossible upon the whole evidence to make the estate to be worth more than 10,000/.: though he ought not to decree a performance, yet as no advantage was taken of necessity, he. he was not warranted to decree the vendor to deliver up the contract, the only inconvenience of which would be, that an action would lie for damages ; and he accordingly dismissed both bills (e). 4. Indeed few contracts can be enforced in equity where the price is unreasonable, because contracts are not often strictly observed by either party ; and if an unreasonable contract be not (a) City of London v. Richmond, 2 cited infra. Vern. 421 ; Hanger v. Eyles, 2 Eij. Ca. (h) See James f. Morgan, 1 Lev. Ill, Ab. G89 ; Hicks v. Phillips, Prec. Cha. a case at law. Conway v. Shrimpton, o7.5 ; 21 Yin. Al)r. (E), n. to pi. 1 ; Keen 5 IJro. P. C. by Toml. 187. V. Stukelcy, Gilb. Eq. Kep. loo ; 2 Bro. (c) Euxton v. Cooper, 3 Atk. 383. P. C. 39G ; Charles v. Andrews, 9 Mod. {d) Shirley v. Stratton, 1 Bro. C. C. lol ; Lewis v. Lord Lechmere, 10 Mod. 410. [Perkins's ed. notes.] .503; Savillc v. Saville, 1 P. Wms. 745 ; (e) Day v. Newman, 2 Cox, 77 ; 10 Adams v. Weare, 1 Bro. C. C. 567; Ves. jun. 300, cited ; and see Squu-e i?. and the cases, as to inadec^uacy of i^rice. Baker, 5 Yin. Abr. 549, j)]. 12. (1) See I'ost, 311, in note. (2) See Falls v. Carpenter, 1 Dev. & Bat. 237 ; Osgood r. Franklin, 2 John. Ch. 26. There seems to be no difference between a contract, unreasonable when made, and one which becomes so afterwards, if the apjdicant be an infant. Garnett v. Macon, G Call, 308. (3) See Gregg v. Harllee, C. W. Dud. Eq. 42. The inadequacy of price may be so' great, as, of itself, to afl'ord a presumption of fraud ; Butler v. Haskell, 4 Desaus. 651 ; Udall r. Kcnncy, 3 Cowen, 590 ; Gist v. Frazier, 2 Litt. 118 ; Harde- man V. Burge, 10 Yerger, 202; Fripp r. Fripp, Kice Eq. 84. [*310] I OF AN UNREASONABLE PRICE, 365 5'jerformed by the vendor, according to the letter in every respect, equity will not compel a performance in specie (/) (1). 5. But a purchaser will be compelled to com.plete his contract although by the calamities of the times between the contract and the conveyance, estates generally are reduced several years' purchase in value, for that ought not to rescind the contract (^). 6. But there are few cases in which a purchaser could be relieved after the conveyance is executed and the purchase completed, on account of the unreasonable price (A) (2). 7. We have already considered whether the purchase-money can *be followed so as to compel the restitution of it, or the property in which it is invested, even where the contract is set aside for misrep- resentation of value (i). 8. Mere inadequacy of price is not a sufficient ground for a court of equity to refuse its assistance to a purchaser (k), (3) particularly where the estate is sold by auction (/). 9. In White v. Damon, however, although the estate was sold (/) See the cases cited in n. («), a?i jun. 9.5 ; (/i) Small V. Attwood, You. 407 ; Pike Western v, llussell, 3 Yes. & Bea. 187 ; V. Vigers, 2 Dru. & Walsh, 1. Pike v. Yigers, 2 Dru. & Walsh, 1. See (j) S. C. You. .507, supra, ch. 4, s. 5. 2 Hare, 450. (k) Coles V. Trecothick, 9 Yes. jun. (/) White v. Damon, 7 Yes. jun. 30. 234; Burrows y. Lock, 10 Yes. jun. 470. See Collett v. Woollaston, 3 Bro. C. C. See Young v. Clark, Prec. Cha. 538 ; 228. (1) Garnett r, Macon, 6 Call, 308; Rugge f. Ellis, 1 Desaus. IGl; Turner «. Clay, 3 Bibb, .52 ; Kamsay v. Brailsford, 2 Desaus. 582. (2) Post, 314; M'Kinuey v. Pinkard, 2 Leigh, 149. (3) Seymour r. Delancey, 3 CoAven, 445 ; White r. Flora, 2 Term, 426 ; Janu- ary V. Martin, 1 Bibb, 586 ; Udall v. Kenney, 3 Cowen, 590 ; Bunch r. Hurst, 3 Desaus. 292 ; Gregor v. Duncan, 2 ib. 636 ; IJutler v. Haskell, 4 ib. 651 ; Osgood V, Frankhn, 2 John. Ch. 1 ; S. C. 14 John. 427 ; Beard c. Campbell, 2 A. K. Marsh, 127 ; ante, 235, 236 ; Sarter v. Gordon, 2 Hill Ch. 126 ; Moth r. AtAyood, 5 Sum- ner's ^'escy, 845 and note ; Coles r. Trecothick, 9 ib. 234 ; Dclafield v. Anderson, 7 Smcdes it Marsh. 630 ; Cathcart v. Bol)inson, 5 Peters, 264. In Osgood r. Prankliu, 2 John. Ch. 23, it was held, that inadequacy of price, though not so gross as to amount to fraud, may be a sufficient ground for refusing to enforce a siKicilic perfonnanco of a contract ; and a distinction is noted between setting iusidc a contract for inadocjuacy, and refusing to decree specific pcrformaiice for that cause. SceMortlock v. ]5ulJer, 10 Sumnei-'s Yesey, 292 and notes ; Sey* mour v. Delancey, (5 John. Ch. 222. In this last ca.se, it was held also, that though mere inadc(iuacy of jirice, indei)endent of other circumstances, is not, of itself, suliicient to sot aside a transaction, yet it may be sufficient to induce the court to stay the exerci.sc of its discretionary power to enforce a specific jicrform- ance of a ])riyate contract for the sale of land, and to Icaye the ])arty to seek his compensation in damages, at law ; especially where tlie inadequacy of price is so great, (being Aa/J' the value,) as to give to the contract the character of unreason- ableness, ine(iu;dity, and hardship. Sec Clitherall r. Ogilvie, 1 Desaus. 250 ; 2 Story Eq, Jur. ^S7g ma, 458, 459 ; Garnett r. Macon, 6 (Jail, 308. ii66 OF AN INA1">F.QTIATE CONSIDERATION'. by auction, Lord Rossyln dismissed the bill merely on account of the inadequate price given for the estate, viz. 1,120Z. and it was worth 2,000/.; but on a rehearing before Lord Eldon, although the decree was affirmed upon a different ground, yet he said, he was inclined to say that a sale by auction, no fraud, surprise, &z;c. can- not be set aside for mere inadequacy of value. It would be very difficult, he said, to sustain sales by auction, if the Court would not specifically perform the agreement. And in a subsequent case (rn), he expressed the same opinion, and referred to the case of White i^ Damon (1). 10. But if an uncertain consideration (as a life-annuity) be given for an estate, and the contract be executory, equity it seems wilf enter into the adequacy of the consideration (n) (2). 11. Although a purchaser is not bound to acquaint the vendor with any latent advantage in the estate (o), yet any concealment, for the purpose of obtaining an estate at a grossly inadequate price, maybe deemed fraudulent (3). 12. Thus in the case of Deane v. Rastron (p), an agreement was made for sale of land at a halfpenny per square yard. The price was in all about 500/., the real value 2,000/. The purchaser went out to an attorney, got him to calculate the amount, and desired him not to tell the vendor how little it was ; then carried the agreement to the vendor, and prevailed on him to sign it immediately. The Court of Exchequer said, the desire of concealment would be such a fraud as to void the transaction, as parties to a contract are sup- posed, in equity, to treat for what they think a fair price. *13. So as we have seen, the not discovering to the seller, who was ignorant of the fact, the death of a party, which increased the value of the estate, although the death was publicly known, was deemed a sufficient ground to rescind the contract (. if the same contract be made with a person of weak understantling, there does arise a natural inference, that it was obtained by fraud, or circumvention, or undue influence." 2 Story Eq. Jur. ^^235 ; lUmch r. Hurst, 3 Desaus. 292 ; Whelan v. Whclan, 3 Cowen, 537 ; AVhitehouse v. Hines,. 11 Munf. 557 ; Eonbl. Eq. B. 1, ch. 2, ^^3 note (r) ; Malin r. Malin, 2 John. Ch. 238 ; Whipple t\ M'Clurc, 2 Root, 216 ; Gartside v. Ishcrwood, 1 Brown 0. C. (Perkins's ed.) 560, 561, and notes ; McCraw c. Davis, 2 -Iredell Eq. 618 ; Hunt V. Moore, 2 BaiT, 105 ; Slocum r. Marshall, 2 Wash. C. C 397 ; Kennedy v. Ken- nedy, 2 Alabama, 574,606 ; Harding v. Handy, 11 Wheaton, 104, 125 ; Reinicker 15. Smith, 2 ILu-. & John. 422 ; Cruise v. Christopher, 5 l)ana, 182. Li Famam tv Brooks, 9 Pick. 220, the coxxrt said ; — " Wc understand the law to be, that no de- gree of physicial or mental imbecility, which leaves the party legal competency to act, is of itself sufhcicnt to avoid a contract or settlement with him." (2) Hardeman V. Burge, 10 Yerger, 202 ; Eripp r. Eripp, Rice Eq. 84; Sey- mour V. Delancey, 3 CoAven, 445 ; S. C. 6 John. Ch. 222. ; George v. Richardson, Gilmer, 231 ; M' Kinney v. Pinkard, 2 Leigh, 149; Gist r. Frazicr, 2 Litt. 118. Mere inadequacy of price is not sufficient ground for setting, aside a sale, unless, the inadequacy be so gross as to be, of itself, evidence of fraud. Osgood v, Franklin, 2 John. Ch. 1, 23; Seymour v. Delancey, 6 John, Ch. 222; Coles v. Trccothiek, 9 Vescy (Sumner's cd.) 234 ; Moth r. Atwood,5 ib. 845 and note (a), Eonbl. Eq. B. 1, ch. 2 69, note (d) and (e). (3) Per Kent, Chancellor, in Osgood v. Eranklin, 2 John. Ch. i4. OF AN liNADK(tUATE CONSIDERATION. 369 19. In a case where the purchaser had by the rents received back the price he paid, and the degree of inadequacy was very great, although the purchaser was dead, and his devisees by their , answer stated themselves to be ignorant of all the circumstances connected with the sale, yet the Court before the hearing appointed ' a receiver, and thus turned the representatives of the purchaser out of possession (a). 20. But a conveyance obtained for an inadequate consideration, from one not conusant of his right, by a person who had notice of such right, will be set aside, although no actual fraud or imposition be proved (b) (1). 21. So if advantage is taken of the distress of the vendor, the sale will be set aside (c) (2) : and this was done in one case, although the purchaser was really put to great hazard, and was to be at great expense and trouble in many foreseen and unavoidable law- suits about the estate, the issue of which was very doubtful ( in note. (2) " Courts of equity, in cases of this sort," says Mr. Justice .Story, " have exten- ded a degree of protection to the parties, approaching to an incapacity to bind them- selves absolutely by any contract, and, as it were, reducing them to the situation of infants, in order to guard them against the effects of their own conduct. Hence it is that in cases of this sort, it is incumbent upon the i)arty dealing with the heir, or expectant, or reversioner, to establish, not merely, that there is no fraud, but, (as the phrase is) to make good the bargain; that is, to show, that a full and ade- quate consideration has lieen paid. For, in cases of this sort, (contrary to the general rule,) mere inadequacy of price or compensation is sufficient to set aside the contract. The relief is granted on the general principle of mischief to the public, without requiring any particular evidence of imposition, unless the con- tract is shown to be above all exception." 1 Story Eq. Jur. •j33(5. " The relief is founded in part ui)on tlie policy of maintaining parental and quasi parental authority, and preventing the Avaste of family estates. It is also foundecl in part upon an enlarged equity, flowing from the principles of natural justice, upon thc- equity of protecting heedless and necessitous persons agaiiist the designs of that calculating rapacity, which the law constantly discoiuitenances ; of succoring the distress, frequently incident to the owners of unprolitable reversions ; and of guarding against the improvidence, with whicli men are commonly disposed to sacritice the future to the present, especially when young, rash, and dissolute." 1 Story Eq. Jur. ^33.5. See Fonbl. Eq. B. 1, ch. 2, ^12, note (k) ; Gwynne «. Hea- ton, 1 Brown C. C. (Perkia's el.) 10, 11 and note^; Bovuton i-.'llabbard, Mass. 112; Osgood r. Franldin, 2 John. Ch. 1, 2i ; Bernal "y. Donegal, 1 Bligh, ). (0 7 Cla. & Fin. 460, per Lord Chan- Cooke r. Burtchaell, 2 Dm. & "War. 105. cellor. (o) Warclle v. Carter, 7 Sim. 490. (w) Newton V. Hunt, -5 Sim. oil (;>) 7'e;- Hart, L. C. in Scott r. Dun- (1833). bar, 1 Moll. 4o9. (?«) Wood V. Abrcy, 3 Madd. 417; (1) See 1 Story Eq. Jur. {338. 382 OF A FALSE STATEMENT OP CONSIDERATION. *52. In Baker v. Bent (5), where the bill was filed to set aside for undervalue a sale of a reversion expectant upon the death of a tenant for life without issue male, and subject to charges in other events, the Master of the Rolls said, that the probability that a testator of sixty-three will marry and have issue, depending upon the habits and disposition of the party, and the accidents of life, is not the subject of estimate or calculation, and he put out of his consideration all evidence which affected to set a value on that contingency. But as, in the case before him, the ])urchaser at the beginning of the treaty was not aware that such a contingency existed, and he put a value upon the plaintiff's interest, as if the reversion were actually to take effect upon the death of the tenant for life; and when he afterwards discovered the contingency he proposed to deduct one half of the sum he had just offered, and that proposal was ultimately the basis of the agreement ; the learned Judge referred it to the Master to inquire, what was the value of the reversion, supposing it had been to take effect cer- tainly at the death of the tenant for life, and by declaring that one half of such value is to be deducted in respect of the contingency. 53. It must not, however, be understood, that because there is a contingency which is not strictly the subject of valuation, a pur- chaser can sustain a purchase at an undervalue. 54. It has been laid down as a general rule, that when one pur- chases an annuity or a reversionary interest, or in expectancy, if that is quarrelled with, on the ground that the grantee or vendee did not pay the full valuable consideration stipulated to be paid by the deed, and the fact be so, the Court will set that aside as an annuity, or sale of a reversionary or expectant interest, and cut it down to a loan (r). 55. The practice has been condemned of signing an attestation of payment of the purchase-money, where no money passes (s). But a mere mis-statement of the consideration would not in itself be sufficient to vitiate a contract. Conveyancers are in the habit of stating the consideration in deeds differently from what it really is. To give a familiar instance, suppose a purchaser of an estate, who has not the whole of the purchase-money ready to pay down, and the parties agree that a portion of it shall remain in his hands, and be secured by a mortgage on the estate ; the deed may state (7) 1 Russ. & JIvl. '224 ; see Sherwood (;•) Drought v. Eustace, 1 MoUoy, 328. 1-. liobins, 1 Mood. & Malk. 19i. (s) Sec 1 Molloy, 339. [*325] OF THE TERMS OF RELIEF. 383 the entire sum to be paid, and a receipt may be signed and indorsed on the conveyance for the whole sum, and by a subsequent deed of *the next day, reciting that so much of the purchase-money remains unpaid, the estate may be mortgaged for the residue, yet such a mis-statement will not vitiate the contract , but in such a case the consideration is in accordance with the actual agreement of the parties ; it is not the case of one consideration bargained for and another given, so that a mere false statement would not in itself necessarily vitiate a deed. But false statements must always have great weight, and there may be cases where a false statement of itself may destroy the whole transaction (t). 56. It must be remarked, that we have no certain rule by which the inadequacy of a consideration can be ascertained. Our law, indeed, hath in one instance (u) adopted the rule of the civil law ; by which no consideration for an estate was deemed inadequate which exceeded half the real value of the estate (1) ; and Lord Not- tingham wished the rule universally prevailed in England (r). 57. If a bill for relief be delayed for a great length of time (y)(2), or the vendor, with full notice of all the circumstances, and of his right to set aside the contract, confirm the purchase (z) (3), equity will not relieve against the sale, although the aid of the Court could not originally have been withheld. 58. Where a sale is set aside on account of the inadequacy of the consideration, it is upon the prin^^le of redemption, and the conveyance will stand as a security for the principal and interest, and even costs (a) (4) ; but compound interest will not be allowed, (t) Bowen v. Kirwan, Llo. & Goo. t. Roche v. O'Brien, 1 Ball & Beatty, 330 ; Sugcl. CG, G7 ; Gibson v. Pi,ussell, 2 You. supra, ch. 4, s. o. & Col. C. C. 104. («) Twisleton v. Griffith, 1 P. Wms. (u) Vide Duke, 177 ; ct infra, ch. 22 ; 310 ; Gwynno v. Ileaton, 1 Bro. C. C. 1 ; and see Baldwin y. Rochfort, 2 Yes. 517, Peacock v. Evans, IG Yes. jun. ol2 ; cited. Bo-\ves r. Heaps, 3 Yes. & Bea. 117 ; but {x) SeeNottiJ. Hill, 2 Cha. Ca. 120 ; in Nicols v. Gould, 2 Yes. 123, Lord 1 Treat. Eq. 119; (jvotiwa de jure Belli Hardwicke thought he could not set ac PactH, L. 2, c. 12, s. 12. aside the purchase without making the (y) Moth V. Atwood, o Yes. jun. 815 ; purchaser pay costs ; and sec Baugh v. Init see lloche v. O'Brien, 1 Ball. & Price, 1 "Wils. 320 ; Gowland r. Ue Faria, Beattv, 330. 17 Yes. jun. 20; Morony r. O'Dea, 1 (;) Cole V. Gibbons, 3 P. Wms. 290 ; Ball & Beatty, 109, and the Kcportcrs' Chesterfield v. Janssen, 1 Atk. 301; 2 note; Ililliard r. Gambel, Tonily. 375, Yes. 549. See Baugh v. I'rice, 1 Wils. n. ; "NYood c. Abrey, 3 Madd. 417 ; Bau- 320 ; Morse v. lloyal, 12 Yes. jun. 355 ; trie v. Watson, 3 Myl. & Kee. 339. (1") See Seymour v. Delancey, 6 John. Ch. 222. (2) Ante, 275, 277. (3) Ante, 275 to 277 ; 1 Storv Eq. Jur. §345. (4) 1 Story Eq. Jur. §344 ; Boyd r. Dunlap, 1 John. Ch. 478, 482, 483 ; Sands e. Codwise, 4 John. 53(), 598, 599 ; Gwvnnc v. Hcaton, 1 Brown C. C. (Perkins's [*3261 384 OF PRICE FIXF.n BY ARBITRATION. however long the purchaser has been kept out of his money (b) ; in many cases, therefore, the seller is not merely relieved against the contract, but a considerable benefit is given to him at the expense of the purchaser. In a late case, where interest had been paid on the purchase-money, the payments were considered to be of prin- cipal and not interest, and the seller was charged with interest on *all the sums received by him, whether received as interest or as principal (c) (1). 59. So the purchaser will be allowed for lasting and valuable improvements, and will not, like a mortgagee, be charged with what without wilful default he might have made (c?)(2). 60. If it be agreed, that the price of an estate shall be fixed by a third person, and such person accordingly name the sum to be paid for the estate, equity will compel a performance in specie ; but if the referee do not act fairly, or a valuation be not carefully made, execution of the contract will not be compelled ; especially if there be any other ground upon which the Court can fasten, as a bar to its aid (e). But generally speaking, the question is not what is the real value, for the parties have made the arbitrator their judge in that point ; they thought proper to confide in his judgment, and must abide by it unless they can make it plainly appear that he has been guilty of some gross fraud or partiality (y) (3). 61. By the civil law, also, a price was considered sufficiently certain, if it was to be fixed by a person named, and such person accordingly fixed the sum : but it appears by the Institutes (g), (i)Gowlandy. DcFaria, 17 Vesjun. 20. juu. GOo ; see Gourlay v. Duke of Som- (c) Murray r. ralmcr, 2 Scho. & Lef. erset, 19 Yes. jun. 429. 474 ; see cli. 4, s. 5. (./') Eelchier v. llcynolds, 2 Lord ((/) Murray v. Palmer, ubi sup. Kcny. 2d part, 91, ^jcr Sir John Stran<^e. (e) Emery v, Wase, 5 Ves. jun. 84G ; (y) III. xxiv.l. For the cases arising 8 Ves. jun. 505 ; IlaU. v. Warren, 9 Ves. oi^t of this rule, vide Vinnius, 674. ed.) 11, andui note : 15crnal r. Donegal, 1 Bligh (N. S) 594 ; Boynton v. Hubbard, 7 Mas.s. 120; "Wharton r. May, 5 A'escy (Sumner's ed.) 27, note. But a deed, fraudulent in fact, is absolutely void, and is not permitted to stand as a secvirity for any purpose of reimbursement or indemnity. Sands v. Codwise, 4 John. 536, 598, 599 ; Boyd c. Dunlap, 1 John. Ch. 482 ; "Fonbl. Eq. B. 1, eh. 2, §13 and notes ; Jones r. Hubbard, G Munf. 2G1. (1) Sec Doggett v. Emerson, 1 AVoodb. & Minot, 195, 206. (2) Sec llichardson v. M'Kuison, I,itt. Sel. Cas. 285 ; Craig v. Martm, 3 J. J. Marsh. 6o ; Bullock v. Bcemiss, 1 A. K. Marsh. 434 ; Thompson v. Mason, 4 Bibb, 197 ; Morton r. llidgcway, 3 J. J. ^Slarsh. 257 ; Witherspoon r. Anderson, 3 Des- aus. 245 ; M"Cracken v. Sanders, 4 Bibb, 511 ; Searcv v. lieardon, 1 A. K. Marsh. 2 ; Clay v. Miller, 2 Litt. 280 ; Williams v. liogcrs,"2 Dana, 375 ; Pugh v. Bell, 1 J. J. Marsh. 404 ; Frink r. M'Keoun, 4 J. J. Marsh. 170 ; Griffith v. Depew, 3 A. K. Marsh. 180. (3) See Brown v. Bellows, 4 Pick. 179 ; Underbill v. Van Cortlandt, 2 John. Ch. 339 ; Pothier, Contracts of Sale, p. 1, §2, art. 2 §2, pi. 24. [*327] OF PRICE FIXED BY ARBITRATION. 3S^ " Inter veteres satis abundeque hoc dubitatur, constaretne venditio, an non.^^ 62. Such arbitrators may take the opinion of a third person as evidence, but they cannot merely delegate their authority (A) (1). 63. If an agreement be made to sell at a fair valuation, the Court will execute it although the value is not fixed. For as no particular means of ascertaining the value are pointed out, there is nothing to pre- clude the Court from adopting any means adapted to that purpose(i). 64. But where parties agree upon a specific mode of valuation, as by two persons, one chosen by each, unless the price is fixed in the way pointed out, the Court cannot enforce the perform- ance of the agreement, for that would be not to execute their agreement, but to make a new one for them. Therefore, where the agreement was to sell at a valuation by arbitrators, to be appointed, or their umpire, and arbitrators were appointed, and different as to *value, and could not agree upon an umpire, the Court refused to interfere (k). An umpire we may observe must be chosen; a nomi- nation by chance or lot is wrong, and the clerks of the attorneys are not competent to bind their principals and the parties by a consent to a nomination by lot (/). 65. As regards the necessity of having the price fixed, our law accords with the civil law (m). The same rule is adopted in the Code Napoleon (n). After stating that the price ought to be fixed by the parties, it adds, " II pent cependant etre laisse a I'arbitrage d'un tiers : si le tiers ne veut ou ne pent faire I'estimation, il n'y a point de vente." 6Q. If therefore the medium of arbitration or umpirage is resorted to for settling the terms of a contract, and fails, equity has no jurisdiction to determine that though there is no contract at law, there is a contract in equity : — If the instrument assume that the award shall bind the parties personally, the death of one of them before the award will of course be a countermand of the submission at law, and equity cannot enforce the contract (o). So if the (/») Ilopcrai't V. Hickman, 2 Sim. & jun. .'54 ; rritcharti v. Over, 1 Jac. & Stii. 130 ; Anderson v. Wallace, 3 Clar. Walk. 39G. & Fill. 2(). (/) In re GrecnAvooil v. Tittcrington, 9 (t) Sec 11 Vcs. jun. 107. Adol. & Ell. 699. (/c) Milncs V. Gcry, H Ves. jun. 400 ; (w) Vide supra. Grc;;ory c. Mighell, 18 Yes. jun. 328 ; (n) Code Civil, I-iv. 3, Tit. ti, ch. 1, s. Gourlay v. Duke of Somerset, 19 Ves. 1592. jun. 129. See Cooth v. Jackson, 6 Ves. (o) Blundellr. Brettargh, 17 Ves. jun. 232 ; and sec (i Ves. jun. 34. (1) See Emery v. Wase, 5 Vescy, 846 ; Underhill c. Van Cortlandt, 2 John. Ch. 348, 349. Vol. I. 49 [*3-28] 386 OF SALES OF CONTINGENT INTERESTS. arbitrators are named, and one party refuses to execute the arbi- tration bond, as it is not certain that any award will ever be made, equity will not interfere ; for tbe relief sought is a specific perform- ance by the defendant conveying at such price as the arbitrators named shall hereafter fix, and no award may ever be made (p) (1.). 67. This proves that neither of the parties to such an agreement can be compelled to nominate an arbitrator under the agreement. The very point was decided in the case of Agar v. Macklew (^q). A covenant was contained in a lease that the lessees might pur- chase the reversion at a valuation by two persons, one to be named ^ by the lessor, and the other by the lessees, who were to name an umpire. The lessor refused to name an arbitrator, and upon demurrer it was held that the lessees could not file a bill for a specific performance, or to compel the lessor to nominate an arbitrator (1). *68. But where the seller and purchaser mutually agree to refer the price to a third person named in the agreement, and the seller covenanted for herself and her heirs to surrender the estate to the purchaser, and the purchaser covenanted for himself, his execu- tors, &:c., to pay her the money, the agreement was enforced although the seller died before the award, because the Court said this was an agreement to be executed by the parties or their rep- resentatives, and not an authority to be determined by their deaths (r). 69. And a party may bind himself by acquiescing in an award not made in the manner required (5). And in a case where the contract of sale was for twenty-five years' purchase, on an annual value to be fixed by a certain day, by referees named, and the seller prevented the valuation from being made, it was held that he should not be allowed to avail himself of his own wrong. The Court would compel him to permit the valuation to be made according to the contract (t). 70. If a party having agreed to sell at a price to be fixed by ( /;) "Wilks V. Davis, 3 Mer. ;507 ; Daly (r) Bclchier r. Reynolds, 2 Lord Kenv. V. Duggan, 1 Ir. Eq. Rep. 311. 2d part, 87. (ry) V. C. 9 Nov. 1825, MS. ; 2 Sim. & (5) See 17 Yes. jun. 2il. Stu. 154, S. C. (i!) Morse v. Merest, 6 Madd. 26. (I) For the new powers given to arbitrators appointed bv rule of Court, or the like, see 3 & 4 WOl. 4, c. 42, s. 39, 40, 41, England ; 3 & 4" Vict. c. lOo, s. 63, 64, 65, Ireland. (1) See Tobey i-. County of Bristol, 3 Story C. C. 800 ; 1 Story E(i. Jur. §10o [*329j OF SALES OF CONTINGENT INTERESTS. 387 referees who are named, without cause revoke his authority before the price is fixed, equity will not interfere by injunction to prevent the purchaser from taking possession or the like under the agree- ment, for it is said a plaintiff is not at liberty to ask the aid of a court of equity in respect of an act done by him against good faith (m). 71. Where two persons agreed that a moiety of a piece of land (of which one of them had the other moiety, and the entirety of which when obtained was to be subject to certain stipulations between them), should not be purchased by either of them until they had agreed upon a sum to be given for it ; it was held that neither of them had a right to say " This agreement shall never be carried into effect, because I will never agree on a price ; I will not only prevent the performance of the agreement, but will prevent you from ever becoming owner of the land either with me or inde- pendently of me" (x) (1). 72. Where the award is actually made, and the contract to refer is made by agreement a rule of Court, yet an attachment will not be granted, but the parties will be left to their remedy by action imder the contract (3/). (it) Pope V. Lord Duncannon, 9 Sim. Harcourt v. Ramsbottom, 1 Jac. & Walk. 177. The price Avas fixed by two ol" the 511. three arbitrators, which Avas within the (a:) Morris v. Timmins, 1 Beav. 411. authority, but after the revocation. See (y) In re Lee and Hemingway, 3 Nev. & Man. 860. (1) But if an agreement be made, subject to a condition that the price thereof shall be afterwards ascertained by the parties, and one of the parties die -without any price being agreed upon, such agreement is too incomplete and uncertain to be carried into execution by a court of equity. Graham v. Call, 5 Munf. 396. ^SECTION II. OF THE FAILURE OF THE CONSIDERATION BEFORE THE CONVEYANCE. 1. Purchaser to hear loss by fire, i^c. after contract. 7. Not where purchase under decree not confirmed absolute. S, 15. Purchaser entitled to benefit. 10. Wyvilly. Bishop of Exeter. 11. Observations upon that case. 13. Validity of title. 14. Deeds destroyed by fire. 16. TAves dropping in. [*330] 388 0¥ LOSS BY FIUE, ETC. 18. Insurance. 19. Sah for life annuity : ptcrchaser en- titled though life drops. 27. Where seller may retain estate and purchase-money. 29. Sale of life annuity enforced thovgh life drops. 31. Seller to become tenant. 1. A VENDEE, being equitable owner of the estate from the time of the contract for sale (1), must pay the consideration for it, although the estate itself be destroyed between the agreement and the con- veyance ; and on the other hand, he will be entitled to any benefit which may accrue to the estate in the interim (a). 2. Nevertheless this doctrine, however it may seem to flow from the rules mentioned in the preceding chapter, has never been deci- ded till lately. 3. For in Stent v. Baily (6), the master of the Rolls said, " If I should buy a house, and before such time as by the articles I am to pay for the same the house be burnt down by casualty of fire, I shall not in equity be bound for the house" (c) (2). 4. So upon a sale of a leasehold for lives ((/), previously to the conveyance, one of the lives dropped ; and although Lord Keeper Wright decreed a specific performance, yet the report states, that he seemed to think, that if all the lives had been dropped before the conveyance, it might have been another consideration, for that the money was to be paid for the conveyance, and no estate being left, there could be no conveyance. 5. The case of Cass v. Rudele, as it is reported in Vernon (e), is an authority against the dictum of the Master of the Rolls, in Stent V. Baily ; but it appears (/) that the case is mis-stated in *Vernon, and that the decree was founded on a good title having been conveyed. 6. In a late case (g), however, where A had contracted for the purshase of some houses which were burned down before the con- veyance, the loss was holden to fall upon him, although the houses were insured at the time of the agreement for sale, and the vendor («) See 2 Pow. on (Jontraets, 61. (6) 2 P. Wms. 220 ; see Bacon v. Simp- son, 3 Mces. & Wcls. 78. (c) As to accidents before the contract, unkno^\•n to the parties, see p. 71. (fZ) White v. Nutt, 1 P. Wms. 62. (e) 2 Yem. 280. (/) See 1 Bro. C. C. 157, n. ; and the note to Raith. edit, of Yerrion. (y) Paine v. Meller, 6 Yes. jun. 349 ; and see Poole v. Shergold, 2 Bro. C C. 118; Revel v. Hussey, 2 Ball & Beattv, 280; Harford v. Puirier, 1 Madd. 532.' (1) Ante, 191, and notes. (2) See Combs v. Fisher, 3 Bibb, 340. [*331] OF LOSS BV FIRE, ETC. 389 permitted the insurance to expire without giving notice to the vendee : Lord Eldon being of opinion, that no solid' objection could be founded on the mere effect of the accident ; because, as the party by the contract became in equity the owner of the premises, they were his to all intents and purposes (I). 7. This decision proceeded on the only principle upon which it can be supported — that the purchaser was in equity owner of the estate. And therefore, in a case where a similar accident happened to an estate sold before a Master, and the report had only been confirmed nisi, the loss was holden to fall on the vendor (A) ; but in a latter case (^), of a purchase before the Master of a life interest, where the report had been confirmed, and the question was from what time the purchaser was entitled to the income. Lord Eldon asked if anything could turn upon the report not being confirmed. There was a case, he said, about a house being burned down before the confirmation of the report. But if the tenant for life had died the same night, must not the purchase-money have been paid ? This is a distinction between a destruction of the property by accident b efore the confirmation of the report and the dropping of a life — an uncertain interest — for which the property was held. 8. The consequence of the rule is, that if after the contract the estate be improved in the interval between the contract and the conveyance, or if the value be lessened by the failure of tenants or otherwise, and no fault on either side, the vendee has the benefit or sustains the loss (k). *9. If a purchaser is guilty of delay, taking frivolous objections to the title, he will not be allowed any benefit accruing in the interval which can be separated from the estate itself. 10. This can hardly be laid down as a general rule, but it seems to be the point decided in Wyvill v. Bishop of Exeter (/), where a purchaser of an advowson, who had objected to the title for several (A) Ex parte Minor, 11 Ves. juu. 550. («) Anson v. Towgood, 1 Jac. .S: Walk. Tide p. 71. See Zaguiy i\ Furnell, 2 G37. Camp. Ca. 2-iO. " (k) See 1 Madd. 530, po.^t, ch. 16. (0 1 Price, 291:. (I) In the 2d vol. of Coll. of Decis. p. 56, are the two following ca-ses : — The peril of a house sold, and thereafter burnt, ^^■as found to be the buyer's, though the disposition bore an obligenient to put the buyer in possession, because the buyer did voluntarily take possession and rebuild the house, and hkewise was enfeoffed before the burning. Hunter v. "Wilsons. — A house bought licing burnt, the Lords found, that the property being transferred to the buyer, by his licing enfe- offed, and the keys behig oti'ercd to him, the accidental loss must follow the buy- er, although there was a part of the price unpaid, there being a difference about it, which was referred to some friends to be determined, and which they had not done when the burning happened. Atchison r. Dickson. [*332] 390 OF LOSS BV FIRE, ETC. years without filing a bill, but who was a defendant to a suit by a creditor of the seller, who had died after the contract, was held not to be entitled to a vacancy occasioned by resignation, although he was left at liberty to complete his purchase when the living was full. Macdonald, C. B. said the result of the cases on this point was, that where a purchaser has actually accepted a title after contract for sale, if advantage arise on either side before the exe- cution of the conveyance, as by the lapse of a life in the meantime, a court of equity will enforce a specific performance without re- garding which party may be benefitted or prejudiced by the acci- dent of unforeseen events, but where the title has not been accepted, the Court refuses to decree performance. The cases of Pope V. Root and Jackson v. Lever were material, but in those the titles had been accepted. The distinction between those cases is, that part of the consideration had been paid or tendered in one but not in the other. In Paine v. Meller, the decision turned wholly on the question, whether the title had been finally accepted and the previous objection abandoned before the day on which the premises contracted for had been destroyed by fire. If the title had not been acquiesced in, the Court would not have en- forced a specific performance, but if it had, they would have de- creed the execution of the agreement, notwithstanding certain objections had originally been made to the title. 11. The case may have been properly decided, and certainly the Court would not permit a purchaser to present to a vacancy which could not afterwards be recalled unless he accepted the title, where he had not already done so. But the cases do not authorize the judgment. In Pope v. Root, a specific performance was refused, and in Jackson v. Lever, the title accepted was to an estate belonging to the purchaser, which was to be an additional security to the seller for the annuity. Neither case, however, was decided upon the acceptance of the title, and in Mortimer v. Capper there was of course no acceptance of the title. In Paine v. Meller, the decree could not have been made unless the title had been accepted before the fire, because the seller had not a marketable title, and consequently the contract could not have been enforced *against the purchaser if even there had been no fire, unless he had accepted the title. Lord Rosslyn did not consider it necessary that the title should have been accepted, and he accordingly made a common reference to the Master, to see whether a good title could be made. Lord Eldon reversed that decree, and made a (*333] OF LOSS BY FIRE, ETC. 391 special reference as to the fact of the acceptance of the title, not because he thought the contract could not be enforced , in such a case unless the title had been accepted before the accident, but because in that case the purchaser would not have been bound to take the title unless he had thought proper to do so. Lord Eldon placed the doctrine upon the operation of the contract. As to the mere effect of the accident itself, he said, no solid objection could be founded upon that simply, for if the party by the contract has become in equity the owner of the premises, they are his to all in- tents and purposes. 12. Lord Eldon's decision in Paine v. Meller, exactly accords with the doctrine of the civil law. Indeed this very case is put in the Institutes (m). " Cum autem emytio et venditio coniracia sit, jjericulum rei venditcE statim ad emptor em pertinct, tametsi ad hue ea res emptori tradita nan sit. Itaque si — aiit cedes tota, vel aliqua ex parte, incendio consumjjftn fuerint — emptoris damnum est, cui necesse est, licet remnonfuerit nactus, pretium solvere^ 13. It is hardly necessary to remark, that although the Court will enforce a specific performance, notwithstanding that the estate is destroyed, yet this will not be done unless the title be good, or the purchaser has, previously to the accident, waived nny objec- tions to it. 14. And if the muniments of title be destroyed by fire after the contract, but before the conveyance, so that there is not sufficient evidence of title left, the purchaser cannot be compelled to com- plete the purchase, although previously to the fire the abstract had been examined by his solicitor with the deeds (n), and in other resj)ects the seller has a good title. 15. The case of Paine v. iMellcr may be considered as having also settled, that a purchaser would be entitled to any benefit accruing to the estate after the agreement, and before the convey- ance ; for Lord Eldon said, •' If a man had signed a contract for a house upon that land which is now appropriated to the London Docks, and that house was burnt, it would b(; impossible to say to the purchaser, willing to take the land without the house, because much more valuable on account of this project, that ho should not have it." *16. This also appears to have been admitted in a case (o) where a man contracted for the purchase of a reversion, and afterwards (>«■) III. XXIV. .3. Read Pair, de Jure purchaser had not accepted the title. Jatiircr et (Icntium, 1. .5, c. .), s. .3. (o) Spurrier r. Hancock, 4 Vcs. ju («) Bryant v. Busk, 1 Russ. 1 ; the GG7 ; and see 1 1'. Wms. G2. 1*331] 392 OF BENEFIT BY DROPPING OF LIFE. the lives dropped beforo the contract was carried into execution ; for, although the Court did not decree a specific performance, they proceeded entirely on the laches and trifling conduct of the pur- chaser, and never even hinted that the contract should not be per- formed on account of the lives having dropped ; and accordingly it was observed by Sir Thomas Plumer, when V. C, that if a re- versionary interest is agreed to be purchased, and lives drop before the conveyance, the vendee has the benefit (p). 17. Indeed this point flows from the decision in Paine v. Meller ; and it was the rule of the civil law, that the purchaser should benefit by the accretion to the estate before the conveyance : nam et commodum ejus esse debet cnjus yericulum est ((/). 18. These cases suggest the observation that, in agreements for the purchase of houses, some provision should be made for their insurance until the completion of the contract. 19. It equally follows, from the general rule of equity, by which that which is agreed to be done is considered as actually performed, that if a person agree to give a contingent consideration for an estate, as an annuity for the life of the vendor, and the vendor die before the covey ance is executed, by which event the annuity ceases, yet the purchaser will be entitled to a specific performance of his contract. This, we observe, is a much stronger case than that before discussed. There a loss was actually sustained, and the only question was, upon whom it should fall. But in this case, if performance of the agreement were not compelled, the parties would stand in precisely the same situation as before the contract ; whereas, by performing the agreement, the estate is givefi to the purchaser, without his paying any consideration for it. A steady adherence to principle compels the Court to over- look the hardship of this particular case, and the doctrine rests upon high authoritj^ 20. Thus in the case of Mortimer v. Capper (r), A contracted to sell an estate to B for 200/., and 50/. a year annuity ; and two days after the contract was reduced into writing, A was found drowned : the Lord Chancellor directed an inquiry as to the value of an annuity for the life of A, in order to introduce the question, whether an estate being disposed of for an annuity, which is a ^contingency, the contract shall fall to the ground, if no payment (/?) See I Madd. .)39. (r) 1 llro. C. C. loO. See Wyvill v. {q) Inst, ^ibi sup. Ijishop of Exeter, 1 Price, 'I'd'l. [*335] OF BENEFIT BY DROPPING OF LIFE. 393 of the annuity shall be made. He said, that he thought, if the price were fair, the contract ought not to be cut do\Vn, merely because the annuity, which was a contingent payment, never be- came payable. The parties in the above cause were so well satisfied with the opinion of the Court, that they never, it is said, brought it back for further directions (s). 21. So in a later case (t), where A sold an estate by auction, in consideration of a life annuity (I), the first payment to be made on the 25th of December 1787 ; but in case he should die before the 29th of September 1787, up to which lime he was to receive the rents, the contract should be void. A died on the 1st of February 1788, after a sudden and short illness of only two days ; and owing to some delays, the conveyances were not executed. The quar- ter's payment, due at Christmas, was tendered to the vendor's agent by the purchaser, a few days after it became due ; but the agent declined receiving it, saying that the conveyance would be ' soon completed, and that it was not necessary for the purchaser to make such payment in the meantime. On the first hearing, Lord Thurlow said, he did not see that if an annuity was con- tracted for why the consideration should not be paid. It was, he said, objected, that the contract could not be carried into execution modo et forma, and that had great weight where there had been no payment. He afterwards made a decree for a specific per- formance, on payment of the arrears of the annuity, the consid- eration for the purchase of the estate. 22. The case of Paine v. Meller bears on this point also. Lord Eldon, in delivering judgment, said, that as to the annuity cases, and all others, the true answer had been given ; that the party has the thing he boughr, though no payment may have been made ; for I he bought subject to contingency ; and in the later case of Coles V. Trecothick, he expressed the same opinion (u). 23. But if in a case of this nature, a payment of the annuity II become due before the death of the vendor, and the purchaser neglect to make or tender it, he cannot insist upon a specific per- formance. 24. This was decided by the case of Pope v. Root (x). A con- tracted with B for the sale of an estate to him, in consideration (s) Sec 3 Bro, C. C. 609, seel qu. (u) See 9 Vcs. jun. 246. (0 Jacksonv. Lever, o Bro. C. C. 605. [x) 7 Bro. P. C. 184. (I) See Appendix, No. 10, for a statement of the new Annuity Act. Vol. L 50 394 vendor's right to f.statk ant> Mori'Ev. of a life annuity, and the completion of the agreement was delayed *by the illness of a mortgagee, who was to have been paid off. Two days after the time mentioned for completing the purchase, A. met with an accident, and died within a few days. By the terms of the contract, the first payment of the annuity became due previously to the death of A, but it was not paid or tendered. And Lord Chancellor Bathurst dismissed the bill for a specific performance, and the decree was affirmed in the House of Lords (t/) (I). 25. The reader will observe, that the decisions in the cases of Mortimer v. Capper and Jackson v. Lever, do not infringe upon that of the House of Lords, in the prior case of Pope v. Root, but reduce the rules on this subject to an equitable and uniform standard ; for the only case in which a purchaser cannot require the assistance of equity, is where he has by laches forfeited his right to its aid, namely, where a payment of the annuity became due, and he neglected to pay or tender it. 26. To obviate all doubt, it seems advisable in agreements for purchase, where the consideration is an annuity for the life of the vendor, to expressly declare, that the death of the vendor, previously to the completion of the contract, shall not put an end to it, although a payment of the annuity shall not have become due, or having become due, shall not have been made or tendered ; but that, on the contrary, the purchaser shall be entitled to a convey- ance, on payment of a proportionate part of the annuity up to the death of the vendor. 27. In the cases just dismissed, the purchaser, by the death of the vendor, obtained the estate without paying any, or only a nominal consideration for it. Perhaps a case may arise where the vendor having received the purchase-money, may, by the death of the purchaser, be entitled to retain the estate also, although he may not be his heir. This case was put in the argument of Burgess v. Wheate (z) : a purchase, and the money paid by the purchaser, who dies without heir, before any conveyance. It was said, if the lord could not claim the estate, and pray a conveyance^ (y) See Lord Bathurst's decision in (z) 1 Elackst. 123 ; see 4 & 5 Will. 4, Baldwin v. Boulter, 1 Bro. C, C. 156, c. 23. cited. (I) It seems to have been thought, that the inadequacy of the consideration influenced this decision ; see 2 Pow. on Contracts, 76 ; but it does not appear that any inadequacy was actually proved. [*336] SALE OF LIFE ANNUITY WHERE LIFE DROPS. 395 the vendor would hold the estate he has been paid for, and keep the money too. Sir Thomas Clarke, in delivering hife opinion, said, that he thought the lord could not pray the conveyance ; to *say he could was begging the question. And as to the vendor's keeping both the estate and the money, it was analogous to what equity does in another case ; as where a conveyance is made pre - maturely, before money paid, the money is considered as a lien on that estate in the hands of the vendee. So where money was paid prematurely, the money would be considered as a lien on the estate in the hands of the vendor, for the personal representatives of the purchaser ; which would leave things in statu quo. 28. It may be doubted, however, whether this case, if it should ever arise, would be decided according to Sir Thomas Clarke's opinion. Where a lien is raised for purchase-money under the usual equity (a), in favor of a vendor, it is for a debt really due to him, and equity merely provides a security for it. But in the case under consideration, equity must not simply give a security for an existing debt ; it must first raise a debt against the express agreement of the parties. The purchase-money was a debt due to the vendor, which upon principle it would be impossible to make him repay. What power has a court of equity to rescind a legal contract like this ? The question might perhaps arise if the vendor was seeking relief in equity, but in this case he must be a defend- ant. If it should be admitted that the money cannot be recovered, then of course he must retain the estate also, until some person appear who is by law entitled to require a conveyance of it. 29. It has been decided that a specific performance will be decreed of a contract for sale of a life annuity, although the an- nuitant be dead before the bill be filed, provided the contract was a continuing one at his death (b). This is the converse of the point decided in Mortimer v. Capper, and that fine of cases. The Vice-Chancellor (Sir John Leacb) observed, that it may now be considered as the settled law of the court, by the cases of Mortimer v. Capper, and Jackson v. Lever, and the reported dicta of Lord Eldon, especially in the case of Coles v. Trecothick, that if the price of property be an annuity for the life of the vendor, his death before the conveyance will form no objection to the specific performance of the contract. The vendor agrees to sell for a con- tingent price, and those who represent him cannot complain that (a) Vide infra, ch. 18. 355 ; see Wilkinson i\ Torkington, 2 (b) Keimedy v, Wcnham, 6 Madd. You. & Coll. 726. [*337J 396 OF THE CONSIDERATION. the contingency has turned out unfavorably. The same principle necessarily applies to a case where the life annuity is not the price, but is the subject of the sale. If the annuitant happens to die before the annuity is legally transferred to the purchaser, the death of the annuitant can form no objection to the specific per- formance *of the contract. The purchaser agrees to buy an interest of uncertain duration, and he cannot complain that the contingency is unfavorable to him. 30. In the above case, the purchaser was entitled to arrears of the annuity, but the annuity was charged on the purchaser's own estate. It was argued that by the death of the annuitant, a legal transfer of the annuity was no longer necessary to the purchaser, and the only act to be done was the payment of a sum of money by him to the seller, and that the seller ought therefore to have proceeded at law and not in equity. The Vice-Chancellor said, that a court of equity entertains a suit for specific performance by a purchaser, in order to give him the very subject of his contract ; and although the demand of a vendor be merely for a sum of money, it will entertain a similar suit for him, upon the principle that the remedies ought to be mutual. If the death of a life-annuitant were to happen at such a time that a purchaser in effect took no benefit under his contract, which might well happen where his . title was to commence at a future time, there it might be made a question whether, as at the time of the bill filed a purchaser could file no bill in equity, the principle of mutual remedy could enable the vendor to file such a bill. But that was not the case there ; the purchaser had an equitable title to the arrears of the annuity between the time of his purchase and the death of the annuitant, which would in principle support a bill on his part for specific performance, although the facts of the case would not make such a bill advantageous to him. He considered this case, therefore, strictly a case of mutual remedy, so as to entitle the vendor to file a bill for specific performance ; and it appeared to him to make no difference in principle that the annuity being charged upon the estate of the purchaser himself, he could practically satisfy his demand for arrears, by retainer, without the necessity of a legal grant. 31. Here we may refer to a case, where by the agreement the seller was to become tenant of the estate from year to year, and he became incapable by reason of his bankruptcy of performing that stipulation, and yet a specific performance was enforced [*.338J OF THE CONSIDEBATION. 397 against the purchaser because the tenancy was from year to year, which made it of no consideration (c). But the same rule ought to prevail whatever be the length of the term agreed upon. It is a consideration moving from the seller to the purchaser, to the benefit of which the latter is entitled. (c) Lord V. Stephens, 1 You. & Coll. 222. [ 398 J ^CHAPTER VII. OF THE PARTIAL EXECUTION OF A CONTRACT, WHERE A VENDOR HAS NOT THE INTEREST WHICH HE PRETENDED TO SELL ; AND OF DEFECTS IN THE QUANTITY AND QUALITY OF THE ESTATE. SECTION I. WHERE THE VENDOR HAS NOT THE INTEREST WHICH HE SOLD. 3. 5. 10. 11. 12. 14. 17. 19. 22. 26. 27. 28. 29. 31. 32. Sale of lease for more years than seller has. Poicer of redemption not stated. Small deficiency of term : sale good in equity. Underlease sold as original lease. Whether purchaser of old lease bound to take a neio one. Or a seller to underlease tcho sold the whole lease. Rent and interest on sale of lease- holds. Purchaser of freehold not boiaid to take leasehold. Nor copyhold. Acquiescence by purchaser. Purchaser not bound to take less than the entirety. Of two'sevenths not bound to take one-seventh. But may elect to do so. Unless condition to the contrary. Reversionary interests not forced tipon purchaser of possession. Purchaser' s right against the seller. 31. Dale v. Lister, 35. Milligan v. Cooke. 36. Indeinnity not compelled. 38. Contract upon mistake of interests. 39. Lawrenson v. Butler. 41. Sale by tetiant for life, Sgc. not par- tially enforced agahist purchaser. 43. Lord Eldons opinion of purchaser's right against seller. 44. Thomas v. Dering, right denied. 45. Observations on it. 46. Effect of expenditure by purchaser. 47. Misrepresentation by purchaser. 48. Void lease. 49. Rights incapable of compensation. 50. Acquiescence by purchaser. 51. Right of common not disclosed. 52. Limited right and unlimited sold. 53. Sheep-ioalk represented as freehold, 54. Right to dig mines. 55. Charge of repairs of chancel. 56. Fee-farm rent : at late. 57. Quit-rent : in equity. 58. Rent charge : in equity. 63. Quit-rents less than stated. 1. A GENERAL agreement to sell a property means a sale in fee simple, and the Court will not infer that a term of years only is sold on account of the smallness of the price (a). Where a person sells an interest, and it appears that the interest which he [*339i (a) Hoighes v. Parker, 8 Mees. & Wels. 244. WHERE SELLER HAS A LESS INTEREST THAN HE SOLD. 399 pretended to sell was not the true one ; as, for example, it was for *a less number of years than he had contracted to sell, the pur- chaser may consider the contract at an end, and bring an action for money had and received, to recover any sum of money which he may have paid in part performance of the agreement for the sale (1) : and the vendor offering to make an allowance pro tanto, will make no difference ; it is sufficient for the plaintiff to say, it is not the interest which I agreed to purchase (h). 2. But in a late case (c) at nisi prius, where the agreement was to sell " the unexpired term of eight years' lease and good will," he. and it appeared that, at the date of the agreement, the unex- pired term in the lease was only seven years and seven months, Lord Ellenborough said, that the parties could not be supposed to have meant that there was the exact term of eight years unexpired, neither more nor less by a single day. The agreement must, there- fore, receive a reasonable construction, and it seemed not unrea- sonable that the period mentioned in the agreement should be calculated from the last preceding day when the rent was payable, and including, therefore, the current half year. Any fraud or material misdescription, though unintentional, would vacate the agreement, but the defendant might here have had substantially what he agreed to purchase. 3. Where a particular described the subject of sale to be an annuity of so much, payable out of the tolls of Waterloo Bridge, the Court considered that the purchaser would make some inquiry as to the annuity : but as the Bridge Act did not speak of any power to redeem the annuities to be granted, and the annuity was made subject to redemption, it was held that the contract was not binding on the purchaser ; and the Court was of opinion, that sellers should be strictly bound to disclose the real nature of the subject of the contract (d). 4. But, notwithstanding that vendor has a different interest to what he pretended to sell, equity will, in some cases, compel the purchaser to take it. (6) Fan-er v. Nightingale, 2 Esp. Ca. See also Duffell v. "Wilson, ib. 101 ; and 639 ; and see Ileam r. Tomlin, Peake's see infra. Ca. 192 ; Thomson v. Miles, 1 Esp. Ca. Ct)"Behvorth r. Ilassell, 4 Camp. Ca. 184 ; Mattock v. Hunt, 11. R. 15 Feb. 140. 1806 ; Ilibbert v. Shce, 1 Camp. Ca. 113. (r/) Coverley v. Burrcll, M. T. 1821. B. 11. MS. (1) See GiUett v. Maynard, o Jolui. So ; Lyon r. Annable, 4 Conn. 3.50 ; Putnam ». Westcot, 19 John. 73. [*340] 400 SALE or ORIGINAL OR UNDER LEASES. 5. Thus, although the vendor may not be entitled to the estate for the number of years which he contracted to sell, yet, if the deficiency were not great, equity would certainly decree a per- formance of the contract at a proportionable price (e) (1). *6. Lord Thurlow used to refer this doctrine of specific perform- ance to this, that it is scarcely possible that there may not be some small mistake or inaccuracy, as that a leasehold interest repre- sented to be for 21 years, may be for 20 years and nine months; some of those little circumstances that would defeat an action at law, and yet lie so clearly in compensation that they ought not to prevent the execution in a court of equity (/) (2). 7. But if the number of years be considerably less than the vendor pretended to sell, equity, so far from interfering in his favor, will assist the purchaser in recovering any deposit which he may have paid. 8. Thus, in Long v. Fletcher (g), A pretending he had a term of sixteen years to come, in a house, agreed to sell it to B, and B paid 100/., part of the consideration money, down. B entered, but finding that A had only a term of six years in the house, brought his bill to have an account, his money refunded, and the bargain set aside ; and accordingly B was decreed to account for the profits, and the consideration money to be refunded, and B, upon his own account, to have tenant allowances made him. 9. So the purchaser will not be bound, as we have seen, where the probable duration of the interest is misrepresented, although it be in its nature an uncertain one ; as where the property being held for life, the life was represented as a very healthy one, although the sellers had recently insured it at a premium exceeding the highest rate for a healthy life of that age : the seller's bill was dismissed with costs (A). 10. So, if a purchaser contract for what is stated to be an (e) See Guest v, Homfray, 5 Ves. jun. (/) Per Lord Eldon, 10 Yes. jun. 30o, 818 ; and see IlaiiRer v. Eyles, 21 Yin. 306. Abr. (A.) pi. 1 ; 2 Eq. Ca. Abr. G89 ; see (g) 2 Eq. Ca. Abr. 5. pi. 4. also 10 Yes. jun. 30(5 ; 13 Yes. jun. 77. (A) Brealey v. Collins, You. 317 ; Tur- ner V. Harvey, Jac. 169, supra, p. 312. (1) See Fonbl. Eq. B. 1, Ch. 6, ^2 note (e) ; Ch. 3, §9, note (i) ; Ch. 2, §7, note (v.) ; Reynolds v. Yanee, 4 Bibb, 215 ; Hepburn v. Auld, 5 Cranch, 278 ; 2 Story Eq. Jur. §777 ; King v. Bardeau, 6 John. Ch. 38 ; C'liinn v. Heale, 1 Munf. G3 ; Buck v. M'Caughtry, 5 Monroe, 230 ; 2 Kent (Cth cd.) 475 ; Soule v. Heerman, 5 Miller (Louis.) 358. (2) Craven r. TickcU, 1 Sumner's Yesey, 60 in note (a) ; Calverley v. WlUiams, ib. 210, in note (a) ; 1 Story Eq. Jur. §141 ; 2 ib. §777 ; Wecms v. Bre-n-er, 2 Harr. & GiU, 390; Evans v. Kingsbury, 2 Randolph, 120. [*341] SALE OF ORIGINAL OR UNDER LEASES, 401 original lease, and it turn out to be an underlease for the whole term, wanting a few days, it should seem that equity would not compel the purchaser to perform the contract. It is impossible, from the nature of the thing, to make any compensation for the reversion outstanding, and yet it may become very valuable ; and it is of great importance to a purchaser of a lease not to have any third person stand between him and the owner of the inheritance. 11. So, it is said, that a purchaser of an existing lease is not bound to take a new lease instead of the old one, because the pur- chaser would become an original lessee instead of an assignee, and might therefore be subject to burdens to which he would not have been liable in the latter character (i). 12. Generally speaking, where the seller has not the whole in- terest *which he sold, the purchaser may elect to take the interest which the seller has with a compensation (1) ; yet it seems that equity will not decree an under-lease on an agreement to assign, though it appear that the assignment cannot be made without a for- feiture ; for the seller, in agreeing to assign, might intend to dis- charge himself from covenants to which he would continue liable by the under-lease (_;*). This is, however, a defence which a vendor can seldom set up against a purchaser's claim, where the pur- chaser chooses to accept an under-lease ; for an assignee of a lease almost invariably covenants to indemnify his vendor from the rent and covenants in the lease, and from these covenants he cannot of course discharge himself by an assignment, any more than by an under-lease. 13. It frequently happens that a contract for a leasehold estate is not carried into execution at the time appointed, and the vendor continues in possession. The estate, of course, daily decreases in value, and a question constantly arises, whether the purchaser shall be compelled to pay the full price originally agreed to be given for the estate, or what arrangement shall be made between the parties. 14. In a case where two years of the lease, which was only for seven, had elapsed, the Court said they could only decree specific performance of the same contract, not of a different one. They could not make a new contract for a different sum, by apportioning (0 Mason v. Corder, 2 Marsh. 332. to 1 Trea. Eq. 211, 2d edit. See Mason U) Anon. E. T. 1790 ; Fonbl. n. (r), v. Corder, 2 Marsh. 332. (1) See Post, 359. Vol. I. 51 [*345>] 402 LEASEHOLD OR COPrHOLD NOT TO BT!: the price according to the time which had yet to run (k). It does not apperir who was in i^ossession , Rnt in a modern case (/) . where this point arose, the Master of the Rolls said, the reasonable- course which l)e should adopt was, that for the lime elapsed before the execution of the agreement, in consequence of the pendency of the suit, interest should be paid by the purchaser,, and a rent should be set upon the premises in respect of the possession cS the- vendor. This rule at once provides for the interest &f both parties, and accords with the maxim of equity, by which that which is agreed to be done, is considered as actually perfonned. The purchase- money, from the time of the contract, belongs to the vendor, who" is entitled to interest on it while it is retained by the purchaser. The estate from the same time belongs to the purchaser, who is en- titled to a rent for it while it is occupied by the vendor (1) *15. In the cases hitherto considered, the tenure was still that sold, viz. leasehold, although for a less term,, or held differently from the interest pretended to he sold. 16. But a purchaser having bought an estate of one tenure, is not bound to accept it if it prove to be of another. 17. Therefore a purchaser will HOt be compelled to take a lease- hold estate, for however long a term it may be holden, where he has contracted for a freehold (I). Lord Alvanley expressed a clear opinion upon this point (m), and it was afterwards expressly de- termined by Sir Wra. Grant in a case (n) where the vendor was- entitled to a term of 4,000 years vested in a trustee for him, and also to a mortgage of the reversion in fee expectanit »pon the term which was vested in himself and forfeited, but not foi-eclosed. The persons claiming under the mortgagor of the reversioa refused to release, and thereupon the bill was dismissed.. 18. So where the seller agreed to sell the fee simple of an estate {k) King V. Wightman, 1 Anstr. 80 ; 226. there had been a decree by consent {») Drewe v. Corp, 9 Ves. jun. 3fi8. which the Court could not rehcaj ; Fen- lib. Keg. 1803, foK 2ft0. The Kegis- ton V. Browne, 14 Ve.s. jun. 144 ; see trar's book appears to have been again the prayer of the cross bill. referred to for this case, 1 Sim. & Stu. (/) Dyer c Hargrave, 10 Ves.jun..'iOo. 201, n. ; and sco 13 Vc-i. iiui. 78 ; Bar- l>n) See 2 Bro. C. C. 497 ; 1 Ves. jun. ton v. LordDownies, 1 Flan. & Kcl. 505. (I) As to making a title formerly by feoffment and assigning the term to a trus- tee, see Saunders v. Lord Anneslev, 2 Scho. & Lef. 73 ; Doe r. liVncs, 3 Barn. & Cress. 388 ; 5 Dowl. & Ryl. 160 ;" Doe y. Pitt, 11 Adol. & Ell. 842 ; and now a feoftment has no tortious operation, 7 & 8 Vict. c. 76, s. 7 ; 8 & 9 Vict.>;. 106, s. 4 (1) See aiitCv 191. [*3431 ■StrBSTITtTTED TOR i^REEHOLB. <4'03 with some rights of water, and he had only a lease for 99 years of some of the rights, a specific performance against the purchaser was refused (o), 19. Neither is a purchaser compellable to accept a copyhold estate in lieu of a freehold ( p) (I), 20. But if an estate is sold as copyhold, and represented as equal in value to freehold, it seems that the vendor will be com- pelled to perform the contract, although the estate prove to be -actually freehold (5-). If, however, the contract for the sale of a supposed copyhold, stipulate that the sale shall be void if any part is freehold, the s-jbject must be proved as described ; and the cir- cumstance *of the seller himself, after the first contract, selling the estate to another as copyhold, is not conclusive evidence against him (r). 21. There is a singular case in the books (5), where, amongst other townlands, the lands of Ballyknockan, containing TOO acres, were put up to sale as land subject to a fee-farm grant of 100/. per annum, whereas the seller's titk was to a fee-farm rent of that amount issuing out of those lands, and it was contended that the sale being of land subject to a fee-farm grant, it was to be con- sidered as a rentcharge, chargeable on the other lands sold, and that the purchaser ought to be compelled to accept compensation. The argument proves how impossible it was to maintain the claim. For the purchaser bought the lands subject to a rentcharge, and the seller had not got them, but had a rentcharge issuing out of them. There was therefore no charge to throw upon the other lands ; but the question simply was, whether a man having pur* chased a fee simple estate, subject to a perpetual rentcharge, could be compelled to take the perpetual rentcharge instead of the estate itself; and of course it was held that he could not. The lands were adjoining to other property belonging to the purchaser, and (0) Wright V. Howard, 1 Sim. iS; Stu. 326 ; and see Browne v. Fenton, sup. p. l!)0. 3. (p) See Twinin}^ 1-. ^lorrico, 2 Bro. C. (r) Daniels v. Davison, 16 Ves. jun. C. .•526 ; and Sir Harry Hick v. ThUips, 249. Prec. Cha. .575. (s) Prendcrgast v. Eyre, 2 Ilogan, 81. (5) Twining v. Mortice, 2 Bro. C. C (1) In the case of Sir Harry Hick v. Philips, on account of the unreasonable price at -which the c.-itate vfas sold, a specific performance was refused, although the vendor offered to procure an enfranchisement of the copyholds. See 10 Mod. 601. But this case (jannot bo considered as an authority, except on the ground of the price being unreasonable, for equity will in ordinary cases grant the ven- dor time t(» procure the fee. See sujjra, ch. 5. [*3441 404 purchaser's acquiescence. he desired to possess them, hut without that circumstance he Imd a clear right to rescind the sale. 22. If a vendee proceed in the treaty for purchase after he is acquainted with the nature of the tenure, and do not object to it, he will be bound to complete his contract, and cannot claim any compensation on account of the difference in value (1). 23. Thus, where an estate was sold as freehold, with a leasehold adjoining (t), and it turned out on examination that sixty-two acres were leasehold, and only eight freehold ; yet, as the purchaser pro- ceeded in the treaty after he was in possession of this fact, and did not object to the nature of the property, he was held to have waived the objection. 24. And if a purchaser do object to the tenure, yet, if he proceed in the treaty, it seems that he will be compelled to take the estate, on being allowed a compensation (u). 25. In the case of Wirdman v. Kent (y), upon a bill filed by vendors for a specific performance, it appeared that part of the lands sold to the purchaser had been previously sold to one Pavey ; a specific performance was however decreed, and, as to the lands *terriered to the defendant, but which had been sold to Pavey, it was ordered that the plaintiffs should procure Pavey to release them to the defendant, or convey a like quantity of land of equal value to the defendant. The particular circumstances of this case do not appear in the report ; but it must be presumed, that the land sold to Pavey was not the object of the purchaser ; and that other land in the neigh- borhood, of equal value, would suit him as well. Indeed, in one report of this case (x), it is said that the grievances complained of were disregarded as frivolous. 26. Although there be no misrepresentation as to the tenure of the estate, yet if the seller has not the entirety of the estate sold, he cannot compel the purchaser to accept at a proportionate price the shares which he actually has in the estate. And the rule is the same if the entirety is sold by several who are entitled to it amongst them in aliquot shares. Therefore if a man contract with tenants in common for the purchase of their estate, and one of them die, (OFordyce v. Ford, 4 Bro. C. C. 494; («) See Calcraft v. Roebuck, 1 Vcs, and see 6 Ves. jun. G70 ; 10 Vcs. jun. jun. 221. 508 ; BurneU v. Brown, 1 Jac. & Walk. (v) 1 Bro. C. C. 140, 168. {x) 2 Dick. 594.' (1) Craddock v. Shirley, 3 A. K. Marsh. 288. 1*345] purchaser's right to shares or partial interests. 405 the survivors cannot compel the purchaser to take their shares, unless he can obtain the share of the deceased (y). 27. And in a case where under a decree a person purchased two- sevenths of an estate in one lot, and a good title was made to one seventh only, the purchaser was allowed to rescind the contract as to the whole of the lot (2;). 28. But the converse of this proposition does not hold good, for the purchaser may compel the survivors in the case before put to convey their shares to him, although the contract cannot be exe- cuted against the heir of the deceased (a), for a purchaser generally, although not universally, may take what he can get, with compen- sation for what he cannot have (b). 29. But where an agreement stipulated that errors in the descrip- tion should not vacate the agreement, but a reasonable abatement or equivalent should be made or given, as the case might require ; with a further stipulation that if the purchaser's counsel should be of opinion that a marketable title could not be made, the agreement should be void and delivered up to be cancelled ; and it appeared by such counsel's opinion that a title could be made to only two thirds of the property; notwithstanding which the purchaser filed a bill for a specific performance with an abatement, his bill was dis- missed with costs. The Court thought that as the above-mentioned stipulation was the contract of both parties, it could not make a *nevv contract for them. They had stipujated, that in a given event, which had happened, the agreement should be void (c). The con- dition however hardly seemed to apply to the want of title to one- third of the property. 30. Cases, however, of much greater difiiculty occur where the question turns not upon the length of the term or the nature of the tenure, or the want of title to the entirety, but where the seller, although he is interested as he represented in the entirety, yet has but partial and different interests from those which he represented. In general a purchaser cannot be compelled to accept such interests. 31. Thus, if the estate be represented as a fee-simple in possession, and it turn out to be only a remainder expectant upon a life interest, however advanced in life the tenant for life may be, the contract (y) Attorney-general c. (fowcr, 1 Yes. (a) Attornoy-gcn. r. Gowcr, 1 Yes- 218. " 218. (z) RoiTcy V. Shallcross, 4 Madd. 227 ; (,b) Per Lord Eklon, 1 Yes. & Boa. Balby v. rullcn, 3 Sim. 29 ; Casumajor 353. 1-. Strode, 2 Mvl. &; Kqc. 72G. (c) Williaiiia r. Edwarde, 2 Sim. 78. l*346J 406 purchaser's right to part. cannot be enforced against the purchaser (cl.). And, indeed, the same observation would apply to any existing lease where the pur- chaser has contracted for a vacant possession. 32. But we may observe, that in every case where an agreement would be in part executed in favor of a vendor, there is much greater reason to artbrd the aid of the Court at the suit of the pur- chaser, if he be desirous of taking the part or interest to which a title can be made. And a purchaser may, in some cases, insist upon having the part of or interest in an estate to which a title is produced, although the vendor could not compel him to purchase it ; it is true, generally, but not universally, that a purchaser may lake what he can get, with compensation for what he cannot have (e). 33. If, Lord Eldon observed, a man having partial interests in an estate, chooses to enter into a contract, representing it, and agreeing to sell it, as his own, it is not competent to him after- wards to say, though he has valuable interests, he has not the en- tirety ; and therefore the purchaser shall not have the benefit of the contract. For the person contracting under these circumstances is bound by the assertion in his contract : and if the vendee chooses to take as much as he can have, he has a right to that, and an abatement (/)(1). Upon another occasion ("•) Lord Eldon said, that no one could dispute the proposition, that if a man agrees to sell me an estate in fee simple, and cannot make a title to the fee simple, i can insist upon his giving me all the title he has ; he cannot *say he will give me nothing, because he cannot give me all I have contracted for. If he contracts to sell a fee simple, and has only a term of 100 years, I have a right to that term if t think fit (2). 34. Therefore in a case where the estate was sold for twenty-one years, and represented as held under a church*lease, usually renewed every seven years, and it appeared that the seller was only entitled for lives to part ; the jncrchaser filed a bill for a specific perform- ance, with a reduction. The seller insisted that the purchaser might (d) Collier i\ Jenkins, You. 29.5. down by bis Lordship in Wood v. Grif- (e) See 1 Yes. & Beam. :i.y.i ; Western titli, 12 "Feb. 1818 ; and see 2 Yes. jun. V. llussell, ii Yes. & Beam. 187 ; Wheat- 139, ucc. per Lord Rosslyn. iev V. Slade, 4 Sim. I'lC. (;/) Wood v. Griffith, 1 Wils. Cha. Ca. '{/) JV Lord Eldon, 10 Yes. jun. 31.5, 44 ; S. C. MS. 316, 318. The same doctrine was laid (1) Sec McKay v. Carrington, 1 M'Lean, 64. (2) Watcr.s r. Travis, 9 John. 4-50, 404, 4 Go ; Yoorhccs v, De Meyer, 2 Barbour Sup. Ct. 37 ; Hepburn v. Auld, 5 C'ranch, 262 ; Chinn v. Heale, 1 Munf. 63 ; AYestetvelt y. Matheson, 1 Hofl'. Ch. Hep. .'i7 ; Morss v. Elmendorf 11 Paige, 277 ; Jones v. Shackleford, 2 Bibb, 411 ; Fisher v, Kay, ib. 434 ; Step v. Alkire, 2 A. K. Marsh. 259 ; Ilankiu v. Maxwell, ib. 494. PURCHASER S RIGHT TO PART, 407 have an option to put an end to the contract, but that he (the seller) ought not to be compelled to take less than the stipulated price. The decree, however, was for a specific performance, with a reduction of the purchase-money, the interest of the seller beino- less valuable than it had been represented to the purchaser (A). Lord Eldon has since observed, that the consequence of this deci- sion was, that if the lives should endure beyond the period of twenty- one years, the purchaser would have the premises as well as the compensation. In that respect the case was new, and deserved great consideration. He added, that in a conversation which he had with the Master of the Rolls, they inclined to think it might be right upon this reasoning, that the estate was purchased subject to a contingency affecting its immediate value ; he could not carry it to market, he could do nothing with it that would make it abso- lute property in him as if he had an absolute term of twenty-one years ; but as the compensation might be aggravated enormously, beyond the actual value, so it might be much too small, and the Court would throw the chances together. The only other course was to adopt the pi-inciple of indemnity, either by taking security, or laying hold of part of the purchase-money, with a view to com- pensation if the case should arise, and that was open to this diffi- culty, that the property held subject to the question of indemnity remains unsaleable, unmarketable, and of infinitely less value than it would otherwise be. 35. In a later case (i), upon a sale of leasehold for lives, the representation of the seller was held to amount to this : that the lessee thereof upon lives, under a church lease, granted the lease in question, with covenants, binding his real and personal repre- sentatives to procure renewals to make the complete term sold. It appeared, however, that the covenant to renew was limited, and not binding to the extent mentioned, the estate being in settlement, and the covenants not general. The purchaser filed a bill for a specific *performance, with an allowance. In effect the difference was be- tween a covenant by the lessor binding all his assets real and per- sonal, and a covenant which only bound that property which the lessor might permit to go from him to his son, who would be en- titled to the property under the settlement. I>ord Eldon felt groat doubt whether that could be made the subject of a valuation. The purchaser, however, only desired an indemnity upon a real (A) Dale v. Lister, IG Yes. jun. 7, cL- Kee. G2'J ; a singulai- case, ted; Hanbury v. LitcMcld, 2 Mvl. & (i) Milligan i-. Cooke, 16 Ves. jun. 1. [*348] 408 PARTIAL INTERESTS. estate ; ro by part of the purchase-money to be kept in Court, the sellers receiving the dividends. The Lord Chancellor decreed a specific performance, and directed an inquiry what was the differ- ence between the value of the interest actually sold, and that represented, and such difference to be deducted from the purchase- money ; and if the Master should find that he was unable to ascer- tain such difference in value, or if the purchaser should choose to take the title with a sufficient indemnity, he might, and the decree was affirmed upon a rehearing. He said, that if it could be the subject of immediate compensation it ought ; if not, the purchaser would be entitled to all that he could have, certainly, with a deduction in respect of what he could not have, throwing back the benefit of the covenants to the vendor ; or he might have the benefit of the covenants, and an indemnity against those who could claim under the settlement against his engagement. 36. But Lord Eldon himself, in another case, laid it down gener- ally, that the Court can neither compel a purchaser to take an indemnity nor a vendor to give it (k) ; and it seems to be difficult to maintain that an indemnity ought to have been enforced in either of the cases above quoted. 37. And where, by an agreement, the title was to be made out to the satisfaction of a person named, upon a general reference to arbitration, which was to settle all questions between the parties, and the arbitrator awarded the seller to convey to the purchaser the title contained in the abstracts, and the seller to execute a bond of indemnity to the purchaser, to secure him against eviction by reason of any defect in the title, the award was set aside as not being final, and being an excess of authority (I). 38. It has been determined by Lord Redesdale, that where at the time of the contract, the purchaser is fully aware that the vendor cannot execute the agreement, and, consequently, cannot enforce the performance of it ; there the agreement must be pre- sumed to have been executed under a mistake, and the purchaser *cannot insist upon a performance as to the interest to which the vendor may be actually entitled (jn). 39. And in a case where a tenant for life, with a power of leasing for twenty-one years at a rack-rent, agreed to execute a (k) Uiilmanno v. Liiraloy, 1 A'es. & (wi) Lawrence v. Butler, 1 Scho. & Beam. 22o ; Baton ». Brebner, 1 Bligh, Let". 13; see Mortlock r. Buller, 19 Ves. GG ; infra, eh. 10. jun. 292 ; Colyert). Clay, 7 Beav. 189. (/) Koss r. Boards, 3 Nev. & Per. 382. [*349] CONTRACT UNDER A MISTAKE. 409 lease for twenty-one years, and a further lease for t\yenty-one years at any time during his life, consequently to execute a lease for twenty-one years, whatever might be the increased value of the property at the time the lease should be granted ; Lord Redesdale considered it a contract to act in fraud of the power, and that the lessee was not entitled to a specific performance. To obviate this objection, the lessee offered to take a renewed lease for twenty-one years, if the lessor should so long live ; but Lord Redesdale thought that this was one of those cases where the plaintiff had no right thus to qualify the contract he insisted upon : there was nothing in the case to show that satisfaction in the form of damages was not an adequate remedy for him. If he had been put into a situation from which he could not extricate himself, the defendant might be called on to make the best title in his power ; but nothing could be more mischievous than to permit a person who knows that another has only a limited power, to enter into a contract with that other person, which, if executed, would be a fraud on the pow er, and when that was objected to, to say, "■ I will take the best you can give me." A court of equity ought to say, to persons coming before it in such a way, " make the best of your case with a jury (n) (1)." 40. It should be observed that there was another point in the above cause, and the decree was pronounced after considerable doubts. It seems difficult to reconcile the opinion expressed by Lord Redesdale with the current of authorities. It was not a neces- sary consequence of the contract that the lease agreed to be granted would be a fraud on the power, and the purchaser was willing to take the interest which the seller was enabled to grant without risk to himself or injury to the remainder-men. 4L Where an estate is in strict settlement, a tenant for life, with, for example, an ultimate remainder in fee, selling, as the owner of the fee, to a person ignorant of the state of the title, of course could not compel the purchaser to take his partial interest with a compensation. 42. And we have seen that if such a person contract to sell, not as owner, but merely as agent for the trustees, and the contract could not have been enforced against the trustees, it cannot be *carried into execution against the tenant for life, although by the (») Ilarnet v. Yielding, 2 Scho. & Lef. 5-i9 ; vide trifra, eh. 8. j\ (1) See Graham v. Hendren, 5 Munf. 183. Vol. 1. 52 [*3501 410 SALE BY TENANT FOR LIFET happening of events he himself has hecome entitled to the fee in possession (o). 43. Bh-iI the rule laid down by Lord Eldon, which has already been referred to, was intended to express his opini>on, that where in such a case the tenant for life was the party really contracting, he was bound, at the election of the purchasePy to convey to him all the interest he had in the estate at a proportionate price. 44. This, however, was ruled otherwise in a late case at the Rolls (p), where the tenant for life, under a settlement, with fuli knowledge of the nature of his title, entered into a contract for sale of the estate as owner by letters to a purchaser who was igno- rant of the title, and then desired to withdraw froin the contract, and the trustees, in whom a power of sale was vested, refused to adopt the contract ; the purchaser required the seller to convey to him his estate for life, which was without impeachment of waste, and his reversion in fee after an estate tail in his son, but this was refused. The Court observed, that without derogation in any respect from the jurisdiction, it was apparent that the Court would not in every case compel a vendor to convey such estate as be could. And upon the general principle that the Court will not execute a contract, the performance of which is unreasonable, or would be prejudicial to persons interested in the property, but not parties to the contract, the Court,^ before directing the partial exe- cution of the contract, by ordering the limited interest of the vendor to be conveyed, ought to consider how that proceeding might affect tile interests of tlx>se who were entitled to the estate, subject to the limited interest of the vendor. The vendor had a life estate without impeachment of waste, with remainder to his sons in tail male, and having regard to the settlement, and the protection in- tended to be afFovded to the objects of it (I), — conceiving that the consequence of a partial execution of this contract might be preju- dicial to those objects, seeing the difficulty of ascertaining, u|x>n satis- factory grounds, the just amount of abatement from the purchase- money, — (for it was more easy to compute a just comi')ensation where it is to be given for the delect in the quantity or the quality of the land sold, than where it is to be given for the deficiency of the vendor's interest) — and considering also that nothing had been done upon the contract, so that the purchaser, though suffering (o) Mortlock V. Buller> 10 Yes. jun. (p) Thomas v. Dering, 1 Kee. 729. 292 ; vide supra, p. 241, pi. 48. See Graham v. Oliver, 3 Beav. 124. (I) See the substitution for recoveries &cty post, eh. 11» s. 4. AS OWNER OF FEE. 411 I'fte disappointment of not making himself the owner of an estate *he desired to possess, had sustained no damage for which com- pensation might not be given by a jury, it appeared to the Court that a conveyance of the vendor's hfe estate and ultimate reversion to the purchaser ought not to be decreed. 45. There is no doubt great difficulty in these cases ; but in the case just referred to, no circumstance existed on the part of the purchaser upon which relief could be refused to him against the seller. It was not denied that the seller was bound by the con- tract, and he took advantage of the state of the title to avoid the specific performance of a contract which he had entered into with full knowledge that he could not bind the whole fee, although the purchaser was net aware of the circumstance, and the seller even concealed for a time the objection made by the trustee to adopt the sale. Nor if the seller, according to the general rule, was bound to convey what interests he could at a proportionate price, did the difficulty of valuing those interests afford any solid objection to the relief. The estate for life was without impeach- ment of waste, and the purchaser, no doubt, might sell the timber, but the Court ought not, it is conceived, in such a case to look at the interests of the tenant in tail, nor indeed could it protect them ; for the tenant for life might fell the timber, or sell his life estate, with the right to cut it the next hour, and equity could not refuse to perform such a contract, however injurious it might prove to the tenant in tail. Indeed, in this case the timber was not of large value, and the tenant for life, pending the suit, em- ployed workmen to cut it, although of course he was stopped by injunction upon the purchaser's application. If a tenant for life iona fide apprehending that the trustees of the settlement will adopt his contract, sell, meaning only to concur in a sale of the fee, that might be a good defence in equity against a partial execution of the contract by the tenant for life alone. But such sales, where the settlement is concealed, deserve no favor, for there is no mutuality; the trustees, by their election, may force the j)urchaser to complete, although he cannot compel them to join, and they are loo frequently mere instruments in the hands of the tenant for life, who procures them to concur in the sale or reject it, just as best suits his ov/n views. 46. If in a case of this nature, the purchaser, on the faith of the agreement, put himself in a situation from which he cannot extricate himself, and is therefore willing to forego a part of his [*35I] 41*2 MISREPRESENTATION BY PMRCHASEK. agreement, that is a circumstance to induce a court of equity to give relief. Thus, in a case before Lord Thurlow, the incumbent of a living had, with full knowledge of the title, contracted with the tenant in tail, in remainder after a life estate, for the purchase *of the advovvson, and on the faith of that agreement had built a much better house than he would otherwise have done ; the tenant for life would not join in suffering a recovery, and consequently a good title could not be made. Lord Thurlow held, that as the pur- chaser had, upon the faith of the contract, built a good house on the glebe, he ought to have the utmost the vendor could give him ; and therefore directed the vendor to convey a base fee, by levying a fine with a covenant to suffer a recovery whenever he should be enabled to do so by the death of the tenant for life (q). 47. But if there have been misrepresentation on the part of the purchaser, he cannot insist upon having the estate, although he is willing to take subject to the outstanding interests. This is the case of Clermont v. Tasburgh (r). Upon a treaty foran exchange, Clermont informed Tasburgh that the tenants of the latter were agreeable to the exchange, and thereupon the agreement was made, which stipulated for possession on both sides. It appeared upon a bill filed by Clermont that the tenants had not consented. Tiie bill sought that Tasburgh should buy out his tenants, or that the value should be proportionably reduced. The opinion of the Court being against the plaintiff, he offered to waive the part of the con- tract which stipulated for possession, and not to require the tenants to be bought out. But this was denied to him, because, as the contract was obtained by misrepresentation, it was void both at law and in equity. When an agreement is obtained by fraud, the effect is not to cut it down or modify it only, but it vitiates it in toto, and the party who has been drawn in is totally absolved from obligation. 48. If the vendor has granted a lease of the estate, which is void by force of a statute, the Court will not on the request of the pur- chaser consider the lease as valid, and allow him a compensation in respect of it (5). 49. There are some rights which, although in themselves of small value, are incapable of compensation, and therefore, if undis- closed, vitiate the contract ; for example, a right of sporting reserved over the estate, for it would not be possible to estimate (q) Lord Boluigbroke's case, cited 1 (r) 1 Jac. & Walk. 112. Scho. & Lef. 19, n. (a). (s) Morris v, Preston, 7 Ves. jun. 517. 1*3521 RIGHTS OP SPORTING, OF COMMON, ETC. 413 what difference in value such a reservation made (t), and such a right would break in too much upon the enjoyment and ownership of a purchaser, to enable equity with propriety to compel him to take the estate with a compensation. 50. But a purchaser in this, as in every other case, may by his ^conduct, after having notice of a charge like this, which is a per- manent one, waive his right to object to it, and even leave himself no right to a compensation (ii). 51. It is a fatal objection at law, that an enclosed estate is sub- ject to a right of common every third year, which was not noticed in the contract (x) ; and equity, it is apprehended, would not hold it to be a subject for compensation against a purchaser, although he might be allowed to take the estate with a compensation. 52. But where an estate was sold with a representation in general terms that the purchaser would have an unlimited right of common, whereas it appeared that the right of common was limited to sheep only, that was held to be a subject for compensation (y). 53. But a seller cannot represent the estate as his freehold, and then require the purchaser to take what in effect are nothing but sheep-walks (r). 54. A right to dig for mines not disclosed v.'ould be a ground to set aside the contract at the instance of tiie purchaser (a). But where the purchaser does not object to the title on this ground, but insists upon a specific performance with a compensation, it will be decreed (b). 55. If the estate be liable to repair the chancel of a church, the purchaser, if he bought without notice of that liability, would not, it seems, be compelled to perform the contract with a compen- sation (c). 56. And where a house was sold by auction and no notice was taken of a fee-farm rent of 5s. 4d. charged upon that and upon other property of very great value, the purchaser brought an action for breach of contract, and Sir Vicary Gibbs for the vendor, the defendant, declined arguing the point (d). (<) Bumcll ti. Brown, 1 Jac. & Walk. (b) Seaman i-. Vauclry, 16 Vcs. jun. 168. 390. (u) S. C. see 2)ost. (c) See Forteblow v, Shirley, 2 Swanst. (x) Gibson r. Si)urricr, Pcakc's Add. 22:5, cited. This is evidently Ilorniblow Cas. 49 ; as to footways, hoc post. r. Shirley, 13 Ves. jun. 81 ; sec cL. 10, (y) Ilowlundr. Norris, 1 Cox, 59. s. 2, post. (:) Vancouver v. Bliss, 11 Ves. jun. (d) Turner c. Bcaurain, Sitt. Guildh, 458. cor. liord EIlcnborou 61. Tiiis was going a great way, and it has been justly observed, that no case is to be found where this doctrine of compensation has been applied beyond rentcharges of small amount (o-). 62. And as a general rule — if it admit of any exceptions, it must be in a rare case — the Court will not, as we have seen, compel the purchaser to take an indemnity, nor the vendor to give it (A). But this subject will be resumed when we come to the consideration of the title to which a purchaser is entitled. 63. Where the benejit of quit-rents is sold, a mistake in their amount will not be material. In Cuthbert v. Baker (i) the quit- rents of a manor were stated in the particulars of sale, to be 2/. a year, and they amounted to only 305. a year ; but a specific per- formance was decreed, and it was referred to the Master to ascer- (e) Esdaile v. Stephenson, 1 Sim. & Portman v. Mill, 1 Russ. & Myl. 696. Stu. Vl-li, Bowles V. Waller, 1 Ilavcs, (/*) See 1 Yes. & Bca. 225ypost,iih, 10, 411. " s. 2. (/) Ilowland v. Norris, 1 Cox, .59. (/) Reg. Lib. A. 1790, fol. 442. (//) Prendergast v. Eyre, 2 Hog. 9 1 : WHERE SELLER HAS NO TITLE TO PART. 415 tain what compensation should be allowed for the deficiency : and a mistake in the amount of quit-rents charged on the estate sold would be equally a subject of compensation. *SECTION II. or WANT OF TITLE TO A PART OF THE ESTATE. 1. Mistake as to ichat is sold. 3. Want of title to part fatal at law. 17. 4. Separate valuations. 5. Enforced partially against purchaser 20. where part small. 22. 6. Sale of house and wharf. 25, 7. Opinions upon it. 27, 8. I^'Ot binding on purchaser ichere por- 28, tion large. 31. 9. Feefann rent. 34. 11. Purchaser's right against seller ichere no title to large part. 35. 13. Wheatlvy v. Slade. 40. 14. Observations upon it. 41. 15. Mutual contracts. 42. 16. Lease containing more than is held xmder it. Sale in lots good as to those with title. Unless complicated toith the rest. Rule acted upon at lata. 31. Lord Kenyons doctrine. 29, 30. Lord Eldon's. 29. Lord Brougham's. The present rule. Where tlie seller has not all the tithes he sells. Where tlie estate is not tithe free. Counmutaiion of tithes by statute. Land-tax and tithe-rent charge. Purchaser s right bound by his con- duct. 1. If a purchaser of an estate thinks he has purchased bona fide a part which the vendor thinks he has not sold, that is a ground to set aside the contract, that neither party may be damaged ; because it is impossible to say, one shall be forced to give that price for part only which he intended to give for the whole ; or that the other shall be obliged to sell the whole for what he intended to be the price of part only («). Upon the other hand, if both understood the whole was to be conveyed, it must be con- veyed. But again, if neither understood so, if the buyer did not imagine he was buying any more than the seller imagined he was selling the part in (juestion, then a pretence to have the whole (a) See 13 Ves. jim. 427; and see and see Neap r. Abbott, C. Coop. 333 ; Higginson v. Clowes, 15 Ves. jun. 516, Chamberlain r. Lee, 10 Sim. 445. stated, as to this point, supra, p. 37 ; [*355J 416 WHERE SELLER HAS NO TITLE TO PART. conveyed is as contrary to good faith on his side as a refusal to sell would he in the other case (6). 2. A defect of the nature we are now about' to consider, arises, either where the seller has not a good title to a portion of the estate *which he has sold, or having a good title to the estate, it does not contain the quantity represented in the contract. 3. As to the first line of cases : where an estate is sold in one lot, either by private contract, or public sale, and the vendor has not a title to the whole estate, he cannot enforce the contract at law. At law, indeed, neither a vendor can, on an entire contract, recover part of the purchase-money, where he cannot make a title to the whole estate cold ; nor would a purchaser be suffered in a court of law to say, that he would retain all of which the title was good, and vacate the contract as to the rest : such questions being subjects only for a court of equity (c) (1). 4. In a case at law (d), where an estate consisting of a house and land was sold by private contract for 1,000/., but there had been two distinct valuations, one of the house at 300/., and the other of the land at 700/., at which several prices the different properties, by a memorandum in writing signed by the sellers, had been agreed to be sold, previously to the more regular contract for the whole at one sum, the purchaser was evicted from the house for want of title in the sellers, before the conveyance was completed, and as he had built upon the land, he retained that, but brought an action for money had and received, to recover the money which he had paid for the land, in which he succeeded. Lord Alvanley, in delivering the judgment (jf the Court, observed, that his difficulty had been, how far the agreement was to be con- sidered as one contract for the purchase of both sets of premises, and how far the party could recover so much as had been paid by way of consideration, for the part of which the title had failed, and retain the other part of the bargain. If the question were how far the particular part, of which the title had failed, formed an essential ingredient of the bargain, the grossest injustice would ensue if a party were suffered in a court of law to say, that he would retain all of which the title was good, and recover a pro- portionable part of the purchase-money for the rest. Possibly the (6) Per Lord Thurlow ; sec 1 Vcs. (c) Johnson v. Johnson, 3 Bos. & Pull, jun. 211 ; and see 6 Ves. jun. 339. 162. (rf) Johnson v. Johnson, ubi sup. (1) See Parham v. Randolph, 4 Howard (Miss.) 435. [*356] WHERE SELLER HAS NO TITLE TO PART, 417 part which he retained might not have been sold, unless the other part had been taken at the same time, and ought not to be valued in proportion to its extent, but according to the various circumstan- ces connected with it. But a court of equity may inquire into all the circumstances, and may ascertain how far one part of the bargain formed a material ground for the rest, and may award a compensation according to the real state of the transaction. The Court, however, held that there were two distinct contracts for the *house and land, and observed that it had not been suggested that they were necessary to the occupation of each other, and so the purchaser was allowed to recover. 5. But if the part to which the seller has a title was the pur- chaser's principal object, or equally his object with the part to which a title cannot be made, and is itself an independent subject, and not likely to be -injured by the other part, equity will compel the purchaser to take it at a proportionate price (1) ; and in these cases it will be referred to the Master, to inquire, " whether the part to which a title cannot be made, is material to the possession and enjoyment of the rest of the estate (e)." The question gene- rally arises where the part to which a title cannot be made is com- paratively small, for if it be a considerable portion, that upon the face of it would be deemed material ; for when a man buys a large estate, he must be supposed to want what he buys ; on the other hand, it matters not how trifling the subject is if it is neces- sary to the enjoyment of the rest, or was the purchaser's object in his purchase (2). 6. This equity was at one period exercised against purchasers to (e) M' Queen V. Farquhar, llVes.jun. Bowyer v. Bright, 13 Price, G98 ; see 4r,7; Keg. Lib. B. 1804. fol. 1095; Prendergast «;. Eyre, 2 Hogan, 81. Knatchbull v. Grueber, 1 Madd. 153 ; (1) See Buck v. M'Caughtry, 5 Mom-oe, 230 ; Pratt r. LaM% 9 Cranch, 458 ; Simpson v. Hawkins, 1 IJana, 305 ; CoUurd i'. Groom, 2 J. J. Marsh. 488. (2) See Cooper v. Dcnne, 1 Vescy jr. (Sumner's ed.) 565, 567, note (5) of Mr. Hovenden ; Heed v, Noc, 9 Yerger, 283 ; M'Kean v. Keid, Litt. Scl. Cas. 395 ; Parham v. lland()l])h, 4 Howard (Miss.) 435. Where there is a substantial de- fect in the estate sold, either in the title itself, or in the representation or descrip- tion of the nature, character, situation, extent, or quality of it, which is un- known to the vendee, and in regard to which he is not put upon inquiry, tlien, a specific performance will not be decreed against him. 2 Story Eq. Jur. ^^778 ; Fonbl. Eq. B. 1, ch. 3, ^^9, note (i) ; Young t. Lillard, 1 Marsh. 482 ; Kelly v. Bradford, 3 Bibb, 317 ; Butler r. O'Hcar, 1 Desaus. 382 ; 2 Kent (6th cd.) 475, 476, 471, and notes ; Watts v. Waddle, 6 Peters, 389. Upon a like ground a party, contracting for the entirety of an estate, will not be compelled to take an undivided tdiquot part of it. 2 Story Eq. Jur. ^^778; Reed i\ Noe, 9 Yerger, 283 ; Dalby v. PuUen, 3 Sim. 29 ; S. C. 1 Kuss. & My. 296 ; Bates v. Delavan, 5 Paige, 300. Vol. I. 53 [*357] 418 WHERE SELLER HAS NO TITLE TO PART. an extent which is not now followed, but the stream of authoritjv' sets the other way {/)• In a case (g^ before Sir Thomas Sewell, a man who had contracted for the purchase of a house and wharf, was compelled to take the house, although he could not obtain the wharf, aiid the wharf appeared to be the whole object o-f his making the purchase ; indeed, it is stated that his object was to carry on hia business at the wharf. 7. Lord Thurlow said, that if he had been to have judged of thati ease, and if it had appeared that the purchaser was in a trade, in which that wharf was essentially useful, and that he made that purchase for the sake of his trade, he (Lord Thurlow) should not have thought that it interfered with the general rule, if he had discharged him from his contract (A). Biit this has been carried much further. Lord Kenyon said it was a determination contrarjv to all justice and reason, and the ease has ne^fer been quoted with- out being disapproved of (i). It is quite clear, that if such a case *were now to call for a decision, although the purchaser did not require the wharf for his trade, yet if the liouse and wharf were connected together as one property^ the want of title to the wharf would authorize the pu^rchaser to rescind the whole contract. It would require some special ground in such a case to. induce the Court to even direct an inquiry upon the subject (l). 8. This subject was fully discussed in a case before the late Master of the Rolls in Ireland, already refesred to, where a title could not be made to one of the estates sold, containing 700 acres, which was sold subject to a fee-farm rent of 100/. per annum (Jc), and the purchaser was released from the whole of the contract. (/) See 13 Price, 70,2. 679 ; 13 Vcs. jun. 78, 228, 427. In {f/) See 6 Ves. jun. 678 ; 7 Ve3. jun. Stewart v^ Alliston, 1 Mor. 26, Lord El~ 270, cited ; and see M'Qucen v. Fai'- don expressed himself much more q^uhar, 11 Yes. jun. 467. strongly against the principle of these' (h) Sec 1 Cox, 61, 62. cases, than appears by the report. (t) See 1 Esp. Ca. 1.72 ; 6 Ves. jurr, (>k) Prendergast i\ E.yro, 2 Ilogan, 81. (1) " The good sense and equity of the law oa this subject^" says Mr. Chan- cellor Kent, " is, that if the defect of title, whether of land or chattels, be so> great as to render the thing sold ujifit for the use intended, and not within the- inducement to the purchaser, the purchaser ought not to be hald to the contract,, but be left at liberty to rescind it altogether." " If lliyre be a lailure of title to part, and thiit part appears to be so essential to the residua, that it cannot lenson- ably be supposed the purchase would have been made without it ; as in the case of the loss of a mine, or of water necessary to a mill, or of a valuable fishery attached to a parcel of poor land, and by the loss of which the residue of the land was of little value ; the contract may be dissolved in toio." 2 Kent (6th ed.) 475. 476; Parham v. Randolph, 4 How. (Miss.) 435. See Pringle r.. Witten, 1 Bay^ 256; (jray v. Handkinson, ib. 278; Tunno r. Flood,. 1 M'Cord, 121 ; Marvin v. Bennett, 8 Paige,. 312 :, Stodxlart,, r. Smithy 5 Bimiev,. 355:, 36S; Waters r. Traviss 9 John. 465. WHERE SELLER HAS NO TITLE TO fART. 4l^ The Court stated the result of tlie authorities to be, that though this principle of compensation had in some instances,, in relation to some fragments or small parts of an estate sold, or of the rights -appurtenant or incidental to it, been applied in imitum against % purchaser, that it was a principle that ought not t-o be extended to new classes of cases^ There was no case of the sale of two ■distinct estates for one entire sum, in which the Court had under* taken, upon a failure of title as to one estate, to decompose the sum and fix a standard for adjusting the relative value of the two estates, which should bind the purchaser without regard to his views or estimate of relative value. It appeared to be inconsistent with the principles upon which the Court professed to exercise jurisdiction in specific performance, to compel the purchaser, not bound by lav/, and who could not get the thing for which he con- tracted, to take one of the estates he purchased, and accept a compensation for the other estate. Where would you stop ? The result appeared to be, that no cases were to be found where this doctrine of compensation had been applied beyond small parcels of land, and that no universal principle of compensation had been laid down which would apply to sales of distinct townlands or denomi- nations. These appear to be the true principles, and they have always been acted upon in the English Courts of equity ; and in speaking of compensation generally, the rule has always been so understood. 9. And the rule would, no doubt, be the same, even where the estate to which a title cannot be made, is let upon a fee-farm grant at a large rent, for although the purchaser can only receive the rent, yet he may have an object in holding such a rent issuing out of an estate, particularly if the estate be connected with the other property or with his own. And where one of the subjects of sale is a rentcharge, to which a title cannot be made, he cannot be *told that it is to be treated as a mere annuity unconnected with land (/). 10. There are many cases where the purchaser might elect to take the portion of the estate to which a title could be made, although the vendor could not compel him to do so. 11. Wc have seen that the purchaser cannot be compelled to (I) S. C. Neither of these points was ment, p. 95, which will be seen by ref- decided in this case. There appears to erence to p. 82. be a mistake at the close of the jvidg- 42(1 WHERE SL'LLER HAS NO TITLE TO PART. take a compensation for a large portion of the estate (1). In regard to the limits of the rule, that a purchaser may elect to take the part to which a title can be made at a proportionate price, Sir W. Grant, Master of the Rolls, in Westeni v. Russell (m), observed, that it was said there, that there was a considerable portion of the estate to which no title could be made, and, therefore, there could be no execution of the contract. That defence, he said, simply so stated, was quite new in the mouth of the vendor. It was not necessary there to determine whether, under any circumstances of deterioration to the remaining property, the vendor could be exempted from the obligation of conveying that part to which a title could be made ; but the proposition was quite untenable, that if there is a considerable part to which no title could be made, the vendor was therefore exempted from the necessity of conveying any part (2). 12. The observations of the Court, in Johnson v. Johnson, already quoted, bear also upon this point (w), and undoubtedly there may be cases where the hardship of enforcing a partial execution of the contract on the vendor, would be so great, that equity would not interfere. A seller, for example, could not, at the election of the purchaser, be deprived of his mansion-house and park, to which he could make a good title, whilst a large adjoining estate, held and sold with it, would be left on his hands with a proclaimed bad title. 13. In the case of Wheatley v. Slade (o), a lace manufactory was sold for 12,200/. ; it a])peared that the sellers were entitled to nine- sixteenths only, and that the owner of the other seven-sixteenths had alien on the entirety of the property for 10,000/. and interest. The purchaser filed a bill for a specific performance as to the nine- sixteenths, at a fair proportion of the price. The Vice-Chancellor said, that in Hill v. Buckley, it was decided that a purchaser might file a bill and insist on having the agreement performed, as far as (»i) 3 Ves. & Bea. 187. («) Supra, p. 356. (o) 4 Sim. 12G. (1) Ante, 346, 347 and cases in notes; Evans r. KingsburA', 2 Randolijh, 120; Jones r. Belt, 2 Gill, 106; Morss r. Elmendorf, 11 Paige, 277. "The general rule in all such cases," says Mr. Justice Story, " is, that the purchaser, if ho chooses, is entitled to have the contract specifically performed, as far as the ven- dor can perform it, and to have an abatement out of the purchase money or com- pensation for any deficiency in the title, quantity, quality, description, or other matters touching the estate." 2 Story Eq. Jur. §779; Morss r. Elmendorf, 11 Paige, 277 ; Voorhees v. De Meyer, 2 Barbour Sup. Ct. Kep. 37 ; Wiswall v. McGo'W'n, 2 Barbour Sup. Ct. Hep. 270. But the vendor cannot be required to convev a different parcel of land from that agreed to be conveyed. Morss v, Elmendorf, 11 Paige, 277; Beverley r. Lawson, 3 Munf. 317. (2) Ante, ;io7, 358 notes. WHERE SELLER HAS NO TITLE TO PART. 421 the vendor was capable of performing it, and that a deduction should be made to him in respect of the deficiency, hut that was not '^allowed where a large portion of the property could not he conveyed. This sale, he observed, was made under the impression that they were possessed of the entirety of it ; but that it afterwards appeared, that they could make a title to nine-sixteenths only of the property, and that it was subject to a debt of 10,000/. and interest, which would exhaust nearly the whole of the purchase-money. He there- fore dissolved an injunction to prevent the sellers from selling to any other person, as the Court at the hearing would not deal with this case as it dealt with Hill v. Buckley. 14. This decision may, perhaps, be referred to the nature of the property — although the sellers' object appears to have been to get rid of one sale in order to join in another — otherwise it might be difficult to support it, for whatever was really the number of the shares to which the sellers were entitled, they were bound to that extent to pay the charges, and it is no objection to the perform- ance of a contract that the charges on the estate, will, contrary to the sellers' expectation, exhaust the purchase-money. If the case be reduced to the simple one, that the sellers had only nine-six- teenths, although they considered they had the entirety, the au- thorities would seem to show that the purchaser had a right to those shares at a price pro tanto : no hardship would have been thrown upon the sellers ; they would not have had the other shares left on their hands with a bad title, for the nine-sixteenths were all the shares they possessed ; the owner of the other seven-six- teenths was a party to the suit, and his title was undisputed by the sellers of the nine-sixteenths (1). 15. A case may here be introduced of a contract by A to sell one estate to B, and by B to sell another estate to j4. It has been held as a general proposition, that although entered into by the same instrument, they are several contracts, and either A or B may compel the other to convey his estate to him, although he himself cannot make a title to the estate which he contracted to sell. But it was said, that cases might undoubtedly be supposed, in which two transactions might be so complicated together, that when they were made the subject of contract in one, or even in two different instruments, a purchase by one party should not bo binding unless a sale to the vendor should also be completed. Where two estates were conterminous, or where there was a mixed (1) See ante, 357, in note. [*360] 422 WHERE SELLER HAS NO TITLE TO SOME LOTS. case of enjoyment of the estates, as in the case of one of the par- lies having an easement over the property of the other, a contract depending upon such mutuahty as to sale on one side and purchase upon the other might well exist (p). *16. And here we may notice a case where the estate sold con- sisted of several houses, which it was stated were held under lease from ^, and upon examination it appeared that the lease com- prised a small piece of ground formerly held with one of the houses, but divided from it previously to the lease, and let to another ; the purchaser was allowed to recover his deposit. For he would be liable under the covenants for the whole as demised, and although he would have been entitled to relief in equity against the lessors, yet he was not to be satisfied with that in a court of law (q). 17. Where an estate is sold by auction, or before a Master, in lots, and the vendor has not a title to all the lots sold, equity will compel the purchaser to take the lots to which a title can be made, if they are not complicated with the rest ; and will allow him a compensation jJt'O tanto (1). 18. Thus in Poole v. Shergold (r), a man became the purchaser of several lots of an estate, to two of which no title could be made, but there had been no reference on the question whether the lots were so complicated with each other as to render the lots to which there was no title necessary to the enjoyment of the others. And upon the Master's report Lord Kenyon said, he must take it for granted, these two lots were not so complicated w'xXh the others, as to entitle the purchaser to resist the whole : and therefore de- creed a specific performance pro tanto, 19. But if a title cannot be made to a lot which is complicated with the rest, the purchaser will not be compelled to accept the lots to which a title can be made. 20. Thus, in the same case, Lord Kenyon said, if a purchase j was made of a mansion-house in one lot, and farms, Sic, in others, \ and no title could be made to the lot containing the mansion- \ house, it would be a ground to rescind the whole contract. ' (;;) Crooffic v. Lcdiard, 2 Myl. & Kec. (>•) 2 Bro. C. C. 118, 1 Cox, 273. See 251, 293. ' 6 Yds. jun. 676 ; 2 Myl. & Kec. 727. (}) Tomkius *. "White, 3 Smith, 435. (1) Van Eps i\ Schenectady, 12 John. 436; Stoddart ». Smith, 6 Binn, 35o J I Waters ;. Travis, 9 John. 450. [*361] WHERE SELLER HAS NO TITLE TO SOME LOTS. 423 21. The same rule appears to .prevail at law, for although where the same man purchases several lots at an auction, a distinct con- tract arises upon each (s) (1), yet even a court of law is at liberty to look at the nature of the property, and will permit a purchaser to rescind the contract as to all the lots if a title cannot be made to any which are necessary to the enjoyment of the rest, *22. Thus in a case at nisi prius yt), where the property was rep- resented as freehold, but no notice was taken that a meadow, part of it, was liable to a right of common every third year : the plain- tiff purchased two lots, one a house, garden, he, the other the meadow close adjoining thereto, and which he wished to occupy with it : the question was, whether the purchaser could rescind the contract as to both lots in consequence of the right of common over the meadow, one of the lots. Lord Kenyon said, that if these lots were so near each other that the hope of possessing one as an appendage to the other was the inducement to the purchaser to purchase both, he ou-ht not to be compelled to take one alone. This, he added, was not so much a question of law as a matter of convenience : it would be saddling a man with an estate for which he might have no use. 23. And in a late case (u), where a purchase by auction of a lot, numbered 13, was held not to be binding, because a right of way over it had not been sufficiently disclosed, and the same purchaser had bought an adjoining lot, No. 12, containing a house, which was to have a right of way over the lot 13, he was allowed to rescind the purchase as to lot 12 also, upon the ground that both lots had been included in one agreement after -the sale at the ao^o-reorate price — which is not a very strong ground — and secondly, that he might be reasonably understood to have purchased lot 12, in order that he n)ight by unity of seisin extinguish the right of way over lot 13, which before belonged to lot 12, and thereby render lot 13 more valuable as building ground, an object and purpose which was entirely defeated by the existence of the undisclosed right of way. 24. Lord Kenyon has been considered as having decided, in Chambers v. Griffiths, at 7iisi prius, that in no case could a con- (a) Emmerson r. Ilcelis, 2 Taunt. 38 ; Booth, 4 Adol. & Ell. 528. James ;;. Shore, 1 Stark. Ca. 426 ; see (t) Gibson v. Spurrier, Pcake's Add. Haldey v. Parker, 2 Barn. & Cress. 37 ; Cas. 49. 3 Dowl. & Ryl. 220 ; Roots v. Lord Dor- (u) Dykes v. Blake, 4 Buig. N. C. mer, 4 Barn. & Adol. 77; Seaton v. 463. (1) Ante, 43. [*3621 424 WHERE SELLER HAS NO TITLE TO SOME LOTS. tract be enforced even at law as to some lots if a title could not bo made to all the lots sold. 25. In that case (x), he held, that the performance of a contract for the sale of some houses ought not to be compelled, as a title could not be made to all the houses bought ; and this, notwith- standing they were sold in separate lots. He said, when a party- purchases several lots of this description at an auction, it must be taken as an entire contract ; that is, that the several lots are pur- chased witli a view of making them a joint concern. The seller therefore shall not, in case of any defect in his title to one part, be *allowed to abandon that part at his pleasure, and to hold the pur- chaser to his bargain for the residue. From such a doctrine much injustice might result, as the part to which a seller could not make a title might be so circumstanced, that without it the other parts would be of little, perhaps of no value ; or it might leave it in the power of the seller, or any other person who might come to the pos- session of such part, to deprive the purchaser of every degree of enjoyment or beneficial use of that part which he had purchased. He added, that a case under circumstances precisely similar to the jyresent, had been decided before him, when Master of the Rolls. That, on that case coming before him, he had found that his prede- cessor there, Sir Thomas Sewell, had ruled contrary to the doctrine he was now delivering ; but that he at the Rolls had overruled Sir Thomas Sewell's determination, with the general approbation of the bar (I). 26. And the Court of Exchequer seemed to have been of the same opinion as Lord Kenyon. - For in a case (y) where a person pur- chased several lots of an estate sold under a decree of the Court, and the biddings were afterwards opened as to one lot, tbe Court were of opinion, that he had an option to open the biddings as to the rest of the lots. 27. In a case before Lord Eldon {z), in which most of the author- ities on this head were cited, that of Chambers v. Griffiths was not noticed, and the report of Gibson v. Spurrier was not then published. But Lord Eldon afterwards mentioned from the Bench, that he had met with the case of Chambers v. Griffiths, and he desired it to be understood, that he was not of the same opinion as Lord Kenyon ; {x) Chambers v. Griffiths, 1 Esp. Ca. (y) Boyer v. Black-vvell, 3 Anstr. 657. 149. {z) Drewe v. Ilanson, 6 Ves. G75. (1) See Hepburn v. Auld, 5 Cranch, 262 ; Osborne v. Bremar, 1 Desaus. 486 ; Van Eps. v. Schenectady, 12 John. 436, 443. [*363] WHERE SELLER HAS NO TITLE TO SOME LOTS. 425 and in a still later case Lord Eldon expressed an opinion that Lord Kenyon's rule would not be followed unless it could be shown that there was an understanding that the purchaser was not to take any of the lots unless he could obtain them all (a). 28. In a late case before Lord Brougham, L. C. (b), in which he disagreed with Lord Kenyon's opinion in Chambers v. Griffiths, he observed, that Lord Eldon was said to have expressed a similar opinion in Drewe v. Hanson, but if so it had escaped the reporter. Lord Eldon's observation was mentioned shortly after it was made in the first edition of this work, and it was stated to have fallen from him after he had decided Drewe v. Hanson, which accounts for its having escaped the reporter. There is no doubt that Lord Eldon did make the observation, and the statement of it in this work must *have been under his eye upon more than one occasion : we have therefore his great authority against the doctrine of Lord Kenyon. It was considered by the Court, in the case just referred to, that Chambers v. Griffiths was plainly overruled by the cases at law, establishing that a separate contract arises upon the sale of each lot. But that, although true as a general rule, does not, as we have seen, in proper cases, prevent even courts of law from allowing a purchaser to treat a bad title to one lot as affecting the sale of all the lots to the same purchaser, nor did the Courts in any of the cases referred to express any opinion adverse to that right. 29. It was further observed by the Court, in the case above quoted (c), that if Lord Kenyon's reported opinion, but which he probably never held, carried the rule so much too far in favor of the purchaser, perhaps an opinion ascribed to Lord Eldon, and mentioned in this work (d), carries the rule almost as far the other way — that the purchasers of different lots are not to be connected together, unless there has been an understanding that the buyer should not take any if he could not have all. Clearly it was said such an understanding will suffice to blend the whole into one con- tract ; but it seemed equally clear, that the same complication may be effected or rather evidenced without any such understanding, that is without any express agreement to that effect. 30. Now, Lord Eldon, in the opinion which he gave, did not intend to touch the general rule, where it is shown that the lots are complicated with each other, but merely said that Lord Kenyon's (a) 16 July 1816. MS. (c) 2 Myl. & Kee. 725. (b) Casamajoru. Strode, 2 ilvl. & Kee. (d) Supra, p. 363. 724. Vol. I. 54 [*3641 426 WHERE SELLER HAS NO TITLE TO SOME LOTS. rule would not be followed, unless it could be shown that there was an understanding to that effect ; or, in other words, that where it is not shown that the lots are complicated with each other, a pur- chaser cannot for want of title to one lot rescind the sales as to alJ the lots, unless it' could be shown that there was such an under- standing. 31. There is no doubt that the rules laid down in the case of Poole V. Shergold, are the law of the Court (e). Lord Kenyon, in Gibson V. Spurrier, actually adopted in a court of law the rule in equity upon this subject ; and it is clear, although the reference in Chambers v. Griffiths, to the case at the Rolls, is an inaccurate one (/), that Lord Kenyon did refer to Poole v. Shergold as having been decided by him with the general approbation of the bar. He intended therefore to follow, and not to overrule his own previous views when sitting as a judge in equity ; and his opinion was pro- bably ^grounded upon the nature and contiguity of the property ; for he said that when a party purchases several lots of this descrip- tion at an auction, it must be taken that the several lots are pur- chased with a view of making them a joint concern : he seems therefore rather to have been guided by the circumstances of the case, than to have intended to lay down a general rule. Indeed, he said, that his decision at the Rolls was in a case (Poole v. Sher- gold) under circumstances precisely similar to that of Chambers v. Griffiths. The seller, besides, sent an abstract of title to one lot only, and no abstract of title to the otlier lots. And of course in such a case, whatever may be the rule where a seller really has a bad title, which is produced, to some of the lots, he cannot be allowed at his pleasure to withhold any title to some of the lots-, and enforce the contract as to the others. 32. The opinion expressed by the Court of Exchequer in Boyer t). Blackwell, before quoted {g), is a very just one ; but it may be referred to a different ground, for there the seller was not unable to make a good title to all the lots, but he was desirous of with- drawing some of the lots from the purhaser, because he had a better offer for them. It would plainly be inequitable to allow such a proceeding. There appears therefore to be no authority against the settled rule in these cases, either at law or in equity. 33. We are now to examine the cases relalins to tithe. Where (e) Sec Lewin r. Guest, 1 lluss. 32.5 ; (/) See 2 Mvl. & Koe. 725. Harwood v. Bland, 1 Flaii. & Kel. u-10. {y) See p. 3G3. [*365] CF WANT OF TITLE TO TITHES. 427 tiiey are sold as a distinct existing property, they are — regard being had to the different natures of the properties — subject to the rules already quoted, but where they are the tithes of the very land con- tracted to be purchased, they rather open to a different consideration. 34. In Drewe v. Hanson (h), which arose upon the sale of an estate, together with the valuable corn and hay tithes of the whole parish, it appeared that the principal object of the purchaser was the corn tithes, and that half the hay tithe belonged to the vicar, and the other half was commuted for by a payment of 21. per annum, the nature of which did not appear. Upon the facts, as they then appeared, Lord Eldon would not give judgment, but he seemed clearly of opinion that the hay tithe, if not of great extent or of such a nature as to prejudice the corn tithe, was a subject for compensation ; but otherwise not, as the purchaser would not get the thing which was the principal object of his contract (i). 35. In a case (k) often cited, where a man had articled for the *purchase of an estate tithe free, but which afterwards appeared to be subject to tithes. Lord Thurlow, it was said, decreed a specific performance, although the purchaser proved, that his object was to buy an estate tithe-free. This, however, to use Lord Eldon's words (I), is a prodigious strong measure in a court of equity to say, as a discreet exercise of its jurisdiction, that the contract shall be performed, the defendant swearing and positively proving that he would have had nothing to do with the estate if not tithe-free. But it now appears from the report of the case, published by Mr. Cox, that the estate was subject only to a money-payment of 14/. in lieu of tithes (jn) ; and therefore Lord Thurlow made no such decision. And in the case of Ker v. Clobery (n), where the estate was sold before the Master, and the particulars stated ; that " the whole of the above lands are only subject to a modus for tithe hay of 21. per annum," Lord Eldon was of opinion, that a purchaser of an eiBtate stated to be tithe-free, or subject to a modus, could not be compelled to take it with a compensation, if the estate is not tithe-free. He said, that he had so decided in a case from York- shire, in which he had told the purchaser, if he would take the (k) 6 Vcs. jun. 675. Pincke r. Curteis, cited ibid. ; and see {i) See Vancouver v. Bliss, 11 Yes. Hose i\ Calland, 5 Vcs. jiin. 18C ; Wal- j\m. 458 ; Stapylton v. Scott, 13 Ves. linger i\ Hilbert, 1 Mer. 104. jun. 425. (l) See 6 Ves. jun. 679; and see 17 (A) Lord Stanhope's case, 6 Ves. jun. Vcs. jun. 280. 678, cited ; I>owndes r. I.anc, 2 Cox, (m) Ilowland r. Non-is, 1 Cox, 59. 363; 6 Ves. jun. 676, cited ; but see («) 26 Mar. 1814. MS. [*366J 428 OF WANT OF TITLE TO TITHES, estate with a compensation, he must undertake to pay the tithes to the vendor (I). The question therefore is now at rest. 36. Wliere an estate is sold tithe-free, the question wliether tithe-free is not a question of title but of fact : if the sale was of lands and of tithes, then the matter of tithe would be matter of title (o). 37. In a late case, upon a sale before a Master, where the par- ticular stated ahout thirty-three acres to be tithe-free, and it was stipulated in the conditions of sale, that errors of description should not vitiate the sale. Lord Eldon held, that the principle laid down in Ker v. Clobery did not apply (^) ; but the purchaser must be satisfied with a compensation. 38. And where a mansion-house and pleasure-grounds, and seven acres of pasture were sold, without any mention of tithes, but *it being discovered that the seller's conveyance contained a grant of the great tithes, which fact being communicated to the pur- chaser's agent, he included them in the written contract, but no additional price was put upon them, nor was there any treaty about them ; upon an objection to the title to the tithes, the Court held, that the right to the tithes could not possibly be the induce- ment of the purchaser to enter into the contract; and it was not easy to see how they could be of the value of the smallest piece of coin, since, as an appendage to the enjoyment of the mansion- house, there was no probability that the seven acres would ever be productive of great tithes (II). The purchaser was not allowed to escape upon this pretence ; and it seems that no compensation would have been allowed him had not the seller offered it (5) (1). 39. Where the particular described the estate as four hundred and twelve acres, two hundred and twenty-seven of which were tithe-free, paying a very small modus ; and it appeared that part of the estate represented to be tithe-free was subject to tithes (0) Smith V. Lloyd, 2 Swanst. 224, n. ; Smith v. Tolchcr, 4 Iluss. 302 ; where Wallin<;er v. Hilbcrt, 1 Mer. 104. Binks v. Lord Rokcby is not accurately ( ;;) Einks v. Lord liokeliy, E. T. 1818. quoted in the judgment. MS.; S. C. 2 Swanst. 222; and see (j) Smith «. Tolcher, 4 Russ. 302. (1) In Binks v. Lord Rokeby, where the purchaser had a compensation, as the fact was not satisfactorily established, Lord Eldon said there seemed little reason to doubt that the vendee [misprinted vendor] would eventually obtain both a compensation for a supposed liability of part of the estate to tithe, and also tlic advantage of the fact that it was not liable. (II) Why not r If a crop of hay had been taken there would have been a great tithe. (1) See ante, 357, 358, in notes. [*367] OF TITHE COMMUTATION. 429 which the owner was wilHng to sell, Lord Eldon said, that the allegation was, that two hundred and twenty-seven acres " are tithe-free, paying a very small modus," not stating a positive exemption from tithes ; and where the contract is to sell an estate tithe-free, the vendor not representing himself to have title to the tithes, without entering into the question, whether the purchaser ought to be compelled to take it if not tithe-free ; yet, if he chooses to take it, he cannot compel the vendor to buy the tithes, if there is a positive title to them in pernancy ; all he can have is compen- sation (r) (1). 40. These points will soon cease to be important : for the com- mutation of tithes in England and Wales for rentcharges is pro- vided for (s), and in due time, with few exceptions (t), all lands will be absolutely discharged from tithes (u) ; and corn-rentcharges will be payable in lieu of them, with powers of distress and entry and enjoyment of the land for securing them (x). And owners of both lands and tithes (y), even tenants for life (z), are empowered to merge the tithes in the lands ; and in Ireland tithes are abolished, and rentcharges substituted for them (a). *41. Tithe, like land-tax, has never been deemed an incumbrance, and therefore, if nothing is said upon the subject, the purchaser must take the estate subject to its liability ; and where the estate is free from land-tax or titlje, and the non-liability is not mentioned, yet the seller cannot require any allowance on account of the estate being discharged. Now, the rentcharge will probably not be noticed, unless it be a low one ; but although the particulars or agreement ai'e silent on the subject of tithe, yet the purchaser will not have a right to object to the rentcharge, although a like rentcharge payable to an individual might be fatal to the contract, because every estate, where nothing is said to the contrary, is pre- sumed to be subject to tithes, and now rentcharges are substituted for tithes. 42. If a purchaser, with notice of a defect in a title to a part of the estate which is complicated with the rest, or which is the prin- cipal object of his contract, take possession of the estate, and pre- vent the vendor from making a title, he will be compelled to perform (>•) Todd v. Gee, 17 Yes. jun. 273 ; qu. (m) Sect. 67. how is the comijcnsation to be estimat- (x) Sect. 81, 82, 83, 84, 8.5. ed ? See Ker i-. Cloberv, siqtra. (ij) Sect. 71- (s) 6 & 7 Will. 4, 0.71 ; 1 Vict. c. 69. (z) 1 & 2 Vict. c. 64. (0 Sect. 90. (a) 1 & 2 Vict. c. 109. (1) See Wainwright v. Head, 1 Desaiis. 573. [*368| 430 DEFECTS IN THE QUANTITY OF ESTATE. the contract, notwithstanding that he insisted upon the objection at the time he entered (6). A deduction from the price will, how- ever, be allowed him, although the situation of the land will not perhaps be taken into consideration. 43. To guard against the rules established by the foregoing decis- ions, an express declaration should be inserted in all agreements for purchase of estates, that if a title cannot be made to the whole estate, the purchaser shall not be bound to perform the contract pj-o ianto ; and a similar provision should be made where an estate is bought free from tithes, or with any other collateral benefit, which the purchaser may wish to secure. (i) Sec Calcraft v. Roebuck, 1 Vcs. jun. 221. ^SECTION III. OF DEFECTS IN THE QUANTITY OF THE ESTATE. 1. Com2iensation for deficiency. 3. Though not sold by the acre. 4. Lands conveyed by estimation. 5. Contract for sale by estimation. 6. By estimation, more or less. 8. Stipulation that excess or deficiency not to be anstoeredfor. 9. Fraudulent statement. 10. Purchaser s knoioledge of estate. 11. About the quantity stated. 12. Principle of abatement. 13. Where quantity greatly exceeds that sold. 14. Lands shoioti to purchaser, but ex- cepted in conveyance. lo. Sale by particular, and part o^nitted. 16. Where more is conveyed than was sold, 18. General descriptio7i : copyholds. 19. Contents of an acre : old laic. 21. Customary acres. 23. Contents of an acre : new lato. 24. Contracts, how affected by statute. 1. We are now about to consider those cases in which the whole of the estate is well vested in the seller, but the quantity of its acreage has been misrepresented. This is a question of quan- tity : the one already considered is a question of title. 2. If an estate be sold at so much per acre, and there is a defi- ciency in the number conveyed, the purchaser will be entitled to a [*369] DEFECTS IN THE QUANTITY OF ESTATE. 431 compensation (1), although the estate was estimated at that number in an old survey (rt). 3. The rule is the same, though the land is neither bought nor sold professedly by the acre ; the presumption is, that in fixing the price, regard was had on both sides to the quantity which both suppose the estate to consist of. The demand of the vendor, and the offer of the purchaser, are supposed to be influenced in an equal degree by the quantity, which both believe to be the subject of their bargain. The general rule therefore is, that where a mis- representation is made as to the quantity, though innocently, the right of the purchaser is to have what the vendor can give, with an abatement out of the purchase-money, for so much as the quan- tity falls short of the representation (b) (2). 4. But where the lands iji a conveyance are mentioned to con- tain so many acres by estimation, or the words " more or less" are *added, if there be a small portion more than the quantity, the vendor cannot recover it ; and if there be a small quantity less, the purchaser cannot obtain any compensation in respect of the defi- ciency (c). Indeed, a case is said to have been decided, where a (a) Sir Cloudeslcy Shovel v. liogan, See Marquis of Townshend v. Stan- 2 Eq. Ca. Abr. 688, pi. 1. groom, 6 Yes. jiin. 328 ; KushAA'orth's (6) Hill V. Buckle}', 17 Ves. 394, per case. Clay. 4G ; "Neale v. Parkin, 1 Esp. Sir William Grant. Ca. 229. (c) Twyiord v. Warcup, Finch, 310. (1) Stebbins i\ Eddy, 4 IMason, 414 ; Whaley r. Eliot, 1 A. K. Marsh. 343 ; Nelson v. Carrington, 4 Munf. 332 ; Harrison r. Talbot, 2 Dana, 266 ; Grant r. Combs, 6 Monroe, 281 ; Biernc v. Erskine, 5 Leigh, 59. See Hoffman i'. Johnson, 1 Bland, 109 ; Murdock v. Beal, ib. (2) Ante, 3o9 note ; Reynolds v. Vance, 4 Bibb, 21-5 ; Bond v. Jackson, 3 Hav«-. 189 ; Quosnel v. Woodlief, fi Call, 218 ; S. C. 2 Hen. & Munf. 173, note; Nelson i\ Carrington, 4 Munf. 332 ; AVainwright v. Haul, 1 Dcsaus. 573 ; Glover v. Smith, 1 Desaus. 433; ante, 3o0 ; Durrctt v. Simpson, 3 Monroe, 519. Even ■where there is a positive statement of the quantity of acres, much may depend upon the manner and connection of the statement, and the nature of the contract or conveyance, whether it is to be deemed mere description, or of the essence of the purchase. Stebbins v. Eddy, 4 ^lason, 417, 418. See Mann v. Pearson, 2 John. 37 ; Powell r. Clark, 5 Mass. 355 ; Dayne v. King, 1 Yeates, 322 ; Siiiitli V. Evans, 6 Binney, 102 ; Boar i\ ^IcCormick, 1 Scrg. iS: P. 164 ; Jackson r. Bar- ringor, 15 John. 471. "Where a spcciticd tract of land is sold for a sum in gross, the boundaries of the tract control the description of the quantity it contains ; and neither party x;an have a remedy against the other for an excess or dcticicncy in the (juantity ; unless such excess or deticiency is so great as to furnish evidence of fraud, or misrepresentation. Yoorhees v. De Meyer, 2 Barbour Sup. Court Kep. 37. This rule, however, does not apply to a case, where the mistake is in the boundaries of the tract sold ; and not in the thuig described, but in the ability of the vendor to convey tlu- thing described. Yoorhees v. Dc Meyer, 2 Barbour Suj). Court Pep. 37. As, if the vendor and vendee, knowing a certain tract of land to contain a certain number of acres, suppose it all to belong to the vendor, and the sale is made of the whole tract by its boundaries, but those boundaries include a parcel of land which does not in fact belong to the vendor, the vendee will be entitled to relief, ib. 1*370] 432 OF DEFECTS IN THE QUANTITY man conveyed his land by the quantity of one hundred acres, were it more or less, and it was not above sixty acres ; but the pur- chaser had no relief, because it was his own laches (J) (1). (rf) Anon. 2 Freem. 106. (1) Where a lot or farm is sold in gross, or by its boundaries, and is conveyed by a deed containing the -words " more or less," such words being inserted upon deliberation, because neither party professes to know the precise quantity of land conveyed, and it is afterwards fovind that the quantity of land is less than the parties supposed, in the absence of any fraud or intentional misrepresentation, the Court of Chancery will not interfere for the relief of the purchaser. Marvin v. Bennett, 8 Paigc,"312 ; S. C. 2G Wendell, 169 ; Weaver v. Carter, 10 Leigh, 37 ; Enbank v. Hampton, 1 Dana, 313, 341; Stebbins v. Eddy, 4 Mason, 414; Brown V. Parrish, 2 Dana, 9 ; Jackson r. M'Connell, 19 Wendell, 175 ; Jackson v. Moore, 6 Cowen, 706; Lush v. Druse, 4 Wendell, 313; Pedens v. Owens, Rice Eq. 55 ; Whicker v. Crews, 1 L-edeU Eq. 351. See Nelson v. Matthews, 2 Hen. & Munf. 104 ; Grantland v. Wight, 2 Munf. 179 ; Hampton r. Enbank, 4 J. J. Marsh. 634 ; Cleaveland v. Rodgers, 1 A. K. Marsh. 193 ; Fleet v. Hawkins, 6 Munf. 188 ; Perkins i: Webster, 2 N. Hamp. 287 ; Large r. Penn, 6 Serg. & R. 488 ; Willilbrd V. Bentley, 5 J. J. Marsh. 118 ; Glen v. Glen, 4 Serg. & Rawle, 493 ; Galbraith V. Galbraith, 6 Watts, 117. An agreement was made to convey "the Hawkins place, containing one hundred acres ;" the clause " containing one hundred acres," was rejected as surplusage ; and the contract was held to cover the whole lot sur- veyed and set oft" to Hawkins, and ujjon which he entered, improving part, under a parol contract of purchase, though it in fact contained one hundred and six acres. Butterfield v. Cooper, 6 Cowen, 481. See Pedens v. Owens, Rice Eq. 55 ; "^VTiieker v. CreAvs, 1 Iredell Eq. 351. In Stebbins v. Eddy, 4 Mason, 419, 420, Mr. Justice Story said ; — " The latest cases generally concur with the doctrine laid down in the Anonymous case in 2 Freeman, 106. It seems to me, that there is much good sense in holding, that the words " more or less," or other equivalent words, used in contracts or conveyances of this sort, should be construed to qual- ify the representation of quantity m such a manner, that, if made in good faith, neither party should be entitled to any relief on account of a deficiency or sur- plus. Nor am I prepared to admit that the fact, that the sale is not in gross, but for a specific sum, by the acre, ought necessai-ily to create a ditt'erence in the ap- plication of the prmciple. I do not say, that cases may not occur of such an extreme deficiency as to call for relief; but they must be such as would naturally raise the presumption of fraud, imjjosition, or mistake in the very essence of the contract. Where the sale is fair, and the parties are equally innocent, and the quantity is sold by estimation, and not by measurement, there is little, if any, hardship, and much convenience, in holding to the rule, caveat emptor." See Smith f. Evans, 6 Binn, 109 ; Boar v. McCormick, 1 Serg. & Rawle, 166; Glen v. Glen, 4 Serg. & Rawle, 488 ; Jones v. Plater, 2 GiU, 125; Bailey v. Snyder, 13 Serg. ^ Rawle, 160; Phillips r. Scott, 2 Watts, 318. A sale was at first made of a farm upon a contract of so much per acre, to be ascertained by measurement. Afterwards the parties agreed to waive any meas- urement, and the vendee took the farm at the gross sum of |;2500, supposing it to contain fifty acres, from the rei^resentation of the vendor ; and in the deeds of conveyance the land was stated to contain forty-seven and a half acres, <♦ more or less." Mr. Justice Story held, that, as the vendor was not guilty of any fraudu- lent misrepresentation, but expressed his bonajidc belief, the vendee was not enti- tled to relief in equity, although the quantity turned out, upon subsequent meas- urement, to be forty and one-half acres only, each pai'ty having been well acquaint- ed with the local boundaries of the farm. Stebbins y, Eddy, 4 Mason, 414. See Smith V. Evans, 6 Binney, 102, in which there was a deficiency of 88 acres in 991:J acres, and no relief granted; and Howes t\ Barker, 3 John. 506, in which there was a deficiency of twelve acres in 275, and no relief granted at laic. See as to the power of eciuity in such a case, ib. p. 510, 511, per Kent Ch. J. In Mann v. Pearson, 2 John. 37, the land was described as a certain lot containing 600 acres, in the bond or agreement to convey. A deed, describing the lot, and as containing 600 acres, be the same more or less, was held to be a performance OF THE ESTATE. 433 5. That however was the case of an actual conveyance (1). Where the contract rests in fieri, the general opinion has been, that the purchaser, if the quantity be considerably less than it was stated, will be entitled to an abatement, although the agreement contain the words more or less, or by estimation (e) (2). 6. But in a case where the estate was stated in the contract to contain by estimation forty-one acres, be the same more or less ; and upon an admeasurement, the quantity proved to be only between thirty-five and thirty-six acres ; and the purchaser claimed an abatement ; the Master of the Rolls decided against the claim. He said, that the effect of the words " more or less" added to the statement of quantity had never been absolutely fixed by deci- sion ; being considered sometimes as intending to cover only a small difference the one way or the other (3) ; sometimes as leaving the quantity altogether uncertain, and throwing upon the pur- chaser the necessity of satisfying himself with regard to it. In the instance before him, the description was rendered still more loose by the addition of the words " by estimation." The esti- mated extent of ground frequently proved quite different from its (e)HiU V. Buckley, 17 Ves. 394, ol' the stipulation, although the lot in fact contained only 421 J acres. See Far- mers and Mech. Bank v. Galbraith, 10 Barr, 490 ; Frederick v. Campbell, 13 Serg. .K. llawle, 136 ; M'Lelland v. Creswell, ib. 143. Mr. Chancellor Kent says ; — " Whenever it appears by the detinite bouiidaries, or by words of qualification, as " more or less," or as " containing by estunation," or the like, that the state- lUL'ut of the quantity of acres in the deed is mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there he no intermixture of fraud in the case." 4 Kent (6th ed.) 467. See Innis v. M'Crummin, 12 Mai-tin (Louis.) 425 ; Lesassierr. Dashiell, 13 l;0uis. 151 ; Phelps r. Wilson, 16 ib. 185 ; Morris Canal Co. v. Emmett, 9 Paige, 168. But he adds in a note, " A very great difference (.as thii-ty-three per cent, for instance,) be- tween the actual and the estimated quantity of acres of land sold in the gross, ■would entitle a party to relief in Chancery, on the ground of p-oss mistake. Quesnel v. Woodlief, 2 lien. & Muivf. 173, note; Xelson v. Matthews, 2 ib. 164 ; Harrison v. Talbott, 2 Dana, 258. In this last case, the series of Kentucky de- I'isions on the subject arc ably reviewed." See (iolden v. Maupin, 2 J. J. Marsh. 239. (1) If there be no fraud, the purchaser in a deed of land without covenant to secure the title, has no remedy for his money, even on failure of title, either at law or in equity. Abbott v. Allen, 2 John. Ch. 519 ; Chesterraan v. Gardner, 5 John. Ch. 29 ; Barkhamstcad v. Case, 5 Conn. 528 ; Beelc v. Scivelcy, 8 licigh, i -IS ; Ilershey v. Keemborts, 6 Barr, 128. The objection if any, should be made before the acceptance of such a deed. Miller v. Long, 3 A. K. Marsh. 334 ; Crad- dock V. Shirley, ib. 288 ; Barkhamstcad r. Case, 5 Conn. 528 ; Morrison r. Cald- well, 5 Monroe, 439 ; llawlins v. Timberlake, 6 ib. 230 ; Denston v. Morris, 2 Edwards, 37. (2) See Quesnel v. Woodlief, 6 Call, 218 ; S. C. 2 lien. & Munf. 173 in note ; Hull t'. Cunmngham, 1 Munf. 330 ; Thomas r. Perry, 1 Peters C. C. 49 ; Nelson V. Matthews, 2 lien. & Munf. 164, and the remarks on these cases by Mr. Justice Storv in Stebbius r. Eddv, 4 Mason, 419. (3) Sec Hoffman v. Johnson, 1 Bland Ch. 109 ; Joliffe c. Ilitc, 1 Call, 262. Vol. J. .55 i34 OF DEFliCTS IN THE H^ANTITr contents by actual admeasurement. It could not be contendi'ci tliat ibe terms " estimated" and " measured" bad tbe same mean- ing. If a man was told tbat a piece of land was never measured, but was estimated to contain forty-one acres, would tbat repre- sentation be falsified by sbowing that, wben measured, it did not contain tbe specified number of acres ? The only contradiction to tbat proposition would be, that it had not been estimated to con- tain so much (/) (1). 7. The case of Day v. Finn (o^), however, seems a considerable authority, that at least the words more or less ought only to clear a small deficiency where the contract rests in fieri. There, in ejectment, the plaintiff declared on a lease for years of a bouse *and thirty acres of land in D ; and that /. S. did let to him the said messuage and thirty acres, by tbe name of his house in B, and ten acres of land there, sive plus sive minus : it was moved in arrest of judgment ; because that thirty acres cannot pass by the name of ten acres, sive jdus sive minus ; and so the plaintiff had not conveyed to him thirty acres, for when ten acres are leased to him sive jjlas sive minus, these words ■ ought to have a reasonable construction to pass a reasonable quantity, either more or less, and not twenty or thirty acres more. Yelverton agreed, for the word ten acres, sive plus sive minus, ought to be intended of a rea- sonable quantity, more or less, by a quarter of an acre, or two or three at most ; but if it be three acres less than ten, the lessee must be contented with it. Qiiod Fenner and Crook concesscrunt^ and judgment was stayed. 8. And upon a motion in Portman v. Mill (Ji), it appeared that the lands were described as containing, by estimation, 349 acres, or thereabouts, be the same more or less, and the agreement stipu- lated that the parties should not be answerable for any excess or deficiency in the quantity of tbe premises, but that the premises should be taken by tbe purchaser at tbe quantity, whether more or less; and the actual number of statute acres was less by 100 acres than the number stated in the contract. Lord Eldon said, that as to this stipulation, he never could agree that such a clause (if there were nothing else in the case) would cover so large a defi- ciency in the number of acres as was alleged to exist there. (2). (/) Winch V. Winchester, 1 Ves. & (y) Owen, 133 ; and sec the cases ti- Beam. 375; see as to goods, Petitt v. ted above. Mitchell, 4 Mann. & Gra. 819. (A) 2 Russ. 570. (1) See Clark v. Bell, 4 Dana, 115. (2) See note, ante, 370. [*3711 OF THE ESTATE. 435 9. But however the rule may be finally settled, yet a seller knowing the true quantity, would not be allowed to practise a fraud, by stating a false quantity, with the addition of the words "' more or less," or the like (f) (1). 10. If an estate be represented as containing a given quantity, although not professedly sold by the acre, the circumstance that the purchaser was intimately acquainted with the estate, would not necessarily imply knowledge of its exact contents ; while a particular statement of the quantity would naturally convey the notion of actual admeasurement : and therefore the Court would not be warranted in inferring that the purchaser knew the real quantity (J). For, if the purchaser did know the real quantity, of course he could not claim any allowance for the deficiency (2). So upon a sale of a house to the tenant in possession, a statement in *the particulars that the property was 46 feet in depth, when, in fact, the depth was only 33 feet, was held to entitle the purchaser to an abatement (Jc). 11. In a late case (/), the agreement was to sell an estate "con- taining the several quantities after mentioned, that is to say, by the plan drawn by Mr. F. in 1792 ;" the agreement then proceeded to slate the numbers and particular quantities of each close, and then proceeded to add, "containing altogether about lOP S" 29^." There was a deficienc}^ of 2^" in two closes whicli together were stated to contain 8* 1' 4''. It was held that the purchaser was entitled to an abatement, as the quantity of each close was par- ticularly specified. 12. The principle upon which an abatement in these cases is made, is, to place the parties in the situation in which they would have stood, if there had been no misrepresentation. Therefore, where a man purchased a wood, which was, by mistake, repre- sented to contain nearly twenty-six acres more than it did, but the purchaser was, in the course of the negotiation, furnished with the value of the woods qua wood, so that he obtained the right quantity of wood but not of soil, the abatement was decreed to be only so (0 Sec Duke of Norfolk r. Worthy, (,;) Winch r. Winclicster, 1 Ves. & 1 Camp. Ca. 337 ; supra, p. 30, and I Beam. 375. Ves. & Beam. 377. (A) Kingf. Wilson, 6 Beav. 124. [l) Gell V. Watson, 16 Nov. 1825, MS. (1) Stebbins r. Eddy, 4 :Mason, 414. See Pringle r. Samuel, 1 Litt. 44 ; Du- vals v. Koss, 2 Munf. 290, (2) See Oraddock r. Shirley, 3 A. K. Marsh. 288. [*372] 436 OF DEFFXTS IN THF qUANTlTV much as soil covered with wood would be worth, after deducting the value of the wood (?»). 13. In Price v. North (n), where the estate was described as seven fields 14" niore or less, with the usual condition, tliat mis- takes in description should not annul the sale, but be the subject of compensation, it appeared that the acres were customary ones, and were equal to 21 statute acres ; the Lord Chief Baron observed, that he knew that courts of equity had gone a great way in allow- ing contracts of this nature to be altered on the ground of misde- scription ; but he owned it appeared to him, that such a misdescrip- tion as this would not be ground for modifying the contract, but for avoiding it altogether. This observation was made upon a petition against the purchaser, and no doubt it would be difficult in such a case to make a bona fide, purchaser buy an estate twice as large as that for which he had contracted, and pay double the amount of the purchase-money for it, but he could doubtless en- force the contract upon payment of the additional price. The vendor alone was in fault. 14. Where lands are shown to a purchaser as part of his pur- chase, he will be entitled to them, although expressly excepted in *his conveyance bv name, provided he did not know them by that name (o). 15. So if a man purchase an estate by a particular, and in the conveyance part of the land is left out, equity will relieve him (p) ; but it must be clear that he did purchase by the particular, be- cause it is not a writing within the statute of frauds ; and, there- fore, unless that be the case, or the agreement can be othei-wise proved, the Court cannot relieve (^). 16. On the other hand, the Court will equally relieve a vendor, where more land has passed than was contracted for ; although in an early case (r) (I) this relief was denied ; because the defendant was a purcliaser upon valuable consideration. But it is now clear, that if land be expressly conveyed, or pass by general words, which was not mentioned in the particular by which the purchase {m) Hill V. Buckley, 17 Ves. jun. 394. Nelson v. Nelson, Nels. Cha. Hep. 7. {n) 2 You. & Coll. 620. ' {q) Cass v. Waterhouse, Free. Cha. 29. (0) Oxwick V. Brockett, 1 Eq. Ca. Sec Clinan v. Cooke, 1 Sch. & Lef. 22 ; Abr. 355, pi. 5. and see ch. 3, supra ; and 2 Dow. 301. (jo) Prec. Cha. 307, arguendo: and see (r) Clifford v. Laughton, Toth. 83. (1) Probably the defendant had purchased without notice from the first pur- chaser. f*373] OF THE ESTATE. 437 was made, or was not intended to be conveyed, the purchaser will be decreed to re-convey it (5) (1). 17. And where a purchaser took a conveyance of an estate from his own instructions, he was held not to be entitled to land answer- ing the general description in the advertisements of sale, but which was not included in his conveyance, nor in a more particular de- scription from which he prepared his instructions (it) (2). 18. We may here observe, that old general or vague descriptions, particularly in the case of copyholds, will in most cases be held to pass the lands which have regularly been held under them (li). 19. To come to a right conclusion on this branch of our subject, we must be informed that an acre does not always contain the same superficial quantity of land. The word acre at first de- noted, not a determined quantity of land, but any open ground or field. It afterwards signified a measured portion of land, but the quantity varied, and was not fixed until the statute (I) de tcrris mensurandis (x), according to which an acre contains one hundred *and sixty square perches ; so that every acre is a superficies of forty perches long, and four broad ; or in that proportion, be the length or breadth more or less. The length of the perch was, pre- viously to the statute of Edward, fixed at five yards and a half, or sixteen feet and a half, by the statute called composiiio uhiarum et perticarum (y), and the act of Edward must of course be construed with reference to this standard. Lord Kenyon seems to have thought it impossible to contend, that a custom should prevail that (s) Tyler v. Beversham, Hep. temp. {x) 33 Edw. I. ; and see 24 H. YIII. Finch, 80 ; 2 Ch. Ca. 195. See Gibson c. 4 ; 2 Inst. 737 ; Co. Litt. 69 a ; Spelin. V. Smith, Barnard, Ch. Ca. 491. Gloss, v. Acra, particata, terra-, pertica, {t) Calverley v. "Williams, 1 Yes. jun. pes foresta; roda tcrrcp. Cow. Interp. v. 210. Acre. (m) See Long v. Collier, 4 lluss. 267. ((/) See 4 Inst. 274. (I) It was formerly holden not to be a statute, but only an ordinance. Stowe's case, Cro. Jac. 603 ; but this has since been overruled. Rex r. Evcrard, 1 Lord Raym. 638. (1) See Gilmore v. Morgan, 2 J. J. Marsh. 65 ; Smith v. Smith, 4 Bibb, 81 ; Bowles V. Craig, 8 Cranch, 371 ; Harrison v. Talbott, 2 Dana, 268 ; Rogers r. Gar- nett, 4 Moru"oe, 271. Whore there was so great a s\irplusof land ; namely, eight hundred and seventy-six acres, in a patent for fifteen hundred and thuty-thrce and one-third acres ; beyond what the patent called for nominally, as that it could Imrdly be presiimcd to have been within the -v-iew of cither of the parties, the court decreed a conveyance of the surplus ; the vendee to pay for the same at the average rate per acre, with interest, which the consideration money mentioned in the contract bore to the quantity of land named in the same. King r. Hamil- ton, 1 Peters, (S. C.) 311. See Huiadlev r. Lyons, fi Munf. 342 ; Aacam r. Smith, 2Penn. 211. (2) See Morss r. Elmcndoif, 11 Paige, 277. |*:3741 438 CITSTOMAIIY ACRES. a less space of ground than an acre should be called an acre (2) ; but in several places the perch is measured with rods of different lengths, and notwithstanding Lord Kenyon's dictum, consuetudo loci est observanda (a), so that a greater or less space of ground than a statute acre may, in compliance with the custom of the place where the land lies, be called an acre. In some places the perch is measured by a rod of twenty-four feet, in some by one of twenty feet (b), and in others by one of sixteen feel (c). And we are now to inquire in what cases the custom of the country in this respect shall or shall not prevail (d). 20. In adversary writs the number of acres are accounted according to the statute measure (e), but in fines, and comn]on recoveries, which were had by agreement and consent of parties, the acres of land are according to the customary and usual measure of the country, and not according to the statute (/). 21. So, which is more to our present purpose, where a man agrees to convey (^g), or actually conveys (A) any given number of acres of land, which are known by estimations or limits, there the acres shall be taken according to the estimation of the country where the land lies, be they more or less than the measure limited by the statute ; for they pass as they are there known, and not according to the measure by statute (i) (1). *22. But if a man possessed of a close containing twenty acres of land by estimation, which is not eighteen, grant ten acres of the same land to another, there the grantee shall have ten acres according to the measure fixed by the statute, because the acres of such a close are not known by parcels, or metes and bounds, and so this case differs from the one immediately preceding it (j). And it is said, that if one sells land, and is obliged that it contain twenty (;) Xoble V. Durell, 3 T. Kep. 271 ; cited, and see Ilockinv. Cooke, 4T. Rep. 314; (/) Sir John Eruyn's case, 6 Co. 67 Master of St. Cross v. Lord Howard de a, cited ; Waddv r. Newton, 8 Mod. Walden, T. Kep. 338. 27G. See Floyd" r.EethiU, 1 KoU. Rep. (a) 6 Rep. 67 a. 420, pi. 8 ; and sec TrcswaUen v. Pen- (/>) Crompt. on Courts, 222, who cites hules, 2 RoUe's Rep. 66 ; 12 Yin. 240. a case in the Exchequer, rohitcd to him (y) Some v. Taylor, Cro. Eliz. 66.5. by one of the Barons ; and also 47 E. (h) 47 E. III. 18 a, pi. 35 ; 6 Co. 67 lil. [fo. 18 a, pi. 35 ;] and seeBarksdale a ; Morgan v. Tedcastle, Poph. 55 : V. Morgan, 4 Mod. 185. Floyd v. Bethill, 1 RoUe's Rep. 420, pi. (c) Cp. Litt. 3 b. See Ualt. c. 112. s. 8 ; Andrew's case, Cro. Eliz. 476, cited. 25. (0 /«/w,pl. 23. (d) Infra, pi. 23. {J) Morgan v. Tedcastle, Poph. 55. (e) Andrew's case, Cro. Eliz. 476, (1) See Price r. North, 2 Y. & Coll. 620. [*375] NEW STANDARD OF MEASURED 439 acres, the acres shall be taken according to the law, and not according to the custom of the country (A:). 23. But llie law upon this subject is altered by an Act of the 5th of Geo. 4th, intituled, •' An Act for ascertaining and establishino- Uniformity of Weights and Measures," which provides, that (/) the straight line or distance between the centres of the two points in the gold studs in the straight brass rod now in the custody of the clerk of the House of Commons, whereon the words and figures, " standard yard, 1760," are engraved, shall be the original and genuine stand- ard of that measure of length or lineal extension called a yard ; and that all measures of length shall be taken in parts or multiples, or certain proportions of the said standard yard ; and that one third part of the said standard yard shall be a foot, and the twelfth part of such foot shall be an inch ; and that the pole or perch in length shall contain Jive such yards and a half, and it enacts, that (m) all superficial measure shall be computed and ascertained by the said standard yard, or by certain parts, multiples or proportions thereof; and that the rood of land shall contain 1,210 square yards according to the said standard yard ; and that the acre of land shall contain 4,840 such square yards, being 160 square perches, poles or rods («). 24. And it enacts (o), that from the first day of May 1825, all contracts, bargains, sales and dealings which shall be made or had within any part of the United Kingdom of Great Britain and Ire- land, for any goods, wares, merchandise, or other thing to be sold, delivered, done or agreed for by measure, where no special agree- ment shall be made to the contrary, shall be deemed, taken and construed to be made and had according to the standard measures ascertained by this Act ; and in all cases where any special agree- ment shall be made with reference to any measure established by local custom, the ratio or proportion which every such local measure *shall bear to any of the said standard measures shall be expressed, declared and specified in such agreement, or otherwise such agree- ment shall be null and void. And it is enacted that (/;) the several statutes, ordinances, and acts and parts of the several statutes, ordi- nances and acts thereinafter mentioned and specified, so far as the same relate to the ascertaining or establishing any standards of meas- ures, or to the establishing or recognizing certain differences between (k) Winp: r. Earle, Cio. Eliz. 207. (n) Sect. hi. Seoo & G AVill. 4,c. 03, (/) Sect. 1, c. 74. s. 3. (/n) Sect. 2. (o) Sect. 1.5. (/>) Sect. 23, sec 6 Geo. 4, c. 12. 1*3761 440 OF DEFECTS IN THE VITALITY OF THE ESTATE. measures of the same denomination, shall from and after the 1st day of May 1825, be repealed; and the enumeration includes the statutes or ordinances before mentioned in this section, which are therefore repealed. But by a later act, local or customary measures are abolished ((7), and so much of the act of George the 4th is repealed as allows the use of weights or measures not in confor- mity with the imperial standard, or allows goods or merchandise to be bought or sold by any weights or measures established by local custom, or founded on special agreement (r). 25. The Act of Geo. 4th determines what now in law is the superficial quantity of an acre of land. A question will no doubt arise, whether s. 15 applies to contracts for land under the words "or other thing to be sold," or whether those words are not to be construed ejusdem generis with the preceding words, which are " goods, wares, merchandise." At all events, the section applies only to sales by measure. But wherever a purchaser is under a con- tract entitled to statute acres, the measure will be regulated by this Act (s). ((7) 5 & 6 Will. 4, c. 63, s. 6. 63, s. 3. and 6 in connexion with s. 15 (/•) Id. s. 3. of 5 Geo. i, c. 7-4. (s) See and consider 5 & 6 Will. 4, c. *SECTION IV. OF DEFECTS IN THE QUALITY OF THE ESTATE. 2, 21. Caveat emptor. 19. 3. Right of way not stated. 4. Uncommonly rich water meadow. 22. 5. Residence for a respectable family. 23. 6. House in different county. 7. Where house xoill iiot answer for pur- pose intended. 24. 8. Opinions on Shirley v. Davis. 27. 11. False description of locality. 12. Of state of repair. 28. 13. Notice to repair not disclosed. 15. Where purchaser knows the descrip- 29. tion is false. 30. [*377] Statement of annual jiroduce of woods. Error for and against the seller. Rejyairs not subject of compensation when possession required. Cutting doion ortiamental timber after contract. Latent defect lohich ^nirchaser cannot discover. Lord Kenyons opinion althottgh es- tate sold with all faults. Lord Ellcnborough' s opinion. Sir Jatnes Mansfield. OF DEFECTS IN THE (QUALITY OF THE ESTATE. 441 31. Mr. Justice Heath's and Mr. Justice Gibbs'. 32. Observations on the rule. 'Si. The Scienter. 35. In the case of title. i 37. Concealment of defect. 39. Purchaser waiving his right. 1. We have under a preceding head anticipated questions arising upon rights of sporting, of common, or the hke, to which we must now refer (a). 2. In most cases on this head, the rule " caveat emptor^' apphes, and therefore, although there be defects in the estate, yet, if they are patent, the purchaser can have no relief (b) (1). 3. Thus, where a meadow was sold to the owner of a house and ground adjoining without any notice of a foot-way round it, and also one across it, which of course lessened its value, Lord Rosslyn decreed a specific performance with costs, as he could not, he said help the purchaser who did not choose to inquire (c). It was not a latent defect. Lord Manners has said, that he believed the bar was not very well satisfied with the decision, although, as he observed, the purchaser was undoubtedly extremely negligent not to look at the estate before he purchased it (tZ). Had he used ordinary caution, he would have discovered the easement. *4. So a description, that the land was uncommonly rich water meadow, was held to be immaterial, although the property was imperfectly watered. The Court thought that it would be straining the meaning of the words " uncommonly rich water meadow land," if it were not confined to the quality of the land : and in that sense it professed to be nothing more than the loose opinion of the auctioneer or vendor as to the obvious quality of the land, upon which the vendee ought not to have placed, and could not be con- sidered to iiave placed, any reliance (e) ('2). (a) Supra, s. 1 ; and see ch. l,s. 3, j)!. (d) 1 Ball & Beatty, 250; and see 23 — ■12. Le;;ge v. Croker, ib. 506. (6) See the introductory Chapter ; and (e) Scott «. Hanson, 1 Sim. 13; vide see Lowndes v. Lane, 2 Cox, 363. supra, p. 3. (e) Oldiield v. Hound, 5 Ves. jun. 508. (1) See Chitty Contr. (8th Am. ed.) 390 and notes; Sherwood v. Salmon, 5 Day, 439 ; S. P. 2 Day, 128 ; 2 Kent (6th ed.) 478, 479 ; 1 Story Eq. Jur. ^^212 ; ante, 370, note. (2) Hutchinson v. Brown, 1 VAaxke, 408 ; 1 Story Eq. Jur. §199 to §202. The vendee must guard himself against the vendor's strong representations and com- mendations of the good qualities of the land sold, hy personal examination and inquiry, unices such examination and mquiry arc difficult or are prevented by the artifice of the ventlor. Taylor r. Fleet, 4 Barbour, 102, Per Strong J. ; Dugan v. Carlton, 1 Arkansas, 31. Vol. 1. 56 [*378J 442 OF FAESE DESCRFPTrOiV^&v 5. So where a house was represented as a residence fit for a respectable family, the Court said the purchaser might see the house and jtidge for himself, and he could not complain wher? ordinary diligence would have enabled him to make sure (1). There- fore, if the house appeared in fact not to be such as we should understand by that description, nothing could be made of that. That was merely pufF (/). 6. And here a case (^) may be introduced, where the subject of the contract was a house on the north side of the river Thames, supposed to be in the county of Essex, but which turned out to be in Kent ; a small part of which county happens to be on the othcK side of the river. The purchaser was told he wou-ld be made a churchwarden of Greenwich, when his object was to be a freeholder of Essex ; yet he was compelled to take the house. 7. This decision, however, seems to be opposed by a case before Lord Talbot. An agreement was entered into for the purchase of a house for a cofFee-house» It was found that a chimney could not be made convenient for a coffee-house ; but nevertheless, the vendor filed a bill against the purchaser, to com)K^l him to perform the agreement. Lord Talbot dismissed the bill, merely because the tenant would be obliged to take it for a purpose be did no-t want (h) (2). 8. The case, indeed, of Shirley v. Davis, and the cases of that class have constantly been disapproved of. In one case it was observed by the Court, that the principle was, that if substantially the purchaser can have tlie thing contracted for, a slight variation in the qualification of it will not disable the vendor from having a decree for s|>ecific performance, when compensation can be made pecuniarily for the difference. This was the sole principle on which, the Court assumed jurisdiction to permit deviation in any *degree from the strict right to have exactly the precise thing agreed for. There had been some very wild cases — Shirley v, (/) Magennis v. Fallon, 2 Moll. 561. (A) 1 Russ. & Myl. 12S ; 1 Yes. ;507 ; (f/) Shirley v. Diivios, in the Kx.chc- and .see KJ Yes. juii. 78. quer, 6 Yes. juu. G~^, cited. (1) The vendee will bo held to have known what by reasonable diligence h« could have known, Taylor v. Fleet, 4 Barbour, 108. (2) AVhcre land was sold for building lots, and bounded ou a street nixty-six feet wide, the sale was set aside because the street was in fact only eleven feet wide and thus very much diminishing the value of the land. Stewart v. Andrews, cited and stated in Taylor v. Fleet, 4 Tlarbour Sup. Ct. Hep. 10-3. See where the lots conveyed had been dedicated as public streets, Champlin v. Lavton, 1 Ed- TFards, 471 ; 6 Paige, 189. [*379] III OF FALSE DESCRIPTIONS. 443 Dav'is — aniinadveited on by Lord Eldon more than once, the tithe free land case, especially the house and wharf case, and the «case of the manor with the right of shooting (I). But those cases were not to be followed. There was, the Court added, no case ^vhich was of authority deciding that in case of a contract for a peculiar object, having in the eye of the purchaser a particular value, from circumstances not capable of pecuniary compensation, the purchaser could be compelled to perform it if these be taken away (^) (1). 9. But it may be remarked, that it is no bar to a specific per- formance', that the conveyance will not have the operation which the purchaser thought it would. Thus, where a tenant for life of a copyhold purchased the reversion in the hope of extinguishing contingent remainders, and afterwards finding that the conveyance would not affect the remainders, brought a bill to be relieved against tlie security which he had given for the purchase-money ; the Court gave him his option either to pay the pnncipal, interest, and costs, or to have his bill dismissed with costs (k). 10. So, in a case where, under the legal construction of the terms of an agreement for a lease, the option to determine the lease was in the lessee only, and it was argued against a specific performance, that this was contrary to the intention, the Master of the Rolls said that a specific performance of a written agreement cannot be denied because the meaning of the parties does not appear (/). 11. But where a vendor gives a false description of the estate, the purchaser may at law rescind the contract, (2) although it be pro- vided that errors of description shall not vitiate the sale. As where before the Reform Act an estate was stated to be but one mile from a borough town, and it turned out to be between three and four, the contract was held to be voidable by the purchaser (m). And of course the same rule would prevail in equity. 12. So in a case where the estate was described to have lately (0 Magennis r. Fallon, 2 Moll. 588, (m) Duke of Norfolk r. AVorthy, 1 589, /><;;• Hart, L. C. Camp. Ca. 337 ; vide supra, p. 30 ; and (A) Mildmay i-. Ilungerford, 2 Vcrn. see Fenton v. Browne, 14 Yes. jun. 114 ; 243. ' V. Christie, 1 Salk. 28, by Evans ; (/) Price V. Dyer, MS., Rolls ; S. C. 17 Trower v. Newcoinbe, 3 Mer. 704. Ves. jun. 356. (1) This probably is an inaccurate reference to Burnell v. BroAvn, supra, p. 352. (1) See Taylor v. Fleet, 4 Barbour, 102. (2) See Pringle v. Samuel, 1 Litt, 46; Bostwick r. Lewis, 1 Day, 33, 250; Nor- ton r. llathawuv, 1 Day, 255. 444 purchaser's knowledge undergone a thorough repair, whereas it was in a complete state of *ruin, and ordered to be pulled down by the district surveyor, the purchaser was allowed to rescind the contract (ji). And where the state of the house was not perfectly visible to every body, and the state of the repairs was falsely represented by the seller, know- ing that the house had the dry-rot, without communicating that fact to the purchaser, who relied so much on the seller that he had not had the premises surveyed ; upon a bill filed by the seller, a specific performance was decreed, but with a compensation to the purchaser (o), with which he was willing to complete the contract. 13. So where the purchaser of a leasehold house was aware of the ruinous state of the premises, but no mention was made at the sale by auction of a notice to repair given to the vendor by the lessor, on the day before the sale, under which the lessor re-entered and evicted the purchaser, he (the purchaser) was permitted to recover the deposit from the auctioneer, on the ground that in such transactions good faith was most essential, and the vendor or his agent was bound to communicate to the vendee the fact of such notice (_p). 14. But if the purchaser knew that the description was false, he cannot, it seems, take advantage of it either at law or in equity (1). 15. Thus, in a case (g-) where an estate was described as being within a ring fence, it appeared, that the estate was intersected by other lands, and did not answer the description, but that the pur- chaser knew the situation of the estate ; Sir William Grant (after expressing a doubt whether such an objection was a subject of compensation, as it was not certain that a precise pecuniary value could be set upon the difference between a farm compact in a ring fence, and one scattered and dispersed with other lands), said, that the purchaser was clearly excluded from insisting upon that as an objection to complete the contract. He saw the farm before he purchased ; he had lived in the neighborhood all his life. This variance was the object of sense ; he must have known whether the farm did lie in a ring fence or not ; and upon the same ground, (n) Loyes v. Rutherford, K. B. 16 an issue as to the fact of the rei^resenta- May 1809. tions -n-as declined. (o) Grant v. Munt, Coop. 173 ; the evi- (p) Stevens v. Adamson, 2 Stark. 422. dence hardly warranted the decree, but (q) Dyer ». Hargrave, 10 Yes.jun. 50o. See and consider 8 Cla. & Fin. 792. (1) 1 Story Eq. Jur. ^^202. [*380] " THAT DESCRIPTION IS FALSE. 445 that the purchaser could not get rid of the contract on account of the difference in the description of the farm, he determined that he could not be entitled to compensation. If a compensation was given to him, he would get a double allowance ; for if he had know- ledge *that what he proposed to purchase did not answer the description, it must be taken that he bid so much the less. 16. This case, we observe, went a step farther than either the case before the Court of Exchequer, or that before Lord Rosslyn, in neither of which was there any warranty or false description. But in this case it was expressly stated, that the whole estate was within a ring fence ; but the Master of the Rolls thought that cir- cumstance immaterial, as the purchaser knew the description was false ; and the decision appears to have been grounded on the doctrine, that even at law a warranty is not binding where the defect is obvious, and the learned Judge put the cases of a horse with a visible defect, and a house without a roof or windows war- ranted as in perfect repair ; and in another case, where there was a representation as to the state of repair, he said that as to war- ranty, if the defect was patent or obvious, the warranty would not bind (r) (1). 17. But where a particular description is given of the estate, which turns out to be false, and the purchaser cannot be proved to have had a distinct knowledge of the actual state of the subject of the contract, he will be entitled to a compensation, although he may be compelled to perform the contract. 18. Thus, in the case before the Master of the Rolls, the partic- ular described the house as being in good repair, and the farm as consisting of arable and marsh land, in a high state of cultivation. Tt appeared, however, that the house was not in good repair, and that the land was not in a high state of cultivation. The learned Judge said, that the objections were such as a man might have an indistinct knowledge of, and he might have some apprehension that, in those respects, the premises did not completely correspond with the description, and yet the description might not be so com- pletely destroyed as to produce any great difference in his offer. As to the marsh land, it was very uncertain, whether, by any view, it was possible for him to judge of that. It was stated by many witnesses, that the season of the year was just at the breaking of (;•) Grant v. Munt, Coop. 173. (1) See 2 Kent (6th ed.) 484; Schuyler »j. Huss. 2 Cainns Hop. 202; Chitty Contr. (8th Am. ecl.> 30(5 and notes. 1*381] 446 DESCHIPTION FALSE TO PURCHASERS KNOWLEDGE. a frost, and represented that no man could, at tliat time, say whe- ther the land was well or ill cultivated. So he might have seen some trifling defects in the house, and might not intend to make the objection, if they turned out to be nothing more than they appeared upon the surface. He might consider them too trivial, and not mean to claim compensation for an objection so insigni- ficant. But afterwards, when he came to examine, he discovered *that the house was materially defective, and very much out of repair. Admitting that he miglit, by minute examination, make that discovery, he was not driven to that examination ; the other party having taken upon him to make a representation : otherwise he would be exonerated from the consequence of that in every case where, by minute examination, the discovery could be made. The purchaser was induced to make a less accurate examination by the representation, which he had a right to believe. He therefore was entitled to compensation for the defects of the house, and the cultivation of the marsh land. 19. In a case where the woods were represented as actually pro- ducing 250/. per annum, on an average of the fifteen preceding years ; but the manner of making the calcidation was explained at the sale, and it seems a paper was exhibited, which showed that the woods had not been equally cut, and the purchaser sent his own surveyors down, and they thought that the woods had been cut in an improper manner, Lord Thurlow refused the purchaser any compensation although the representation was not correct, for the communications to him put it on him to consider whether the manner of calcidation was a proper one to ascertain the permanent income, and as he was apprised by his surveyors that the woods had not been regularly cut, with that knowledge it fell on him to take care of himself (5). 20. But if the representation had been made generally, and it liad been distinctly proved that this part, though literally true, yet was made by racking the woods beyond the course of husbandry, that would have been a fraud in the representation which Lord Thurlow said might have been relieved against (t). 2L Lord Thurlow, in the above case, said that, as to the extent of the maxim, caveat emptor, he was willing to carry it to a great extent, but not to the extent of saying it should apply where there was a positive representation essentially* material to the subject sold, and which at the same time is false in fact. He said he must (s) Lowndes r. Lane, 2 Cox, 363. (0 S. C. [*382] FELLING ORNAMENTAL TIMB EK. 447 consider any fundamental mistake in the particulars of an estate as furnishing a case in which the purchaser would be entitled to have the mistake set right if recently applied for (1). 22. Where trustees for sale of a manor, stated generally in the particulars that the fines were arbitrary, which was not correct, but added that the clear profits on an average of eight years had been 150?. a year, whilst they really exceeded 200/. a year ; it was held that the purchaser was not entitled to any compensation, although *thcre was the usual condition providing compensation in case of error or misstatement (u). 23. Notwithstanding that the case of Dyer v. Hargreave has established that the repairs necessary to a house are a subject of compensation, although the house is described to be in good repair, yet the Court seemed to admit, that if the purchaser wanted pos- session of the house to live in at a given period, by which time the repairs could not be completed, he ouglit not to be bound to com- plete the contract (v). 24. Where a house was represented in the advertisements as fit for the residence of a family, and the demesne well wooded, and at the time of the sale a map of the estate was exhibited upon which several clumps and single trees were delineated, altliough nothing was said about ornannental timber, and after the sale, and pending the investigation of title, some of the ornamental timber exhibited on the map was cut down, the purchaser was relieved from the contract. The Court said, that there was now no case, which was of authority, deciding that in case of a contract for a peculiar object, having in the eye of the purchaser a particular value, from circumstances not capable of pecuniary compensation, where the purchaser can be compelled to perform it, if these be taken away. The house was represented as surrounded by ornamental timber, constituting a feature of beauty, and a piu'chaser could not replace the timber. The Court could not go into the queslion of despolia- tion of ornament; the destruction of one beautiful tree wouUl be sufficient, and it did not admit of pecuniary compensation. The adventitious value was taken away, and there was no instance of («) "White V. Cuddon, 8 Cla. & Fin. 7GG. (r) Vide sujn-a, ch. 5. (1) If a vendor of land, knowing that the jiurchascr is unacquainted with its situati(5n or value, makes a false representation as to any matter, which if true, would materially enhance the value of the property, he is, in eiiuity, hound to make his representation p;ood. 15radley r. IJosIcy, I Barbour Ch. licp. 12") ; Parham u, Randolph, 1 Howard (Miss.) i3j. [*3S;ji 448 OF LATENT DEFECTS a court of equity under such circumstances compelling a purchaser — contracting for the purchase of a house and demesne fit for resi- dence, and embellished with ornamental timber, where ornamental trees have been cut down between the contract and possession given, or title shown — to complete the purchase (x). 25. This case proves that a purchaser is entitled to the subject as described, and that the alteration of it after the contract, and before the completion of the contract, in a subject which admits not of compensation, avoids the contract as against the purchaser. 26. But where ordinary timber is cut down after the contract, that may be a subject of compensation (//). 27. Where the defect is a latent one, and the purchaser cannot by the greatest attention discover it, if the vendor be aware of it, and do not acquaint the purchaser with the fact, he may set aside *the contract at law, although he bought the estate ivith all faults (z) (I) ; and equity would not enforce a specific performance. 28. This was decided at law by Lord Kenyon at nisi prius, upon the sale of a ship. It was insisted, for the seller, that the rule caveat emptor applied ; but Lord Kenyon said, that there are cer- tain moral duties, which philosophers liave called duties of imper- fect obligation, such as benevolence to the poor, and many others, which courts of law do not enforce. But in contracts of all kinds, it is of the highest importance that courts of law should compel the observance of honesty and good faith. This was a latent defect, which the plaintiffs could not, by any attention whatever, possibly discover ; and which the defendants knowing of, ought to have dis- closed to the plaintiffs. The terms to which the plaintiffs acceded, of taking the ship with all faults, and without warranty, must be understood to relate only to those faults which the plaintiffs could have (liscovered, or which the defendants were unacquainted with. 29. In a late case {a), the same point arose before Lord Ellen- borough at nisi prius ; but ultimately it was not necessary to decide it. Lord Kenyon's decision was cited. Lord Ellenborough said, that he could not subscribe to the doctrine of that case, although he felt the greatest respect for the authority of the Judge by whom it was decided. Where an article is sold with all faults, {x) Magcnnis v. Fallon, 2 Moll. oSH. 154, See \ Eall & Beatty, 515 ; Early r. (,/) S C. Garrett, 9 Barn. & Cress. 928 ; 4 Man. & (■r) Mellish v. Motteiix, Peake's Ca. llyl. G87 ; Bywater v. Richardson, 1 115. Adol. & EU. 508. (a) Baglchole v. Walters, 3 Camp, Ca, ~(1) See Chitty Contr, (8th Am. ed.) 396. [*3S4] WHEllE SALE IS WITH ALL FAULTS. 449 he (Lord Ellenborough) thought it was quite immaterial how many belonged to it within the knowledge of the seller, unless he used some artifice to disguise them, and to prevent their being discovered by the purchaser. The very object of introducing such a stipula- tion is, to }3ut the purchaser on his guard, and to throw upon him the burthen of examining all faults, both secret and apparent. A man may be possessed of a horse he knows to have many faults, and wish to get rid of him, for whatever sum he would fetch. He desires his servant to dispose of him ; and instead of giving a warranty of soundness, to sell him with all faults. Having thus laboriously freed himself from responsibility, is he to be liable, if it be afterwards discovered that the horse was unsound ? Why did not the purchaser examine him in the market when exposed to sale ? By acceding to buy the horse with all faults, he takes upon himself the risk of latent or secret faults, and calculates accordingly the price which he gives. It would be most incon- venient and unjust if men could not, by using the strongest terms which language affords, obviate disputes concerning the quality *of the goods which they sell. In a contract such as this, he thought there was no fraud, unless the seller, by positive means, renders it impossible for the purchaser to detect latent faults ; and he made no doubt, that this would be held as law when the question should come to be deliberately discussed in any court of justice. 30. In a still later case, upon the sale of a ship, the particular stated, amongst other things, that the hull was nearly as good as when launched. And after stating where she was to be seen, added, " with all faults as they now lie." Then followed an inventory of the stores, to which the following declaration was added, " the vessel and her stores to be taken with all faults as they now lie, without any allowance for weight, length, quality, or any defect whatsoever.''' The ship was quite unseaworthy. She belonged to underwriters to whom she had been abandoned. The agents for the sale must have known her defects, and she was kept constantly ajloat, so that her defects could not be discovered. The person who framed the particular had not examined the vessel (A). Mansfield, C. J., said that these words were very large, to exclude the buyer from calling upon the seller for any defect in the thing sold ; but if the seller was guilty of any positive fraud in the sale, {/)) Schneider r. Ilcath, 3 Camp. Ca. -50(1. Vol. I. .37 [*3851 450 or LATENT DEFECTS these words would not protect him. There iiiiglit be stKih fraiix/ either in a Ailsc representation, or in using means to conceal such defect. He thought the particular was evidence here by way of representation, that stated the hull to be nearly as good as wheu launched, and that the vessel i-equired a most trifling outfit. Now, was this true or false? If false, it was a fraud, which vitiated the contract. What was the fiict } The Indl was worm-eaten, the keel was broken, and the ship could not be rendered seaworthy without a most expensive outfit. The agent says, that he framed this particular without knowing anything of the matter. But it signified nothing whether a man represented a thing to be different from wliat he knew it to be, or whether he made a representation which he did not know at the time to be true or false, if, in point of fact, it turns out to be false (c) (1). But, besides this, it appear- ed here that means were taken frauduler>tly to conceal the defects in the ship's bottom. These must have been known to the captain, who was to be considered the agent o.f the owners, and he evi- dently, to prevent their being discovered by persons disposed to bill for her, removed her from the ways where she lay dry, and kept her afloat in the dock till the sale was over. Therefore, consist- ently *'wilh the decided cases upon this subject, tlie learned Judge was of opinion, that the purchaser was entitled to recover back his deposit. 31. In a case which occurred a few months before, upon the sale of a ship^ where the Court held that, in' point of fact, there was no fraud, Mr. Justice Heath said, that the meaning of selling '' with all faults" is, that the purchaser shall make use of his eyes and understanding to discover what faults there are. He admitted that the vendor was not to make use of amj fraud or practice to conceal faults. The learned Judge adhered to the doctrine of Lord EUenborough, above stated, without any difficulty. Mr. Justice Chambre held, there must be evidence of fraud to enable the Court to depart from the written agreement. Mr. Justice Gibbs agreed with Lord Ellenborough's doctrine. Even if there had been a representation it would not have availed. He held, that if a mau brought him a horse, and made any representation whatever of his quality and soundness, and afterwards they agreed in writing for the purchase of the horse, that shortened and corrected the repre- (c) Vide supra, cli. 4, s. 5, pi. 2o, 26. (1) Stone V. Denny, 4 Mctcall",, lol ; Hammatt v. Emerson, 27 Maine, 308 Hazard v. Irwin, 18 Pick, 9o. [*386] WHERE SALE IS WITH ALL FAULTS. 451 sentations, and whatsoever terms were not contained in the con- tract would not bind the seller. But the learned Judo;e aorreed that fraud would not be done away by the contract (d). 32. It appears therefore to be settled that the condition " with all faults," excuses the seller from stating those within his knowl- edge, but he must not use any artifice to conceal them from the purchaser. Now this, which is quite right, seems hardly to meet the case before Lord Kenyon, where the seller knew of the defect and did not disclose it, although he also knew that the purchaser could not by any attention whatever possibly discover it. In such a case, no artifice need be resorted to by the seller to conceal the defect from the purchaser, and yet the man who sells such a sub- ject with all its faults without disclosing the concealed one, seems only, in a moral view, on a level with him who, making a similar sale of a subject where a defect might by diligence be discov'ered, resorts to arlifixe to prevent the purchaser from coming to the knowledge of it. The question is not of more or less of turpitude, but whether in either case a fraud has not been committed. Tlie rule is not that the seller may use his skill to conceal, and that lhe purchaser is to exercise his to discover the defects. The dis- tinction therefore is but a thin one between a man who has plas- tered over a rent in the main wall and papered it over, and then sells, subject to all faults, knowing that the purchaser cannot *discover this fatal one which he does not point out, and a man who, knowing that the defect is thus concealed, sells the estate with all its faults without disclosing this, which he knows cannot be discov- ered : in either case the purchaser is deceived. In the first case, no doubt, the seller by his act hides the defect, but there is no positive fraud in hiding the defect ; the fraud is committed, or at least con- summated, when the seller by his silence induces the purchaser to buy without the means of knowledge. Now in this respect, the sellers in the two cases are upon a par, for each is aware that the defect is hid, and each is silent. Can it, in point of honesty, matter that the one covei'ed the defect and that the other only knew that it had been covered ? 33. But where even the estate is sold generally and not subject to all faults, the ground and basis of an action in the case of this nature, for recovery of a deposit, where the contract is in fieri ; or of damages, where the contract is actually executed, is the scienter ; (rf) Pickcrin<; v. Dowson, 4 Taunt, herdr. Kain, 5 Bam. & Aid. 240 ; Fiee- 779. See Jones r. Bowden, ib. 847 ; Shep- man r. Baker, 5 Bain. & Adol. 797. [*387j 452 OF rONCF.ALMKNT OF DEFECTS. and, therefore, if tlie vendor was not aware of llie defect, he wilJ not he answerable for it. Nor will trifling defects he sufficient foun- dation for such an action. 34. Thus, in a case (e) .where a purchaser brouiiht an action against a vendor, to recover damages for having sold him a house, knowing it had the dry-rot (/) ; it apjjeared, that the house was situated in a clayey soil, and that the floor lay near the ground, by which some of the timbers had rotted ; but the vendor was not aware of the defects, and the purchaser was nonsuited. Lord Kenyon said, the circumstances that had been proved in this case might be described by a word that was used by one of the wit- nesses ; they were mere bagatelles. If these small circumstances were to be the foundation of an action, every house that was sold would produce an action. If a broken pane of glass that might be found in a garret window, perhaps, had not been described by the seller, it would be the ground of an action. If he was to con- sider himself as a witness in the cause, he could say he had met with something of this kind, and he never thought himself im- posed upon, because now and then some rotten boards and rotten joists might be found about a house. Besides, there was no impo- sition, no mala fides in this case. 35. And of course the same rule prevails where the question turns upon title, and the estate is agreed to be sold with all defects of title. Where, therefore, a leasehold estate, for which rent had been paid, had been sold by the lessee as a fee simple, which fee ^simple afterwards became vested in assignees of a bankrupt, who contracted to sell the estate to a person who agreed to accept a conveyance of such right or title as might be theirs, with all faults and defects, if any, and the purchase-money was paid, and after- wards the lessor recovered the property ; the purchaser, before the execution of the agreement, asked the sellers whether any rent had ever been paid, and they replied, that no rent had ever been paid by the bankrupt or any person under whom he claimed ; and the jury having found that the sellers believed their representation to be true, the purchaser, it was held, had no right to recover the purchase-money ; for the concealment must be fraudulent, and the statement, though false, was not fraudulent (4^). 36. Although the purchaser might, witii proper precaution, have (e) Bowles r. Atkinson, N. P. MS.; (/) See Grant v. Munt, Coop. 173, and see Logge v. (broker, 1 Ball & Beat, supra, p. 380. 506. (y) Early v. Garret, 9 Bam. & Cress. 928 ; 4 Man. & Kvl. 687, iiost, ch. 12, s. 2. [*388J OF CONCEALMENT OF DEFECTS. 453 rliscovered the defect ; yet if, during the treaty, the vendor indus- triously conceal the fact, equity will not assist him (1). 37. Thus, upon a suit for a specific performance, the defence was, that the estate was represented to the defendant as clearing a net value of 90/. per annum, and no notice was taken to him of the necessary repair of a wall to protect the estate from the river Thames, which would be an out-going of 50/. per annum. And it appearing, upon evidence, that there had been an indus- trious concealment of the circumstances of the wall during the treaty, the Lord Chancellor dismissed the bill, but without costs (h). 38. So where, upon the sale of a house, the seller being con- scious of a defect in a main wall, plastered it up and papered it over, it was held that, as the seller had actually concealed it, the purchaser might recover (i). 39. We may close this section by observing, that if a purchaser having a right to rescind a sale upon the ground of fraudulent representations, continue to deal with the subject of the sale as owner after he is aware of the fraud, he will be held to have waived his right of action (Jc). (h) Shirley v. Stratton, 1 Bro. C. C. (0 4 Taunt. 78.3, cited by Gibbs, J. 440. [Perkins's ed. notes.] (/.) Camx)bcll v. Fleming, 1 Adol. & EU. 40. (1) See Taylor v. Fleet, 4 Barbour Sup. Ct. Kep. 102. [ d54 ] ^CHAPTER VIII. of afireements to accept a title, and of waiving obje(;tions to title, and of the remedies where the title is in dispute. SECTION I. of AGREEMENTS TO ACCEPT A TITLE, AND OF WAIVING OBJECTIONS. 1. Right to good title, although seller claims under purchaser. 2. General right to good title. 3. Condition to accept the title as it is. 6. May be proved bad, aliunde. 7. Title not to be produced and bad title produced. 9. 7 Condition not to produce deeds, not 10. 5 bound to take a bad title. 11. Condition as to identity : j^roperty not to be found. 12. Condition to accept a bond for title. 13. Observations on Clarke v. Faux. 14. Condition to take an indemnity against an alleged forged deed. 15. Solicitor buying from client with a title which he accepted. 16. Condition to avoid contract if title cannot be made. 17. Or objection not ansxcered in a limited ti7ne. 18. Or purchaser's counsel object to title. 19. Roberts v. Wyatt and Williams v. Edicards distinguished. 20. Purchaser to elect whether contract shall be void. 21. Limited time to object after abstract delivered. 23. Possession a waiver of objections. [*389] 24. Waiver a question of fact. 25. Forcible piossession by j)urchaser. 26. Right of sporting first disclosed in abstract. 27. Possession with long delay a waiver. 29. Although purchaser swear he did not mean it. 30. Lease by a purchaser to one in posses- sion. 31. Possession and approbatio7i of con- veyance. 33. Possession under contract no waiver. 34. Or with vendor's concurrence. 36. And acts of ownership do not bind. 38. Re-selling where a waiver. 40. Or pre2}aration of conveyance. 41. 47. Notice of limited title binding. 42. Purchaser not bound by his counsel's opinion. 43. Nor by his solicitor's statement if seller file a bill. 44. Objection taken when too late to be remedied, a device. 45. Purchaser accepting abstract may prove title bad. 46. Waiver of objections to title but not of proof. 49. Acquiescence a waiver. 51. Possession: interest and costs. RIGHT TO GOOD TITLE. 455 52. Seller turning j^e^-c/iaser out of pos- session has no equity. 53. Waiver restricted by subsequent acts. 54. Waiver qualified. 55. Waiver, and then bad title produced. 57. Purchaser rejecting title should relin- quish possession. 58. Purchaser keeping back one objection, 59. Opinion taken on title up waiver of collateral objection. GO. Authority of agent to waive. 64. Agreement to take defective title toith covenants. We have already considered the general rules in regard to ac- tions and suits by vendors and purchasers, to which we must now refer (a). But the rules applicable to proceedings in Court, where the question relates to the title, have been reserved for this chapter, in order that they may be placed in immediate connexion with the whole subject of title, upon which we are about to enter. But we must first consider the cases where a purchaser by his con- tract is precluded from calling for a title, or where he has by his conduct after the contract waived his right. 1. If the contract stipulate that the seller shall deduce and make a good title, he must do so althougli the seller claim under the pur- chaser as a mortgagee, with a power of sale, and therefore the pur- chaser was fully aware of the objection, which was that the property was out of repair and the landlord had a right of re-entry (J)) (I). 2. The right to a good title is a right not growing out of the agreement between the parties, but is given by the law (c). But a vendor may of course stipulate that the purchaser shall accept the title, such as it is (rf) (1) ; but a condition to take a title without its usual guards, e. g., a leasehold title without the lessor's title (e), or to cast upon the purchaser a responsibility which belongs to the seller, for example, to obtain the lessor's consent to an assignment, will not be inferred from ambiguous expressions, or from notice of the liability (/). 3. In the case of Freme v. Wright (£,'•), where assignees, having (a) Ch. 4, s. 4. 992 ; Spratt v. Jcffery, 10 l?nrn. & Cress. (6) Burnett v. "SVhoeler, 7 Mccs. & 249; Shepherd » Keatlcy, 1 Cro. Mecs. Wcls. 304. & Rose. 117; Wheeler' r. Wright, 7 (e) Hall v. Betty, 4 Miinn. & Grang. Mecs. & Wels. 359. 410. " (/) Lloyd V. CrLspc, 5 Taunt. 249. (d) Wilmot V. Wilkinson, G Barn. & (g) 4 Madd. 364 ; Molloy r. Sterne, 1 Cress. 506. Dru. & Walsh, 585, ct qu. ; Taylor v. (e) Soutcr v. Drake, 5 Barn. & Add. Martindale, 1 You. & Coil. C. C. 658. (I) A court of equity could not, as seems to have been supposed, have ordered the seller to obtain a release from the landlord. Sec the Report, p. 367. (1) See Brown v. Haff, 5 I'aige, 235. ' [*389J 456 CONDITION TO ACCEPT THE TITLE AS IT IS. a defective title, put it up to sale, and one of the conditions stated, that the purchaser should have an assignment of the bankrupt's interest to one moiety of the estate, under such title as he lately *hcld the same, an abstract of which might be seen at a place named in the conditions, the Vice-Chancellor stated, that a vendor, if he thinks fit, may stipulate for the sale of an estate with such title only as he happens to have ; and he held, that in this case the assignees sold only such title as they had ; but as it was stated that the conditions of sale were not circulated before the sale, tiie purchaser was offered an inquiry as to this fact. 4. Conditions like that in Freme v. Wright should be looked at with great jealousy, as they are often traps for the unwary ; and the Court should at least expect the fact to be broadly stated, that the seller only sell such title as he has, without warranting the same. 5. Where a man agreed to sell the two leases and the goodwill in trade of a house, &;c., as he held the same, for twenty-eight years, &c., and the purchaser was to accept a proper assignment without requiring the lessor's title, although an objection to the lease, which was granted under a power, was shown by the purchaser, he was upon various grounds held to be concluded by the agreement : the construction was, that he should not be at liberty to raise any ob- jections to the lessor's title ; that the seller contracted to sell a qualified title only, and that the title of the party who granted the leases should not be inquired into ; that as the purchaser con- tracted to pay for an assignment without requiring the lessor's title, it was an unreasonable construction that he was nevertheless at liberty to object to that title (K). 6. In a later case, a condition that the seller should not be obliged to produce the lessor's title, was held not to exclude the purchaser from showing aliunde that the title was bad ; and Lord Lyndhurst, C. B., said that he did not say what his own opinion would have been upon the words of the clause in Spratt v. Jeffery, but he distinguished them from the words in the case before him ; and Alderson, B., observed, tliat possibly upon the words used in Spratt V. JefFery he might not have come to the same conclusion as the (A) Spratt c. Jeffery, 10 Barn. & Cress, therefore, may either have the premises 249. By the purchase of a bad lease the for the two terms for which they were party may derive the same benefit as if demised, or an equivalent compensation : it were good, and if he cannot the lessee ^jcr Bayley, J. p. 260 ; qit. tliis doctrine, or his assignee has a remedy over against and qu. the right to recover upon evic- the grantor of the lease. The plaintiff, tion. 1*3911 CONDITIONS AS TO DEEDS. 457 Court of King's Bench did (i) ; and Gurney, B., said, tl;iat if the vendor of a lease intend to protect himself against showing a good *title in his lessor, he should use unambiguous language ; and Alderson, B., also observed, that Spratt v. JefFery must have been decided on the ground that the contract amounted to a waiver of abjections to the lessor's title altogether, and not merely to a pro- duction of it in evidence. He doubted if the decision could be supported on any other ground. It seems clear that Spratt v. Jef- fery will not be followed as an authority. 7. Although the seller by condition stipulate that he shall not be bound to produce any title prior to the last conveyance, yet if he produce a defective title on the face of the abstract, the pur- chaser may reject it (j). 8. And a man simply buying the benefit of a proposal to take a building lease, signed by the intended lessee in the lessor's agent's books, cannot ask equity to relieve him, whether the landlord be bound or not (k). 9. In Dick v. Donald, in the House of Lords, where the articles of roup in Scotland bound the seller to execute and deliver a valid irredeemable disposition of the property, and to deliver to the purchaser certain specified instruments, " which are all the title-deeds of the property in his, the seller's custody," it was insisted that the title was limited by the articles of roup, but it was decided otherwise ; and Lord Lyndhurst said, that he could see nothing in the article of roup to take away the right to a good title. A valid and irredeemable disposition, which the articles undertook to give, must be by some person having the right to dispose. As to the condition with respect to the title-deeds, he never heard that because the seller provides, by the condition, that he will give to the purchaser only certain specified deeds, the purchaser must take a bad title, or such title as appears upon the deeds (/). 1 0. So where (m) by one of the conditions of sale, the seller was to deliver an abstract of title, and to deduce a good title, but as to part no title was to be required prior to a certain award, and by a subsequent condition the seller was to deliver the title-deeds, he, in his custody to the largest j)urchaser, " but should not be bound to (i) Shepherd v. Keatley, 1 Cro. Mecs. (k) Baxter i\ Couolly, 1 Jae. & "Walk. & Ros. 117 ; 4 Tyr. 571 ; sec o Bam. & 576. Adol. 1002; 3 You. & Coll. 418. (/) 1 Bli;i;h, N. S. Ooo ; sec Morris v. {J) Sellick v. Trevor, 11 Mees. & Kcarsley, 2 You. & Coll. 13'J, ;)os/, eh. 10. Wels. 722. (»t) Southby v. llutt, 2 Mvl. & Cra. 207. Vol. I. 58 [*S92] 458 rONniTION as to IBENTITy, produce any original deed or other documents tiian those in hi? possession, and set fortli in the abstract, or which relate to othrr property ;" it was considered that the question was, whether the conditions amounted to a declaration that the purchaser was to *accept such title as the vendor had, as was stipulated in Freme v. Wright ; and undoubtedly, the Court said, a vendor may so stip- ulate ; but he is bound, if such be his meaning, to make the stipulation intelligible to the purchaser. The purchaser, in sucii a case, could not object to any infirmity in the title, or in the evidence to verify it ; but it was held that a purchaser could not have so understood a contract by which it was stipulated that the vendor should deliver an abstract and deduce a good title. To the contract in the condition, to deduce and show a good title, there was no limitation or restriction ; but to the contract to deliver up the title-deeds after the completion of the purchase, there was a restriction limiting the obligation to produce to such only as the vendor had in his possession. If the inference that the restriction as to the liability to deliver up certain deeds was to apply to the liability to produce them for the purpose of proving the title, was not obviously to be drawn from the conditions, would a court of equity compel a purchaser to take the estate without a title ? The purchaser, therefore, was held upon the terms of the conditions not to be bound to complete the contract until he had a good title deduced and proved, either by the production of the deeds pro- posed to be abstracted, or by such other evidence as would prove the statements in the abstract to be correct. 11. Where the sale was made under a power in an annuity deed, and one plot of ground was referred to on a plan, and was pre- sumed to abut on a given place, and it was stated in the condition that the plot could not be properly identified by the seller by reason of the death of the party who sold it to the grantor of the annuity, but it was fairly presumed that the purchaser, by inquiry in the vicinity, would be able to ascertain the true situation, a7id he was to accept this plot by the description only contained in the con- veyance deed of it ; it appeared that this plot did not exist or could not be discovered, and it was held at law, that the purchaser might rescind the contract, notwithstanding there was the usual condition making errors a subject of compensation (n) (1). (h) Robinson v. Musgrove, 2 Mood. & Rob. 92. (1) See Chittv Contr. fSth Am. eel.) 260 and notes; 1 Storv Eq. Jnr. ^U2 to fU3 b. ■ [*393J OBSERVATIONS ON CLARK V. FAUX. 459 I "2. Ill Clarke v. Faux (o), an estate was sold by assignees of a ijankrnpt, and a good title was to be made. One of the assignees was the purchaser, and took possession. He agreed to sell to Clarke, who entered into possession, and paid part of his purchase- money. A dispute was terminated by an agreement that Clarke should pay the residue of the purchase-money on a day named, *togetl)er with interest, upon the seller to him making a good title to the premises, or otherwise, if such title should not then be completed, upon the seller executing at his own expense a bond to complete such title, and to convey the estate as soon as the same could be completed. A good title could not be made by the seller to Clarke, but this seller recovered the residue of the purchase-money at law, having tendered a bond conditioned for making a good title to the purchaser (p). The Court of Com- mon Pleas held, that the purchaser had shut his own mouth and bound himself to pay the money, on the single condition of having the bond executed. He made no other stipulation in the agree- ment, which was advisedly entered into with all the difficulties then objected quite apparent, and the objections then taken at the former time existing, and known to exist. The defendant had pos- session of the property, and might have had the benefit of the bond, which was all he stipulated for. He was bound then to pay the money, taking what he contracted for, the bond. Could the Court say that he was not bound by such a contract. With its improvi- dence the Court had nothing to do. It was a valid contract for good consideration, freely entered into on his part. He should have taken the bond, and if the title had not been completed in due time, he might resort to his remedy on the bond. But upon a bill filed by this purchaser for an injunction and a specific performance if there was a good title, and if not a return of the deposit, it was held that the meaning of the parties was, that the money was to be paid on the day named, although the title might not then be com- pleted ; but subject always to this condition, that the vendor had the power to complete it, and that it was not intended that it should be paid if the vendor did not possess such power. The stipulation as to the bond was merely intended to put a guard upon the money being paid, against supineness and delay in doing that which it was assumed the vendor had the means of doing, and which by the agreement he engaged to do, viz., to make a good title to the estate. The title, therefore, was referred to the Master, (r) 3 Uuss. 320. (p) This is Willett v. flaikc, 10 rrice, 207. 1*3941 460 CONDITION TO AVOID CONTRACT. the purchaser having brought the money into Court upon oblaininjr an injunction. 13. When the decision uj)on this point was made in the Court of Chancery, it was not known that the court of law had pronoun- ced a unanimous judgment the other way, although it was of course known that the seller had recovered at law. If the actual judgment had been known it would have been difficult to obtain *such a decree, for the construction of legal instruments must be the same both in equity and at law, and a court of equity, unless there is an equitable ground arising out of a contract, has no power to affix to it another construction, and overrule a legal decision upon it. 14. In a case ( THF.N BAD TITLF PRODUCF.D. waiver, will not be compelled in equity to accept the bad title (^). This was decided in Warren v. Richardson. The Lord Chief Baron observed, that though the Court thought the purchaser had by his conduct waived that right, it had come out collaterally, that the vendor could not make a title according to his contract. It would be a great hardship upon a party to force him to accept a title which was ascertained to be defective. It would be contrary to all the rules which prevail upon the subject of specific performance. The principles upon which courts of equity have proceeded on the subject of specific performance, do not make a decree for a specific performance the necessary consequence under all circumstances of an agreement. Circumstances of hardship often prevent it. They recollect that the party is not without remedy, for, though he should be refused a specific performance, he has left to him his action upon the agreement. What created the difficulty in this case was, that the conduct of the party had barred his right to the usual investi- gation into the title, and this defect was a defect of title. If the objection had been to the conveyance merely, the defendant would have had the full benefit of it. But the objection was of another description : it was an objection to the title : it stood decided upon the record, that the defendant had waived his right to call upon the plaintiff for the production of his title ; on the other hand, it was clear that the plaintiff could make no good title, and if the defend- ant took it, it would be defective. 56. In one case, Mansfield, C. J., left it to the jury to say whether, upon certain letters written by the purchaser, there had not been a waiver of the objections to the title. The jury found there had been no waiver, and the C. J. afterwards said, he was very indulgent to the seller in putting the question of waiver to the jury (r). 57. If a purchaser take possession under a contract, and he afterwards rejects the title, he must relinquish the possession, and *equity cannot prevent the vendor from turning him out by an ejectment, although he may have expended money in improve- ments (s) (I). 58. I may here observe, that according to a decision of Hart, L. C. in Ireland, if a purchaser having two grounds to be discharged, e. g., a bad title and the felling of ornamental timber by the seller (q) Warren v. Ilichardson, You. 1, (s) Nicloson v. Wordsworth, 2 infra. Swanst. 365. ■(r) WUde v. Fort, 4 Taunt. 334. (1) Gans V. Renshaw, 2 Barr, 34. 1*407] PURCHASER KEEPING BACK ONE OBJECTION. 473 after the sale, elects to go upon the objection to title, it does not amount to an abandonment of the other objection. It Cannot be said, the Court observed, that when one contests the right to be held to his purchase, that he waives one ground whilst he continues to insist upon another. Perhaps he was not aware of the equitable principle that an alteration in the thing sold in particular cases will entitle the purchaser to be discharged. Even if he was conversant with the doctrine of the Court, he might also be aware that it had exercised its authority over purchasers sometimes in an arbitrary and undefined manner. He might think that the Court would compel him, upon compensation, to complete the contract, and thinking that no compensation would meet the precise case, endea- vor upon the other ground to rid himself of it altogether. On that ground he had failed, for a good title was shown, but it was still open to him to resort to the objection for waste done (t). It might not, however, be safe for a purchaser to act upon this precedent. 59. Where a purchaser took counsel's opinion upon the abstract, who approved of the title, subject to some matters which were cleared up, and three months afterwards objected to the contract, on the ground that what was called a ground-rent in the particulars was a rack-rent ; Lord Eldon, although the particulars of the rent reserved appeared upon the abstract, said, that he did not think it necessary, because the opinion of a conveyancer had been had, to force the party to take a subject essentially different from that which he contracted to purchase, and on which alone that opinion was called for (u). 60. If a man purchase as agent for another, and the title is not accurately described in the particulars, the agent cannot, without a fresh authority, by any act done by him unsanctioned by previous authority or subsequent approbation, bind the real purchaser either at law or in equity, for an agent cannot change the nature of his authority, but must have a fresh one for a different agreement. But when the purchaser and his counsel know the real nature of *the interest sold, and still act upon the agreement, there may be enough to amount to approbation of the agent's act, which ought therefore to have the same effect as if he had been previously authorized to contract for the property under such circumstances (x). 61. If a purchaser by his conduct waive an objection to the title, {() Magennis r. Fallon, 2 Moll. .591 ; (.r) /'crLord Eldon, 18 Ves. juu. 509, and see Flight v. Booth, supra. 510. ((0 Stcwai-t V. AUiston, 1 Mer. 2G. Vol. 1. 60 f*408] 474 ACQUIESCENCE BINDING. e. g., a right of sporting over the estate undisclosed in the contract, the seller will not be bound by a letter subsequently written by the clerk of his solicitor, without any authority, stating that no objec- tion would be made to a reasonable compensation (y). 62. In Paine v. Meller (r), where, with a view to ascertain opoti whom a loss by fire should fall, it was necessary to ascertain whether the purchaser had accepted the title, notwithstanding that it was open to objection, it appeared that after the delivery of abstracts and certain requisitions by the purchaser, particularly one requiring some annuities to be released ; the treaty continued, and at last the purchaser's solicitor agreed to waive ail objection if the seller would allow him 11 guineas, and if certain trustees would join in the conveyance, and refused a proposal to give up the pur- chase ; the seller agreed to make the allowance desired. The deeds were engrossed, and the purchaser's solicitor declared himself satis- fied with the title, and said the deeds would be ready in two or three days, and that he should complete the purchase under the promise of the 1 1 guineas. The house was then burned down, and the purchaser's solicitor reverted to an objection to the title, and called for the deposit. Lord Eldon said, that as to the fact of the acceptance of the title where there has been a great deal of treaty, and a considerable hardship must fall upon one party if the case is to be put entirely upon the fact, the Court must guard against surprise. The case, he observed, was not sufficiently clear upon the fact, and there ought to be some reference to the Master, or an inquiry before a jury, but that must not be on the validity of the title. The inquiry must be, whether the title bad been accepted by the agent on the behalf of the purchaser before the day oi> which the fire happened. That inquiry would miscarry unless the Master or the jury, if satisfied that there was an acquiescence in the proposal, should be of opinion that was an acceptance of the proposal. He should think a court of law would hold that, but if there was any doubt of it, he would rather refer it to the Master, *to inquire whether the agent on the behalf of the purchaser had accepted or acquiesced in the proposal, with a direction that he should be examined, and they would appreciate the credit due to him, and would not forget that he was bartering for himself if that appeared (I), (y) BurnelltT. Brown, 1 Jac. & Walk. 168. (;) 6 Ves. Jun. 349. (I) This sum was probably to go in part discharge of his bill on account of extra expeiises occasioned by the state of the title. If it was a bonus to the so- licitor, he and the seller committed a fraud on the purchaser, and the loss by th» fire ought not to have been borne by liia\. [*109] AGREEMENT TO TAKE DEFECTIVE TTTLE. 475 63. We have elsewhere seen the operation of parol waivers at ^aw, to which a reference only is now necessary (a). 64. It sometimes happens that a purchaser waives the objection, and consents to take a defective title, relying for his security on the vendor's covenants, Mr. Butler remarks, that where this is the case, the agreement of the parties should be particularly mentioned, as it has been argued, that as the defect in question is known, it must be understood to have been the agreement of the purchaser to take the title subject to it, and that the covenants for the title should not extend to warrant it against this particular defect (6). And it may be further observed, that in cases of this nature, unless the objection to the title appear on the face of the conveyance, the agreement to indemnify against the defect, and the covenants to guard against it, should be entered into by a separate instrument, (a) Supra, pp. 166, 287. a. See also Savage v. Whitbread, 3 Cha, /6) See Butler's n. (1) to Co. Lit. 384, Hep. 14. *SECTION II. OF TITLE : IN SUITS IN E'Q.UITY. I, Seller with equitable estate. 23. 2. 4. 6. Doubtful title. Reference of title. Reference back rohere neio fact. 24. 25. 26. 7, 10. Or where seller can char m/j ob- 27. 9, 11. jections. Exceptions to report of title. Purchaser plaintiff, and there is no 28. 29. title. 30. 13. Observations on Nicloson v. Words- 31. worth. 32. 1.5. Objections C07isidered by Court. If). 18. Reference of title npon motion. Unless other questions raised. 33. 14,] 19. 20. Inquiry lohen a title teas shown. What may be referred. 34.] 36. 21. Dismissal of bill npon motion. 22. Decree without reference cohere delay. 38. 39. Contract cancelled where no title. Deposit ordered into Court. Purchase-money ordered into Court, Neio evidence before Master. Master's report where legal estate out- standing. Pendency of a suit for the estate. Report of conditional title bad. Where exceptions should stand over. Exceptions without objections. Purchaser not to file a cross bill if title bad. Bad title no decree for purchaser. > Purchaser may fa/ce bad title. Seller obtaining good title after cow* veyance. Man buying his own estate. Sale of a remainder already barred- [*410] 476 SELLER WITH EQUITABLE ESTATE. 40. Purchaser neglecting to examine title. 41. Sale of pretended title. 42. Sale of estate contracted for, good. 43. Champerty. 44. Maintenance. 45. Slander of title. 1, We have already considered the general rules by which a court of equity is guided in granting a specific performance, and the cases in which either party may maintain an action for breach of contract. And we are now more particularly to inquire into those remedies where, as is usually the case, the dispute turns upon the alleged or admitted defect of title. And first as to relief in equity. 2. To enable equity to decree a specific performance against a vendor, it is not necessary that he should have the legal estate, for if he has an equitable title a performance in specie will be de- creed (a), and he must obtain the concurrence of the persons seised of the legal estate. 3. But in suits for specific performance of contracts, it is always in the discretion of the Court whether they will decree a specific performance or not (1). In the particular case of a bill for a specific *performance of a contract for the sale of an estate, where there are considerable difficulties on the face of the title, and there are no means of clearing them up, and no jurisdiction to bind the question, that is not the case for decreeing a specific performance (b). 4. In all cases where a bill in equity is filed for a specific per- formance, either party may in general, if he please, have a reference as to the title (2). The vendor is entitled to this privilege in order to enable him to make out a title before a Master. The purchaser is allowed this right, in order that he may have the title assured in a manner he otherwise could not. As to a purchaser, the Court never acts upon the fact, that a satisfactory abstract was delivered ; unless the party has clearly bound himself to accept the title upon the abstract ; but though the abstract is in the hands of the party who says he cannot object to it, yet he may insist upon a reference ; (a) Crop V. Norton, 2 Atk. 74 ; see (6) Per Eyre, Lord Commis. 4 Bro. C. Costigan v. Hastier, 2 Scho. & Lef. 160. C. El, post, ch. 10. (1) Ante, 235, and notes. (2) Cooper w. Denne, 1 Yesey, jr. (Sumner's ed.) 565, 567, note (6) of Mr. IIo- venden; Frost v. Briinson, 6 Yerger, 36 ; M'Coiub v, Wright, 4 John. Ch. 659 ; Beverley v. Lawson, 3 Munf. 317. But if it manifestly appears from the bill and answer, that no title can be made, the reference -will not be ordered. Frost v, Brunson, 6 Yerger, 36; 2 Daniell Ch. Pr. (Perkins's ed.) 1413, and note. [*411] REFERENCE OF TITLE. 477 because, by the production of papers, which can be pnforced, and by the examinations and inquiries which can be made, by virtue of the decree, the title may be examined in a manner it never could upon a mere abstract (c). Either party may, however, waive this right (1). 5. Where a man makes a purchase of an estate, to which the ven- dor represents that he has a good title, in such a case the purchaser has a right to insist, that the question whether he have or have not a good title shall be sifted to the bottom before he can be called upon to adopt either alternative, and before the vendor can be let off from his original contract (^d). 6. If, after the confirmation of a report in favor of a title, a new fact appear, by which the title is affected, the title will be referred back to the Master (e). In a case where the seller of a leasehold estate produced the leasehold title, which the Master thought suffi- cient, and reported accordingly ; but the Court held, that the lessor's title ought to have been produced, and sent it back to the Master to review his report ; the seller had liberty given to him to produce the freehold title. And it was considered that the purchaser was at liberty to enter into objections to the leasehold title, which were not taken upon the former discussions before the Master (/")• And, upon the objections being afterwards taken, the bill was dismissed (§•). The course of the Court is, where the Master has, by expressing an opinion in favor of the title, prevented the vendor from showing, that if his opinion had been otherwise, still the title was good, to send it *back to the Master to review his report. Therefore where a seller contended that a devise was too remote, and the Master so held, and reported in favor of the title, but the Court overruled the report, it was sent back to the Master upon the seller's allegation that the devise was immaterial as all the limitations had failed (A). If the order sending it back be not made when the exception is overruled, the seller must apply quickly and pay the costs (i) (2). 7. So where it appears at the hearing upon the exceptions, that the seller can clear up the objection, the Court has sometimes sent (c) See Lord Eldon's judgment in Jen- (r/) S. C. V. C. 3d AprU 1818, MS. ■kins V. Hiles, 6 Yes. jun. (;.j;3. 3 Madd. 1S):5. {(l) 3 Mer. 137, per Lord Eldon. (h) Egcrton v. Jones, 3 Sim. 392 ; 1 (e) Jeudvviner. Alcock, 1 Madd. 597. Russ. & Myl. G94. (/) Fildes V. Hooker, 2 Mer. 424. (i) S. C." Andrew v. Andrew, 3 Sim. 390. (1) 2 Daniell Ch. Pr. (Perkins's ed.) 1194, 119.5. (2) 2 Danicll Ch. Pr. (Perkins's ed.) 141fi, 1417. [*412] 478 WriERE SELLER CAN CLEAR UP OBJECTIONS. the title back to the Master to review his report, and in such a case it is not necessary, as it was held by Lord Eldon, that the Master should have liberty to receive further evidence. He may receive such evidence without any express authority. In the case of Esdaile v. Stephenson (7^:), it appeared that the estate was subject to a rent-charge, and a term to secure it ; and the purchaser's counsel, before the Master, required the seller to produce a release of it, or evidence that the jointress would release ; but although he did not do so, the Master reported, that the seller could make a good title upon the jointress releasing. To this report exceptions were taken. The Vice-Chancellor consulted the Lord Chancellor, and stated their opinion to be, that the report was wrong. It should have been, that the seller could not make a good title unless the jointress joined ; and the Vice-Chancellor recommended in future, the form of such a report to be, that the seller could not make a good title, because A \s o. jointress, and no sufficient evidence has been produced to show that she will release. The Lord Chan- cellor and the Vice-Chancellor agreed, that if a title upon a new fact can be made between the report and the further directions, the Court will enforce the contract, as if in the above case the jointress had agreed to join when the cause came on for further directions : In such a case the Court would expect counsel to appear, and consent that she would concur. This points out the necessity in such cases of setting down the cause upon further directions at the same time with the exceptions. In Esdaile v. Stephenson, as the exceptions only were before the Court, they were ordered to stand over, with liberty to set down the cause for further directions, and then the exceptions and further directions to come on together. It was expressly laid down, that the Court would not allow a seller to lie l)y before the Master, and then upon further directions attempt to *make a title. There was an appeal from this decision, but it was withdrawn, and the purchase was completed. 8. And in another case, heard a few months before, where the Master reported that a good title could be made, except as to so much as a widow was entitled to in respect of her dower, she refusing to join in the conveyance to the purchaser ; upon further directions, the Vice-Chancellor held, that if at the hearing on further directions, the vendor was prepared to cure the objection {k) V. C. 8 Aug. 1822. MS. S. C. 6 Hobson v. Bell, 2 BeaA'. 17; Sidebotham Madd. 3G6 ; Paton r. llogers, 6 Madd. r. Barrington, 4 Beav. 110 ; Jumpson r. 256; Magennis r. Fallon, 2 Moll. 683 : Pitchers, 1 Coll. 13. f*4]:?] EXCEPTIONS TO REPORT OF TITLE. 479 to the title which was reported by the Master, that he was in time to do so ; and he accordingly in this case decreed a specific per- formance upon an affidavit that the widow agreed to join in the conveyance, and that the seller (I) undertook to procure her to join in such conveyance (I). And in a case (//?) where the report was in favor of the litle, but an exception was allowed on account of a subsisting rent charge, although the case came on at the same time for further directions, and it was insisted that the bill should be dismissed, the Court thought it hard that the seller should be placed in a worse situation by the report being in his favor, than if it had been the other way, when he would of course have taken the necessary steps for curing the defect in the title before the further directions were brought on, and so time was allowed to the seller to remove the objection. 9. If exceptions are taken to the report, that a good title can be made, and are overruled, other objections to the title cannot be made ; but if exceptions are allowed, and a new abstract of title is delivered, further objections may of course be brought in (/*). 10. In Noel v. Hoy (o), the seller rested his title on the construc- tion of a will, by which he insisted the estate did not pass. The point was decided against him, and then he asked for a reference to the Master, to see whether he could make a good title, as he in- sisted that the devisees were trustees for him. This reference was objected to by the purchaser. The Court said, that it should have great difficulty in allowing the plaintiff after a decree to amend his bill, by bringing new parties before the Court. But time had been allowed to get an act of ))arliament. If the Master was of opinion that the devisees were trustees for the seller, he would report in favor of the title. If a suit should be necessary to try their equity, he would report against it. *11. A purchaser may file a bill for a specific performance, although it appears by the abstract that the vendor has no title, and yet unless he chooses to take the title, the court cannot force it upon him, on the ground of his having filed the bill with a knowl- edge of the objection (p). 12. In one case (9) where the purchaser being in possession and (/) Taton V. Rogers, G Madd. 2^6, (o) V. C. 23 Feb. 1820, MS. April 1822. {p) Stapylton r. Scott, 16 Vcs. jun. (m) i'ortman i: Mill, 1 Huss. & Myl. 272. [Sumner's ed. notes.] G96. (7) Nieloson r. Wordsworth, 2 (n) Brooke v. -, 4 Madd. 212. Swanst. 36.5 ; see 3 Myl. & Cra. 710. (I) The defendant is printed by mistake for the plaintiff in the report. [*i\4] 480 PURCHASEll PLAINTIFF AND NO TlTt.E. an ejectment having been brought against liim by the two sellers and a third person (who were devisees in trust for sale, and the latter had released to the two former), filed his bill for a specific performance, alleging that the two trustees who had sold, could not alone make a good title, and that he would be bound to see to the application of the purchase-money, unless the contract was exe- cuted under the direction of the Court, and suggesting that the third trustee had sufl:ered his name to be used at the suggestion of the sellers ; ihe bill prayed a specific performance, and that the defendants might execute and procure to be executed a good con- veyance with a good title, and a sufficient discharge for the purchase- money, or that the purchase-money might be paid into Court. The answer submitted that the two sellers could alone make a good title and give a valid discharge. Lord Eldon, upon a question as to dis- solving the common injunction, observed, that the question came before the Court in a singular shape. He understood that the third trustee was not a party to the contract, the plaintiff therefore could not insist on his being a party to the conveyance. If the suit had been commenced by the defendants against the plaintiff, the Court must have decided the question whether the defendants could make a good title ; but was the form of the record such that any judgment could then be pronounced ? The plaintiff had filed the bill for specific performance himself, insisting that his vendors cannot make a good title. He could only say, that if the pur- chaser did not choose to take the title which they could give, he could have no decree. To raise the question properly on the record, the defendants should have been plaintiffs. The injunction must of necessity be dissolved, if the plaintiff will not accept the title of the defendants. When on a bill by a vendee for specific perform- ance, it appears that the defendants cannot make a good title, there is no further question in the cause than who is to pay the costs. If the plaintiff insist that the title is not good, he cannot resist the ejectment of those who were previously in possession of the land. Rejecting the title, he must relinquish possession. Upon a subse- quent occasion, Lord Eldon observed, either the plaintiff must take *such title as the parties with whom he has contracted can give him, or he cannot have a conveyance. If the vendors had been plaintiffs, the Court must have determined whether the title was good : here the purchaser claims specific performance, at the same time insist- ing that his vendors cannot make a good title. In the result, a decree was taken by consent. [*41oJ OBJECTIONS CONSIDERED BY COURT. 481 13. Perhaps these observations from so great an authority have a tendency to mislead. If a man file a bill simply statin,g that the seller cannot make a good title, of course he must accept the best title which the seller can make or have his bill dismissed. But that was not the frame of the suit in Nicloson v. Wordsworth ; the bill supposed that the sellers had a right to or could procure the con- currence of the third trustee, who was acting at their instigation, or that the payment of the money into court would obviate the objection. There appears, therefore, to have been no obstacle in the way of the Court's deciding upon these points, although the pur- chaser was plaintiff, for undoubtedly a purchaser may file a bill for a specific performance, and have the title investigated before the Master, and obtain the opinion of the Court upon it. 14. In a recent case (r), the purchaser's bill prayed a specific per- formance, " if a good title could be made," and after the usual decree the report, which was not excepted to, was against the title ; it was held, that the purchaser was at liberty to accept the title such as it was, but as he was acquainted with the objections at the hearing, he was fixed with the costs of investigating the title. 15. Where objections are made by a purchaser, evidently with a view to gain time, the Court itself will enter into the consideration of the objections, without referring the title to a Master. 16. So where a bill is filed by a purchaser, the vendor, the defend- ant, has been allowed, after answer, and before the hearing of the cause, to move that an inquiry may be directed as to the title, and at what time the abstract was delivered, and whether it was suffi- cient. This was allowed, in order to enable the Court to dispose of the cause with despatch (5). Again, where a vendor filed a bill for a specific performance, and the purchaser submitted to perform the contract, if a good title could be made, asserting that upon the abstract a good title could not be made, it was, upon the motion of the plaintiff, referred to the Master to inquire whetlier a good title could be made, and whether it appeared upon the abstract that a good title could be made (t). Lord Eldon has observed, that some degree of irritation was excited in the Court by persons called *land-jobbers, contracting for estates without any intention of pay- ing for them, and setting up defects of title, merely with the view of gaining time to dispose of them ; and, on that ground. Lord Rosslyn was prevailed upon to direct a reference of the title imme- {>■) Bennett v. Fowler, 2 Beav. 302. (0 Wright v. Bond, 11 Vcs. jun. 39. (?) Moss V. Matthews, 3 Ves. iun. 279. Vol. L 61 [*4\6\ 482 KETERENCE OF TITLE UPON MOTrOnsr, diately, on motion ; 'and there is not much mischief in that upon v. simple case of specific performance, where there is nothing more .; but the relief may be so modified and quahfied, with reference to the nature and object of the contract, that unless it is purely that point, great diiSculty may arise (u). 17. In a later case, Lord Eldon directed a reference of the title upon the bill of a vendor, before the answer was put in. The bill was a mere averment of the contract, putting no special fact in issue, and the Court considered the plaintiff as undertaking to do all such acts, for the purpose of executing what the Court thinks right, as if the answer was in, and the cause brought to a hearing. With that undertaking, if they cannot state any objection to the performance, and the reference is merely to look into the title, he did not apprehend the answer to be necessary before that refer- ence (y). But if the defendant's counsel state that there are other objections, the title cannot be referred (x). 18. And in every case where the answer, upon reasons solid or frivolous, insists, that the agreement ought not to be executed, the Court must first dispose of the question raised (y). Therefore, where the question simply was, whether the vendor of a leasehold estate was bound to produce the lessor's title, a motion by the pur- chaser for a reference to the Master upon the title was refused (r). So where the defendant, the purchaser, alleges laches on the part of the plaintiff, as a ground for his not being compelled to perform the agreement, the Court will decide the question raised, before the title is referred to the Master (a). 19. Until lately, it was not the general practice, to make an inquiry, ab ante, at what time the plaintiff could make a title (6). *If, upon the usual reference to the Master to inquire whether the seller could make a good title, he re}X)rted in the affirmative, it might, with a view to costs, have been referred back to the Master, to inquire whether a good title could have been made at the filing (m) 17 Ves. jun. 278. 133, (y) Balmauno v. Lumley, 1 Ves. & (,-) Gompertz r, , 12 Ves. jun. 17. Beam. 224. See Eldridge v. Porter, 1 i Ves. jun. 139 ; (x) Matthews v. Dana, 3 Madd. 470. and see 17 Ves. jun. 278. (y) Blyth v. Elmherst, 1 Ves. & Beam. («) See Blyth v. Elniherst, vbi sup. 1 ; see Patonv. llogers, ibid. 3ol ; Biscoe Skclton's case, 1 Ves. & Bea. 517 ; Wal- V. Brett, 2 Ves. & Beam. 377 ; FuUagar linger v. HUbert, 1 Mer. 104 ; Lowe r. V. Clark, 18 Ves. jun. 481 ; Morgan v. Manners, 1 Mer. 19 ; Portman v. Mill, 2 Shaw, 2 Mer. 138 ; Boehm v. Wood, 1 Russ. 570. Jac. & Walk. 419 ; Withy v. Cottle, (6) Gibson v. Clarke, 2 Ves. & Bea. Turn. & Russ. 78 ; 1 Sim. & Stu. 174 ; 103. See Jennings v. Hopton, 1 Madd. Gordon v. Ball, 1 Sim. & Stu. 178; 211; and see Lubin v. Lightbodv, S Boyes v. Liddell, 1 You. & Coll. C. C. Price. 606. [*U7] WHAT MAY BE REFEKRED. 483 \ii liie bill ; and if not, when it was tiiat a good title could be made (c) ; and this reference might be made as well after a decree, as after an interlocutory order. The Vice-Chancellor (Sir John Leach) considered, that great additional expense and delay were occasioned by parties not asking, in the first instance, where the circumstances of the case made it material, that if the Master should find that a good title could be made, then he might inquire when such good title was first shown to the purchaser (d). In a later case of Har- i'ington v. Secretan, where the purchaser moved for a second order, the learned Judge, under the circumstances, granted the motion ; but made a general rule, with the approbation of the bar, which has since been regularly followed, that the first reference should be to see whether a good title can be made, and if so, at the request of either party, to inquire when the seller showed a title. This rule appears to be entirely free from objection. The directions usual in decrees, for the production of deeds, he. and for the examination of parties on oath, ought to be inserted in the order, and further directions and costs ought to be reserved (e). 20. Every thing that appears to be connected with the title may be the subject of a reference by motion. Where therefore the pur- chaser, by his answer, stated that no evidence of identity had been furnished, an addition was made to the ordinary reference for an inquiry, wheth.er the defendant objected at any time to the want of such evidence. But an inquiry whether the abstract vv^as perfect, and if deficient, in what respects its deficiency consisted, and whether it was ever perfected, was refused as not being sanctioned by the practice of the Court (/). Under such a reference the Master may examine witnesses, just as if the reference had been made by a regular decree (o"). 21. Where the title is referred to the Master upon motion, and the report is against the title, the defendant may move to dismiss the bill with costs, and the Court can make the order without setting down the cause (A). 22. Where the purchaser has been a long time in possession of *the estate, and of the abstract, without objecting to the title, a specific performance will be decreed at once without a reference as (c; Daly V. Osbonie, 1 Mer. 332 ; Birch (/) Bennett i\ Rees, 1 Kee. 405. V. Hames, 2 Mer, 4ii. {[/) Woocli-offe v. Titterton, 8 Sim. 238. {d)''Rjdev. Wroughton, 3 Madd. 270. (h) AValters v. Pyman, 19 Yes. 3.51 ,• See Anon. 3 Madd. 495. Whitcomb v. Foley, V. C. 1821, MS. ,• (e) Wint^rbottom v. Ingham, 9 Sim, S. C 6 Madd. S. [H18] 484 CONTRACT CANCELLED WHERE NO TITLE. to the title (i). But the question depends upon a conclusion o( fact. The Court must be satisfied that the purchaser intended to waive, and has actually waived his right of examining the title, and of course the waiver may itself be rebutted by the conduct of the seller, e. g., in furnishing further documents to make out the title (;•). 23. If a purchaser has been long in possession without having paid the purchase-money, or rent, or interest, and will neither aban- don the contract nor accept the best title which the seller can make, so that he is acting manifestly unjustly, the latter may file a bill to have the agreement delivered up to be cancelled, or that the pui- chaser may accept such title as he can make, and for an account of rents ; and if the Master report against the title, and the purchaser reject it, the agreement will be ordered to be delivered up to be cancelled, an account of the rents will also be ordered, and the seller will have to pay the costs of the suit (k). 24. Where a vendor files a bill for an injunction and a specific performance, the Court will, upon granting the injunction, put him upon proper terms, and therefore will in most cases order him to pay the deposit into Court. But where the seller, at the time when the bill is filed, is able and willing to make a good title to the estate sold, and the purchaser improperly refuses to complete the contract, although the seller is in possession of the estate, he will not be com- pelled to pay the deposit into Court, because it is the fault of the purchaser, and not of the seller, that the latter retains both the de- posit and the estate (I). 25. We have already seen that where the sale is not by the Court, and the seller has thought proper to put the purchaser into posses- sion, with an understanding between them, that he shall not pay his money until he has a title, the purchaser cannot be called upon to pay the money into Court in a summary way, nor can the payment be compelled where the purchaser was in possession under another title, before the contract, (m). 26. Athough the defendant, by his answer, put in issue an ob- jection to the title, and both parties examine witnesses to the point (i) Fleetwood v. Green, 15 Ves. jun. (j) Burrowea v. Oakley, 3 Swanst. 694 ; Margravine of Anspach v. Noel, 1 159. Madd. 310 ; Ex parte Sidebottom.l Mont. {k) King v. King, 1 Myl. & Kee. 442 ; & AjT. 655 ; Ex parte Barrington, 2 a case of great difficulty. Mont. & Ayr. 245 ; Southby v. Hutt, 2 {I) "Wynne v. Griffith, 1 Sim. & Stu. Myl. & Cra. 207. 147. (m) Supra, 249. NEW EVIDENCE BEFORE MASTER. 485 *before the hearing, yet, upon a reference to the Master, both sides may produce further evidence before him (n). 27. If the seller has vested in him legally, or equitably, all the interest in the estate, it cannot be objected to the Masters report in favor of the title, that the legal estate is outstanding, although in a lunatic, against whom no commission has issued (I). The vendor has the power, provided he will take the means necessary for the purpose, of making a good title. If he neglect this, the question will properly arise when the Master comes to settle the conveyance (o). 28. If a seller file a bill for a specific performance, and a third party file a bill against him, claiming a right to the estate, the mere fact of the pendency of the latter suit is not a sufficient reason for a Master's stating that a good title cannot be made, but the nature of the adverse claim should be examined and stated (p). 29. A good title should not be reported conditionally : for ex- ample legatees' discharges should be produced, and not an under- taking to procure them, and then a report that a good title can be made upon payment of the legacies (^q). 30. It may here be observed, that if an exception taken to a report that a good title cannot be made, be overruled, the vendor should obtain an order for the exception to stand over, as, if dis- allowed, it would appear upon record that a good title could not be made (r). If exceptions be taken to the Master's report in favor of the title, and the Court think the title a doubtful one, the bill may upon further directions be dismissed, without either overruling or allowing the exceptions (s). 31. The general rule is, that a party cannot except to a report unless he has carried in objections to the draft of it; but if a pur- chaser is taken by surprise, by the Master for example, he will be allowed to except to a report of good title, notwithstanding that he did not object to the draft of the report (^t). 32. If the purchaser's defence to a bill for a s[)ecific performance rest merely on the want of title in the vendor, he ought to depend on his answer, and not to file a cross-bill to have the agreement (») Vancouver v. Bliss, 11 Yes. jun. (q) MagcnnLs r. Fallon, 2 Moll. 575. 458. (r) See 1 Yes, jun. 5G7. (o) Berkeley v. Dauli, 16 Yes. jun. (*) "Wilcox v. Bcllacrs, Turn. & Iluss. 380 ; see 11 Mces. & Wels. 728. 491 ; Robinson v. Milncr, 1 Ilaro, ')7.S, n. [p) Osbaldeston v. Askew, 1 Iluss. (t) Wood v. Lambirth, 9 Sim. 195. 160. (I) This is not now a serious ditliculty; sec supra. 486 PURCHASER MAY TAKE BAD TITLE. delivered up ; because the vendor can make no use of the contracl if lie have no title (u). 33. Where a bona fide vendor has not a title to the estate, the *Court will not, in favor of the purchaser, decree an impossibility, but will leave the purchaser to his remedy at law upon the arti- cles (r) ; and, although he must necessarily obtain a verdict, if he have recourse to law, yet, as we shall see, he would obtain nominal damages only (x). for a purchaser is not entitled to any compensa- tion for the fancied goodness of his bargain, which he may suppose he has lost. 34. But where the purchaser is willing to take the title, such as it is, it is apprehended that he may do so. In a case (i/) before Lord Redesdale, he said, that the plaintiff in equity must show that in seeking the performance, he does not call upon the other party to do an act which he is not lawfully competent to do : for if he does, a consequence is produced that quite passes by the object of the Court in exercising the jurisdiction, which is to do more complete justice. If a party is compelled to do an act which he is not lawfully authorized to do, he is exposed to a new action for damages, at the suit of the person injured by such act ; and, therefore, if a bill is filed for a specific performance of an agree- ment made by a man who appears to have a bad title, he is not compellable to execute it, unless the party seeking performance is willing to accept such a title as he can give, and that only in case where an injury would be sustained by the party plaintiff, in case he were not to get such an execution of the agreement as the defendant can give. He took the reason to be this, among others, not only that it is laying the foundation of an action at law, in which damages may be recovered against the party, but also that it is by possibility injuring a thii-d person, by creating a title with which he may have to contend. 35. It is, however, the received opinion, that the purchaser may elect to lake the title, such as it is, although no injury would be sustained by him in case the agreement were not executed, nor does the rule seem to lead to the difficulty which has been appre- hended ; for, in such a case, the covenants must, of course, be so (m) Hilton 0. Barrow, 1 ^'es. jun. 28 1. {.>•) I'lcaurcau v. Thornhill, 2 Blackst. (y) Crop V. Norton, 2 Atk. 7-i'; 9 Mod. 1078 ; and see 3 Bos. & Pul. 167. Sec 233 ; Cornwall c. Williams, Colics, P. C. Brig's case, Palm. 364. Vide posC. .390 ; Bonnet College v. Carey, 3 Bro. {y) Harnett v. Yielding, 2 Scho. & Lef. C. C. 390 ; supra, p. 242 ; and see King 549, See;jo«< ; and see supra, pi. 14. r. King, supra, pi. 23. [*4-20J MAN BUYING HIS OWN ESTATE. 487 framed, as not to leave the seller exposed to an action on account of the flaw in the title; but where the conveyance would be merely void, and might embarrass persons claiming ' under the same title as the seller, equity seems to refuse its aid on substantial grounds (z). *36. And if a man sell an estate to which he has no title, and after the conveyance acquire the title, he will be compelled to convey it to the purchaser (I). 37. But it seems to have been considered, that this is a personal equity attaching on the conscience of the party, and not descend- ing with the land ; and therefore, that if the vendor do not in his life-time confirm the title, and the estate descend to the heir at law, he will not be bound by his ancestor's contract (a). This opinion, however, deserves great consideration. 38. If a person having a right to an estate, purchase it of another person being ignorant of his own title, equity will compel the vendor to refund the purchase-money, with interest from the time of bringing the bill, although no fraud appear (b). 39. So where a person sold a remainder expectant upon an estate tail, and both parties considered that the remainder was unbarred, and it afterwards appeared that a recovery had been suffered before the contract, the purchaser was relieved against a bond which he had given for the purchase-money, and the seller was compelled to repay the interest which he l)ad received (c). This was a strong decision. The purchaser might have ascertained the fact by search. The Chief Baron laid down some very general propositions. His Lordship said, " that if a person sell an estate, having no interest in it at the time, and takes a bond for securing the payment of the purchase-money, that is certainly a fraud, although both parlies should be ignorant of it at the time (J). (i) See Ellard «. Lord LlamlalF, 1 Ball Saunders v. Lord Anneslej^ 2 Scho. & & Beattv, 2i-i. See O'Kourke v. Pcrci- Lef. 101 ; Leonard r. Leonard, '2 Ball & val, 2 Ball & Beattv, 56. Beat. 171 ; Stewart v. Stewart, 6 Cla. & (a) Morse r. Fiilkener, 1 Anstr. 11 ; Fin, 911. Carleton c. Lcighton, .5 Mcr. 067. See (c) Hitchcock v. Giddings, i Price, iJcnsley v. Burdon, 2 Sim. & Stu, 516, 135. [See the remarks on this case in upon appeal affirmed, but the principal Bates v. Delavan, 5 Baise, 307.] point upon estoppel has since been pro- (r/) But sec 2 Cro. 196 ; 2 I^d. Raym. perly overruled. 1118 ; IT. Hep. 755 ; 2 Frccm. 106 ; and {b) Bin;;ham v. Bingham, 1 Yes. 126. ;Jos^ ch. 12. Sec Lansdown v. Lansdown, Mose. 364 ; (1) Graham r. Hackwith, 1 A. K. Marsh. 423 ; Tyson r. Pnssmore, 2 Barr. 122. In Trask v. Vinson, 20 Pick. 105, 109, Morton J. said ;— " We know of no rule of law or principle of sound policy, which prohibits a person from agreeing or covenanting to convev an estate not his own." [*421] 488 SALE OF PRKTENDED TITLE. Suppose I sell an estate innocently, which at the time is actually swept away by a flood, without my knowledge of the fact, am I to be allowed to receive 5,000Z. and interest, because the conveyance is executed, and a bond given for that sum as the purchase-money, when, in point of fact, I had not an inch of the land so sold to sell (e) (1) ?" Both these cases, when they arise, will, it is appre- hended, deserve great consideration before they are decided in the purchaser's favor. The decision must be the same, whether the money is actually paid or only secured (/) (I). *40. So if a purchaser neglect to look into the title, it will be considered as his own folly, and he can have no relief. It has even been laid down, that if one sells another's estate without covenant or warranty for the enjoyment, it is at the peril of him v/!io buys, because the thing being in the realty, he might have looked into the title, and there is no reason he should have an action by the law where he did not provide for himself (§•) (II). 41. But it may here be remarked, that by the 32 H. 8, c. 9, no person must either buy or sell any pretended title unless the seller or the persons from whom he claims have been in possession of the estate or of the reversion thereof, or taken the rents thereof for a year before the sale, unless the purchaser is in lawful possession, in which case he may buy in any pretended right ; and he will not in any case be affected, unless he bought with notice (h) (2). 42. In a late case the statute was pleaded with effect (i). In a recent instance this statute was actually pleaded to a bill for a specific performance, on the ground that the plaintiff himself was only entitled under an agreement for purchase of the estate ; but there was no foundation whatever for this defence. It is perfectly (e) See eh. 6, s. 2, sujira. and consider Hitchcock v. Giddings, 4 (/) See;wA-f, ch. 12. Price, 135. (reliminarij expenses. 21. Right of action in purehaser a per- 'sonal representative. Costs as between attorney and client. PaHieular of objections of late. Where purchaser is confined to objec- tion taken before action. Pleading title. 20. Tender of conveyance unnecessary if title bad. Seller restrained from bringing au action after bill distrtissed. 1. If objections arise to the title, and the vendee bring an action at law for non-performance of tlie agreement, and the vendor file his bill for a performance in specie, and an injunction be granted^ the Court will not dissolve it, without the Master's report as to [*4241 T'lTIiK TO BE PROVED BAB. 491 \he title, where the action is brought on the ground of want of title (a). 2. Where a purchaser rests his action on a defect in the title, it is not sufficient to show that the title has been deemed insufficient by conveyancers, but he must prove the title bad (6). 3. If he succeed in proving the title bad, he will, according to the counts upon which he recovers, obtain a verdict either for his fleposit or for damages, which in most cases would be regulated by the amount of the deposit. 4. If he declare on the common money counts, he of course cannot obtain any damages for the loss of his bargain ; and even if he affirm the agreement by bringing an action for non-performance of it, he will obtain nominal damages only for the loss of his bar- gain (c), because a purchaser is not entitled to any compensation for the fancied goodness of his bargain which he may suppose he *has lost, where the vendor is, without fraud, incapable of making a title (I). (a) Church v- Legcyt, 1 Pr. 301. 1078 ; and see 3 Bos. & Pull. Ifi?. See (b) Camiield v, Gilbert, 4 Esp. Ca. Brig's case, Palm. 364 ; Clare r. Mav- 221. nar'd, 6 Adol. & Ell. 519 ; Bratt v. Ellis, (c) Elureau v. Thornhill, 2 Blackst. Jones v. Dyke, supra, p. 258. (1) In an executory contract for the sale of land, which the vendor believes to be his own, and where there is no fraud on his part, if the sale falls through in consequence of a defect of title, the measure of damages is substantially the same, as it is in the case of an executed sale. See post, 765 in note. If the vendee has paid any part of the consideration, he may recover back the monej' with in- terest. But he can recover nothing for the loss of a good bargain. Peters v. McKeon, 4 Denio, 546, 550 ; Baldwin v. Mumi, 2 Wendell, 309 ; Bitncr v. Brough, 11 Penn. State liep. (iJones,) 127 ; Allen v. Anderson, 2 Bibb, 415 ; Dunnica r. Sharp, 7 Missouri, 71 ; Thompsons. Guthrie, 9 Leigh, 101 ; Ilerndon v. Venoble, 7 Dana, 371. See Fletcher v. Button, 6 Barbour Sup. Ct. liep. 646; Blackwcll v. liawrence Co. 2 Blackf. 143 ; Combs v. Tarlton, 2 Dana, 464 ; Sheets v. An- drews, 2 Blackf. 274 ; Cox v. Strode, 2 Bibb, 275 ; Witherspoon v. Anderson, 3 Desaus. 247, 248. lie carurot recover the expenses of taking possession, or of commencing the cultivation of the land, though he entered piirsxiant to the terms of the contract. Peters v. McKeon, 4 Denio, 546. See Driggs v. Dwight, 17 Wendell, 71. But where the vendor has conducted fraudulently and sold land, to which he knew he had no claim, the measure of damages will be the value of the land. McDonnell r. Dunlo]), Hardin, 41 ; Davis v. Lewis, 4 Bibb, 456. In del)t for broach of a bond conditioned for the conveyance of land, and reciting the payment of the consideration, the measure of damages was held to lie the value of the land, at the time of the demand for a conveyance. Hill c. Hobart, 1() Maine, 164. See Fletcher r. Button, 6 Barl)our Sup. Court Rep. 646 ; M"Kce r. Brandon, 2 Scammon, 339. A vendor, ha\'ing title at the time of his agree- ment to convey, conveyed the land to a third person, after the agreement, and thereby disabled himself from performing his contract, and he was lield liable for the value of the land at the time of the breach, with interest from that time. Wilson V. Spencer, 11 Leigh, 261; Dustin v. Newcomer, 8 Ohio, 4i». See M'Kee r. Brandon, 2 Scammon, 339 ; Letcher v. Woodson, 1 Brock. 212 ; Buck- master V. Grundy, 1 Scammon, 310 ; Hopkins v. YoweU, 5 Yergcr, 305 ; Xew- som w. Harris, Dudley Geo. 180; Hopkins r. Lee, 6 Wheaton, 109; Council v. M' Clean, 6 Harr. & John. 297 ; Stephenson v. Hanison, 3 Litt. 170 ; Duncan v. Tanner, 2 J. J. Marsli. 399 ; llutledgc v. Lawrence. 1 A. K. Marsh. 396; Shaw r. Wilkins. 8 Hnmph. 647. f*425] 492 HOPKINS I'. r.RAZEBROOK, 5. But in a recent case ((/), where a person who had contracted for the purchase of an estate, hut had not obtained a conveyance of it, sold it by auction, with a stipulation to make a good title by a day named, but which he was unable to do, as the A^endor to him refused to convey, it was held, that the purchaser by auction might, beyond his expenses, recover damages for the loss which he sus- tained by not having the contract carried into effect. Lx)rd Ten- terden observed, that upon the present occasion he could only say, that if it is advanced as a general proposition, that where a vendor cannot make a good title, the purchaser shall recover nothing more than nominal damages, he was by no means prepared to assent to it. If it were necessary to decide the point, he should desire to have time for consideration. But the circumstances of this case showed that it differed very materially from that which had been quoted from Sir W. Blackstone's Reports. There the vendor was the owner of the estate, and an objection having been made to the title, he offered to convey the estate with such title as he had, or to return the purchase-money with interest ; here no such offer was or could be made. The defendant had unfortunately put the estate up to auction before he got a conveyance. He should not have taken such a step without ascertaining that he would be in a situation to offer some title, and having entered into a contract to sell, without the power to confer even the shadow of a title, he must be responsible for the damage sustained by a breach of his contract. Mr. Justice Bayley said, that the case of Flureau v. Thornhill was very different from this, for here the vendor had notliing but an equitable title. Now where a vendor holds out an estate as his own, the purchaser may presume that he has had a satisfactory title, and if he holds out as his own that which is not so, he may very fairly be compelled to pay the loss which the purchaser sus- tains by not having that for which he contracted (1). 6. This case is one of great importance, and will, I fear, tend to much litigation before the distinction which it introduces is thoroughly understood. 7. In the later case of Walker v. Moore (e), where after the con- tract the abstract was delivered and showed a good title, but it had not been examined with the deeds ; and tiie purchaser resold the (d) Hopkins v. Grazebrook, 6 Karn. S; {n) 10 Barn. & Cress. 416. Cress. 31 ; 9 Dowl. & li. 22. (1) See Peters t'. McKeon, 4 Denio, 546; Driggs r. Dwight, 17 Wendell, 71 : Fletcher r. Button, 6 Barbour Sup. Court Rep. 6 tG. i NO DAMAORS FOR LOSS OF BAROAIX. /1f)3 estate at a profit, and then upon an examination of the deeds it *appeared that the title was defective, and he had to pay to the second purchasers the costs of investigating the title ; it was held that the original purchaser could not recover from the original seller the costs of the resale or the costs paid to the second purchasers, or any damages for the loss of the bargain. The case of Hopkins V. Grazebrook was said to be very different from this. There the defendant had sold property as his own which was not so, and the Court was of opinion that the defendant being in fault, by represent- ing himself as the owner of the property, the plaintiff's right was not restrained to nominal damages. Here the defendants under- took to make a good title, and they might honestly think they should be enabled to do so (1). The right to damages generally was held to be concluded by Flureau and Thornhill. And as to the expenses upon the resale, as there was no fraud, negligence in pre- paring the abstract was the only thing that could be imputed to the sellers, and the purchaser by exercising ordinary care might have averted the loss that had arisen from that negligence. It is usual and reasonable, before any expense is incurred, to examine the abstract with the deeds, and the purchaser ought not to recover expenses which he had sustained by reason of his having con- tracted to resell the premises before he iiad taken the trouble to ascertain whether the abstract was correct or not. But one of the Judges expressed his opinion, that if the abstract had been examined with the deeds and found correct, tlie purchaser might perhaps have been justified in acting on the faith of having the estate, and if after that time he had made a sub-contract, the learned Judge thought he would have been entitled to recover the expenses attending it, if it failed in consequence of any defect in the title of his vendor. And further, if there were mnla fides in the original vendor (but not otherwise), he was not prepared to say tiiat the purchaser might not recover the profits which would liave arisen from the resale (2). 8. But in a case of this nature a purchaser is not entitled lo any compensation, although he may be a loser by having sold out of the funds (/). (f) Fluroau c. Thornhill, 2 Blackst. 1078. (1) See Bitner v. Brough, 11 Peim. State Rep. (1 Jones,) 127. (2) See Adams v. M'Millan, 7 Porter, 73 ; Peters r. McKcon, 4 Denio, .l Ifi ; Bitner t'. Brough, 11 Penn. State Kep. (1 Jones,) 127 ; McDonnell r. Dunlop, Ilardin, 41. t*42(>] 49A PRRHMINARV EXPENSES NOT RECOVERABLE. 9. He is, however, entitled to interest on his deposit (g) ; and if the residue of the purchase-money has been lying ready without interest being made by it, he is entitled to interest on that (A) (1). 10. Where the plaintiff declares on the original contract, and *lays the expenses incurred in investigating the title, &tc. as special damages, he will be entitled to recover them as such (i). In one case Lord Ellenborough threw out a doubt upon this (k) : but in a subsequent case before him, in which Gibbs, C. J., then at the bar, was counsel for the vendor, the defendant, a purchaser, obtained a verdict for his deposit with interest, and theexjjenses of investigating the title, without argument, it being admitted that the title was defective (/) ; in a still later case, they were also recovered by a purchaser (?») ; and there are other cases not reported, in which I am told such expenses have been recovered. If the rule were otherwise, it would induce many persons upon speculation to offer an estate for sale, knowing the title to be bad ; and yet, in a case at nisi prius, Mansfield, C. J. held, that the purchaser was not entitled to recover back the expenses of investigating the title (n) (2). 11. But clearly the expenses cannot be recovered under a count for money had and received ; and Lord Ellenborough has decided that they cannot be recovered under a count for money paid, &c. to the defendant's use, as the money is expended for the purchaser's own satisfaction as to the title which he is about to take (o). Nor can the expenses of investigating the title be recovered from the auctioneer (^j). And where the contract is by parol, although the deposit may be recovered, expenses of investigating the title can- not (9). The expense of preparing the conveyance can hardly in any case be recovered, for it should not be prepared before the title is accepted (r) ; but the expense would be recoverable if the seller (7) See ch. Ifj, infra. the 0. J. also ruled, that interest on the (A) Flureau v. Thornhill, ubi sup.; deposit is not recoverable, Avhich is con- Hodges V. Lord Litchfield, 1 Bing. N. S. trary to other authorities ; and too large 492. a construction, according to other autho- (*■) Flureau v. Thornhill, tibi sup. ; lii- rities, appears to have been put on the chards v. Barton, 1 Esp. Ca. 268 ; Bratt statute of Elizabeth, r. Ellis ; Jones v. Dyke, App. Nos. -1 & 5. (o) Caratield v. Gilbert, 4 Esp. Ca. 221. (/.•; Camfield r. Gilbert, 4 Esp. Ca. 221. (p) Lee v. Munn, 1 Holt, 569. (/) Turner r. Beaurain, Sitt. (iuddh. ((/) GosbelH'. Archer, 4 Nev. & Mann. cor. Lord Ellenborough, C. J., 2d June 485. 180G. MS. (r) Jarmain v.- Eglestone, 5 Carr, & (m) Kirtland v. Pounsett, 2 Taunt. Tay. 172; Hodges v. Lord Litchfield, 1 145. Bing. N. C. 492 ; post, ch. 13, s. 1, pi. 5. (m) Wilde ». Fort, 4 Taunt. 334. Note, (1) See post, 793, 794. (2) See Lee v. Dean, 3 Wharton, 316 ; Bitncr v. Brough, 11 Pcnn. State Rep. (1 Jones,) 127. [*4271 RIGHT OF ACTION. 495 had witheld notice of an incumbrance, the existence of which pre- vented the completion of the purchase. 12. Nor can a purchaser recover expenses prehminary to the contract. The party enters into them for his own benefit at a time when it is uncertain whether there will be any contract or not. Neither will he be allowed the costs of a survey which he should defer till he know whether or not a good title can be made. But he may recover the charges for searching for judgments, and for comparing the abstract with the deeds, for unless judgments are ^searched for at an early period, great expense may afterwards be incurred unnecessarily ; and for the same reason, the comparison of deeds with the abstract should be made early (a). 13. In a case where a purcbaser's counsel required certain things to be done, which put the seller to trouble and expense in clearing the title of difficulties, and afterwards suggested an objection, whicb was held a fatal one, and the seller's bill for a specific performance was dismissed. Lord Eldon expressed an opinion, that tlie seller ought to be repaid the preliminary expenses, and expressed his hope, that the seller would not be put to agitate his right to recover what he had expended, upon which the purchaser appears to have agreed to reimburse that /expense (i). This seems to have led to an opinion, that a seller could recover such expenses, but there appears to be no foundation for such a claim, as the seller has broken his agreement, and is himself liable to an action for damages, what- ever might be the measure of those damages. 14. If the seller fail to make out a good title, and the purchaser die, his personal representative, and not his heir, is entitled to main- tain an action for damages for loss of interest on the deposit, and for the expenses incurred by investigating the title, for in such a case there is a personal contract, a breach of it in the life-time of the purchaser, and a loss to the personal estate (w). 15. If a bill be filed by the seller for a specific performance, and it is dismissed with costs, the purchaser cannot recover at law the costs as between attorney and client, ultra the costs as between party and party taxed and paid to him in the suit in Chancery (x). 16. Where a vendee brings an action on account of the agree- ment not having been completed, he will not be compelled to give (s) Hodges f. Lord Litchfield, 1 Bing. («) Ormc v. Broughton, 1 Moo. & N. S. 492. Scott, 417 ; 10 Bing. .j;<3. (t) DevereU v. Lord Boltoii, 18 Yes. (x) Ilodges r. Lord Litchfield, vbi iun. 514, 515. sup. [*4281 496 TENDEll OK CONVEYANCE UNNECESSARY. tlie vendor a particular of any of the objections in point of law arising upon the abstract ((/). 17. And where no particular has been obtained, the plaintiff is not confined to the objections which he may have stated to the defendant, but may take advantage of any other, which may entitle him to recover as for breach of the agreement (z). 18. Lord Tenterden, C. J., however, ruled ntnisijjrius, that where a particular objection in point of law only was taken by the pur- chaser before the action, he must at the trial confine himself to that objection, and could not rely upon another objection, which if stated *might have been remedied. The case was a strong one, as the ob- jection did not appear upon the face of the abstract : the abstract stated a deed as executed by the assignee of a bankrupt, who had been previously interested in the property, whilst in fact the deed was not executed, but it was proved that the assignee was ready to execute it (a). 19. To entitle a vendor to sustain an action for breach of con- tract, it has been said, that he must show what title he has ; it not being sufficient to plead that he has been always ready and willing, and frequently offered to make a title to the estate (6). In a late case (c), however, where a vendor averred, that he ivas seised in fee, and could make a good and satisfactory title to the purchaser of the estate, by the time specified in the conditions of sale, it was held sufficient, and that it was not necessary for him to show how he deduced his title to the fee. And the Court seemed of opinion, in opposition to the prior cases, that a vendor need not display his whole title on the record. This decision, without working an in- justice, will in most cases render it unnecessary to load the plead- ings with the title of the vendor (1). 20. Although a purchaser is expressly required to prepare a conveyance, yet if a bad title be produced, he may maintain an action for recovery of his deposit without tendering a convey- ance ((Z). (y) Collet V. Thomson, 3 Bos, & Pull. 115. 246. (c) Martin v. Smith, 6 East, 553 ; 2 (s) Squire v. Tod, 1 Camp. Cas. 293. Smith, 543 ; and sec Co. Litt. 305, b. ; (a) Todd V. Hoggart, 1 Mood. & Malk. Terry v. Williams, 1 Moore, 498 ; Ilal- 128. lewell v. Morrcll, 1 Mann. & Grang. (6) Philips V. Fielding, 2 H. Blackst. 3G7. 123 ; and see Duke of St. Albans v. (d) Seward v. Willock, 5 East, 198 ; Shore, 1 H. Black. 270 ; Luxton v. Rob- S. P. ruled by Lord EUcnborough, C. J., inson, Dougl. 620; see 2 Nev. & Mann, in Lowndes t;.Bray,Sitt. after T.T. 1810. (1) See Boycr v. Porter, 1 Tenn. 258 ; Metcalfe i\ Dallam, 4 J. J. Marsh. 200. [*429] TKNUEll OF CONVEYANCE UNNECESSAUY. 497 21. Where a bill by a seller for a specific perfonnance is dis- missed, and it is not added that it is without prejudice to the plaintiff's remedy at law, equity will in a proper case restrain the seller from afterwards bringing an action for damages ; for exam- ple, where the bill was dismissed because the seller had no title (e) ; and where a party to a bill which is dismissed is declared to be at liberty to bring an action, yet no reliance can in a court of law be placed upon that permission ; the judge does not draw the declaration, neither do judges give an opinion upon that which is not before them (/) (1). (e) M'Namara v. Arthur, 2 Ball & (/) See 3 Taunt. 438, />er Mansfield, Beat. 349. C. J. (1) See 2 Daniell Ch. Pr. (Perkins's ed.) 1200, 1201. Vol. 1. 63 41)8 ^CHAPTER IX. OF THE ABSTRACT, AND OF THE PRODUCTION OF DEEDS ; OF COVENANTS TO PRODUCE THEM, AND OF ATTESTED COPIES. SECTION I. OF PREPARING AND EXAMINING ABSTRACTS. 3. Abstract of ancient deeds cannot be 27. Provisoes for cessor. required. 28. Trusts. 4. IIoio it should bo loritten. 29. Potcers, 6, Heading. 30. Covenants. 7. What deeds should be abstracted. 31. Executions : attestations. 8. Lessor's title. 32. Receipt. 9. Exchanged estate. 33. Registry. 10. Allotments under inclosures. 34. Intestacy. 11. Printed copies of act. 35. Leasehold title. 13. Exchange of common fcld lands. 36. Renewable leaseholds. 1-1. Copyholds enfranchised. 37. Attendant terms. 15. Allotment for several estates. 38. Descent. 1(5. Separate purchases. 39. Wills. 17. Margin. 40. Acts of Parliament. 18. Description of parties. 41. Judgments and crown debts. 19. Recitals. 42. Decrees, 20. Witnessing part. 43. Fiats in bankruptcy. 21. Granting part. 44. Liability of seller's solicitor. 22. Parcels. 45. Purchaser's solicitor to examine the 23. One abstract for several estates. abstract. 24. Exception. 46. Where examination may be delayed 25. Habendum. 47. Solicitor 2}erusing abstract. 26. Limitations and uses. 1. I PROPOSE in this place to make a few practical observa- tions on, 1, the mode in which an abstract should be prepared; 2, the manner in which it should be examined ; and 3, the way in which it should be perused. Mr. Preston has exhausted this subject in his able treatise on abstracts of title. His work and my own experience will enable me to assist the reader without at all rendering a reference to his elaborate work unnecessary. [*430J PREPARING AN ABSTRACT. 499 2. Formerly the title-deeds themselves were delivered to the purchaser, and his solicitor prepared the abstract at l^is expense, and the abstract was compared with the title-deeds by the counsel *before whom it was laid (a). But the seller's solicitor now pre- pares the abstract at his expense, and the purchaser's solicitor examines the abstract with the deeds at the purchaser's expense. And a purchaser may insist upon an abstract, and is not bound to wade through the deeds. Where a seller undertakes to produce an abstract, and in his declaration avers that he has done so, that allegation will not of course be sustained by proof that he deliv- ered the deeds themselves to the purchaser (b). 3. A seller may upon a suit for a specific performance be com- pelled on oath to bring into the Master's office all documents in his possession or power relating to the title, and would not be entitled to withhold them from the purchaser if he required them, yet clearly he is not bound to furnish an abstract commencing before the proper period, whether the purchase is completed in or out of Court. Where circumstances disclosed by the instruments abstracted or otherwise known to the purchaser require the pro- duction of any portion of the earlier title, the true rule perhaps is, that the seller must furnish an abstract of any instrument, how- ever ancient, upon the contents and construction of which the title depends, but that where the instrument is required simply to estab- lish a fact or to negative an inference, it is sufficient to produce the instrument itself as such evidence. 4. The abstract should be fairly written on tlie usual paper (c). No part of the counsel's attention should be distracted by havinor to make out the handwriting, or by the difllculty of turning over the sheets where they are very large and thin. In my practice as a conveyancer I many times refused to peruse papers illegibly written, or written upon such thin large paper that a long abstract could not be conveniently perused. It is of great importance to a purchaser thai no unnecessary impediment should be thrown in the way of his counsel, who will require all the powers of his mind for the close and continued investigation of a long and complicated abstract of title. 5. In Ireland an abstract is accompanied with copies of the deeds, to which the counsel is separately referred, and he states at the end of every reference that he has perused the copy (d). («) See Temple y. Brown, 6 Taunt. GO. (c) 1 Prcst. Ahstr. 7"i. (6) Home r. Wingfield, ?, Seott's N. (d) Sop p. 7S. C. 340. [*Vil\ 500 PREPARING AN ABSTRACT. 6. Every abstract should state in the heading whose title it is, and for what interest ; and when it is laid before counsel a copy of the agreement or conditions of sale should be sent with it. 7. We shall hereafter consider at what period the title should *comnience (c), and the solicitor should be guided by the established rule in preparing an abstract. He should abstract every docu- ment upon which the title depends, or upon which any difficulty has arisen. Wherever he begins the root of the title, he ought to abstract every subsequent deed, and if he were to suppress any by which the purchaser should be damnified, he would be answerable for the loss. But there is no pretence for a purchaser requiring, or a seller's solicitor furnishing an abstract of all the deeds in his possession, however ancient : this is never done by a respectable solicitor, and could not be justified, nor could a purchaser insist upon such an abstract. 8. Where the title, is to a leasehold interest, and the seller has not protected himself from producing the lessor's title (/"), an abstract of the freehold as well as of the leasehold title must be furnished. 9. If the estate has been taken in exchange, an abstract must be furnished of the title as well of the estate sold, as of that which was giv^en in exchange for it (o-). 10. Lands allotted under inclosure acts become liable to the uses of the estates in respect of which they were allotted, and it is therefore upon the sale of such lands necessary to furnish an ab- stract of the title to the original estates (A). 11. So upon exchanges under inclosure acts, for the title remains the same, although it applies to the new, and not to the old estate. It is generally expressly provided by inclosure acts, that the estates taken in exchange shall become liable to the uses of the estates given in exchange, and there is no pretence, although negative words are not introduced, for contending that the former title of the estate taken in exchange any longer affects it. The general inclosure act contains no stipulation expressly making the new estate liable to the uses of the old one (i) ; but still the operation of the law would clearly be the same, and there is no reason why in this, any more than in the other case, the estates should remain {e) Infra, ch. 10. (<) 41 Geo. 3, c. 109. See 3 & 4 (_/') Oh. 10, 2>ost- "Will. 4, c. 87, for remedying defects for {g) Bastard's case, 4 Hep. 121; see 8 want of enrolment of awards ; Casama- & 9 Vict. c. 106, s. 4. jor ;•. Strode. 2 Mvl. 6c Kee. 70G. (A) See 1 Prest. Abstr. S7. IGl. f*432] PREPARING AN ABSTRACT. 501 fiable to the uses to which they were originally subject. So that in every such case tlie title of the party holding such estate is the ■only one which relates to it. 12. In titles under inclosure acts, a printed copy of the act ■should be furnished, and the abstract, as far as it relates to the *inclosure, should contain only a reference to the act, with an official extract from the award (Jc). 13. The power to exchange lands in common fields is expressly guarded by clauses changing the uses of the lands, and taking away any right of eviction after the exchange (J). 14. If the estate was copyhold and has been enfranchised, an abstract of the lord's title to the freehold will be required, as well as of the copyholder's title to the copyhold before its extinguish- ment (m). The copyhold title, whilst the transaction is a recent one, is still necessary, because unless it was a valid one, the copy- hold might yet be recovered, and the freehold title is just as neces- sary as if the estate had never been copyhold, because the title as freehold will altogether depend on the validity of the lord's title. 15. Where an allotment is made generally in respect of all the tenant's lands, it is necessary to make out a title to them all ; and in some cases where the original estates are held under conflicting settlements, it may be found impossible to do so (n). 16. Where an estate has been purchased in parcels under dif- ferent titles, every title should of course be traced separately, until they all unite in one common title. 17. The general mode of abstracting is to have several inner margins, so as to draw attention at once to the different parts of the instruments, and particularly the parcels or description of the estate are inserted in the innermost margin, and frequently this, which is a convenience to the counsel who peruses the abstract, is abused, and only half the sheet is occupied. An abstract should always have the common, which is a large margin, and all con- versant with the subject will agree, that this margin should be left for the counsel unincumbered by any observations by the solicitor not strictly necessary. 18. Now, as to the mode of abstracting a deed. The parties (/;) See 8 & 9 Vict. c. 113, s. 3. («) Sc(? King v. Moody, 2 Sim. & Stu. (/) 4 & Will. 4, c. 30, s. 24, 25. 578. (m) 1 I'rest. Abstr. 205. [*433J oO'-i PRF.PAKIN(. AN ABSTRACT. should be stated, with their descriptions, shortly, if deemed ne- cessary. 19. The recitals should also be stated of the deaths, failure of issue, and the like, which frequently renders further evidence of those facts unnecessary, and sometimes leads to incumbrances, or the like, the instrument creating which is not with the deeds (o). Recitals should be introduced as such where they occur, and *not as substantive statements of fact. The deeds, he, already abstracted, may be stated to be recited, but an abstract of the recitals could not be justified. 20. The witnessing part is always introduced as such. It should state the consideration, and the motive or object of the parties where that is set forth (p). 21. The granting part should be statecj in the very words, but of course not repeating them ; and the exact words used in conveying the estate unto the grantee, &;c., should be slated. 22. The parcels should be stated accurately, but not at unneces- sary length ; and they should, in subsequent instruments, only be referred to, unless a new or some additional description is introduced, which should be stated (^q). 23. It is not an unusual practice, where a large estate is sold in lots, to prepare one abstract including all the parcels, and to furnish every purchaser with a copy of it, merely distinguishing the de- scription of his lot, and sometimes leaving him to discover it. This is an abuse for the sake of charging, and adds to the purchaser's expense in fees to counsel and payments to his solicitor, as well as to the seller's expense. It is a disreputable practice. 24. Any exception in the deed relating to the property sold, should, of course, be abstracted (r). 25. The habendum should be stated in the very words as regards the grantee, his heirs, &,c., and it will then appear whether the habendum is simply unto the grantee and his heirs, &;c., or unto and to the use of him, &tc. Upon this point the person ab- stracting should not exercise his judgment, but copy the words (5). 26. The limitations and uses should be accurately stated. Where the common words are accurately introduced, the effect of them only should be stated (t) : estates tail, therefore, should be stated (0) 1 Prest. Abstr. 63, vol. 3, p. 8, (7) 1 Trest. Abstr. /jfj, 81, 90, 94, vol. 229 ; see Gillett r. Abbott, 7 Adol. & 3, p. 31, 40, 212. Ell. 783. {)•) 3 Prest. Abstr. 36. (;;) 1 Prest. Abstr. 69. («) 1 Prest. Abstr. 97, vol. 3, p. 39 [*434] (0 1 Prest. Abstr. 99, 104. 117, 121. PREPARING AN ABSTRACT. 503 as such, and the precise words of hinitatiou not introduced ; but every Hmitation out of" the common course, and every proviso de- feating or abridging any limitation, should be accurately stated. Where the provisoes are, although complicated, yet common ones, and the event provided for has not happened, they should only be referred to ; for example, a proviso for shifting the estate from the elder branch to the younger, if the former should acquire another estate, should be stated in a few words where it never operated ; but it should not be altogether omitted although the event did not arise. *27. Provisoes for cessers of terms, where they are considered to have operated, should be fully stated (u). 28. If there are any trusts they should be stated, with all the conditions and requisitions attached to them, unless they never arose, in which case the fact should be stated, and the trusts sim- ply referred to. 29. Powers should be stated shortly, unless they have been exercised, as in the case of a power of sale and exchange, or power to appoint new trustees, the material parts of which should be stated where it has been executed. A power to lease seldom requires to be more than referred to. So powers to trustees to give receipts need only be stated in those words, unless where the purchaser is to pay his money under that authority. Where there is such a power, the trusts of the money are not to be stated (x), or only shortly. 30. The usual covenants, for example, the common covenants for title, should be referred to as such, but any special matter should be abstracted. Frequently the covenants disclose incum- brances not noticed elsewhere. Covenants to produce deeds in like manner contain references to deeds not with the title. The seller's solicitor is bound to abstract them fairly (y). 31. When the instrument is fairly abstracted, it should be stated with accuracy by whom it is executed (z), and if by attorney, that fact should be stated, and the power should be abstracted shortly. Where livery of seisin — as upon a feoffment, or enrolment, as upon a bargain and sale — is required, the fact and date should be cor- rectly stated (ff). If the deed be in execution of a power re(juiring (««) Ch. 15, infra. (y) 1 Prest. Abstr. 152, vol. 3, p. 56. (x) 1 Prest, Abstr. 134, 135. See now (z) 1 Prpst. Abstr. 154, 270. 8 & 9 Vict. c. 112. (a) 8ce now 7 & 8 Vict. r. 76 ; 8 & Vict. c. 106. 504 PKEPARING AN ABHTRACT. witnesses, the form of the attestation and the niunber of wit- nesses should be stated (b). 32. Where a receipt is endorsed, that should be stated, and by whom it is signed (c). 33. If the estate is in a register county, the fact of registry should be regularly stated (1). 34. In cases of intestacy of freehold estates, it is desirable ta state how the intestacy is proved, as, for example, by letters of administration, which are the best proof. And generally all the evidence in support of facts recited or stated should be referred to. It will be sure to be inquired for if not referred to, and that leads to additional labor and expense. *35. In abstracts of title to leaseholds, the deduction should be regularly made out from the original lease by the assignments or by recitals, which in some cases will supply the loss of assign- ments (d), and by probates and letters of administration in courts of competent jurisdiction (e). 36. In the case of renewable leaseholds, it must be shown how the old leases for a reasonable period were settled, in order to prove that the new leases are not affected by any equity (/). 37. Th^ creation of terms of years assigqed to attend the inher- itance should be shown by the abstract, but the intermediate assignments may be abstracted very shortly (,g). 38. In cases of a title by descent, the best proof by letters of administration, leases, assessments to land-tax or the like, should be obtained, but liereafter titles within the range of tlie late stat- ute (^) will not require to be carried back in order to show who was the first purchaser (i). But in every case a regular pedigree should be produced properly vouched. 39. In abstracting wills, where the usual technical terms are not used, it is necessary to state the exact terms of the devise, and all modifications of it, by proviso or otherwise, should be accurately stated (k). 40. Acts of parliament generally may be concisely stated, be- (6^ 3 Prest. Abstr. 371. (y) 1 Prest. Abstr. 25, 1-18, posl. Sec (c) 1 Prest. Abstr. 72, 155, 299. now 8 & 9 Vict. c. 112. {d) Ch. 10, post ; sec Doc v. Maple, (A) 3 & -i Will. 4, c. 106, post, eh. 11. 3 Bing. N. C. 832. {i) 1 Prest. Abstr. 22,. 43. (e) 1 Prest. Abstr. 11. \k) 1 Prest. Abstr. 178. (/) Ch. 10, 2^ost; 1 Prest. Abstr. 14. (1) The statutes of the several States require the record of deeds of land in alJ lases. 4 Kent (6th ed.) 456; 2 Cru-ise Dig. by Mr. Grecrdcaf, Tit. 32, Ch. 29, ^1, note, §20 note, 4 vol. p. 545, 555. [*436] EXA.MINATION OF ABSTRACT. 505 i;auso there is mostly a printed copy with the title wiiich can be read with facihty, and may therefore with propriety be sent with the abstract and referred to. 41. Judgments, crown debts, and the hke should be stated suc- cinctly. This, however, is seldom done, but the purchaser is left to discover such incumbrances by search or inquiry ; but now that judgments are made an actual charge upon the property, it may not be safe for the seller's solicitor to withhold a statement of them (I). 42. No particular directions can be usefully given as to decrees. The nature of the question will point out whether it is necessary to do more than abstract the date, parties, and declaratory part of the decree. Where there is a reference to the Master impor- tant to the title, the result should be stated, with the order or decree on further directions Qn). 43. Commissions of bankrupt, or fiats in bankruptcy, are usually *stated shortly, and if the bankruptcy is of recent date, and the bankrupt do not concur in the conveyance by his assignees, the purchaser's solicitor inspects the proceedings as to the trading act of bankruptcy, &;c. (n). Now the property vests in the assignees for the time being without any conveyance (o). 44. We have already seen that the seller's solicitor would be personally responsible for suppressing an incumbrance (p). And whilst preparing an abstract he cannot be too careful in furnishing the purchaser with the real state of the title. 45. The purchaser's solicitor is bound to examine the abstract with the deeds ((/), and if he were by negligence to overlook an important provision by which his client should be danmified, he would be answerable for the loss. The examination of an abstract ought never to be left to an incompetent person : all that such a person can do is to see that what is abstracted is correctly stated ; he can form no opinion of the materiality of what is omitted in the abstract, and yet one great point is to look through the whole of the instrument in order to ascertain that there is no proviso or declaration, or limitation over, which qualifies or re- stricts the portion of the instrument abstracted ; and the descrip- tion of the parties, or an exception in the operative part of the deed, (0 Ch. 12, post. (o) 1 X: 2 Will. I, o. 56, s. 2G. (m) I Prest. Abstr. ISS. (;>) Introd. chapter. (n) 1 Prest. Abstr. 167. (l) Sect. 3, pout. Vol. I. 64 l*437j 506 PERUSiNr. ABSTRACTS; or frequently in the covenants for title, leads to incumbrances or settlements which have not been disclosed. In the case oi wills, particularly, the solicitor is bound to read through the whole will. Upon him devolves the duty of seeing that the evi- dence is what it purports to be, and that the deeds and wills are duly attested, and the receipts on the deeds properly endossed and signed. An estate has been lost principally from the manner in< which the receipt was endorsed, which w^ould have led a vigilant purchaser to inquire further, when he would have discovered the^ fraud which had been committed (r). He should also see that the modern deeds are duly stamped (s). 46. If the abstract is on the face of it properly framed, which a competent person will be able to tell at a glance, the examina- tion of it may be delayed until after the abstract has been perused by counsel, when he can at once ascertain the correctness of th** abstract, and investigate the points suggested by the counsel (^). *47. Sometimes a solicitor enters into a discussion u|)on a title^ which generally ends by a reference to counsel, and often by a Chancery suit.^ Unless a solicitor is competent to direct his client throughout, a recourse to counsel at once will save both time ami money. (r) Kennedy y. Green, 3 Myl. & Kee. (s) I Prest. Abstr. 201.. 699. ' (t) See sect. 2, post. SECTION 11. OF PERUSING ABSTRACTS. 1. Pei-vsal at one sitting,r a. Notes. 4. Opinion book. '). JIow to be 2}erused. 0. Parcek. 7. Dates : new laws, 8. Evidence. 9. (J^ce copies, extracts, prolmtes, i^c. 10. Pedigree : certificates : receipts. 11. Registry: enrolment: execution: attestation. 12. Negative answers. 13. Searches. 14. Court rolls. 15. Expense of searches, 16. Potcer of attorney. 17. Evidence. 18. Pedigrees, 1 9 . Recitals of pedigree. 20. Evidence of pedigree. 21. Registries of birth. 22. Marriage : legitimacy: 23. Seller's evidence. 24. Broker's certificate. 1. In regard to the best mode of perusing an abstract by counsel P438] TERUSTNG abst:racts, 507 "Opinions differ, and I will not presume to decide (y). But I wiH simply-state what always appeared to me the best mode. 2. In the first place the perusal should, if the length of the ab- stract will permit of it, be finished at one sitting, although any difficult point of law, the whole bearing of which is ascertained, •may properly be reserved for further and separate consideration. 3. It is not useful to make many notes, for they often distract the attention. In one instance a counsel, in perusing an abstract, actually inserted a note in the margin opposite to ost. svpra, p. 403. {h) Lewin v. Guest. 1 Russ. 32.5 ; see (w) Ch. 8, s. 1. supra. 2 Molloy, 583- [*447] 516 PROPERTY IN ABSTRACT. expense " an abstract of their title," means an abstract of the general title, and it is not to be confined to the acts of the deceased partner, and the title under him, although the purchasei was bound by the contract to purchase subject to all imperfections of title before the commencement of the title of the deceased partner (o) ; so that a man may be entitled to an abstract of the title, and yet be compelled to accept the title itself as it stands. 6. The abstract is delivered for the following purposes : First, That the purchaser may see whether the title is such as he will accept. He has also a right to it after he has taken an opinion, in order to take another opinion in case he is not satisfied with that, and for the purpose of taking further objections, and of further considering the title. He must have it too for another pur- pose, to assist him in preparing his conveyance, that he may see who must be made parties, what form of conveyance is expedient, what parcels are to be inserted, and the like (p). As to the general property in the abstract, it is hard to say who may have it ; while the contract is open, it is neither in the vendor nor in the vendee absolutely ; but if the sale goes on, it is the property of the vendee ; if the sale is broken off, it is the property of the vendor. In the meantime the vendee has a temporary property, and a right to keep it, even if the title be rejected, until the dispute be finally settled, for his own justification, in order to show on what ground he did reject the title (9'). If the purchase go off, not only is the abstract to be returned, but no copy to be kept, lest it should be used for a mischievous purpose (r) ; and although the purchaser pays for the opinion, yet, for the same reason, that ought, it should seem, to be returned with the abstract (s). 7. In a case where the purchaser returned the abstract to the seller to answer the queries and opinion of counsel, it was held that the purchaser might maintain trover against the seller for the abstract, although the seller himself might ultimately be entitled to the abstract. The temporary property of the purchaser in the abstract was sufficient to enable him to maintain the action (t). 8. The seller is bound to produce the deeds, in order that the abstract may be examined with them, although they are not in his (0) Morris v. Kearslej-, 2 You. & Coll. (/•) 2 Taunt. 277, per Lawrence, J. 139. (») See and consider 2 Taunt. 270, per {p) See 2 Taunt. 276, per Mansfield, Mansfield, C. J. ; Alexander v. Crosbie, C. J. 2 Ir. Eq. licp. 143. (q) 2 Taunt. 278, per Chambre, J. (0 Roberts v. Wyatt, 2 Taunt. 2G8. EXPENSE OF PUODTTCINO DEEDS. 517 ^possession, and the purchaser will not be entitled to the custody of them (u). 9. A question often arises as to the place at which the deeds should be produced. A production at the seller's country seat where the estates lie, or at his known residence elsewhere at the time of the contract, could not, it should seem, in general be objected to, and if the deeds are in London, that would be the proper place to produce them : this could hardly be deemed a surprise upon a purchaser, because it is generally known that many title-deeds are, at least preparatory to a sale, lodged in the hands of town solicitors. But it is seldom that any difficulty arises in this respect, for the contract mostly points out from the context where the deeds should be produced ; and where they are in the seller's own possession, it is seldom that a satisfactory arrangement cannot be made for their production. 10. But provided the purchaser's expense is not increased, the seller may perform his obligation by procuring the purchaser an in- spection of them at the residence of any third person ; for example, of the person entitled to hold them in respect of other estates, or of an incumbrance. To the purchaser it is indifferent whether he ex- amines them at the abode of one person or of another ; and where some of the deeds are in the seller's possession, and some in a third person's, a purchaser would not be allowed to object to attend at several places if they were within a reasonable distance. But if the deeds, or any of them, are in the custody of other persons living at a distance from the place where they ought to be produced, the pur- chaser must send there to have them examined, but the seller must pay the expense of the journey, — that is, the additional expense, — for let the deeds be where they may, the purchaser would have to examine them at his own expense. 11. This was so ruled in a case before the Master (:r), upon a sale by assignees of a bankrupt. A settlement of 1763 was in the possession of a former purchaser, and there was only a covenant to produce a copy of it. A bill was filed by the assignees lor a specific performance. The purchaser was informed that the settle- ment was in the possession of a gentleman in the country, and might be seen there. He was ready to covenant to produce it. The purchaser submitted to the Master, that it was the duty of the sellers to produce the deeds stated in the abstract before the Master, or to the purchaser's solicitor in F^ondon. The Master (tt) Post, pi. 18. (x) Sharp r. Page, Rolls. 1815. MS. [*448| 518 EXPENSE OF PRODUriNG DEEDS. stated, that lie would make inquiry of eonveyancers, what the .*practice in such cases was, and afterwards decided, that the pur- chaser's solicitor ought to send to Baldock, where the deeds were, to compare the abstract with the settlement, but that the sellers ought to pay the expenses of such journey. 12. In a late case upon a sale by the Court itself, the Vice- Chancellor expressly held, that the vendor must be at the expense of the purchaser's solicitor going from place to place to compare the abstract with the deeds, and that the purchaser was not bound to send the abstract to an agent in a country town in order that he might compare the abstract with the deeds (y). 13. But the rule is, that the agent in London of the country attorney of the purchaser should examine the abstract with the deeds where they are in London, and therefore the client, the purchaser, cannot be charged for the country attorney's journey, &;c. to London to make the examination, not even if he undertook it at the request of the cHent, unless he distinctly informed the client that it was not by the usage of the Profession considered to be necessary that such expense should be incurred (^). 14. Where the seller stipulated by the conditions of sale to deliver an abstract of title and deduce a good title, but in a subsequent condition provided that he would deliver to the pur- chaser all the title-deeds and copies of deeds and other docu- ments in his custody, " but should not be bound to produce any original deed or other documents than those in his possession, and set forth in the abstract, or which related to other property," it was held that he was bound to verify the abstract ; the clear con- 'dition as to the abstract and good title was not allowed to be over- reached by the ambiguous provision in the condition as to the deliv- ery of the deeds (o). 15. If a seller cannot produce the originals, as in the case of wills and records, he cannot require the purchaser to send round to the different offices to examine the abstract with the originals, or with the records, even where that will be permitted by the rules of the office, although he (the vendor) is willing to pay the expense of the attendances, but he must procure office copies or extracts, as the case may require, in order to enable the purchaser's (y) Hughes v. Wvnne, 8 Sim. 85. (a) Southby v. Hutt. 2 Myl. & Cra. (z) Alsop r. Lord Oxford, 1 Myl. & 207 ; see 8 Scott, 551. Kee. 564. [*449] NOTICE OF PLACE WHERE DEEDS AUE. 519 solicitor to examine the abstract with them, and to lay them before his counsel if it should be deemed necessary. 16. Where a grant from the Crown is the foundation of the *title, although the seller claims the fee free from charges, a purcha- ser is anxious to have an office copy of the grant, in order to ascer- tain whether any rents were reserved by it, and whether it was upon any condition or the like ; but if the seller's solicitor searches for it, and informs the purchaser where the grant is to be found, the latter must be content to have it examined by bis own solicitor at the office where it is kept. This generally arises upon titles to impro- priate tithes. And now, although impropriate tithes may be mer- ged (b). or a rentcharge substituted for them (c), yet the practice will remain unaltered, because no greater interest would merge than the party had, and the rentcharges are subject to all the incumbran- ces to which the tithes themselves were liable (rf). 17. Where in a contract providing in the usual way for the delivery of an abstract, and making a good title, and the execution of a conveyance on payment of the purchase-money, it was provi- ded that if the seller should not deliver an abstract of his title to the purchaser or his agent before a day named, and should not verify the same by the production of all the deeds, evidences, and writings in support thereof to the purchaser at Norwich, at Lynn, or in Lon- don, before a further day named, &lc., then the agreement should be void, it was held to be incumbent on the seller to give notice to the purchaser at which of the places he would be ready to produce such title (e). 18. If the seller have only a covenant to produce the deeds, yet he must procure the production of them. If the purchaser went to inspect the deeds, the holder might refuse to produce them to him, and would not be liable to an action of covenant for non- production. The law supposes that every vendor has the deeds in his own hands, and in his power to produce (/). This has always been the practice. 19. If the seller's attorney state that, if required, the deeds, although in the hands of a third party, will be applied for, tlie pur- chaser, although he prepare and engross his conveyance, which is (6) 6 & 7 WiU. 4, c. 71, s. 71 ; 1 & 2 (e) Rippingall v. Lloyd, 2 Ncv. & Vict. c. 61. Mann. 410. (c)f.&7 Will. 4, c. 71. (/)S. C. {(l) lb. sect. 71. [*'150j 51^0 COPIES OF COURT ROLL. executed, will not be bound to complete his purchase unless the deeds be produced (^). 20. Where a purchaser's solicitor examined the deeds for the purpose of comparing them with the abstract, and the deeds were afterwards accidentally burnt before the title was accepted, it was *insisted that the solicitor had the opportunity to learn who were the attesting witnesses, and that the purchaser must sustain the inconvenience of his negligence in this respect ; but the Court observed, that the purpose of the examination of the deeds by the purchaser's solicitor, was merely to ascertain whether the contents of the deeds corresponded with the statement in the abstract, and not to learn how the deeds were to be proved by secondary evi- dence, in case they should be destroyed, which event could not at that time be in contemplation of any party, and therefore it could not be imputed to him as culpable negligence that he did not inform himself of the attesting witnesses (h). 22. In the case of a copyhold estate, the copies of court-roll are the documents of title, or, in common parlance, the " title- deeds." The purchaser is entitled to have them furnished to him just like other documents of title (^) : if the seller is entitled by stipulation or in respect of other estates to retain them, the pur- chaser is still entitled to their production, in order that the abstract may be examined with them. 23. The purchaser should not deal with the estate in any man- ner as owner until the abstract has been exmained with the deeds. For although the abstract be negligently prepared, yet in the absence of fraud the seller will not be answerable, as the pur- chaser himself, by exercising ordinary care, may avert any loss from the seller's negligence. Therefore if an abstract show a good title, and the purchaser resell at a pro'fit, and upon an ex- amination of the deeds it turn out that the title is bad, and he has to pay the second purchaser his costs of investigating the title, yet he cannot recover them over, nor could he recover the costs of the resale or any damages (/v). 24. And as the comparison of deeds with the abstract should be made early, the purchaser will be entitled to the expense of the examination and of journeys for that purpose, if ultimately the seller cannot make a title ; and it cannot be objected that the pur- ((/) Jarmain v. Eglestone, 5 (Jarr. & different solicitors in Wliitbrcad v. Jor- Pay. 172. dan, 1 You. & Coll. .'517. (A) Bryant r. Y.uak, 4 Russ. 1. (A) Walker v. Moore, 10 Burn. \ (/) See the evidence of the practice bv Cress. 416. [*45I] INSPECTION OF DEEDS WAIVED. 521 chaser ought to have waited till he knew whether a title could be made (/). 52. In a case before Lord Thurlow (m), an exception was taken to the title to some copyhold lands, for that no surrenders had been produced before the Master. To this it was answered, that an *ahstract of the several surrenders had been produced, and not ob- jected to by the purchaser ; that it was the constant practice in the Master's office to produce the abstract only, (which in general is previously compared, by the vendor's [vendee's] attorney, with the title-deeds,) and that if the vendee does not insist upon the production of the title-deeds, the Master makes his determina- tion on the abstract only, which had been done in the present case. And to this the Lord Chancellor agreed, and said, that as the vendee might call for the title-deeds before the Master if he thought proper, he should take it for granted, whenever the vendee omitted so doing, that he was satisfied the abstract was correct. And therefore, though this objection was true in letter, it was false in spirit, for in reality the production of the abstract unimpeached was the production of the surrender, and therefore he overruled the exception to the Master's report. 2G. This case furnishes a general rule, nor will the Court when a bill is filed allow a purchaser who had not called for the deeds to raise an objection for want of their production, so as to throw the costs of the suit on the seller (n). And we have already seen, that although the time fixed for delivery of the abstract is imperative at law, yet in equity, with reference to time, it is nearly as incumbent upon the purchaser to call for the abstract, as it is for the seller to deliver it (o). (0 Hodges V. Earl of Litchfield, 1 («) Ch. 16, post. Bing. N. G. 499. (o) Ch. 5, supra. {m) Toole v. Shcrgold, 1 Cox, IGO. Vol. L 66 [*452] 522 WARRANTIES. ^SECTION IV. OF A purchaser's RIGHT TO THE DEEDS (1). 1 . Warranties. 4. Pledge by seller of escrow. 5. Right ofpwchaser to folloio the deeds. 7. Lien of Seller's solicitor. 8. Deeds left with third person to pre- pare conveyaiice. 10. Or loith the purchaser. 12. Sale of part without stipulation. 13. Where seller is under covenant to pro- duce. 14. Leaving deeds in seller's custody. 15. Arrangement where estate in mort- gage. 16. Opinion of R. P. Commissioners. 17. Deposit of deed, where sufficient. 19. Implied notice of pledge of documents, 20. Nature of evidence. 22. Assignments lost. 23. Lease for a year lost. 24. 28. Recitals as evidence. 25. Evidence where deeds lost or de- 2G. 27. 28. 29. 30. 32. 33. 34. 35. 37. 38. 42. 43. 44. 45. stroyed. Title withoiU deeds. Selk.r to execute neio conveyance if old one burnt. Prosser v. Wa^ts ; recitals. Whether covenant to produce within covenant for further assurance. Pwchaser's right to evidence after conveyance. Relieved if fraud, i^c. Execution of title-deeds not to be 23 roved. Laythoarp v. Bryant. Effect of it. Will to beproduced though seller heir. Not to be proved against heir. Whether the deeds are transferred! icith the seisin. Gra7it of deeds. Yea V. Field. Observations %qion it. 1. In regard to the general right of a purchaser to the title- deeds, we may observe, that whilst warranties prev^ailed, and before (1) In the United States, where deeds of conveyance of lands are universally registered, the grantor retains his own muniments of title ; the grantee being ordinaiily permitted to give in evidence certified copies, from the registry, of all deeds under which he claims or deduces title, to which he was not himself a par- ty, and of which he is not therefore supposed to have the control ; the burthen of proof being on the other party, to show some circumstances impeaching the deed, and so taking it out of the rule, and requiring its production. 2 Cruise Dig. by Mr. Greenleaf, Tit. 32, ch. 9, $19 note (i; ; 4 vol. p. 164; 1 ib. 75, note (i) ; 1 Greenl. Ev. c571, note (5); Hcanlan v. Wright, 13 Pick. 523; Woodman v. Coolbroth, 7 Greenl. 181 ; Loorais v. Bedel, 11 N. Hamp. 74; Kno.x V. Silloway, 1 Fairf. 201; Kelsey v. Hanmer, 18 Comi. 311; Ford v. Peering, 1 Yescy, jr. (Sumner's ed.) 72 note (a). And where a copy Ls, on this ground, admissible, it has been held that the original, which has been duly registered, might be read in e\'idence, without proof of its formal execu- tion. Knox V. SOioway, 1 Fairf. 201. This practice however, has been re- stricted to instruments which are by law required to be registered, and to trans- missions of title inter vivos ; for if the party claims by descent from a grantee, it [*453] DEEDS LEFT IN SELLEr's CUSTODY. 523 covenants were introduced, the title-deeds, except where they were necessary for the defence of the feoffor, who had himself entered into a warranty, went with the estate (a) ; and this right moulded itself according to the interests of the parties ; if a man enfeoffed two, and the heirs of one of them by deed, and the deed and other evidences concerning the land were delivered by the feoffor to him who had the fee, and afterwards he who had the fee died, he who survived should have the deed by which he was enfeoffed, because it makes his estate ; but he should not have the ancient charters, for they were delivered to the other joint tenant for the safeguard of his inheritance, which Coke calls a notable case (6). Again, if a man enfeoffed two, to them and their heirs, and gave the ancient ^charters to one of them, and he died, the survivor should have all the charters, and not his heir, to whom the gift was made, for he could sustain no loss from the want of them, nor receive any benefit by them if he had them, but contra of the survivor ; but he should have them as things which went with the land (f). 2. But even under that rule, such things as were not necessary to the defence of the seller, as exemplification of records, court rolls, pedigrees, or the like, belonged to the grantee of the land, without any grant of the deeds (plete his purchase. 29. It was debated, but not decided, in Fain v. Ayers (c/), whether under a covenant for further assurance a purchaser who has not obtained the title-deeds or a covenant to produce them, can require a covenant to produce them to be executed to li'rin. I3ut the better opinion is, that he has no such right, for the covenant for further assurance seems to be confined to an assurance by way of conveyance, and not to extend to fiulhcr obligations to be im- posed on the covenanter by way of covenant (e). 30. If a purchaser take a conveyance from an heir at law, by (a) CottrcU v. Wcatkins, 1 Bcav. 361. {d) 2 Sim. & Stu. 533. (6) Bennett r. Ingoldsby, Finch, 2C2. (e) Sec TIallctt v. Jilidclleton, 1 lluss, ((•) '1 Miidcl. 59, 2o(i,, '252. ■RIGHT TO DOCUMENTS APTER CONVEYANCE. 5^1 vleeds wliicli set forth the pedigree of the vendor, he cannot after- wards file a bill stating that there are various books, family Bibles, &c., containing entries which prove the pedigree as recited, and insisting on that ground that those books, Bibles, he. ought to be delivered up to him or secured for his use. If he was satisfied at the time when he took his conveyance, he cannot aftwwards call for proof of its accuracy (/). 31. So if the validity of a conveyance depend upon a certain amount of debt being due, and the purchaser take the conveyance with a recital that the requisite amount of debt is due, he cannot, although he have a covenant for further assurance, file a bill against his seller, admitting the recital to be correct, to have an account of the debts taken, or to have the documents which show the state of those debts delivered to him or deposited in safe custody, or to have a covenant for their production («•). 32. But if there have been any fraud or misrepresentation regarding a document v/hich relates to the title, equity will after the conveyance relieve the purchaser. Therefore where upon a purchase it was erroneously represented to the purchaser that a will affecting the estate had been proved in an ecclesiastical court, to which of course he could always have had resort, the Court, upon a bill filed by the purchaser after the conveyance, ordered the will to be deposited with the Master for the benefit of both parties ; and although the misstatement was probably a mere mistake, and not intentional, yet as it rendered the suit necessar}'^, the decree was made with costs (h), 33. A vendor, unless some special ground be laid for it, is never called upon to prove the execution of the title-deeds (I). And even if the seller bring an action, yet the title-deeds need not be proved (i). *This was decided by Lord Kenyon at nisi prim. To prove the plaintiff's title t© a right of way sold, the deeds were produced, and it was objected that the deeds themselves should first be made evidence by producing the subscribing witnesses. But Lord Kenyon ruled it not to be necessary. He said he never would allow, where the question was respecting a title, that the party should be called upon to prove the execution of all the deeds deducing a long title ; that it was never mentioned in tiie abstract, (/) Per Master of the Rolls, 1 lluss. (A) Ilarnsont'. Coppiird, 2 Cox, 318. 25(3. {i) Thomijson v. Miles, 1 Esp. Ca. 184. {g) Hallett v. MidcUeton, 1 Russ. 243. (1) See ante, 453, in note ; Morris r. Wadswortli, 17 WendelL, 103. [*462] 532 PROor OF KXfrcTTTioN of dfrds. or expected in making out a title in any case of a purcTiase, more particularly where possession has accompanied them ; he therefore admitted them without proof of their execution. In a late case before Lord C. J. Mansfield, at nisi prius, where in assumpsit upon an agreement to purchase a leasehold house, it appeared, that the plaintiff, the vendor, was a third or fourth assignee of the term ; and it was contended, that he need only prove the execution of the last assignment : it was ruled otherwise ; and he was compelled to prove the lease and all the mesne assignments (/{•). Lord Kenyon's decision was not however adverted to ; and as that clearly coincides with the practice in these cases, it can scarcely be considered as overruled. 34. In the last case upon this subject (^, where the conditions of sale of a leasehold house stipulated that the purchaser should not require the production of at>y title prior to such lease ; the purchaser refused to complete the contract, on the allegation that he had bid only at the seller's request. The seller, who brought the action for damages, was the assignee of the lease, and he proved at the trial the execution of the assignment by an attesting witness, but offered no [)roof of the execution of the lease itself; and it was held that he ought to have proved the execution of the latter. The Court observed, that, generally speaking, on occasion of purchases of this nature, an abstract is delivered, on which a correspondence or communication by word of mouth takes place, and in most cases the question, if any arises, is on the law as it affects the title disclosed. Under such circumstances, a party having admitted the deeds to be authentic, and the legal effect of them as to title being the only matter in dispute, is not permitted to turn round at the trial and require proof of the genuineness of the deeds themselves. In the present case nothing had taken place but a bare delivery of the abstract ; no correspondence or communication on jwints of title ; nothing which showed an in- tention, or had the legal effect, on the part of the defendant, of ^admitting the genuineness of the deed, and therefore the lease required to be proved. The instrument which the plaintiff had failed to establish in proof was the foundation of his action — the very thing sold. 35. The Court, in the last case, professed not to decide the point discussed in the former cases. But, as we have seen, they laid down one important rule, which applies to the great majority (k) Crosby r. Percy, 1 Camp. Ca. 303. (/") I.aythoarp r. Bryant, 1 Bins. N. C. 421 . [*463]' PRODUCTION AND PROOF OF WILL, 53^5 of cases arising out of contracts, for few become the sul)ject of an action without some prehminary discussion. The Court, observed, that they did not say that where the seller holds the lease himself he is bound to prove all the mesne assignments, but he ought to show that the lease was a valid subsisting instrument, that being the very subject of the sale. This case not only establishes an im- portant general rule, but also furnishes a rule applicable to sales of leaseholds. In the case of a freehold estate it would probably be deemed sufficient, — although there had been no previous communi- cation on the title, the result of which showed that the objection did not turn upon want of proof of the execution of the deeds, — to prove the execution of the conveyance of the fee to the seller, unless the purchaser could show that some of the prior deeds, not thirty years old, from being written on erasures, or the like, might justify the call for evidence to establish their execution. 36. The case of Nash v. Turner (in) does not apply to this ques- tion, for the action there was by a purchaser against the seller to recover a sum of money paid for fixtures, which had been sold with- out any title. The seller ivas the original lessee, and the plaintitf claimed under an assignment from him. The assignment was en- dorsed on the lease, and the assignment was proved by the sub- scribing witness, but not the original lease ; and Lord Kenyon ruled that the proof of the assignment was sufficient. It will be observed, that the lease was the defendant's own title ; the assign- ment from him to the plaintiff was duly proved. 37. Where a will has been executed it must be produced before a purchaser can be compelled to accept the title, although, having been treated a^ a nullity by a professional man, it has been mislnid, and the seller, being heir, has rested upon his title as heir (»). 38. Formerly, where a vendor claimed under a modern will, by which the heir at law was disinherited, it was usual to refjuire the will to be proved in equity against the heir at law (o) : but this ^practice is now discontinued. In the case of Colton v. Wilson (p), the purchaser was in the first instance discharged from his purchase on account of the will not being proved against the heir at law ; but on a rehearing he was compelhid to take the title. This decree however, was made on the particular circumstances of the case, and (wi) 1 Esp. Ca. 217 ; see 1 Camp. Ca. Harrison v. Coppard, 2 Cox, 31S, ns to 303. the custody of the will. (m) Stcyens v. Guppv, 2 Sim. & Rtu. (p) 3 r.'Wms. 190 ; and sec Mackrell 439. * r. Hunt, 2 Madd. 34. n. (o) Sop Fearno's Posthuma, 23-t. Sco [*4r>4] 534 WHETHER T)EE1>S PASS WTTH THE SEISIN. Ihe point was by no means seltlecl. But in Bellamy v. Livcr- sidge ((7), the title received the Master's approbation, although the will was not proved against the heir at law ; and upon exceptions to his report on that account coming on, Lord Kenyon, then Master of the Rolls, overruled them. 39. It is not unusual to require the heir at law to join in the conveyance, if his concurrence can be easily obtained ; and where he is a party to a conveyance in any other character, he is invariably made a conveying party, in his character of heir at law ; although, in strictness, this could not be insisted upon. 40. If it should even be thought that a modern will must be proved against the heir at law, yet it seems clear that equity would not compel the vendor, at the suit of the purchaser, to prove the will per testes (I). The objection, therefore, under any construc- tion, could only be set up by a purchaser, as a defence to a specific performance ; and even to that extent it would not now prevail. 41. We have still to consider, which we may do in this place, whether the title-deeds will pass with the estate by a conveyance to a purchaser operating by way of use, where the seisin is in a third person. 42. It is said that as the statute of uses only transfers the legal estate to the use, it does not interfere with the title-deeds, and therefore the feoffee or grantee is entitled to the custody of them (r). Certainly there is considerable authority for this state- ment, but there is hardly one case in which it was necessary to decide the point (5) ; and it has been questioned by Lord Hardwicke, who said, that though it was so clearly established, he knew not but, when it was considered, it might be called a spungy reason, as Lord Vaughan says (t), and it has since been doubted by Mr. Hargrave (u). The authorities make no distinction between feoffees *or grantees and covenantees, or, in other words, between conveyan- ces which operate by transmutation of possession and those which do not. Now the statute not only provides that where one person (ij) Chan. 1 June 1786, MS. ; and see 58 ; Sac-hevrcl v. Bagnoll, Cro. Eliz. 3oG ; Wakoman v. Duchess of llutlancl, 3 Ves. Lord Huntington v. Mildmay, Cro. Jac. inn. 233; 8 Bro. P. C. U5 ; sed vide 217; Stockman «. llanipton, Cro. Car. Smith r. Ilibbard, 2 Dick. 730. 411 ; Reynell v. Long, Carth. 31.5. (r) I Sand. Uses, 119; Siig. Gilb. (f) See Whitfield v. Tausset, 1 Ves. Uses, 186, n. 39-1. (s) Estofte V. Vaughan, Dy. 277 a, pi. (a) Co. Litt. 6 a, n. 2.5. (1) As to proof of wills see I Jarman, Wills, (2d Am. ed.) Ch. 9, p. 210 et seq. [*465] GRANT Of DEKDS. 535 Stands seised to the use of another, the latter shall be deemed in the lawful seisin, estate and possession to all purposes in the like estate as the former had to the use, but proceeds to devest the estate title and right, that was in such ))erson, and to vest it in the cestui que use. This therefore is a legislative conveyance to the cestui que use, as poweiful as the common law conveyance to the feoffe to uses ; and as the latter conveyed to him the right to the deeds, although they were not granted, so the former ought to have as powerful an operation in trartsmitting them with the estate from him to the cestui que use. The opinion that in the case of a covenant to stand seised for the consideration of blood with strangers, the deed does not belong to the relation who takes the estate, but to the covenan- tees, and that he has no means to obtain the deed (x), shows how little principle was adhered to, for in that case the deeds were held to belong not to the person ivho took the estate, but to the persons who did not, and had not even any seisin vested in them ; for in such cases the uses are served out of the covenanter's own seisin, and there is no transfer of the legal estate out of which the statute is to serve the uses. 43. The cases have led to the practice of granting the deeds by the conveyance to a purchaser, and where uses are created, and he is not the releasee to uses, of making the grant to him, his heirs and assigns. This is a practice which the author never adopted, and no evil is likely to arise from disregarding it, although, certainly, a case may arise in which the actual grant of the deeds may have some influence upon a purchaser's right to them. 44. In Yea v. Field, Lord Kenyon laid stress upon the circum- stance that the assignee of a mortgage had not a grant of the deeds (y). Part of a leasehold estate, the whole of which was held un- der one title, was in mortgage, and the mortgagee held the deeds. The owner sold the part not in mortgage, and gave to the purchaser a covenant from himself to produce the title-deeds. The purchaser afterwards paid otf the mortgage and took a transfer of it, and ob- tained the delivery to him of all the deeds. He then assigned the mortgage to a third person without any actual grant of the deeds, and without delivering them over, and upon trover brought by the latter assignee against the assignor to him (the purchaser), Lord Kenyon said, that although, at the time of the *purcl)ase, the defend- ant had no right to the possession of the deeds, yet sinc<< that time (".{•) SLuikmau c. llaiuploii, Cio. Car. ('/) 2 Tenn Ut-p. 70S ; sec IIo1)miu r. 441. .Mfilnml, -2 Mood. .S: Uo!i. :il'2. |*16(i| 5.'j6 fiiiANT OF i)i:i;i)s. they had by accident come into his possession, and the phiinliir could not recover them from him. To entitle the plaintiff to recov- er, he shoidd have a better right to the deeds than the defendant, hut in the assignment to him there was no ffrant of them. In old conveyances there is a reservation made of such deeds as tend to deraign the warranty paramount. 45. This decision can hardly be supported, for the estajte was di- vided into two parcels, one of which was not in mortgage, and was sold with a covenant to produce the deeds, but without any right to the deeds themselves, — the other parcel remained the property of the seller and of his mortgagee. Now no one could acquire, by ta- king a transfer of the mortgagee, a greater right than the mortga- gee, and he had no right to the deeds except as mortgagee. Under the first transfer, the purchaser of the other part obtained the legal estate in the part mortgaged, and the deeds as mortgagee ; when therefore he assigned in that character, the deeds passed with the land without the necessity of any grant : the legal right to them went with the mortgage ; but the effect of the decision in the King's Bench was, that the second assignee, when he came to be paid off would not have it in his power to deliver back the deeds to the mortgagor, to whom they belonged, and who was under covenant to produce them. It was a mistake to mix together the two charac- ters of the defendant as purchaser of one part and mortgagee of an- other — they were altogether distinct ; and the observation, that in the assignment to him there was no grant of the deeds, ought rather to have been applied to the assignment to the purchaser of the part sold, than to the assignment by him of the portion mortgaged. The want of a grant of the deeds to himself was proved, by the cove- nant to produce them, to have been omitted, because it was not in- tended that he should have them, and his claim therefore was not authorized in his character of a mortgagee who had assigned over, nor in his character of a purchaser who, by contract, was precluded from claiming them. I SEVERAL ESTATES HELD UNDER THE SAME DEEDS. 53' *SECTION V. OF THE PRODUCTION OF DEEDS IN EQUITY AND AT LAW 2. Settlement relating to property of sev- eral owners : partition. 3. Right of purchaser tchere he has no covenant to produce. 4. Tenants in common, i^c. 0. Holder of deeds becoming mortgagee, 7. Tenant for life and re7nainder-man. 8. Tenant for life parting with deeds, tVc. 9. Remainder-man no right to have deeds brought into Court. 10. Remote remai7ider-man. 11. Contingent remainder-tnati. 12. Father and son. 13. Mortgagee under remaiiider-man with- out the deed. 14. Fraud by tenant for life. 15. Mortgagee in fee tinder tenant for life, with the deeds. 16. Ejectment bill for deeds. 17. Production of deeds in a suit. 19. Where the conveyance is impeached. 20. Production at lata. 21. Mortgagee consenting to sale. 23. Production of title- deeds not compelled at law. 24. R. P. Commissioners' opinion on want of possession of deeds. 2-5. Observations tliereon. 1. We have yet to consider in what cases equity will compel the owner of title-deeds to j)roduce them to other persons, and in what cases their production will be compelled in adverse suits and actions. 2. Although the rule is not universal, and may be affected by circumstances, yet where several parties are entitled to property held under one settlement, and one has possession of it, a court of equity will order it to be brought into court for the benefit of both parties (a). So where an estate is divided upon a partition, and a counterpart of a lease of the whole is delivered to one of the j)ar- lies, the parties entitled to the other shares would be entitled to the production of the counterpart, in order to enable them to pro- ceed against the tenant if necessary (6). 3. So where a person sold a part of his estate with the usual covenants for title, including a covenant for further assurance, but without any covenant to produce the title-deeds, all of which he retained ; upon a \y\\ filed by the purchaser, who had resold, (a) Lord Banbury v. Briscoe, 2 Cha. 318. Ca. 42 ; Harrison r. Cnppard, 2 Cox, (6) Slioro Vol. I. G8 Collett, Coop. 231. 1*467 538 TEISTANT FOR niFE AND RETtfArNDKR-MAKT. praying alternatively either a deed of covenant to produce, or tlit- actual production of the title-deeds, to show a marketable title- *upon his resale, the Vice-Chancellor observed, that whatever doubt there might be upon the right to a covenant to produce the defendant's title-deeds, being the root of the plaintiff's title, and in that sense a sort of common property, he strongly inclined to think that the plaintiff had an equity to the extent of the pro- duction of the deeds, and he was informed that the Lord Chan- cellor had expressed an opinion to that effect, and therefore he overruled a demurrer by the defendant to the plaintiff^s bill (f). And this certainly, speaking from recollection, was Lord Eldon's opinion. 4. At law, where there are tenants in common, joint-tenants or coparceners, whichever obtains possession of the deeds may retain them ; but upon proper occasions in proceedings by the oth- ers at law, the production of them would be compelled ; and in equity, there is no doubt that in such a case th« Court will, upon a bill filed, order the production af the title-deeds in the hands of either for the other's inspection, where he has sold his share, orupoR) any other occasion (d). 5. But if before the bill filed the person holding the deeds has changed his character, from the absolute owner to that of a mort- gagee, although the deeds have never been out of his possession,, the Court will not compel him to produce them, for the estate is the purchaser's who made the mortgage, and a niortgagee has no right to show his mortgagor's title (c). 6. This, however, is a difficulty which can be obviated readily :. the purchaser as well as the seller (the mortgagee) should be made a party to the suit, and the order will be of course, for the purchaser will be equally bound with the person from whom he purchased. 7. As regards persons claiming several interests in the same estate, it is perfectly settled that the tenant for life is the person entitled to the custody of them ; and if they have been taken into the Court of Chancery for a purpose which is satisfied, they will be delivered out to him (/), although, if the grantor deliver the (c) Fain v. Ayers, 2 Sim. & Stu. 533, (/) Webb u. Webb, 1 Eden, 8 ; Strode- iupra ; sed qu. v. Elackburne, 3 Ves. jun. 225, 226 ; (rf) Lambert v. Rogers, 2 Mcr. 489 ; Duncombe v. Mayer, 8 Ves. jun. 320 ; see Shore v. Collett, Coop. 234 ; Burton Churchill v. Small, ib. 32, n. ; Bowles w, V. Neville, 2 Cox, 242. Stewart, 1 Scho. & Lef. 222 ; Banburj^ (c) Lambert y. Rogers, 2 Mer. 489; v. Briscoe, 2 Cha. Ca. 42; see Doe v- see Hercy v. Ferrers, 4 Beav. 97 ; Balls Samples. 8 Adol. & Ell. 151. ■V. Margrave, ib. 119- [*4681 T-BNANT FOR LIFE AND RETHAINDER-MAN, 539 ^eeds to the remainder-man, the tenant for life could not recover them (^), for of course the absolute owner of land may sell or 'five *away the title-deeds as mere parchments, or destroy them at his pleasure (A). And it is laid down in early times, that if there be tenant for life, the remainder over by deed, whichever of them 6rst obtains the deed shall retain it ; and that therefore, whoever has any land comprised in the deed, where others have the rest of the land, yet he wlio has a portion may, in respe-ct of it, retain the deed (i). 8. Where the tenant for life has parted with the deeds to per- sons not entitled to the land, and so is satisfied, and does not care about the title, but the remainder-man is not satisfied, equity will secure the title-deeds for the remainder-man (Jc) ; or, if proper, they would be secured where the right to the remainder is in dis- pute, and a bill is filed to have it declared (I). So clearly, in cases ■of spoliation ; and in the case of a jointress, the deeds may be ob- tained by the remainder-man upon confirming her jointure (m). And there are dicta that every remainder-man has a right in equity to have the deeds brought into Court (/«), 9. But, nevertheless, there is not a single decision that way, but the rule is settled the other. Lord Kenyon laid it down, that a remainder-man had not any action at law, or any equity, to take the deeds out of the hands of the tenant for life (o). 10. And it has been decided, that where the person claiming to have the deeds produced, has only a remainder expectant upon prior estates for life, with limitations to children not in esse in tail, such an interest is too remote to warrant the interference of the Court ; for if such a practice were suffered to prevail, the title- deeds of half the estates in the kingdom might be brought into Court (p). 11. So, where the remainder was contingent, and indeed so cir- cumstanced that it might be barred ; the Court refused to com- pel the tenant for life to produce the title-deeds. It was admitted that there was no authority to show that a contingent remainder- (^) 2 Bro. Ab. 8 i b, pi. 2.5. -170. (/i) 1 Bro. Ab. 327 b, pi. 86 ; Co. Litt. (m) See 2 Yes. loO ; 2 Bro. C C. 652 ; 232 a; Kclsack v. Nicholson, Cro. Eliz. 1 Ves. jun. 7(). 496. (/() llocvcs V. llccvcs, 9 Mod. i;32 ; 1 (t) 4 H. 7, 10 ; 1 Bro. Ab. 138 b, pi, Atk. 431 ; Smith v. Cooke, 1 Atk. 382. 53; see 2 Dick. GoO, Gol. (o) Knott v. "Wise, 8 Yes. jun. 323, (k) Ford V. Peering, 1 Yes. jun. 72. cited. [Sumner's ed. note (a).] {p) Ivie v. I-snc, 1 Atk. 429 ; sec Joy (/) Southby V. Stonehouse, 2 Yes. v. Joy, 2 Eq. Ca. Abr. 284 ; probably an CIO ; see Papillciu v. Yoice, 2 P. Wms, iiiqicrlccl note ol" the same Ciuse. f*469J 540 MORTGAGE IN FEE Bf TENANT FOR LIFE. man had that right. And an inspection of the deeds was refused to a purchaser from the contingent remainder-man (^q). 12. And in cases between father and son, where the former is tenant for hfe, and the latter tenant in tail, whether the settlement *was made by the grandfather (r) or by the father (s), the Court will not without a special case order a production of the deeds ; for between father and son, the Court has always suffered the set- tlement to remain with the father for the benefit of the family, unless he has threatened or intended to destroy it (t). 13. And as the tenant for life cannot be compelled to give up the deeds, a first mortgagee under the remainder-man cannot be postponed because he did not obtain the deeds in favor of a second mortgagee who did obtain them, for he was guilty of no laches, and even if he do not file a bill for the deeds, as he might do after the death of the tenant for life, yet that omission will not be sufficient to charge him (u). 14. The possession of the title-deeds by the tenant for life, in many cases would enable him to commit a fraud by making a mortgage, as where he himself made the settlement, for by sup- pressing the settlement he would still appear to be owner of the fee, and this mischief will be increased now that a man can bar his wife's dower, for it will no longer be necessary to have the concurrence of the v/ife, which would lead to a knowledge of the settlement. To avoid a possible fraud in such cases, a memoran- dum of the settlement should be endorsed on the conveyance to the settlor, or if none, on the leading title-deed remaining in his possession. 15. Where a tenant for life, who had been owner of the fee, made a mortgage, suppressing the settlement, and delivered the title-deeds to the mortgagee. Lord Rosslyn was so struck with the hardship of the case upon the remainder-man under the settle- ment, that he directed a plea of purchase without notice to stand, merely as an answer to the bill which was filed by the next tenant for life to have (he title-deeds delivered up ; and he seemed lo con- sider that the defendant was not justified in retaining that with regard to which she could have no profit, thereby putting the tenant for life under a disadvantage ; and that if there were none of which the mortgagee could make any advantage, she was with- (5) Noel v. Ward, 1 Madcl. 322, 339. (t) Sec 2 Dick. 230. (r) Pyncent >\ Pyncent, 3 Atk. 571. {n) Tourlo v. Kand, 2 Bro. C. C. 6o0 ; («) Lord Lempster i\ Lord Pomtiet, soc Farrow c. Rees, 1 Beav. IS. Ambl. 154. [*470J PRODUCTION OF DEEDS IN SUITS. 541 out any beneficial interest or profit to herself, retaining what niio-ht be a profit or advantage to the tenant for life (x) ;' but Lord Eldon expressly overruled this decision, and held that the mort- gagee, although he could not maintain his title at law to the estate, could not be compeljed in equity to discover whether he had the title-deeds, or to deliver them up (y). In such a case, therefore, *the remainder-man must obtain elsewhere what evidence he can in support of an action of trover. Of course a purchaser from a tenant for life would stand in the same situation with a mortfra^ee who is a purchaser pro tanto. 16. In regard to general relief in equity for deeds, an ejectment bill, as it is termed, cannot be maintained, although the claimant has not the title-deeds. In a case in which an heir at law, out of possession, filed a bill praying relief by the delivery of the posses- sion of the estate, and of the title-deeds, the Court observed, that it was said that the delivery of title-deeds was equitable relief, and that the Court having in that respect jurisdiction, would do com- plete justice [which certainly had been a prevailing opinion]. The possession of title-deeds was incidental to the possession of the estate, but could not be recovered with the estate at law. The Court therefore would give the title-deeds to him who had at law recovered the possession of the estate, but its jurisdiction in this respect was confined to the possessor of the estate. If the plaintiff in this case, the Court added, recovers the estate at law, then, and not till then, he may come here for the possession of the title- deeds (2:). 17. In suits in equity, the Court, as between the parties to the suit, does not order the production of deeds but on a very strong case of unanswerable equity. The defendant, the owner of the documents, never can be called on to give any reason why he should not produce them, for all must depend on the plaintiff's ground of application, and the defendant needs no other protection than the jealousy of the Court. It is a doctrine of the greatest moment to titles, that a party should not be conq)ellai)le to pro- duce his securities. What would otherwise become of our property ? (a). 18. The general rule is, that the plaintifi' is entitled to the pro- duction of a deed which sustains his title, but he has no right to (j;) Strode r. Blackbuiuc, 3 Vcs. jun. (r) ("row r. Tyrrell, ;i Madd. 179; 222. Jones r. Jones, :] Mcr. IGl. (y) Walwyu c. lite, ',) Ves. juii. 21. (") Vansittart r. I'arbcr, Price, i'<4.\, j)er liichards, C. ]>. |M7I| 542 PRODUCTION OF DEKDS AT LAW. the production of a deed which is not connected with the title, and which gives title to the defendant (b) (l),as where it shows construc- tive notice (c). An heir in tail may oI)tain the production of the deeds creating the entail, but nothing further (rf) (2). And a positive *denial of the plaintiff's title, and that the documents in the defend- ant's possession would not show his title, will prevent tlic Court from ordering the production of the documents (e). 19. Even where the bill is filed to impeach the conveyance to the purchaser on the ground of fraud, although the Court will order the production of the deed at the hearing (/), yet it will not com- pel its production before that period, where the purchaser denies the alleged fraud (g), unless the fraud appears on the deed itself; as for example, where from the peculiar manner in which the receipt was signed, the deed having been folded down so that the plaintiff could not see what she was going to sign, and the purchaser, though he said he was a purchaser for valuable consideration, without notice of the fraud, did not deny that he had notice of these circumstan- ces ; the Court ordered the production of the assignment to the purchaser (A). So where the fact of notice appeared from the reci- tals in the deed, as set forth in the answer, it was ordered to be pro- duced before the hearing (i). 20. And even at law, it seems that a person, though no party to a deed, who takes an estate by way of remainder under it, has a strong interest in the deed and is entitled to the production of it (Jc). But this is the case of different interests in the same estate, and not of distinct rights to different estates comprised in the same deed, and the general rule is at law, that unless the party holding the deed has been in effect a trustee for the party requiring the production of (6) Sampson v. Swettenham, 5 Madd. i Bcav. 97. 16; 2 Myl. & Kce. 754, n. ; AVilson v. (e) Bannatjiic i\ Leader, 10 Sim. 230. Forstcr, You. 280 ; see Hardman ?;. El- (/) Becklord v. Wildman, 16 A^es. lames. 2 Mvl. & Kee. 745, contra, Avherc jun. 438 ; see Balch v. Symes, Turn. & referred to by the answer -when pro- lluss. 87. duced ; but see Wigram, Disc. 114. See (i?) Tyler t\ Drayton, 2 Sim. & Stu. Farrcr v. Hutchinson, 3 You. & Coll. 30'J ; 2 Myl. & Kee. 754, n. ; Carr v. 692 ; Smith v. Duke of Beaufort, 1 Hare, Moulds, 1 Hayes & Jo. 714 ; Bassford r. 507 ; Llewellyn v. Badeley, 1 Hare, 527 ; Blakesley, G Beav. 131. Bennett v. Glossop, 3 Hare, 578. (h) Kennedy v. Green, 6 Sim. G ; see (c) See 2 Hare, 166, n. Fencott r. Clarke, ib. 8. (d) Lord Shaftesbury v. Arrowsmith, {i) Neqsom v. Clarkson, C. Coop. 93 ; 4 Yes. jun. 66 ; see Codriirgton v. Cod- see Addis v. Campbell, 1 Beav. 258. rington, 3 Sim. 522 ; Attorney-general (k) Per Heath, J., in Batcman v. V. Ellison, 4 Sim. 240 ; Hercy v. Ferrers, Fliillips, 4 Taunt. 161. (1) 2 Storv Eq. Jur. J 1190. (2) lb. nioi. [*472J i IMPORTANCE OF POSSESSION OF DEEDS. 543 it, he cannot call for it (/). If a purchaser were to complete his purchase and leave the deeds in the hands of the seller, who retain- ed other estates held under thenn, without taking any covenant to ])roduce them, he would have no remedy at law to enforce their production. This has always been considered the rule in practice. 21. Mortgagees, generally speaking, cannot be compelled to produce the deeds until they are paid off, but if they consent to be paid off by means of the purchase-money to be produced by sale of the property in a suit, they become bound to facilitate the *sale, and therefore the deeds will be ordered into Court, although they will not be delivered out without notice to the mortgagee (m). 22. If one part of a deed has been executed for both parties, or a deed has been deposited in the hands of the holder as a trustee for others only, or for others jointly with himself, its production may be compelled (n). 23. But generally, parties are not compelled to produce their title-deeds at law. If a subpcena duces tecum is served, the party must take his deeds into Court in obedience to the subpcEna, but if he states that they are his title-deeds, no Judge will ever compel him to produce them (o). Lord Kenyon observed, that if a man were obliged to produce every paper in his custody, it would occasion the ruin of millions. It was, he added, a good plea in bar in the Court of Chancery, tliat the defendant (although the legal title was in another) had an equitable title by honest means with- out notice, and the Court would not compel the production of those papers which, if produced, would strip the defendant of his fair and equitable title (p) : nor can a man's attorney be compelled to pro- duce a muniment of title which his client might withhold, and the Judge has no more privilege to examine the document than any one else (^). 24. In estimating the merits of a general registry, the real property commissioners have, no doubt unconsciously, been led to greatly overrate the difficulty arising from the want of possession of the deeds. They say (r), that when the covenant to produce them is obtained, it is only in very few cases that it is permanently effectual. The deeds often pass with the lands in respect of which (0 See Street!'. Brown, f) Taunt. 302; (o) rickcring r, Noycs, 1 ]!arn. & Katcliffe v. Blcasly, 3 Buv^. 148 ; Lord Cress. 2()2. Portmore c. Goring, 4 Bing. 152 ; Cocks (;j) Miles v. Dawson, 1 Eap. Ca. 405 ; V. Nash, 9 Bing. 723. Harris v. Hill, 3 Stark. Ca. 140; Nixon (m) liivesey r. Harding, 1 Beav. 343. v. Mayoh, 1 Mood. & Rob. 76. (m) See 1 Bam. & Cress. 263. ('/) Doc r. James, 2 Mood. & Rob. 47. (r) Second Report, p. 16. f*4731 544 iMPORTANcr: of possession of deeds. they were retained into the hands of a person not bound by the covenant, and on the other hand, the subsequent purchaser of the other lands is seldom able to enforce the covenant. These cases depend upon the general law of covenants, which is ill adapted to purposes of this nature, and often gives rise to questions of the greatest nicety and difficulty. When the covenant is imperfect, the party interested in the deeds is often unable to enforce the pro- duction of them from the holder, and still oftener he is unable to secure to a purchaser their future production. The consequence in either case is, that the title is unmarketable. Supposing, they add, the party to be in possession of a perfect covenant, it may fail of *efFect, because the party bound by the covenant may not be known, or may be out of reach, or may be incapable of being sued, and there is also the risk of the loss of the deeds. The loss of the deeds or the want of an effectual covenant for the production of them, jjrevcnts a large proportion of the titles in this country from being strictly marketable. 25. Now, it is believed, that it is only in very few cases that the covenant to produce deeds is not permanently effectual, whether the covenant run with the land or not, for the covenant binds the deeds in equity, and they and not damages are what the party wants, and therefore an action for breach of the covenant is not the remedy resorted to. Where the deeds pass with the land in respect of which they were retained into the hands of any person, he would be- bound, at least in equity, by the covenant, and in practice, where there is a covenant to produce, there is not, speak- ing generally, any difficulty in obtaining the production of them. I remember well when these difficulties were not raised upon pur- chases, and they have been created not in consequence of any practical obstruction, but from refining on the nature of the cove- nants, and the liability under them. The difficulty may be alto- gether removed by common care upon purchases, and by a steady adherence to principle in the decisions of the courts. Such ob- servations as those we have been considering are to be deprecated, as they tend to increase litigation on these points, and to encour- age objections by purchasers which are not warranted by law : — they create the very difficulty upon which they assume to be grounded. [*474] ! <0V ATTESTED COPIKSJ, 545 *SECTION VL OF ATTESTED COPIES AND COVENANTS TO PRODUCE DEEDS. 2. Purchaser entitled to attested copies. 3. Unless on record. 6. And of them if in seller's custodi/. 7. Covenant to produce copies of court roll. 8. Or bargain and sale enrolled. 9. Right to attested copies excluded by agreement to produce deeds, qu. 11. Purchaser entitled to covenant to pro- duce. 12. Although the sellers are assignees, 13. Equitable right to production insuf- ficient. 1-1. Heller having only a covenant to pro- duce 16. Covenant, how framed as to copies. What deeds it should comprise. Whether a covenant to jyroduce can be enforced under covenant for further assurance. By tchom to be entered into. The covenant runs with the land pur- chased. R. P. Commissioners' observations on Barclay v. Raine. 2't. Rule hi equity. Barclay v. Raine. Observations on the Inw of that case. Validity of title in tliat case. Whether the covenant runs with the land retained by the seller. How covenant affects a marketable title. 1. Having considered generally to whom the custody of the title-deeds belongs, we are now to consider in what cases a pur- chaser is entitled to attested copies of the title-deeds. 2. If a purchaser cannot obtain the title-deeds, he is, as we have already seen, entitled to attested copies of them at the expense of the vendor, unless there be an express stipulation to the con- trary (a) ; and although he may not be entitled to the possession of the deeds, yet he has a right to inspect them, and the vendor must produce them for that purpose (J). ;3. But a purchaser is not entitled to attested copies of instru- ments on record. 4. This was decided in the case of Campbell v. Campbell (c), where the Master, in taxing costs incurred by the sale of consid- erable estates, disallowed the charges for attested copies of deeds {a) D:u-c v. Tucker, (i Vcs. jun. 4G0 ; (<;•) Rolls sittings after Term, Berry r. YoiuiR, 2 Esp. Ca. 640, n. 1703, MS. Sec Cooper r. Emery, 10 (/j) Berry r. Youup;, ubi sup. ; vide Sim. GOn. sup. Vol. I. m 1*475] 546i (ft ATTliSTKn CWIKS. and documents upon record ; and upon exceptions to liis report on that account coming on, the Master of the Rolls overruled' them, and held that a purchaser was not entitled to such copies at the expense of the vendor. *5. The rule must have proceeded, it should seem, upon this ground, that the purchaser having had the inspection of the origi- nals, and procured a covenant to produce them, was not entitled to an attested copy, because, being upon record, he could always inspect the record in the absence of the original, for attested copies are given rather for general use than as muniments of title, which they are not. There is a great distinction between a deed properly on record, as a bargain and sale, which derives its opera- tion from the enactment, and is therefore evidence without further proof, and a deed enrolled only for safe custody, which is evidence without further proof only against the party who sealed it, and all persons claiming un.der him (d). But the question between the seller and purchaser is not how the original, when it is produced, can be proved, but whether the latter shall have a7iy evidence of the contents in his own possession ; it is no reason why a pur- chaser who has not the custody of the original, should not have an attested copy of it, that the original when produced can be proved with less ceremony or difficulty than in a common case : the original in either case is out of his immediate reach, and an attested copy for ordinary purposes supplies its place. The true distinction must be between what is in private custody and what is of public access; it was thought that if a purchaser could at all moments have access to a copy in a public office, he would not be entitled to an attested copy. The rule, therefore, seems to extend to instruments not strictly of record, as deeds enrolled for safe custody in a court of record, or wills registered and accessible, which latter, although not in a court of record, yet in common parlance are treated as on record. 6. In some cases, however, a purchaser can obtain attested or office copies even of instruments on record. For a purchaser is entitled to examine the abstract with the original title-deeds, or with office or attested copies of them ; and, therefore, if a vendor has not the instrument itself, and cannot obtain it, and can make a title without producing the deed itself, he is bound to procure an office or attested copy of it, to enable the purchaser to ascertain that the abstract is correct ; and when it is obtained, the pur- {(l) I>ady Ilokroi't i . Siuitli, 2 Frceia. '2.50 ; sec I'liil. Evid. [*476] COVKNfANT TO PRODUCE DEEDS. 547 •chaser is of course entitled to it on the completion of the purchase ; unless, indeed, the vendor j-etains other estates holden under the same title, 7. When the estate is cop3'hold, and the purchaser is not entitled to the custody of the copies of court roll, he is entitled to a cove- rtant to produce them, if the vendor has them, or if they are in "*his power ; but if not, the purchaser cannot require such a cove> nant (e). 8. So a bar^rain and sale enrolled under the statute 10 Anne, c. 18, falls within the same principle as copies of court roll (/). 9. In a case before Lord Rosslyn, where there was an agree- 5nent that the vendor should produce the original title-deeds, he construed it, not only as an engagement to produce the title-deeds, but as a negative stipulation that he should not give attested copies. This was certainly presuming a great deal. Lord Eldon thought that the pressure of the stamp duties led to that deci- sion (^) ; and it is probable that a similar case would now receive a different determination. 10. In a case before Lord Eldon, he compelled the vendor, at his own expense, to furnish attested copies, the purchaser having had no intimation that he could not have the deeds. For, he said, if he had notice that he was not to have them, he would regulate his bidding accordingly ; conceiving that he was to bear the expense of procuring copies (h). From this, it may be inferred, that notice that the pui chaser cannot have the deeds is tanta- mount to a stipulation that he shall not be furnished with attested copies at the seller's expense. The general practice of the Pro- fession, founded on the decided cases, is, that the seller, in the absence of an express stipulation to the contrary, is bound, at his own expense, to furnish the purchaser with attested copies ; and Lord Eldon does not appear to have intended to establish a new rule. 11. Where a purchaser cannot claim the title-deeds, it is of importance to him to obtain attested copies of them. But attested copies are not of themselves sufficient security to a purchaser, — they are indeed mere waste paper against strangers, and cannot be used upon an ejectment, unless, perhaps, as between the (e) Cooper v. Emery, 1 Tliil. 388. As (ff) Sec G Ves. jun. iC^O. to attested copies of" them, see S. C. (A) Boui^hton v. Jewell, 1.5 Ves. jun. and 10 Sim. 609. 17(>. (/) s. a (*477J 548 COVKNANT TO f'ROPUCF. DRFTD?! parties themselves (/*). Tlierefore, in order to enable a purchase^! to effectually manifest and defend his title and possession, he is also entitled, at the expense of the vendor, to a covenant to produce the deeds themselves, at the expense of the purchaser (k) ; which should, in most cases, be carried into effect by a separate deed. And where a vendor retains the deed by which the estate he is selling was conveyed to him (which is mostly the case when it relates to other estates), it seems advisable for the purchaser to ^require a memorandum of his purchase to be endorsed on such deed. 12. And where the title-deeds cannot be delivered, assignees must, like any other vendor, give attested copies of them at the expense of the estate, but their covenant for the production of the deeds should be confined to the time of their continuance as assignees (I). If, however, the covenant is so confined, the pur- chaser should have some security that the person who shall ulti- mately become entitled to the custody of the deeds will covenant for their production. The proper course seems to be for the as- signees' covenant to be made determinable in case they shall pro- cure the person to whom they shall deliver the deeds to enter into a similar covenant with the purchaser (m). 13. A purchaser is not, it is said, bound to rely upon an equi- table right to compel the production of the deeds, but is entitled to the deeds, or a valid covenant to produce them (n). 14. It frequently happens, that a person having a covenant for production of the title-deeds to his estate, sells only part of the estate, and retains his purchase-deed, and the covenant to produce the deeds ; and in such cases I should conceive the practice to be for the vendor to enter into the usual covenant for production of the title-deeds in his possession, which of course would include the original covenant to produce the deeds. But Mr. Fearne thought (o) that a purchaser was, in cases of this nature, entitled to require the vendor to covenant for the production of the deeds to such an ex- tent as the covenant in the vendor's possession entitled him to the production thereof, unless he could procure a new covenant for that purpose from his grantors to the new purcliaser ; but that such cov- enant from the vendor should not be enforced, in case he produce (j) See Doer. Brydges, 7 Scott, N. R. (»i) Vide infra, pi. lo. 339. (m) Barclay v. Raine, I Sim. & Stu. {k) Berry r. Young, 2 Esp. Ca. 640, n. 449. (l) Per Lord Eldon, Ex parte Stuart, (o) Posth. lU. 2 Rose, 215. [*478] RFN? WITT! THE LAND. 549 the original covenant to produce the deeds, when it should be re- quired to defend the purchaser's title. 15. It is not unusual to insert a proviso in a deed of covenant to produce title-deeds for determining the covenant, in case the vendor sell the part of the estate retained by him, and procure the person to whom the estate is sold, and the title-deeds are delivered, to enter into a similar covenant with the first purchaser for pro- duction of the title-deeds. But a seller could not, it is appre- hended, insist upon such a t[ualification ; if he could, it might on the same ground be carried on toties quoties, and the purchaser and those who claimed under him be put to great inconvenience ; *neither could a purchaser insist upon it against the will of the seller : indeed, that would be absurd, as it is to provide for the re- lease of the seller if he procure another to covenant. Where such a proviso is inserted, of course it stipulates that the expense of the new deed shall be borne by the seller (p). 16. The covenant in late times has commonly been framed so as to authorize the purchaser to take copies or extracts from them, instead of only giv^ing him a right to have them furnished by the seller ; and it is by no means clear that the purchaser may not insist upon it in that form. The covenant in that form might lead to inconvenience, and it is therefore better not to require it, but to limit the price to be paid for the copies, which should be the mere cost, for the seller is not to make a profit by the covenant. 17. A purchaser cannot, merely because an instrument is stated in the abstract of title, require a covenant to produce it. He is entitled to a covenant for the production of all the documents contained in the 'abstract which are necessary to make out a good sixty years' title, with the exceptions before referred to (9). 18. We have elsewhere considered whether a covenant to produce deeds can be enforced under a covenant for further assurance (r). 19. Where it is intended that the purchaser shall have the legal right to the production of the deeds, he should have a regular deed of covenant for their production, entered into by the person in whose custody they are, clothed with the legal right. 20. We shall elsewhere have occasion to consider the general law as to covenants running with the land (s) ; but here we may conveniently inquire whether a covenant by a seller to produce (;;) See oh. 13, s. 3, post. (r) Infra, eh. 14 ; supra, p. 407. (q) Cooper r. Emerv, 1 Phill. 38.S. (s) Ch. 14, s. 1, pnst. 1*479] 550 rOVKNANT TO PRODIJCK OF.RnS the title-deeds in the usual way runs witli the land : that it does so with the purchased lands admits of no doubt ; the question only is, whether it binds the alienee of the lands reserved by the seller to produce the deeds. 21. The real pi'operty commissioners observe (t), that in a recent case (m), where the vendor had not the custody of the original deeds, but had a covenant for the production of them, it was deci- ded that the title was not marketable, because the covenant did not run with the land. They add, that it had previously been suj)- posed, either that an original independent equity existed, entitling any party interested in a deed to call for its production *by any other person having the custody of it ; or, at least, that such an equity existed wherever the parties requiring the production claimed under a person who had taken the precaution to procure a covenant for that purpose ; and the person having the actual custody of it deri- ved that custody from or through a person who had entered into such a covenant. In practice it was not considered that a court of equity would regard the subtle distinctions which prevail in courts of law, between covenants which do and those which do not run with the land, and they point out the evil consequences of this de- cision. 22. The rule in equity, it is apprehended, never was so universal as it is quoted in the first part of the above statement (x) ; but the second branch, stating what at least the doctrine was, appears to be correct, and it is apprehended that it is not shaken by the decision in Barclay v. Raine, and therefore that a covenant by a seller hold- ing the title-deeds, of a part of his estate, with the purchaser of that |)art, even where it does not run with the land, will, in equity, give to llie purchaser a right to enforce the production of the deeds against persons claiming and holding them through the seller. This doctrine is fully discussed in another place (j/). 2.3. The case of Barclay v. Raine, which was decided by Sir John Leach, who also decided the case of Fain v. Ayers (z), intro- duced no new rule as to either the law or equity upon this subject. Tn that case A sold part of his estate to Thring, and delivered the title-deeds to him, and took from him a covenant to prodiice them ; he then sold the residue of the estate to Barclay, to whom he gave an attested copy of the covenant to produce, but not any covenant (<) Third Report, 5(5. (x) But see supra, s. o, pi. 3. (m) Barclay r. Raino, 1 Sim. & Stu. (y) Infra, eh. 14. 449. " iz) Infra. [*480] RUNS WITH THE LANI>. 551 to produce the deed itsell". The deed of covenant was lost, and the attested copy was partly illegible, and in a very mutilaited state. Barclay's sons sold to Raine, and they clearly could not make a title, because there was no covenant to produce ; the deed was lost, and there was no sufficient evidence of its contents. The Barclays, in order to obviate the objection, applied to Thring, who had sold his property, but was mortgagee of it, and in possession of the deeds ; and although the person claiming under the purchaser from him, refused to give a general covenant to produce the deeds, yet he executed a deed by which he covenanted to produce the deeds whilst he should continue mortgagee ; and he executed another deed, by which he acknowledged the execution of the original deed of covenant, and that the title-deeds were at that «*time in his possession. The Vice-Chancellor dismissed a bill filed by Barclay's sons for a specific performance, with costs. He said, that a court of equity never compels a purchaser to take without the title-deeds, unless he has a covenant to produce them, and a right in equity to compel the production of the deeds, even if it existed, would be no answer. But the equity of the purchaser in the present case would be highly questionable, Thring's covenant to produce did not run ivith the land, nor was it pretended that the purchaser from him had notice of that covenant, and he, like every other proprietor, had a material interest against the exposure of his title-deeds. 24. Now, first as to the equity of the purchaser, the same learn- ed judge in the case of Fain v. Ayers (a), decided that the purcha- ser would have had a clear equity to compel the production of the deeds. In that case, which was subsequent to the case of Barclay V. Raine, he expressed a strong inclination of opinion, upon which he acted, in overruling a demurrer, that the purchaser of a part of a large estate, who never had a covenant to produce the title-deeds, had a right, upon his reselling, to compel the first seller to produce them, to show a marketable title, as the first seller's title-deeds were the root of the first purchaser's title, and in that sense a sort of common property ; and he stated that he was informed that the Lord Chancellor (Eldon) had expressed an opinion to that eifect (6), and we shall see that in another important case, neither he npr Lord Eldon considered it material to the binding nature of a covenant in equity, that it should run with the land at law (c). It cannot be (a) 2 Sim. & Stu. jlj:} ; unci sec ch. 11, (l>) Vide aiijini, pi. 22. infra. ('■) ^''./''". "■'l^- H- [*48l] 55-2 COVKNANT TO PUODIJCE l)b:KD> contended that a purchaser buying only a portion of tlic estates held under the modern deeds, can say he is not bound by a covenant en- tered into by the seller upon a previous sale to another, to produce the deeds, because he had not notice of it ; the contents of the deeds afford notice that they relate as well to other property as to his, and the course of practice leads to the inference that if the seller has parted with a portion of the estate and still has the deeds, he has covenanted to produce them, and the second purchaser is bound to inquire. 25. As to the law, no doubt the expression in the report is, that Thring's covenant to produce did not run with the land ; but it appears that Sir John Leach afterwards denied having used the expression there imputed to him. He did not say that Thring's first covenant did not run with the land, for he thought that it clearly did, but that the second covenant was restricted to the pe- riod of his being mortgagee (d) ; of course this must mean that it ran with the lands sold to Thring, for it was not disputed that it did so with the other lands in the hands of the original seller and those claiming under him. In that respect it was the common case, for the Barclays claimed through their father, from A the original seller, with whom Thring entered into the covenant. But the observation is not very distinct, for both of Thring's covenants ran with the land, and the real objection was, that the first was lost and the sec- ond was limited to the period of his being mortgagee. The expla- nation, however, relieves the doctrine from the supposed authority of the case itself. 26. Indeed, the title, it may be thought, ought to have been deemed a good one, for if a man sell part of his estate and deliver the deeds to the purchaser, and take from him a proper covenant for their production, the case upon a sale of another part by him, is just the same as a sale by a purchaser with a covenant to produce the deeds, and no doubt in each case he can make a title. But the didcf\ of covenant itself had not been delivered over to the second purchaser (Barclay), nor had he a covenant to produce it, and the copy was mutilated ; this would have been an objection, if the deed had been in existence, because the last purchaser was entitled to the custody of it, or to a covenant to produce it from the person hold- ing it, but he was not entitled to have a covenant entered into with himself to produce the title-deeds ; if such were the law, few titles would be good. But as the deed was lost, and there was sufficient (//) Rolls 2S July 1830; 7 J;uin. Convey. 'J7-5, n. I*4fi21 RUNS WITH THE LAND. 553 evidence of its having existed to support Thring's acknowledg- ment, and as he had the legal fee vested in him with thecustody of the deeds, although only as mortgagee, his deed would bind the mortgagors at law when he reconveyed to them, and the equity, as we have already seen, was clear, so that perhaps, upon the whole, there should have been a decree for a specific performance, instead of the bill being dismissed with costs. It would seem also, that there was sufficient equity to have compelled the persons claiming the deeds under Thring (the mortgagor) to enter into a new cove- nant to produce the deeds to supply the place of the one that was lost. It was distinguishable from the case before referred to, where no covenant to produce deeds had ever been executed. 27. But still the question remains, whether a covenant to pro- duce deeds, where the covenantor retains a part of the estate com- *prised in them, runs with that portion in the hands of himself and those claiming under him. For the general principles and author- ities bearing upon this question, we must refer to the general discussion in a subsequent chapter (e) ; but I may here also ob- serve, that the title-deeds, as things which go with the land, — descend with it, pass with it by conveyance without being named, — may properly be deemed so connected with the land itself, as to make a covenant by the owner of the land retaining the deeds bind the alienee of those lands. This is warranted by principle, and is denied by no authority. It cannot be considered as a cove- nant entered into by a stranger, because the connexion of the two estates under a common title, relieves the case from that difficulty. The title-deeds comprise both the estates, and the proprietors of ihem have a common interest in the deeds : the possession of the deeds can hardly be a joint one, and therefore they are deliven^d to one, subject to a liability to be produced to tlie other. They will descend and go over with the lands with which they are thus held as an incident to them, and the subsequent acquirers of the lands will take the deeds by force of the law operating on the contract by which they are to retain them. But taking them with the lands by that contract, they must hold them sul)ject to the burthen imposed by that contract. Why then should not the covenant run with the lands in their hands ? The deeds, the subject of the covenant, go with those lands as a benefit, and why should not the covenant run with them as a burthen ? The covenant would not run with iIk; lands in tin; hands of the person to whom the (<■) Ch. II, s. 1. Vol. I. 70 [*-18aj 554 MAUKETABLE TITLE. deeds are to bo produced were it not for the quality of the deeds, a part as it were of the inheritance. They pass as things attendant upon the inheritance, and in truth they are tlie sinews of tlie inheritance (/) ; they are not chattels, but an inheritance as the land is, and of the nature of the land, and go to the heir (g) as incident to it (h), and the owner may make the deeds appendant to a manor (i). Without this quality, the covenant would be one merely in gross. If then this quality makes the covenant by law run with the land, whose possessor is to have only the production of the deeds, and not the custody of them, surely the actual pos- session of the deeds ought to impress the covenant, as against the covenantor and those claiming under him the lands retained, with the character of a real covenant, so that it may run with those *lands. The deeds are a vital portion of the inheritance, which the owner may bind by a covenant, and therefore it would seem to be the better opinion that the covenant in question runs with the land in both directions, so as to bind at law the holders of the one estate, and to benefit at law the holders of the tJther. 28. It must not be supposed, from what fell from the Court in Barclay v. Raine, that a title would not be marketable without a covenant running with the land to produce all the deeds. Thou- sands of titles, although very good ones, have no such attendant covenant, and although, in strictness, objections might be taken to the operation of old covenants for production of deeds, yet if the deeds are in the proper custody, and are, in performance of the covenant, actually produced to the purchaser to enable him to examine the abstract with them, the Court would not lightly hold him at liberty to rescind the contract. (/) Lifford's case, 11 Rep. 50, b. (A) Strode v. Blackburn, 3 Ves. juii. iff) 1 Bro. Abr. 138, b. pi. 53. 22,3. (i) 1 Bro. Abr. icbi swp. [*484] ^CHAPTER X. OF THE TITLE WHICH A PURCHASER MAY REQUIRE. SECTION I. OF THE ROOT OF THE TITLE. 1. Sixty years : old rule. U. 2. Where earlier title could be required. 2.5. G. New statute of limitations : same rule. 26. 7. Lay tithes. 9. Modus. 27. 10. Advowson. 28. 11. Lessor's title. 30. 12. Whether lessee can require it. 31. 14. A purchaser can, in equity. 32. 21. And also at laiv. 33. 23. Unless he kneto it could 7iot be 2^r^- duced. 31. Or he agree to waive it. Clear agreement reqtiired. And he may show the title is bad aliunde. Bishop's titU not required. Root of lessor's title. Renewable leaseholds. Root of that title. Lessor's consent to be obtained by seller. Equitable title. Assignees to jyroduce title like other sellers. 1. A PURCHASER before the late Act of 3 &i 4 W. 4, c. 27, had a right to require a title commencing at least sixty years previously to the time of his purchase ; because the old statute of limifa- tions (a) (I) could not in a shorter period confer a title. In Paine V. Meller (b), Lord Eldon was of opinion, that an abstract not going farther back than forty-three years, was a serious objection to the title. 2. Even sixty years were not sometimes sufficient. For instance, if it might reasonably be presumed from the contents of the ab- sract, that estates-tail were subsisting, the purchaser might de- Co) 32 Hen. 8, c. 2 ; 21 Jac. 1, c. 16. (b) 6 Vcs. jun. 319. Sec llobinsonr. Yide post ; and see Barnwell r. Hams, Elliott, 1 Kuss. 599. 1 Taunt. 430. (I) The Courts however were so anxious to protect a long possession, that no plaintiff was entitled to so little favor as a plaintiff in a writ of right. See Charlwood r. Morgan, Baylis r. Manning, 1 New Rep. G4. 233; Miudmcut r. Jukes, 2 New Kep. 429. [*485] 556 OF THE HOOT OF A TITLE. niand tlie production of the prior title. Tlie statutes of limitation *could not in such case be relied on ; remainder-men having had distinct and successive rights, upon which at least the statute of James could only begin to operate as they fell into possession. And the like demand may still be made, regard being had to the new time of limitation (1). 3. So, if an abstract begin with a conveyance by a person who is stated to be heir at law of any person, the purchaser may call for proof of the ancestor's intestacy, and if the seller is in pos- session of it he will be bound to produce it ; but if he have no such evidence, and there is nothing on the face of the title to draw into doubt the fact, of course the purchaser must be content with the statement in the conveyance, which depends upon the intes- tacy ; being grounded upon the title of the heir at law in that character. In truth, the object of the inquiry is to ascertain whe- ther to the seller's knowledge there was a will. 4. And in every case where the statement in the abstract, or its silence, leads to a fair inference that the prior title may disclose an existing defect, the purchaser may require it to be produced, although where it is not in the seller's power he cannot object to the title upon mere suspicion. 5. Where an abstract begins with a recovery to bar an entail, it is usual in practice to call for the deed creating the entail, in order to see that the estate tail and remainders over, if any, were effectually barred (I). But if the deed is lost, and possession has gone with the estates created by the recovery, for a considerable length of time, and the presumption is in favor of the recovery having been duly suffered, the purchaser will be compelled to take the title, although the contents of the deed creating the entail do not actually appear (c). 6. The law as to adverse claims is altogether altered by the 3 &£ 4 Will. 4, c. 27 (t/) (2). Fines are abolished, and a short bar, as (c) Coussmaker v. SewcU, Ch. 4th & Russ. 26. May 1791, MS. ; Appendix, No. 11 ; (rf) See post, ch. 11, s. 4, for a view of and see Nouaille v. Greenwood, Turn, the Act. (I) This made it advisable in deeds to raakc a tenant to the prtpcipe, or to lead the uses of fines, to recite so much of the instrument under wliich the tenant in tail claims, as w-ould manifest his power of barring the estate tail and remainders over. The same observation ai^plies to statute-deeds. (1) See Seymour v. De Lancey, Hopkins, 436 ; Brown v. Witter, 10 Ohio, 142. (2) See 2 Cruise Dig. by Mr. Grccnleaf, Tit. 31, Prescription, Ch. 2, and notes. [*486] I^ESSORS TITLE, 557 formerly, cannot now be made. The act limits the frenoral time to recover to twenty years, witii a saving of ten years (or persons -under disability, but not to exceed in any case forty years, although the ten years are not expired. It allows no further time for suc- •cessive disabilities, and makes the bar of the tenant in tail extend *to all whom he might have barred. But it has been decided that the rule as to the root of the title is not altered, and that a purchaser is still entitled to a sixty years' title (e). 7. With respect to a title to tithes as an existing lay property, the foundation of it must be a grant from the Crown after the dissolution of the monasteries, but it is not necessary to deduce the title from that period ; the title following the grant may com- ■mence at the same period as the title to the estate out of which they issue would have done(/). Two late acts have facilitated the extinguishment of lay tithes, by enabling even a tenant for life to merge them, which before could not be accomplished, although the fee of both the estate and tithes was vested in the same person (o-) : in course of time this will make the title to the estate the title to the tithes also ; but still it will be necessary to resort to the grant from the Crown ; at present, however, though the tithes should be extinguished under the acts, the early title to them must be produced. 8. The title to an estate tithe free, independently of the above acts, depends as a matter of fact upon rules which are accurately ilaid down in our text-books on that subject. 9. Where there is a modus, much of the former difficulty has been removed by the provisions of the 2 &£ 3 Will. 4, c. 71, to which we shall have occasion fully to refer (A). 10. The old statutes of limitation did not apply to advowsons ; but the new act provides, that one hundred years shall be the longest time allowed for a claim (i). An abstract of title therefore lo an advowson should not be for a less period, and it should be accompanied with a list of the presentations, so as to show that the enjoyment has gone along with the title. 11. It was once a great question, whether a purchaser of a leasehold estate could insist upo:i the production of the lessor's (e) Cooper v. Emery, 1 Phil. 388'; in (if) St/pra, p, 367, the argument contra in the last edition (A) I'osf, eh. 11, s. 5, of this book. (\) 3 & 4 Will. 4, c. 27, s. 30, 31, 32, (/) See Pickering v. Lord Shclburne. 33 ; post, ch. 11, s. 6. 1 Crawf. S: I>ix. 2o4. f*4e7] 558 lkssor's title. title. The general practice of the Profession was, to call for iw abstract of the title, but a lessee was not often able to comply with the demand. At the time the lease is granted, the title is rarely investigated, or even thought of; and a lessor cannot be advised voluntarily to submit his title to the examination of strangers. As Lord Eldon remarked (/<:), the Newcastle case is a ^'good a lesson upon this subject of production, Tlie corporation pro- duced their charters to satisfy curiosity ; some persons got hold of them, and the consequence was, the corporation lost 7,000/. a year. The numerous cases in the books where lessees, and persons claim- iniT under them, have been evicted on account of defects in the titles of their lessors, strongly evince the danger of taking a lease without investigating the landlord's title. No title can be depended upon, however long the estate may have been in the same family. There may be a defect in a settlement, or the person in possession may have a partial estate only, with a power of leasing. All the leases of the Pulteney estate were set aside on account of a power of leasing not having been duly pursued : nor is this the only estate of which the leases have been vacated. Besides, without an ab- stract of the title, a purchaser cannot even ascertain that the lessor had not mortgaged the estate previously to granting the lease, in which case (as against the mortgagee) the lessee, and consequently any purchaser from him, would be a mere tenant at will (/) ; and his only remedy would be either to redeem the mortgage, or to bring an action on the lessor's covenant for quiet enjoyment. 12. A lessee is a purchaser pro tanto, and it should therefore seem that he is not only entitled to call upon the lessor for an in- spection of his title, but would not meet with any favor if he neg- lected to do so ; for no one's misfortune is so much slighted by the courts as his, who buys a thing in the realty, and does not look into the title (m). In Keech v. Hall (n). Lord Mansfield appears to have taken it for granted, that a lessee has a right to examine the title-deeds ; and in the late case of Purvis v. Rayer, the Chief Baron expressed the same opinion (o). The case of Gwillim v. Stone (p) seems to lean the other way, although there the decision in effect only was, that a man entering under an agreement for a lease, before the lease is granted, cannot call upon the other party {k) 8 Ves. jun. 141. (?0 Dougl. 21; and see Waring v. (I) Keech v. Hall, Dougl. 21. Mackreth, Forr. Ex. Kep. 129 ; 11 Ves. (/n) See Roswel v. Yaughan, Cro. Jac. jun. 34.3. 19G ; and Lvsnev r. Sclbv, 2 I/ord Ravm. (o) Infra. 1118. " ' " ' '';;) 3 Taunt. 433. [*488J LESSOR S TITLE. 559 to reimburse him his expenditure in case a title cannot be made ; although certainly Mr. Justice liawrence seems to have thought, that the mere agreement to grant the lease did not warrant an im- plied agreement to make a good title, or to deliver an abstract. 13. In a later case at nisi prius (q), Gibbs, C. J. thought that the defendant was not bound to deliver an abstract under a bare *agreement to grant a lease for twenty-one years ; and Mr. Justice Heath, after instancing the case of leases for three lives, granted some years since in Devonshire, by a Duchess of Bolton, who was mere tenant for life, but assumed to have a power of leasing, and received fines to the amount of 29,000/., observed, that nevertheless it had never yet been heard of, that a tenant for life was asked to show his title to lease. The instance quoted shows the strong necessity of the title being produced ; and there is no instance in which a man acting under good advice, accepts a title from a tenant for life, without the production of the settlement under which he claims. However, in this case, the Court considered that the cause originated in a dispute between the two attorneys, and the Judges expressed their desire not to decide the point, without affording an opportunity for a review of their judgment. But in the later case of Roper v. Coombes (r), where the agree- ment was to grant a lease for a large premium, the contract was considered to be for the sale of a lease, and as the intended lessor had no right to grant it, the other party was allowed to recover back his deposit. 14. In a case where, in an agreement for a lease, there was no stipulation about title, and the lessee entered and commenced building operations, and then discovering a want of title to a part of the ground, required an abstract of the title, which was not fur- nished, but the lessor (I) filed a bill, praying a specific performance, or that the agreement might be annulled, — there was a reference to the Master to inquire whether the lessor could make a good title to the premises, and if he could not to the whole, whether the deficient part was essential to the enjoyment of the premises, and the Master reported that he could not make a good title to any part of the premises ; — the Master of the Rolls dismissed the bill, and directed the lessor to deliver up his part of the agreement {q) Temple V. Brown, (iTuunt. 60. (r) ti IJarn. \: Cress. 534. (I) The form and substance of the decree as slated in 3 Taunt. 436, show that it was the lessor who filed the bUl. [*'189J 560 lessor's title, to be cancelled, but refused to make any CDmpensation to tlie- lessee for the expenses he had incurred, giving him liberty to bring an action at law (s). 15. In the last equity case on this subject, where the agree- ment was made to take a lease for twenty-one years at rack- rent, the Master of the Rolls decided, that the intended lessor, *who was j7/ai«^/^, could not enforce a specific performance, with- out producing the original lessor's title (t). But it still remains undecided, whether a lessee can, as plaintiff, call for the original lessor's title. 16. The argument originally urged against a purchaser's right to call for the lessor's title was, that a lessee was seldom able to pro- duce the title ; and, therefore, on the ground of convenience, a purchaser must be presumed to know this circumstance, and to buy^ subject to an implied condition, not to call for the freehold title. But to this it was answered, that the lessor's title was generally required ; and where the vendor could not produce the title, it was usual to state the fact in the particular or agreement. Therefore, where that statement was omitted, it was fair to presume that the vendor was in possession of the title. Tliere could be no incon- venience in establishing the purchaser's right to call for the freehold title ; for the vendor had it in his power to prevent the claim by an express stipulation. 17. Although the question came before Lord Eldon more than once, he avoided deciding the abstract point, but appeared to think that the better rule would be, that the purchaser was, in the ab- sence of an express stipulation to the contrary, entitled to the pro- duction of the lessor's title, 18. Lord Eldon decided thus far, that the vendor cannot demand a specific performance if the purchaser can show that the title tO' the freehold is not good, or that there are any incumbrances on it ; and that equity will not afford its aid against the purchaser, where the nature of the leasehold title is misrepresented. The fiicts in the case were these : the interest was described as fifty years, the residue of a term free from incumbrances, whereas it appearetf that there were only sixteen years to come of the old lease, granted by Sir Richard Grosvenor in il2-2, and the residue of the fifty years was granted by the trustees of I^ord Grosvenor in 1791, as a reversionary term for thirty-four years. It appeared that, in (s) Stone V. Gwillim, sec 3 Tannt. (f) Fildes r. Hooker, 2 Mer. 424 ; Lord 436; Gwillim v. Stone, supra, p. 488, Ossulston r.DevorelU 26 May 1818.MS. 25 o. [*490] LESSORS TITLE. 561 1785, the estate in question was charged with jointures, nnort- gages, he. Lord Eldon held, that in these cases a purchaser should at least know accurately what he is buying ; that in the case before him, the title produced did not correspond with that contracted for; and that there was a wide difference between the residue of a lease that has existed for a century with possession under it, and a small residue of an old term, and a reversionary lease granted by persons whose title from the first lessor is not ^deduced. He also thought that he was bound to look at the incum- brances, and therefore dismissed the bill, but without costs (u). 19. But when it is stated that the property is held under two leases at one rent for a stated term, it must be understood that the leases are consecutive ones (x). 20. The general point was decided in equity in favor of the purchaser's right in the case of Purvis v. Rayer (y) in the Exchequer. Ravenshaw (as the agent of Purvis) agreed to sell, and Rayer agreed to purchase a house in Bath, held for the remainder of a term of years under the corporation of Bath and the late Richard Atwood, at the sum of 1,500 /. ; an abstract to be made and delivered by Purvis. The bill was filed by the seller, and the title was referred to the Master, who reported that the plaintiff could not make a good title to the said leasehold premises. The report was grounded on the non-production of the lessor's title. The plaintiff excepted to the report. The Chief Baron overruled the exception. He observed that the question was, whether, when a man sells a leasehold estate, he could compel the purchaser to take it without showing him his title. White v. Foljambe was the first case on this point. There was no case that went the length of showing that a lessor is not bound to show his title. This was a lease from a corporation ; and the general rule is, that where a vendor offers anything for sale, the vendee is entitled to have the thing he buys with a moral certainty that he has the thing he buys. If a man sell an inheritance, he must show a title to the inheritance : so if a life estate. Then what is the difference where a lease is sold ? («) White V. Foljambe, 1 1 Ves. jun. that the lease was only subject to the 337 ; Deverell v. Lord Bolton, 18 Ves. ground-rent, although lie liad not un- 605; and see lladcliHe r. Warrington, dertaken to produce the landlord's title. 12 Yes. jun. 32(3 ; Lady Saltoun v. Phil- See 9 Price, olv). ips, sittings after T. T. 1813, cor. Lord (z) Spratt i\ Jefferj-, 10 Barn. & Cress. Ellenborough, where a i)urchaser recov- 219. ercd his deposit, because the seller (i/) 28 July 1821, MS. ; S. C. 9 Price, claimed his lease subject to Lord Gros- 488. venor's incumbrances, and had stated Vol. I. 71 [*491] 56^ lessor's title. It is said, however, that this is an anomalous case ; but the hnv has not said so, nor has it been so considered in any of the decided cases. Then it is objected, that ^ lessee has not the means of com- pelling the inspection of his lessor's title : that is true, but furnishes no ground for an exception. A lessee may insist on looking into his lessor's title, or that he should produce it ; but if he omits to do so, is that any reason why the vendee of a lease should be deprived of those advantages? Another course *is, to state in the advertisement that you cannot show the title. Therefore, though after the lease is granted the lessee cannot compel the production *of his lessor's title, there is no reason why the vendee should be put to any risk. Then is there a good title here ; the lease is made in 1774 ; does the length of time make the lease good ? Suppose it had been made by a tenant for life ; a tenant for life might live for forty-five years ; forty-five years' possession would not be good evidence of a title to the inheritance ; but then it is said, this was a lease by a corporation. The Chief Baron was of opinion that there might be circumstances which might make an alteration ; but here there was no act of ownership prior to 1774, no prior leases. A tenant for life might have conveyed in fee to a corpo- ration, but on the death of the tenant for life, the estate would cease. This case, therefore, did not differ from the case of a lease from an individual. 21. Lord Tenterden at nisi prius held that where the agreement was silent, a party selling a lease was not bound to produce the lessor's title. He treated the equity cases as not deciding the legal point (z). But the point has since been decided otherwise in a court of law (a), and the seller was nonsuited because he had not produced the lessor's title. The term was a very short one, and sol. was to be paid for the fixtures, and no other consideration. The Court of B. R. thought that the decisions, especially that of Purvis V. Rayer, were authorities upon the general question, whether it arose in a court of law or equity, and that the true ground of refusing relief by a specific performance in these cases was, that the vendor by his contract was bound to make out a good title in all respects to the subject agreed to be sold, including the right of the lessor to demise. If that is his contract he must {z) George i>. Pritchard, 1 Mood. & (a) Souter v. Drake, 5 Barn. & Adol. Ry. 417. 992 ; Nap v. Betty, i Man. & Gra. 410 ; 5 Scott, N. R. 508. [*492] lessor's title. 563 equally fail in a court of law, unless he can prove the performance of it on his part. And no reason occurred to the Court why, as the courts of law and equity would put the same construction on a contract for the sale of a freehold estate, they should do otherwise in respect of a contract for tlie sale of a leasehold ; unless there- fore there be a stipulation to the contrary, there is in every con- tract for the sale of a lease an implied undertaking to make out the lessor's title to demise as well as that of the vendor to the lease itself, which implied undertaking is available at law as well as in equity. 22. It is therefore now firmly settled, both at law and in equity, that a seller of a leasehold cannot make a good title unless he can produce the lessor's title. *23. If a purchaser of a leasehold estate had notice, at the time he entered into the contract for purchase, of the vendor's inability to produce the lessor's title, he would not afterwards be allowed to insist on its production. Wherever, therefore, a vendor of a lease- hold estate has not an abstract of the lessor's title, this circum- stance should be mentioned in the particulars of sale, if sold by auction ; or in the agreement, if sold by private contract. And of course if a vendor of a leasehold estate be unable to procure the lessor's title, equity cannot assist the purchaser unless he will dispense with the production of the title to the freehold. 24. And if the purchaser agree to accept a proper assignment, without requiring the lessor's title, he will at law be compelled to pay the price, although the lessor's title prove to be bad (b). 25. But although there is but a short period of the lease unex- pired, and the value of the property is small, and no premium is ffiven for the lease, and a sum is to be paid for the fixtures as per list, which circumstances make it probable that the contracting parties never thought of the title, yet that cannot be stated higher than a very probable conjecture, and it would be dangerous to defeat the general rule by speculation on the possible intention of the parties (c). 26. And v.'here the seller is absolved from the obligation to pro- duce the lessor's title, yet the purchaser is not bound by the con- tract even at law, if he can show aliunde that the title is not a (b) Sprattw. Jcffcrv, 10 Earn. & Cress. Cro. Mces. & Kosc. 117, and supra, p. 249; as to the effect of the stipulation 391 ; and see 1 Per. & Dav. 383. in that case, sec Shepherd v, Keatley, 1 (c) Souter v. Drake, 5 Barn. & Add. 992. [*493J 564 lessok's TiTLii:. good one (rf) ; or if it appears defective on the face of the ab- stract (e). 27. A purchaser of a lease held under a bishop's lease, cannot call for the lessor's title (/). 28. In regard to the root of a title to a leasehold, where the freehold is to be produced ; unless there were reason to suppose that the lessor was only tenant for life, of course an earlier title could not be required than if the freehold itself were sold, nor in most cases could so early a title be called for. In Purvis v. Rayer, we have seen (^), that the Chief Baron considered, that the cir- cunxstance that forty-seven years had elapsed since the term was granted, did not make the title good. Suppose, he asked, it had been made by a tenant for life, — a tenant for life might live for *forty-five years, — forty-five years would not be a good evidence of a title to the inheritance, but then it is said this was a lease by a corporation. There might be circumstances which might make an alteration [that is, make such a title good], but here there was no act of ownership prior to 1774, no prior leases. A tenant for life might have conveyed in fee to a corporation, but on the death of the tenant for life the estate would cease. ' 29. A leasehold title, commencing forty-seven years ago, would, however, in most cases, be deemed satisfactory, and in every case would readily admit of slight evidence in support of it. For ex- ample, in Purvis v. Rayer, evidence that the corporation had held the estate for some years previously to the lease of 1774, or had granted a lease prior to that, which would have proved their seisin, would have been satisfactory. And where the freehold is vested in individuals, a succession of landlords who had received rent, would tend to support the title ; or if the same lessor had remained for a long period, it could rarely be difficult to show whether or not he was owner of the fee. It is not in cases of old leases that much difficulty occurs, for there is little objection to a landlord in 1838 showing that his predecessor in 1790 was seised in fee, which is all that would be required ; but in the instances of modern leases, where the lessor does not choose, after he has granted a lease, to produce his present title to a purchaser of the lease, who is perhaps waiting for an opportunity to raise an objection to the freehold title, in order to get rid of his purchase. (rf) Shepherd r. Keatley, 1 Cro. Mecs. 722. & liosc. 117. ' (/) Fane r. Spencer, 2 Mer. 430. (p) Selliek r. Trevor, 11 Mccs. & Wels. (r/) Supra, p. 401. 1*19-11 TITLE TO RENEWABLE LEASEHOLDS. 565 30. With respect to the title to renewable leaseholds, great diffi- culty constantly occurs. All public bodies who grant renewable leases, require the old lease to be given up before they will grant a new one ; and when they once obtain possession of a surrendered lease, they will not part with it, and sometimes refuse to furnish a copy of it. When the lessee sells, he produces an abstract of the subsisting lease and subsequent instruments. Now this is a title which it is impossible to accept, however willing the purchaser may be, and although he may have waived calling for the lessor's title. Every lease is stated to be granted in consideration of the surrender of the former lease, and by means of this reference the chain of title is kept up. The reference in the last lease to the one immediately preceding, is notice of it to the purchaser, and that again is notice of the one before that, and so by steps to the first lease. And if in any of these leases the lessee is described as devisee under a will, or there is anything to lead the mind to a conclusion that the lessee is not absolutely entitled, the purchaser will be liable to the same equity as the lessee was subject to, although he had no other knowledge of the fact, than the mention *in the lease of the surrender of the former lease, equity deeming that sufficient to lead him to inquire into the title (A). Harsh as this rule may seem, it is quite consistent with the general prin- ciples of equity, and is called for in this case, because public bodies generally renew with the person having the legal estate, and seldom suffer any trusts to appear on the lease, lest they should be implicated in the execution of them. 31. The root of the title in such cases is carried back to a con- siderable period where the estate has been the subject of settle- ments. Attested copies of the surrendered leases can in general be obtained, and of course the settlements and other family deeds, which are the title-deeds to such an estate, are, as in other cases, either in the possession or power of the seller. The root of the title must depend upon the transactions in which the leases have been included. Where there have been repeated sales, a short period would be sufficient, but where the estate has remained in the same family, and the renewals have been included in settle- ments, it may be necessary to produce just as ancient a title as if the freehold were sold (i). 32. Although a purchaser of a lease buys with full notice that (k) Coppin V. FciDvliough, 2 Iko. (;. (/) Sop :; & 4 Will. 1, c. 27, s. 24, 25, C. 291. ' 20, 27, j'osf, ch. 11. f*'1951 566 EQUITABLE TITLE. a title cannot be made without the consent of the lessor, yet it lies on the seller and not on the purchaser to obtain the consent. It cannot be inferred that the seller only agreed to part with his interest in the estate as far as he was able to do so (^j). 33. It is seldom that a purchaser undertakes to accept an equi- table estate, and where he does not it is indifferent to him whether the seller has the legal or equitable estate, for under a common contract he will be entitled to the legal estate. It is possible that a seller may have a title which by lapse of time cannot be dis- turbed in equity (k), and yet he may not be able to make a good title ; for although between two equities one person may have acquired, by length of possession, the right against another, yet a legal right may remain unbarred. But if even a party sold, stipu- lating that the purchaser should not call for the legal estate, that would make no difference as to the root of the title, for it would be necessary to show, as in common cases, the beneficial or equitable title to the estate, and to show besides, that the legal estate, although outstanding, could not be used adversely to the purchaser. *34. In the case of Pope v. Simpson (/), Lord Rosslyn appears to have held, that persons purchasing from the assignees of a bank- rupt have no right to expect more, than that the assignees should deliver over such title as the bankrupt had. This decision, how- ever, was opposed by prior cases (m), and the general rules of equity ; and in a late case Lord Eldon expressly denied the doc- trine advanced by Lord Rosslyn (n) ; and Sir William Grant actually decided, that assignees stand in the situation of ordinary vendors (o) (I). (7) Lloyd r. Crispe, 5 Taunt. 249 ; (/«) S2:)urrier v. Hancock, 4 Yes. jun. Mason?;. Corder, 2 Marsh. 332 ; 7 Taunt. 667 ; and see Orlebar v. Fletcher, 1. P. 9. Wms. 737. (k) Cholmondeley r. Clinton, Turn. & {a) White i-. Foljambe, 11 Ves. jun. liuss. 107 ; and see" 3 & 4 Will. 4, c. 27, 337 ; and see 18 Yes. jun. 512. infra, eh. 11. (o) M'Donald v. Hanson, 12 Yes. jun. (0 5 Yes. jun. 145. 277. (1) See Cooper r. Denne, 1 Vesey, jr. (Sumner's ed.) 565, 567 note (9) of Mr. Hovenden. . [*496J TITLK STTB.IKCT TO A CHARGE. 567 SECTION 11. OF A TITLE V/ITH AN INDEMNITY. 1. Title subject to a charge. 3. Compensation and indemnity : Hor- nibloio V. Shirley. 4. Observations upon it. 5. Indemnity : Ilalsey v. Grant. 8. Fee-farm rents on estate sold and others : title bad. 12. Purchaser n/it bound to take indemnity. 13. Apportioned rent. \o. Sale in lots, one to be subject to all the rent. IG. Stipidation for a charge on one lot as an indemnity, 17. Nature of indemnity. 18. Danger of eviction not a case for in- demnity. 19. Arbitrator : indemnify. 1. In Dickenson v. Dickenson («), an estate charged with legacies, some of them for infants, was sold, and the amount of the legacies was nearly equal to the purchase-money, and a de- cree was made for a specific performance upon payment of their legacies to the adult legatees, and the investment in Government securities of the residue of the purchase-money, to remain with all accumulations for the payment of the legacies to the infants when they should become entitled, and the Court said, if in the event the fund should turn out deficient for payment of the infants' lega- cies, they must still have recourse to the estate for the deficiency (1). I may however observe, that the title with such a charge could *not have been forced upon the purchaser, and that no doubt the decree was submitted to by the purchaser, who was desirous to take the estate with the risk. The report states, that he refused to take the title unless the estate was fully discharged from the legacies, but no objection appears to have been made by him to the decree upon further directions, 2. We have already seen that small rents may be subjects of compensation (6), although larger ones cannot ; and that, as a general rule, a purchaser cannot be compelled to take subject to an indemnity (2). (a) 3 Bio. C. C. 19. (b) Supra, p. 3.54. (1) See 2 Storv Eq. Jur. J1133. (2) See 2 Story Eq. Jur. 6777, ^^778. [*497] 568 INDEMNITY AGAINST RENTS, ETC. 3. In the case of Ilorniblow v. Shirley (f-), by an agreement between the lord of some manors, and the owner of the rectorial tithes and the commoners for an enclosure, it was agreed that some of the tithes should be sold to the lord in fee, free from all incumbrances whatsoever, at a value to be fixed by the commis- sioners. To a bill filed for specific performance, the purchaser objected that the tithes were subject to charges from which they could not be exonerated, and which were suppressed from the referees, and that the referees much exceeded the value of the tithes from a mistake as to the quantity of the land. He, there- fore, insisted that the plaintiff was not entitled to a specific per- formance, unless he would make a considerable abatement in the purchase-money, in respect of the outgoings and also for the mistake. By the Master's report, it appeared that the tithes, as part of the rectory, were subject to annual charges amounting to 11/. 35. 4d., and to the repairs of the chancel, but the purchaser was himself bound to build a new church, and to other charges amounting to 3/. 18s. 8(1. , which had not been paid within eighty years, if ever. A specific performance was deci'ced by Lord Al- vanley, at the Rolls, with a compensation for the 1 1/. 13s. 4d. a year, and an indemnity out of lands of considerable value against the Si. iSs. 8d. and the repairs of the chancel (1). 4. It was said in another case, arguendo, that when the case came on for further directions it was argued, that on account of the rent-charge the purchaser was not obliged to take the title ; but that he was compelled to take it ; and Lord Alvanley said, if such an objection was to prevail, a purchaser of a portion of a (c) 13 Ves.juu, 81. (1) See Gans v. Renshaw, 2 Barr, 34. Where the vendor contracted to convey to the vendee, " by a good and valid conveyance in law," a farm, which was origi- nally parcel of a large tract of land granted by the i)roi)rictor of a manor, to the ancestor of the vendor, in fee, " yielding and paying to the grantor, his heirs and assignees, the yearly rent of ten shillings ;" the proportion of wliich quit-rent on the farm, was fifty-fonr cents a year ; the existence of tlie quit rent being known to the vendee at the time of the contract, it was held that the existence of such an incumbrance, if it was any, was no objection to a decree of specific perform- ance of the contract. Ten Broeck v. Livingston, 1 John. Ch. 357. The quit-rent in this case did not appear to have been demanded or paid for over sixty years. In another case, where the vendor uj)on a contract for the sale of a farm, which he held under a lease from V. R. at a nominal rent of a pound of wheat, contain- ing a reservation of mines and minerals and water privUeges, and a pre-emptive right of purchase, covenanted to give to the purchaser a good and lawful deed of the premises, it Avas held, that the reservation of the nominal rent was no objec- tion to the title ; and there being no mines or minerals or water privileges on the premises, and V. II. having agreed to reUnquish his pre-emptive right of purchase, of which the vendee had notice at the time of making his contract to purchase, a specific performance was decreed. Winne r. Reynolds, 6 Paige, 407- INDEMNITy AGAINST RENTS, ETC. 569 large estate would always be at liberty to get rid of the contract (d). But this can hardly be an accurate account of what passed, for the purchaser's answer amounted to a submission to perform the agree- ment upon a compensation, which he had, and to the indemnity *it does not appear that he objected (^c). In a case before Lord Eldon (/) it was said by counsel, that in Forteblow v. Shirley, much discussed before his Lordship, it appeared that the estate was subject to the repairs of the chancel of the parish church ; the parties agreed to accept an indemnity settled by an arbitrator, but the Court refused to allow interest, holding the purchaser justified in declining to take possession while the title was in dispute. This is manifestly the same case which, according to this state- ment before Lord Eldon, was heard by him upon appeal, and he partially reversed the decree, for the Court below gave interest, which Lord Eldon denied. It would seem that the appeal was not upon the question of title ; and it seems quite clear, that in a common case, which Horniblow v. Shirley was not, such charges as existed in that case would not be fit subjects for compensation and indemnity. 5. In the case of Halsey v. Grant (^), before Lord Erskine, rectorial tithes, which had been sold by the plaintiff to the defend- ant, were subject to a perpetual annual rent of 19/. 6s., and to some other small payments, and, as part of the rectory, to the repairs of the chancel of the parish church. The objection also extended to some copyholds which were to be enfranchised. The Lord Chancellor observed, that Horniblow v. Shirley could not be considered an authority altogether compulsory. U^pon the case before the Court he said there could be no ultimate difficulty. The objec- tion might be something visionary. It was not likely that these tithes would be resorted to for the charges. The seller could not have any difficulty in quieting this objection and putting an end to the incumbrance. Some further inquiry was necessary as to the nature of the rent. The plaintiff could relieve the purchaser from all uneasiness upon this head, and if he could he ought to do so. A specific performance was decreed, with a reference to the Master to inquire whether there ought to be any, and what indemnity. 6. This is not a satisfactory way of dealing with such a case, and it leaves the decision with little weight as an authority. The charges appear to be such as equity could not compel a purchaser (rf) 13 Vcs. jun. 7.5. (/) U Swaiist. 223. {^) See 13 Ves. jun. 7r>. (,'/) 13 Vcs. jun. 73. Vol. I. 12 1*498] 570 INDEMNITY AGAINST RENTS, ETC. to take subject to, however satisl'actoiy might be the indemnity against them. 7. In Prendergast v. Eyre (A), the Master of the Rolls in Ireland observed, that in the case of Hornihlow v. Shirley, the annual charges appear to have been 5/., 61. 3s. 4d., and 31. 6s. 8d., but when the *case is looked at with attention, it will not be easy to repose upon it as a clear authority for compensation, even in small charges affect- ing the property sold and conveyed. First, the question was not raised as an objection to the title, but compensation merely was claimed by the answer ; secondly, it had been the case of an award by arbitration ; and both these facts are adverted to by Lord Erskine in Halsey v. Grant. In the case of Halsey v. Grant, the perpetual rent was 19/. 6s. a year, and it was not a certain, but merely contingent (I), and, as expressed by Lord Erskine, a vision- ary charge ; for it was also charged upon the parsonage-house and land of large annual value ; secondly, whether it was any charge at all with a power of distress was doubted, and made the subject of inquiry. 8. In a late case (?"), upon a purchase, it was agreed that if there should be found any fee-farm rents, or quit-rents, chargeable on the same, an allowance should be made at the rate of thirty years' pur- chase on the amount thereof. It appeared that the estate, with others of great value, was charged with a perpetual rent of forty mai'ks, originally reserved to the crown ; but a similar rent was granted to trustees in fee, in the usual way, out of a part of the estate not sold, of nearly ten times the annual value of the rent, as an indemnity to the other estates against the rent. It was objected, that this charge prevented the seller from making a good title. It was argued by the writer, on the part of the seller, that this was the precise case in which a purchaser would be compelled to take a title with an indemnity. Equity looks only to the substantial exe- cution of the contract ; and here the rent was not, in substance, a charge on the land. It was not like the case of a lease, where non-payment of the rent, or non-performance of the covenants, might avoid the estate of the person wlio was required to accept the indemnity ; but this was the sim|)lc case of a money payment, (A) 2 Hogan, 92, 93. v. Strode, 1 Wills. Cha. Ca. 428 ; War- (t) Hays 1-. Bailey, Rolls, 10 Aug. ren v. Batemaii, 1 Fla. & Kel. 4i8. 1813, MS. vide infra. See Cassamajor (I) This is not quite accurate. The charge was a certain one, but it was not probable that resort would be had to the tithes for it. [*499] fNlJEMNITT AC.AINST RENTS, ETC. 571 which would, of course, be accepted from the owner of tlie estate exclusively charged with it, by way of indemnity ; and which estate would always be liable to answer any payment made on account of the rent by the persons intended to be indemnified against it. The objection, if allowed, would affect half the titles in the kingdom. It applies to nearly all the estates which came into the hands of the ■Crown on the dissolution of the ^monasteries. Dickenson v. Dick- enson (k) was a stronger case ; for there the purchaser was compelled to take the title, although the Judge was of opinion, that if, in the event, the fund should turn out deficient for payment of the infants' legacies, he must still have recourse to the estate for the deficiency. The ground of the decision must have been, that there was no chance of the fund proving deficient. Halsey v. Grant (/) is a direct authority in favor of the seller ; and there the indemnity fund was not so large with reference to the amount of the charge as the pres- ent ; and although Horniblow v. Shirley (jti) was a case of compen- sation, and not of indemnity, yet it appears that Lord Alvanley said, that if such an objection was to prevail, a purchaser of a por- tion of a large estate would always be at liberty to get rid of a con- tract (n). In the present case, the purchaser did not object to the estate being charged with a fee-farm rent, provided he was paid its value. Here tiie rent is charged only in point of form ; and there- fore he can require no allowance. On the part of the purchaser, it was argued, that the clause relied upon, on the other side, was ^evi- dence that the purchaser was not to take the estate subject to an}'' rent, unless it could be sold to him ; and the estate would always be liable to the fee-farm rent, notwithstanding the indemnity. The Master of the Rolls was of opinion, that tlie clause in the agreement referred to a rent charging the estate sold only, and not to a rent charging it and other estates ; and that the Master was justifieti in considering the rent as an objection to the title. As to the qu(»-tion of indemnity, his Honor observed, that Halsey and Grant was cer- tainly a case of indemnity, and Horniblow and Shirley a case of compensation ; but he doubled whether the deed executed in oriler to relieve the estate in question, could be considered such an indem- nity as a purchaser ought to be compelled to accept, nor should he decide whether in this case any indemnity could or ought to be given by the vendor against such fee-farm rent. He should leave that to be decided whcjn the cause came on to be heard hereafter. (k) 3 Bro. C. C. 19. ('«) 13 Vcs. jun. 81. (J) 13 Vos. iun. 73. («) 13 Ves. jun. 75. [*500] 572 INDEMNITY AOAINST RENTS, ETC. 9. upon an appeal to TiOrd Eldon, ho aflirmed the decision of Sir William Grant, on the ground that the rent in question did not fall within the condition ; and he treated the early cases as not being authorities, and held that a seller was bound accurately to describe what he was selling (o) ; and this put an end to the suit. Sir William Grant avoided deciding any question beyond that of *title, and the cause ought to have been set down before him for further directions, instead of appealing against his order on the exception, although it appears strange for a seller to bring on his cause for further directions where his title has been pronounced to be bad on the hearing of exceptions. But in this case it was only on further directions that the Judge could properly decide upon the nature of the indemnity, if he thought it a case for an indem- nity. As to the case itself, the purchaser did not object by his contract to the existence of fee-farm rents, provided he had com- pensation for them. If therefore the seller had been willing to sacrifice, by way of compensation, the whole value of the rent of forty marks, it would seem that the purchaser could not have objected that the rent rode over other estates also. This is the course which the seller ought to have pursued, 10. In the case of Fildes v. Hooker (^), the Vice-Chancellor, Sir John Leach, observed, that the utmost length of indemnity was, that if a good title can be made subject to an incumbrance, the, purchaser shall take the title, with a security protecting him against the incumbrance. He did not know that the Court had gone so far, and he should not be disposed to follow such a rule, because the purchaser is entitled to an estate free from incumbrance. ft would be difficult to convince him that such a rule was right. 11. In Paine w. Meller (5-), where annuities were charged on the estate sold and other estates, and a trust of stock was declared for payment of them, the question was, whether the purchaser had not agreed to take an indemnity against them. Lord Eldon said, that he did not consider whether this objection was of form or sub- stance, but would leave it to be determined, when it might be necessary, whether the purchaser, under such circumstances, had not a right to insist that the annuitants should release the pre- mises ; or whether the Court would say, under all circumstances, the purchaser should take the premises burthened with the annui- ties, with a great number of others [otiier estates], and seek his (0^ M. T. 1821, MS. (9) 6 Vos. jun. 340. (ji) 3d April 1818, MS.; 3Madd. 193. [*501] INDKMNITY AGAINST RKNTS, ETC. 573 indemnity against the trust property and the trustees, if they pre- ferred a personal covenant by the trustees. 12. In the later case of Balmanno i'. Lumley (r) the purchaser, upon a reference as to title, asked for a direction, in case the report should be against the title, for compensation and indemnity, as indemnity as to part might be more convenient than compen- sation. This was resisted by the seller, as to indemnity, insisting *that the purchaser must either take the title witji an allowance for a defect or reject it. Lord Eldon said, he did not apprehend the Court could compel the purchaser to take an indemnity, or the vendor to give it, and accordingly confined the order to compen- sation. And in a case in the House of Lords he observed, that if in a suit for specific performance it turns out that the defendant cannot make a title to that which he has agreed to convey, the Court could not compel him to convey something less with indem- nity against the risk of eviction. The purchaser is left to seek his remedy at law in damages for the breach of contract (5). And in a late case the Master of the Rolls laid it down, that parties may, no doubt, contract for a covenant of indemnity ; but if they do not, the Court cannot compel a party to execute a conveyance and give an indemnity ; and this, he said, was established by Lord Eldon in the case already referred to (t). 13. Where an estate is sold subject to a rent, which, although not so stated, appears to be only a j)art of a larger rent charged on that and other property, the purchaser will not be bound to take the title, although for many years the apportioned rent has been received : an apportionment by deed must be shown. It is the duty of the vendor to give the purchaser a complete formal discharge of all the further rent that the house was ever liable to. Although an apportionment may be presumed, yet, as Mr. Justice Chambre observed, the question here is not what may be pre- sumed, but whether a purchaser is compellable to accept a pur- chase, where his title rests only on presumption, which may be rebutted by other evidence. And Chief Justice IMansficld said, that a court of equity would not decree a specific performance in a case like this, unless the seller could procure the ground-landlord to apportion the rent, by joining in an assignment of the lease ; in which assignment the ai)portioned rent should ap])ear (u). {)•) 1 Vcs. & Eca. 221. («) BannvoU r. Harris, 1 Taunt. 130. (s) 1 Bligh, (if), 67. .Sec Bowles r. "Waller, Hay, 111 ; War- It) Aylett V. Ashton, 1 Mvl. & Cra. ren r. Batcman, 1 Fla. & Kel. 14.5; Tay- 114 ; see eh. 7. s. 1, 2. lor r. Martindalc, 1 Yon. & Col. 658. |*r,(V2| 574 NATITRF, OF INDRMNITY. 14. But where an apportioned rent is sold, if the rertt is an apportioned rent, the purchaser cannot ohject that lie will not have the same remedies as if the rent were entire (x). 15. So where an estate, held under one lease, is sold in lots, and the fact is stated, and it is stipulated that the purchaser of one particular lot is to be subject to the whole of the rent, the *other purchasers cannot object to the title, although there is a clause of re-entry on non-payment of the rent contained in the lease (y). 16. In a case where an estate was sold in lots, and one of the conditions stated that the estate was subject to the perpetual payment of 120 Z. to the curate of A, but the same and a perpetual annual payment to the hospital of J5 were in future to be charged upon and paid by the purchaser of lot 1, only ; it was held, that the purchasers of the other lots were only entitled to such an indemnity as could be made by the purchaser of lot 1, to the purchasers of the other lots (2), and were not entitled to have these lots exonerated altogether from the charges, for the con- dition refers only to an exoneration as against the purchasers, and not an exoneration as against the owners of the annual payments. So if upon the sale of an estate which is subject to a charge, for instance, that of repairing a chancel, a stipulation is made that part of the estate shall be exonerated from it, the vendor is not bound to procure an act of parliament for exonerating it from the charge, but is merely to exonerate it by a sufficient security on another estate. 17. We may here observe, that where one estate is to be exone- rated from a charge by a security on another estate, the security should be co-extensive in quantity of estate with the original charge, and the new rentcharge should be sufficient in amount to cover the old one, and the costs also, and there should be a sufficient number of trustees, and there should be no impediment in the way of the immediate relief of the purchasers if danmified, and the purchasers should have a voice in the appointment of new trustees (a) ; and of course a good title must be shown to the estate upon which an indemnity is agreed to be given (b). {x) So held by the Y. C. in Bliss v. {z) Cai^samajor v. Strode, 1 Wils. Collins, reported in 4 Madd. 229. See Cha. Ca. 428. S. C. I Jae. & Walk. 426 ; Walter v. («) See Cassamajor v. Strode, 1 Wils. Maunde, 1 Jac. & Walk. 181 ; see Hob- Cha. Ca. 428 ; and see Hayes v. Bailey, erts V. Snell, 1 Mann. & Grang. ;577. post. (y) Walters. Maunde, ubi sup. ; Pat- (/») Cotti-ell v. Watkins, 1 Bcav. 3G1. erson v. Long, 6 Beav. .590. [*503] INDEMNITY AGAINST EVICTION. O ( O 18. In the cases hitherto considered the purchaser is in no danger of eviction, and an indemnity will secure hiin against loss. But where the estate agreed to he leased was comprised with others in an original lease, under which the lessor had a right to re-enter for breach of covenants, so that the under lessee might he evicted without any breach on his part, it was held by Sir John Leach, Vice-Chancellor, that he was not bound to accept the title with an indemnity. He observed, that where a party comes for a specific performance, he desires the Court to give the parly the ^specific subject. Now here he could not secure the possession of the subject upon the terms agreed upon. But he offers an in- demnity. The lessee might he evicted, and therefore it was com- pensation and not indemnity that was offered. I will give you the subject of the contract not with a sure title, but with a com- pensation in case of eviction. It was not a case for an indemnity, and the Court could not compel a performance with a compen- sation (c). According to the report, i\\e jMaster of the Rolls said he could not bring himself to the opinion of the Master, that the ofier of the seller to indemnify the purchaser in case of his eviction was equivalent to a secure title. Where a good litlo could be made subject to a pecuniary charge, a court of equity has com- pelled a specific performance of the contract upon security against the charge. Even that principle might have been questionable, as imposing at all events a considerable degree of trouble upon a purchaser, to which he had not subjected himself by the terms of his contract. But there the purchaser is effectually protecteil in the possession of the specific subject of his contract. Here the seller admits that he cannot protect the purchaser in the specific subject of his contract, and only proposes, in effect, to secure to him a pecuniary compensation for the value in case he loses that posses- sion. A court of equity had never acted upon such a i)rinciple. A vendor could not be aided there who was not able to secure to the purchaser the specific property for which he has contracted (1). 19. Where a i)urchaser stipulates for a good litle, and there is a reference to an arbitrator of all questions on the agreement, if a question is raised on the sufficiency of the title, the arbitrator cannot award a conveyance with an indenmity ; his thity is to award wliether the title is good or bad (d). (f) Fildcs V. Hooker, Od April 1818, {d) Koss r. V,o:n\U, s A.lol. X: VM. ^ih). MS. ; 3 Madd. 193. (1) Blake r. Phiim, 3 Mann. Granj;. & Scott, 070. Sec i in.iui.M.i, r. >.,,ui(i, 20 Pick. 138, Vex Wilde J. [*504] 576 TITLE TO BE SIFTEU. *SECT10N III. OF DOUBTFUL TITLES. 1. Title to be sifted. 2. Purchaser fatored. Z. Doubtful title not enforced in equity : case directed. 4. 15. House of Lords adopts the rule. 5. What is a doubtful title. 6. Marloiox. Smith. 8. Rational doubt : operation of rule. 9. Decision in D. P. not a warranty. 10. Doubts upon law or fact. 11. Moody y. Walters. 12. Biscoe v. Perkins. 13. Biscoe V. Wilks. 14. Observations upon them. 16. Lord Eldon regretted the rule. 17. House of Lords refused to decide upon exceptions. 18. Observations upon it. 19. Judge gices loeight to his own doubts only. 20. Purchaser obtaining the adverse title, bound. 1. Where a man makes a purchase of an estate to which the vendor represents that he has a good title, the purchaser has a right to insist that the question, whether he have or have not a good title, shall be sifted to the bottom before the vendor can be let off from his original contract. A court of equity does not sit to determine that men shall be willing purchasers whether they will or not, but to judge whether they have got a good title (a). 2. A court of equity called on to enforce specific performance of an agreement for the conveyance of an estate to one party, and payment of the purchase-money to the other, must feel anxiety to protect the purchaser, and give to him reasonable security for his title, not compelling him to take a title without knowing whether it is good or bad. The vendor, if his title is good, suffers only the temporary inconvenience of delay, but the vendee, if it is bad, may sustain a severe loss. The inclination of the Court, therefore, is in favor of the vendee, and a vendor claiming to be exempted from the general rule is required clearly to establish a case of exception (h) (1). {(i) Per Lord Eldoii, 'A Mer. 137, 140 ; (b) Per Master of the Rolls, 3 Swanst. see ch. 8, s. 2, supra. 1C8. (1) See Beck-w-itli v. Kouns, 6 13. Monroe, 222. [*505] DOUBTFUL TITLES. 577 3. To enable equity therefore to enforce a specific performance against a purchaser, the title to the estate ought, like Cssar's wife, to be free even from suspicion (c) ; for it would be an extra- ordinary *proceeding for a court of equity to compel a purchaser to take an estate which it cannot warrant to him (d). It hath, therefore, become a settled and invariable rule, that a purchaser shall not be compelled to accept a doubtful title (e) (1) ; neither will he be forced to take an equitable title (/) (2) ; nor will a case be directed to the Judges as to the title, unless the purchaser be willing that it should (o^). In one case, where the opinion of the Court was in favor of the title, the purchaser's exceptions were overruled, with liberty to him, if so advised, to have a case sent to a court of law (A). And even if a case be directed, and the Judges certify in favor of the title, yet a specific performance would not be decreed unless the Court itself were satisfied of the equitable as well as the legal title of the vendor (i). And although the Judges certify in favor of the title, and there is no equitable objection to it, yet if the point of law is doubtful, the purchaser may require another case to be directed, \which it seems will not be sent back to the same court (k). (c) See 2 Ves. 59. Wheate v. Hall, 17 Ves. jun. 80 ; Sloper (rf) Heath v. Heath, 1 Bro. C. C. 117. v. Fish, Rolls, 29 July 1813 ; 2 Yes. & [See Cooper v. Denne, 1 Vesey jr. Sum- Bea. 145 ; Jervoise v, Duke of North- ner's ed. 5G5, 567, note (4) of Mr. Hov- umberland, 1 Jac. & Walk. 559 ; Lord enden.] Lincoln v. Arcedeckne, 1 Coll. 98. (e) Marloww. Smith, 2 P. Wms. 198 ; (/) Cooper v. Denne, tibi sup. ; and Mitchell V. Neale, 2 Ves. 679 ; Shapland see 2 Yes. jun. 100 ; and infra. V. Smith, 1 Bro. C. C. 74 ; [Perkins's ed. (rj) Roake r. Kidd, ubi sup. and notes.] Cooper v. Denne, 4 Bro. C. (A) Fisher v. Barry, 2 Hog. 153. C. 80; 1 Yes. jun. 565, S. C. ; Crewe (/) Sheffield r. Lord Mulgrave, 2 Yes. V. Dicken, 4 Yes. jun. 97 ; Rose v. Cal- jun. 526. land, 5 Yes. jun. 186 ; [Sumner's ed. (k) Trent r. Hanning, 10 Yes. jun. 188, note (a)] Roake v. Kidd, ibid. 647 ; 500. (1) Equity \nil not compel the specific performance of an agreement of sale, and oblige the vendee to accept a title, •which the vendor cannot make out to be clearly good and free from incumbrances. Butler r. O'Hear, 1 Desaus. 382 ; Lewis V. Horndon, 3 Litt. 358 : Kelly v. Bradford, 3 Bibb, 317 ; Seymour r. De- lancey, Hopkins, 436 ; Brown v. (iilliland, 3 Desaus. 539 ; Reed r. Noc, 9 Ver- ger, 283 ; M'Comb v. Wright, 4 John. Ch. 659 ; Sebring v. Mersereau, 9 Cowen, 344; Garnett i'. Macon, 6 Call, 308; Bartlctt v. Blanton, 4 J. J. Marsh. 428; Young V. Lillard, 1 A. K. Marsh. 482 ; Cotton v. Ward, 3 Monroe, 309 ; Brown V. Half, 5 Paige, 235 ; Tomlin v. M'Chord, 5 J. J. Marsh. 136 ; 2 Story Eq. Jur. §778; Poole V. Shergold, 2 Brown C. C. (Perkins's ed.) 119, note (a) ; Gans r. Itenshaw, 2 Barr, 34. A purchaser cannot be com])clled in equity to take land ■which is involved in doubt or dispute as to boundary. Voorhees r. Dc Meyer, 3 Sandford Ch. R. 614. But where the vendee proceeds in the treaty for a pur- chase with a full knowledge of a defect in the title, and does not object to it, he ■wiU not for that defect be relieved in equity. Craddock r. Sliirley, 3 A. K. Marsh. 288 ; Roach v. Rutherford, 4 Desaus. 126. Sec Beverly r. Lawson, 3 Munf. 317, 338; Mayo v. Purcell, 3 Munf. 243; Barrett f. Gaines, 8 Alabama, 373. (2) Waggener ?-. Waggener, 3 Monroe. 556. Vol. I. 73 [*'^06\ 578 DOUBTFUL TITLES. 4. And even the House of Lords, sitting as a court of equity upon appeal, will not in all cases decide the point, but if they think it a doubtful one, will discharge the purchaser from the contract with costs (I). 5. In a case before Sir John Leach (m), in which he expressed the strong inclination of his opinion in favor of the title, he con- cluded, that having regard to the proposition that a purchaser is not bound to take a doubtful title, without undertaking to deter- mine precisely the limit and extent of that rule, he was of opinion that the case was, within the sense of that proposition, a doubtful title. In attempting to lay down a rule upon this subject, he should say, that a purchaser is not to take a property which he can only acquire in possession by litigation and judicial decision ; that in the case before him, it would be necessary to act in the execution of the trust under the direction of a court, and to compel *the purchaser therefore to take the title would be to compel him to buy a law-suit. 6. In Marlow v. Smith, Sir Joseph Jekyll thought the objection to the title valid, and as there was the opinion of learned men against the title, he would not, nor did he think it reasonable that a court of equity should compel the purchaser to accept the title (n). 7. Every title, no doubt, is good or bad, and it has been said that the Court ought to know nothing of a doubtful title, but the Court itself has adopted a different principle of decision (o) (1). 8. It is not now the habit of the Court, whatever may have been the old rule, to decide upon the validity of every title, and leave the unsuccessful party to appeal to the House of Lords ; but, although in the judgment of the Court, the better opinion is that a title can be made, yet if there is a considerable, a rational doubt, the Court does not attach so much credit to its own opinion as to compel a purchaser to take the title, but leaves the parties to their remedy at law (/;). But as this depends upon the weight which the Judge attaches to the objection in the particular case, it frequently happens that a point of great moment is decided upon, (Z) lUosser. Lord Clanmorris, 3 Bligh, Hill, 1 Cox, 186. 62 ; see 2 MoUoy, .'iSO. (o) 2 Yes, & Bea. 140. (m) Price v. Strange, 6 Madd. 159. (;;) 16 \es. jun. 272 ; 1 Jac. & Walk, (w) 2 P. Wms. 198 ; see Maling v. 569. (1) See Shapland v. Smith, 1 Brown C. C. (Perkins's ed.) 75, 76, note (3) ; Cooper i\ Denne, 1 Sumner's Vesey, jr. 665, Mr. Hovenden's notes at the end of the case. [*507] i DOUBTFUL TITLES. 579 as between a seller and buyer, although third persons, whose inter- ests are in question, are not bound by the decision ; whilst in other cases a point of easy solution presses perhaps with undue weight upon the mind of the Court, and is consequently treated as too doubtful. The doctrine is intelligible, but whilst it affords no landmark, it offers a ready escape from the necessity of deciding a point of real or supposed difficulty. It is not unusual for parties to file an amicable bill for the settlement of the point in dispute, and although no doubt, if there be any valid objection to the title, the question upon it may thereafter arise between parties who would not be bound by the proceedings in the cause (q), yet in such cases the purchaser is generally willing to rely upon the au- thority of the Judge, whose decision he trusts will be followed even between adverse parties. 9. Although the purchaser, doubting the validity of the title, notwithstanding the decree of the Court, carries the case to the House of Lords, which confirms the decision compelling him to take the title, yet he does not obtain more than a precedent for *a decision in his favor if his title should be attacked by a third party. He does not obtain an absolutely indefeasible title, but as good a warranty as can be procured (r). 10. The doubt must turn on a point either of law or of fact, although it sometimes involves both. Where the point is one of law, it mostly depends upon the construction of some instrument, — in some cases the question is, What is the rule of law ? The courts have not drawn any distinction between these cases, for if the point of law in the abstract is open to much doubt, they decline to decide it between a vendor and purchaser, just as they refuse to decide upon the construction of a doubtful instrument, where upon the rule of law itself no doubt hinges. Where however the point of law is alone in dispute, the objection that the decision may bind third parties in their absence is entitled to no weight, because, in whatever suits decided, all points of law, as precedents, bind all alike. But a court is tender in deciding doubtful points of law against a purchaser, that is, compelling him to take the title upon its decision, because other courts may not follow that decision in the identical case : the question may again be the subject of litigation commenced in another court by the adverse claimant against the purchaser after he has obtained a conveyance. Where i>j) See 4 Mvl. & Cra. 170, 473. ('■) Sec 11 Ves. jun. 4Go ; 1 Jac. & Walk. 568. r* 508] 580 DOUBTFUL TITLES. the doubt turns upon the construction of an instrument, the diffi- culty that the decision must be come to in the absence of the per- sons whose claims are in question, although their rights will not be bound by the decision, is entitled to more weight. The distinction is a thin one, for in either case the point is decided in the absence of a person who is not bound by the decision, except so far as it may furnish a precedent against him ; but still a Judge may feel himself more at liberty to decide a general point of law between a vendor and purchaser than a question of construction of an infor- mal instrument, which can afford no precedent, and upon which men may naturally differ, and which therefore should, if possible, be de- cided in the presence of the persons whose interests are affected indirectly, although not bound by the decision. 11. In Moody v. Walters (s). Lord Eldon decided that there was no breach of trust in that case by the trustees for preserving contingent remainders having joined in suffering a recovery. This depended upon his view of the rule of a court of equity as appli- cable to the case before him, and upon this he decided. He then *said, another view in which the case had been put was, whether there was such a doubt upon the title that a purchaser should not be compelled to take it. This, he said, was not a case of this species. If he had doubt upon the point, he should find great reluctance in acting upon it, so as to leave in so much uncertainty this very important branch of the law, but not having that doubt, he was bound to say, first, that this was a good title ; next, as to the nature of his opinion, that he had no doubt whether he ought to make the decree, admitting that he certainly should have advised a purchaser to take the opinion of a court of equity. 1'2. In a later case, where also the title depended upon a reco- very, in which the trustees to preserve had joined with the tenant for life and his son tenant in tail in destroying the remainders expectant upon the first remainder in tail. Lord Eldon, after dis- cussing the difficulties arising out of the authorities, added, that as he did not find what he could call a breach of trust, his opinion was, that the contract must be performed, and he would not cq the length of saying that this was a case in which, notwithstanding these observations, and though that was his opinion, he could not compel the purchaser to take the title, but he should compel him to take it unless he would reverse his opinion. That, he observed, was formerly the course instead of letting off a purchaser upon a (*) Ifi Vcs. juii. 28o. [*500| i DOUBTFUL TITLES. 581 doubtful title, and the purchaser then went to the House of Lords. His opinion, was, that the contract ought to be performed, but without costs (<). 13. Another purchaser, under the same title as the last, persisted in the same objection after liord Eldon's decision, and with full notice of it ; and the same learned Judge enforced a specific per- formance, and this time made the purchaser pay the costs (m). 14. Lord Eldon thus extracting from the conflicting cases on the subject a negative rule that the act in the particular cases would not amount to a breach of trust, acted upon his opinion, and considered it so strengthened by twice acting upon it, that he fixed the second objecting purchaser with the costs of the suit, and yet his only mode of carrying the case to the House of Lords, if he had so desired, was to first resist the acceptance of the title in the Court below. The acquiescence of the purchaser in the first cause in the decision against him, was considered a sufficient ground to throw the costs on the purchaser in the second suit. *15. But still, in the case of a mere abstract point of law, if even the House of Lords think it a doubtful one, it may decline upon that ground to enforce the completion of the purchase without deciding the point. Thus in a case where, upon ajjpcal to the House of Lords, the question was whether a reversion vested in the Crown by forfeiture, could be barred by a recovery. Lord Eldon said, that the law on this point was not clearly settled, and that he could not advise the House, sitting as a court ef equity in appeal, to hold a purcliaser to the contract in a case where it could not be stated as a matter free from doubt, whether the reversion had been barred by the recovery ; and as the purcliaser had been hrought into Court upon a doubtful title, he ought to be discharn^ed with costs. Lord Redesdale added, that general opinion was against the title, but that in that case it was not necessary to come to any precise decision on the point. It was sufiicient, on the question then before the House, if the law were doubtful. A par- chaser had a right to require a marketable title, and this title it must be admitted rested on a point of law which, at least, was doubtful (y). 16. Lord Eldon frequently lamented that the Court had not always decided the point at issue and left the purchaser, if he (t) Biscoe V. Pcrkuis, 1 Ves. & Bea. Pearson v. Lane, 17 Vcs. jun. 101; a 485. cose upon a partition, (u) Biscoe r. \Vilk», 3 Mcr. 4.56 ; see (i) lUosoc r. IiordC'lainnorris, 3Bligh, G2. |*.j|(l| 582 DOUBTFUL TITLES. pleased, to appeal to the House of Lords, and in some cases appeared to refer the existing rule to the case ofShapla^id v. Smith ; but as Sir W. Grant observed, and as Lord Eldon very well knew, this doctrine is at least as old as Marlow and Smith. Lord Eldon in the House of Lords more than once declined to decide a point of law as between a seller and a purchaser, and acted upon the rule in the courts below also, although of course it was com[)etent to the House of Lords to rule the point of law, not certainly as a court of appeal deciding the point between litigating parties adversely claiming the estate, but as a court of appeal in equity, exercising the power which even the Court below has to rule the point of law, and compelling the purchaser to rest upon the validity of that decision ; and although the decision would not bind absent parties, yet if deliberately come to it would, like all other decisions of the House of Lords, be binding as a precedent upon the courts below, and would not be disturbed by the House itself without manifest error. It holds out no great invitation for a court below to decide directly upon the validity of a title, and not shelter itself under the doubtful nature of the title when the House of Lords itself, upon appeal, may decline to decide the point of la\y *and reverse the decision because they consider the question a doubt- ful one. 17. Where upon an exception to a Master's report that the seller could make a good title, the Court overruled the exception (x), from which order the purchaser appealed to the House of Lords, Lord Eldon, C, said, that he considered that before the House should be called upon to give its final judgment the Court of Chancery should deftide by a decree whether the title was so clearly good and mar- ketable as to be binding against an unwilling purchaser, and if the Court should decide in the affirmative, and decree a specific perform- ance, then the House of Lords must give its final judgment on the subject ; but if in the negative, it might be unnecessary for the House to decide the question, and an order was accordingly made directing the appeal to stand over until the cause should be heard on further directions in the Court below, w itli liberty to the parties then to apply to the House (j/). 18. This was a singular order, and it was founded upon the dis- inclination of the House to force the title upon the purchaser. For (x) Jenkins r. Hemes, 4 Madcl. 67 ; tion was overruled, fhe statement at the conclusion of the (i/) Ilerries v. Jenkins, D. P. 1823 ; 6 report should have been that the excep- Sim. 16S, n. post. I *5 1 1 I DOUBTFUL TITLES. 583 although the Court below certainly might refuse a specific perform- ance upon the hearing upon further directions, yet that could hardly be presumed, for in overruling the exception the Court, in effect, decided that the purchaser was bound to take the title ; the Court, in a suit between a vendor and purchaser, does not, even upon ex- ceptions, decide strictly upon the abstract point of law as between ordinary litigants, but upon the nature of the title being such as a purchaser could be compelled to accept. And if Jenkins v. Her- ries, for example, had been set down before the Court below for further directions, as well as upon the exception, the Court, after overruling the exception, would without any further argument have decreed a specific performance. Notwithstanding the order in Her- ries V. Jenkins, it would not be safe for a purchaser, who objects to a decision upon exceptions in favor of the title, to wait until the decree is made upon further directions before he appeals, for he would probably have to pay the costs incurred subsequently to the hearing upon the exceptions, although his appeal should be success- ful. It is difficult not to be too early or too late. 19. In these cases, practically, the Judge who decides attends only to the doubt which he himself entertains upon the title. If *he sit in a superior Court, he of course acts upon his own doubts, how- ever clear the opinion expressed by the Court below may be, whilst the decision of that Court against the validity of the title is not allowed to operate if the Judge in the court of appeal think the title good. Where the Master first, and then the Master of the Rolls, or Vice Chancellor, decide against a title, which has happened in several instances, it is urged, but in vain, before the court of appeal, that the decisions of competent tribunals against the title establish the doubtful nature of it, although the opinion of the Judge having the appellate jurisdiction may be in favor of the title (c). 20. If a purchaser under a decree obtain a conveyance of the supposed adverse title from knowledge acquired as purchaser, it seems that he would not be allowed to set it up as an objec- tion (a). (z) Sheppard v. Doolan, 3 Dm. & War. 1. (a) S. C. 584 *SECTION IV. EXAMPLES OF BAD, DOUBTFUL, AND GOOD TITLES IN EQUITY. 1. Cases tchere doubtful. 2. Shapland v. Smith : estate tail. 3. Wilcox V. Bellaers : estate tail. 4. Jervoise v. Duke of Northumberland : executory trust : estate tail. 5. Heath v. Heath : executory devise. 6. Sharp v. Adcock : fee by devise. 7. Price v. Strange : " legal represen- tatives." 8. Barclay v. Raiue : covenant to pro- duce. 9. Sheffield v. Lord Mulgrave : lease- holds for lives. 10. Wheatex. Hall : potver of sale. 11. Cooper Y. Dsnne : confirmation. 12. Crewe v. Dicken : trustee's receipt. 14. Adams v. Taunton : trustee renounc- ing. 15. Oxendenv. Skinner : j^vtion of tithes. 16. Cassamajor v. Strode : allotment. 17. Forty. Clark : pedigree. 18. Sloper v. FwA : escrow. 19. Blosse V. Clanmorris : reversion in Croton. 20. Colmore v. Tyndale : fee in trustees. 21. Lowes V. Z,e 33. Where from an inaccurate statement in a will of a settlement it was presumed that the legal estate was vested in the trustees of the settlement (k). 34. Where the title to the exemption of tithe depended on the unity of possession of the rectory, manor, and lands, in one of the greater monasteries dissolved by 31 Hen. 8 (/). 35. Where the title depended upon the destruction of contingent remainders (m), or upon the statute of limitations, for it is a matter of perfect indifference how the title is made out, provided the pur- chaser gets a title ; whether it be by escheat, abatement, disseisin, intrusion, or possession and non-claim, or destruction of contingent remainders, is a matter of no consequence, provided there be a valid legal title (n) ; and the same rule applies when the Crown is barred under the nullum tempus act (o). But now a contingent remainder existing any time after the 31st December 1844, is capable of taking effect, notwithstanding the determination by forfeiture, sur- render, or merger of any preceding estate of freehold (p). 36. Where the title depended upon the ability of a tenant for life to release his power of appointing to his children, or upon the operation of an appointment 'to a child as controlled by a previous settlement made by that child with the father's concurrence {fi). *37. Where the title depended upon the validity of a sale and an exchange to and with the tenant for life, whose consent to either act was necessary. Lord Eldon stating that he should have said originally it would not do, but he thought that it had been settled by the practice of conveyancers (r) (1). 38. Where the title depended upon a general power of sale and exchange not being void as tending to a perpetuity (s). 39. Where the title depended upon the question, whether strips of land lying between the highway and old enclosures formed part of the estate or belonged to the lord as part of the waste, (i) Emery v. Grocock, G INIadd. .5 1. (o) Tutliill i-. Rogers, 1 Jo, & I.nt. 36. (k) Nouaille v. Grecn-vvood, Turn. & \p) See 8 N: 9 Yict. c. 100, s. 1, S ; 7 Russ. 26. & 8 Vict, c. 76, s. 8, 13. (/) Monck V. Iluakisson, 1 Sim. 280. (ry) West v. Bcrney, 1 Russ. & Myl. Cm) Sec Roakc r, Kidd, -5 Yes. jun. 131 ; Smith r. Death, 5 Madd, 371. 647 ; Kenn r, Corbet, MS. before Lord (?•) Howard c. Ducanc, Turn. & Russ. Eldon ; Hasker v. Sutton, 2 Sim. & Stu. 81. 513. (s) niddlcf. Perkins, 4 Sim, 134 ; sec (w) Scott u. NLxon, 3 Dru. & War. 388. 2 Sugd. Tow. 494. (1) 2 Cruise r)|^)v Mr. Urccnkaf, Tit, 32, Deed, ch, 16, vol, 1, p, 179 181 590 SUGGESTIONS, OR BARE POSSIBILITIES. which was treated as a question of presumption, and upon the evidence the Court came to the conckision that the legal pre- sumption did arise that the owner of the adjoining land was en- titled to enclose them (t) (1). 40. Even where the question upon an ohscure will was, upon the part of the seller, argued to he whether the devisee took an estate in tail male, or an estate for life with contingent remainders, a recovery having been suffered, the Court overruled the purchaser's objection, because they saw in the will an evident intention to give to the devisee a much larger estate than he would take under the construction which they who supported the objection contended for, and they were of opinion that he took such an estate as enabled him to make a good title to the fee, by the means which he had adopted for that purpose (u). 41. And where the title depended upon the right of the preceding seller to a lien for the purchase-money unpaid, a question of great nicety, the Court compelled the purchaser to take the title, prefacing the decree by a declaration that no lien existed (x). 42. We have seen, that a purchaser cannot be compelled to take a doubtful title (2) ; but, nevertheless, he will not be permitted to object to a title on account of a bare possibility ; because a court of equity, in carrying agreements into execution, governs itself by a moral certainty : it being impossible, in the nature of *things, there should be a mathematical certainty of a good title (y). Mere possibilities. Sir W. Grant observed, ought not to be regard- ed(.-)(:3). 43. Therefore suggestions of old entails, or doubts what issue persons have left, whether more or fewer, are never allowed to be (t) Scoones v. MorrcU, 1 Beav. 2ol. bound b}' the opinion of the Court, (u) llushtonTJ. Craven, 12 Price, 599. avoids altogether the real difficulty. I There is nothing in the case which war- do not find any such declaration, nor rants the statement in the reporter's ab- would such a declaration alter the case. stract about a purchaser's right to object (x) Clarke v. E.oyle, 3 Sim. 499. to a doubtful title, nor is the observa- (y) 2 Atk. 20 ; see 3 You. & Coll. tion in the note to G Sim. 169 well foun- 554. ded, viz., that in Rushton v. Craven, (c) 12 Yes.jun. 252. the declaration that the purchaser was CI) See Best on Presumptions, ch. XI, p. 240, 241 ; Pring v. Pearsey, 7 Barn. & Cress. 304 ; Barrett v. Kemp, 7 Bingh. 332 ; 3 Kent (6th ed.) 433, 434. (2) Ante, 506, and in note. (3) See ante, 497, in note ; Cooper v. Denne, 1 Ycsey jr. (Sumner's ed.) 565, 567, note (2) of Mr. Hovenden. [*5iyj MINES RESERVED, 591 objections of such force as to overturn a title to an estate (a). Mere suspicion ending in suspicion, cannot be the legitimate ground of legal decision (6). 44. So where (c), upon a purchase, it appeared that the estate had been originally granted by the Crown, in which grant there was a reservation of tin, lead, and all royal mines, without a right of entry ; yet, as there had been no search made for royal mines for one hundred and eleven years, and, upon examination, the prob- ability was great there were no such mines, and the Crown, for want of a right of entry, could not grant a license to any person to enter and work them, Lord Hardwicke decreed a specific perform- ance (1). 45. Lord Hardwicke observed, that it would be of mischievous consequence to allow it to be an objection to a title, that it is derived under a grant from the Crown, in which there is a reserva- tion of such mines, especially as all grants from the Crown have for the most part such a general reservation; but he added, the fact in the present case is, that there has never been an exertion of this right in a single instance, and no probability there ever will. The case, we may observe, depended upon this fact, for however mischievous it might be to allow such a reservation to be an ob- jection to a title, it would have been so under ordinary circum- stances. 46. Again, in a recent case (d), where a man articled for the purchase of an estate, with some valuable mines, and would not complete his contract because the mines were under a common, wherein others had a right of common, and consequently he would be subject to actions for sinking shafts to work the mines ; Loril Eldon, after showing the improbability of any obstruction from the commoners, said, that in case such an action were brought, he should think a farthing quite damages enough ; and tiierefore decreed a performance in specie. *47. This case, like the last, must be considered to liav(^ turned on the improbability of the purchaser being disturbed ; otherwise it seems to have gone to the utmost verge of the law ; for although (a) See 2 Atk. 20, per Lord Hard- (c) Lyddal v. Weston, 2 Atk. 19. See ■wicke; and see Lord Braybroke v. In- Seaman v. Vawdrey, 10 Vcs. jun. 390 ; skip, 8 Yes. jun. 417 ; Dyke v. Sylvcs- Barton v. Lord Downcs, 1 Flan. & Kcl. ter, 12 Ves. jun. 12G. " 50.5 ; sec p. S.y.i.aupra ; p. o21, infra. {!>) Per Dallas, C J. in Gorton v. Sir (rf) Anon. Chan. 7th Sept. 1803. MS. T. Champneys, Turn. & Russ. 28, cited. (1) Winne v. Reynolds, 6 Paige, 407, cited and stated ante, 497, in note. [*5-20j 592 ACTUAL ESTATE. only such trifling damages could be recovered, yet that would not be a ground for a nonsuit, as was decided in the late case of Pindar V. Wadsworth (e). The estate, therefore, would subject the pur- chaser to litigation, whenever malice or caprice might induce any of the commoners to commence actions against him (1). 48. So a mere suspicion of fraud, which cannot be made out, will not enable a purchaser to reject the title. This was decided by Lord Eldon in a case where, under an exclusive power of appointment, a father appointed to one son in fee ; and then the father and his wife and the son joined in conveying to a purchaser, and the money was expressed to be paid to them all. The title was objected to on the ground of an opinion, by which it appeared, that the father first sold the estate, and then the appointment was devised to make a title, and the purchase-deed recited that the contract was made with the father and son. And it was insisted that if the father derived any benefit from the agreement, or even made a previous stipulation that his son should join him in a sale, which then^ appeared the strongest reason to apprehend, it would have been a fraudulent execution. But Lord Eldon overruled the objection, as it did not appear that the estate sold for less than its value, or that the son got less than the value of his reversionary interest, but merely that he, as the owner of the reversion, acceded to the purchase (/)• 49. And the mere circumstance of a notice having been given by the other children to a purchaser, that they will impeach the appointment, will not prevent a specific performance, unless the notice is acted upon, or facts are brought forward to impeach the appointment (jry 50. It is not a conclusive objection to a title that a third party has filed a bill against the seller, claiming a right to the estate, but the nature of the adverse claim will be examined into (h). 51. If any person has an interest in or claim upon the estate which he may enforce, a purchaser cannot be compelled to take the estate, however improbable it may be that the right will be exercised. Thus, in the case of Drewc v. Corp (i), the vendor was (e) 2 East, 154-, Ilorne, 1 You. & CoU. C. C. 664. (/) M'Queen v. Farqiihar, 11 Yes. (//) Green f. Pulsforcl, 2 Beav. 70. jun. 4G7. See;)os/, ch. 23 ; andsecBarn- (X) Osbaldeston r. Askew, 1 lluss. ■wall V. Harris, 1 Taunt. -130 ; Boswellv. 160. Mendham, 6 Madd. 373 ; Campbell v. (i) Yide supra, p. 343. (1) See ante, 497, in note. MINES RESERVED. 593 *entitled to an absolute term of four thousand years in the estate, and also to a mortgage of the reversion in fee, which was forfeited but not foreclosed. It was decided, that the purchaser who had contracted for a fee, was not bound to take the term of years. Nor was he compelled to take the title on the ground of the vendor hav- ing a forfeited mortgage in fee of the reversion, although it was evidently highly improbable that any one would ever willingly re-- deem a forfeited mortgage of a dry reversion expectant upon an absolute term of four thousand years. 53. So in a case (k), where it appeared that in 1704 the estate was sold with a reservation of saltworks, &;c. with a right of entry, and the estate was sold in 1761, and no notice taken of the reserva- tion, and the right had never been exercised ; the Master of the Rolls was of opinion that non-user did not in this case raise the inference that the right was abandoned, and consequently the pur- chaser was entitled to take the objection, and he distinguished this from the case of Lyddal v. Weston (I) ; first, because it was not alleged that there was no probability of mines, it was rather admit- ted that there were : secondly, here was the reservation of a right of entry, upon the want of which Lord Hardwicke laid stress in that case. In the case at the Rolls, the purchaser chose to consider this not as an objection to the title, but as a ground for compensa- tion, and it was decreed accordingly. 53. In a case where a close called the Croyle had always been known by that name, and had been possessed by the seller and his ancestors as part of the estate sold, but no mention was made of it in the deeds by name, and all the other lands were particularly de- scribed ; the Court considered the evidence of title to be merely that of long possession, and held that the purchaser was not bound to accept the title (m). 54. But where it is established by evidence that a copyhold estate sold has continually passed and been enjoyed by the descrip- tion contained in the court rolls, it is not material that there is only a general and vague description of the estate on the rolls (/t), and the purchaser will be compelled to take the title. 55. Where a vendor was tenant in tail, with reversion to himself in fee, and the reversion had vested in diiTerent persons, a common {k) Seaman v. Vawdrcy, 16 Vcs. jun. {»i) Eytou v. Dickon, 4 Price, 303. 390. (ii) Long V. Collier, i Russ. 267. (/) Supra, p. 519. Vol. I. 75 [*5211 594 INCUMBRANCES ON REVERSION. recovery was generally required by a purchaser ; because that barred the remainder, while a fine let it into possession, and thereby ^subjected the whole fee to any incumbrance which before affected the reversion only. But unless some incumbrance appeared, or the title to the reversion was not clearly deduced, the Court would not compel a vendor to suffer a recovery on account of the mere proba- bility of the reversion having been incumbered (I). 56. Thus in a case (o) upon an exception to the Master's report in favor of the title, the objection to the title was, that one Eliza- beth Baker ought to join in a recovery ; the title being derived from John Pain, who, in 1693, limited the estate to the use of himself for life ; remainder, subject to a term, to uses which never arose ; remainder to his daughters in tail ; remainder to himself in fee. Under these limitations, Elizabeth, an only daughter, became seised in tail, with the immediate reversion to her father, who made a will, not executed so as to pass real estate, whereby he devised all his estate to his second wife. Upon his death, Elizabeth his daughter entered, and levied a fine. She had issue a daughter, Elizabeth, who married William Baker. They had issue one daughter, Eliza- beth Baker. From her the estate was purchased under a decree, and by mesne purchases becam3 vested in the plaintiff. The de- fendant, the purchaser, suggested, that the ultimate remainder in fee might have been by deed or will disposed of by John Pain, or by any other person to whom it might have descended ; and if the same should have been so disposed of, it could then be barred only by Elizabeth Baker. The Lord Chancellor held a recovery not necessary. 57. At this day it frequently happens, that in deeds securing debts on real estate, the estate is authorized to be sold without the assent of the owner, in case default is made in payment of the money on the day named (1). Such a security is so far a mortgage, that the owner may at any time before a sale require a reconvey- (o) Sperling v. Trevor, 7 Yes. jun. 497. (I) This is allowed to remain as an illustration of the doctrine, and as applica- ble to existing titles, although the law is now altered by the 3 & 4 Will. 4, c. 74 ; post, ch. 11, s. 4. (1) The validity of such a power of sale is now generally admitted, both in the United States and in England ; it being subject to the control of Chancery, when about to be exercised in a manner oi)pressive to the debtor. Matthie v. Edwards, 2 Coll. C. C. 4Go ; 10 Jurist, 347 ; U Jurist, 761; Jones r. Matthie, 11 Jurist, 604 ; Jackson v. Henry, 10 John. 18o ; Carson v. Blakcv, 6 Missouri, 273 ; Eaton V. Whiting, 3 Pick. 484, 491 ; Kinsley c. Ames, 2 :SIetcalf, 29 ; Waters r. Kandall, 6 Metcalf, 483, 484 ; Doolittle v. Lewis, 7 John. Ch. .30 ; Demarest v. Wynkoop, [*522J OPERATION OF BANKRUPTCY ON TITLE. 595 ance upon paying the money due (1) ; and in consequence of the old rule, that once a mortgage always a mortgage, the owner is in these cases usually required to join in the conveyance, which he is mostly unwilling to do ; his object being to prevent a sale. But it has been decided by Lord Eldon,tliat the objection cannot be sustained, and this decision was made in a case where the deed was in form a regular mortgage with a power of sale, and the mortgagor in his answer stated that he actually resisted the sale as having been *made without his consent and at an undervalue {^p). This has been followed in many later cases, and is now an established rule (^) (2). 58. We have seen that where an act of bankruptcy has been committed, the purchaser cannot be compelled to take the title, although the vendor swear that he owes no debt upon which a commission can issue, and the purchaser cannot disprove the statement (r). And upon the same principle, a purchaser who has become bankrupt cannot compel a conveyance of the estate to him ; because he cannot satisfy the vendor that he will be entitled to retain the purchase-money (s) (I). 59. A purchaser from a father, who was tenant for life, and obtained a conveyance from his son, who was tenant in tail in re- mainder, in consideration of a life annuity and a debt due to the father, is entitled to evidence that the debt was due, and of the fairness of the transaction (i). (p) Clav V. Sharp, and others, Ch. a hasty note on a brief, is not, when at- Mich. Tenn. 1802, Lib. Reg. A. 1802, tentively considered, an authority the fo. 6'), Appendix, No. 12. other way ; see ch. 1, s. 6. (y) Baker v. Dibbin, Dibbin v. Baker, (/•) Lowes v. Lush, U Ves. jun. 647 ; Exch. April 20, 1812. MS. ; Corder v. Cann v. Cann, 1 Sim. & Stu. 284. Morgan, 18 Ves. 344; Alexander y. Cros- (s) Franklin r. Lord Brownlow, 14 bie, (i Ir. Eq. llep. ol3 ; Xote, Stabback Ves. jun. 550. V. Leatt, Coop. 46, which was taken from (t) Boswell v. Mendham, 6 Madd. 373. (I) But where the purchaser has not notice he is safe; see p. 191 ; post, ch. 21, s. 3. 3 John. Ch. 144 to 146 ; Wilson v. Troup, 7 John. Ch. 25. This power of sale is regulated bv statute in some of tlie States, and in others it remains as at com- mon°law. 1 Cruise Dig. by Mr. Greenleaf, Tit. 15, ch. 1, ^^4 in note, Ch. 6, ^^1 in note. (1) See Eaton v. Whiting, 3 Pick. 484, 491. (2) A sale under a power in a mortgage, is iinal and conclusive, as against bona Ml purchasers, and it is a foreclosure and bar to the equity of redemption. Doolit- tle V. Lewis, 7 John. Ch. 50 ; Jackson v. Henry, 10 John. 185 ; Carson v. Blakey, 6 Missouri, 273; Eaton v. Whiting, 3 Pick. 484, 491 ; Kinsley v. Ames, 2 Mct- calf, 29 ; Waters v. llandall, G Metcalf, 483, 484. This power is irrevocable and may be executed after the death of the mortgagor. Bergen r. Bennett, 1 Caines Cas. Err. 1. After such a sale the intero:.t of the mortgagor is wholly divested, and he becomes a tenant at sufferance. Kinsley r. Ames, 2 Metcalf, 29 ; 1 Cruise Dig. by Mr. (Jroonleaf, Tit. 15, ch. 1, M4, in note. [*523] 596 TITLF: to Alil.OTMEWTS. 60. Where an estate was sold without any notice that it was recently allotted under an inclosure act, and it appeared that the commissioners had not made their award, and the act contained no clause authorizing a sale before the award, Lord Ellenborough held that the ' purchaser was warranted in refusing the title (m) . But if the purchaser is at the time aware that the estate is in a progressive state of inclosure, and there is a clause authorizing a sale before the award, and there is no ground to suppose that the commissioners will vary the allotments, assuming their power to do so, the purchaser will be compelled to take the title, although the award is not executed (x) ; for a purchaser purchasing, as in this instance, with full notice of all the circumstances, must take sub- ject to the variation, as it was inherent in the very nature of the property. This decision, which was made by Sir William Grant, *at the Rolls, was confirmed by Lord Eldon on appeal, who, accord- ing to my note, relied very much on the statement in the particulars of sale, that the estate was in a progressive state of inclosure. 6L But care must be taken in these cases to ascertain that the power of sale does carry the legal estate before the award (y). Where the estate, in respect of which the allotment is made, is itself conveyed, of course it carries the right to the allotment with it, and it requires no special clause in the Act to give legal validity to such a conveyance. This appears to have been the point decided in Doe V. Willis (z), which seems to have been misunderstood, and is said to have been disapproved of and overruled by the Master of the Rolls in Mortlock v. Kentish (a). But this is probably an erroneous statement. 62. In a late case, a provision that the lands to be allotted and awarded, immediately after such allotments were made, should enure to the persons to whom they were allotted, who should from thenceforth stand seised thereof to the uses of the land in lieu of which the allotments were made, was held to give the legal estate immediately after the allotment and before the award, so as to enable the sale and conveyance of it ; for the words, so to be allotted and awarded, were held to mean to be allotted, and respect- ing which an award shall afterwards be made, and the latter part (m) LowTides V. Bray, Sitt. after T. 171 ; seeEllis v. Arnison, 5 Bam. & Aid. Term. 1810 ; Cane v. Baldwin, 1 Stark. 47 ; Doe v. Neeld, 3 Mann. & Gran. 271. Ca. 65. (-) 5 Bing. 441. (x) Kingsley v. Young, MS. 17 Ves. (a) 26 July 1833 ; 5 Adol. & Ell. 670, jun. 468 ; 18 Ves. jun. 207. cited. {y) Farrer v. Billing, 2 Barn. & Aid. i[*.524] TITLK TO ALLOTMENTS. 597 of llie clause, that the persons to whom tlie allotments should be made should stand seised of them to the old uses, gave the legal fee (by There was a power to award allotments to purchasers of interests in the open fields, &ic., who, after the execution of the award, were to hold and enjoy the allotments as the vendor could have done, in case such sale had not been made. This power was not relied upon by the Court, but it seems rather to afford a ground against the legal estate passing under the clause upon which the decision was founded. 63. In Kingsley v. Young, already referred to, it was not doubted that a clause authorizing a mortgage, sale, or demise of any allotment before the execution of the award, which was to be effectual in the law, passed the legal estate before the award. And this was admitted to be law in the later case of Farrer v. Billing (c), in the King's Bench. In that case, however, a power to sell before the execution of the award was held, upon the expressions *in the act, and with reference to the provisions in the general in- closure act (d), not to authorize the conveyance of the legal estate before the award. 64. In purchasing an allotment under an inclosure act, it should, of course, be ascertained that the allotment was authorized by the act (e), and if it be taken in exchange, tiiat the power was pursued, for the commissioners are not at liberty, although they have frequently exercised the power, to throw the old inclosures in- tended to be exchanged into tiie general mass, and then to make allotments for the common rights and old inclosures wilbout dis- tinction (/). The exchanges must be distinctly shown to be such on the face of the award (o"). 65. If a purchaser be let into possession of an allotment before the award, and do not complete his purchase, the seller may turn him out by ejectment, although he has been twenty years in pos- session, and he cannot raise the objection that no award has been executed (/t). 66. It hath before been observed, that a purchaser will not be compelled to take an equitable title ; but this rule does not extend (6) Doe V. Saunders, 5 Adol. & Ell. ( /") "SVinglicld v. Tharp, 10 Barn. & 664. Cress. 785. (c) 2 Bam. & Aid. 171. (^) Cox v. King, 3 Bing. N. C. 795 ; (f/) 41 Geo. 3, c. 109, s. 16 ; 1 & 2 see as to exchanges, Doc r. Neeld, 3 Geo. 4, c. 23 ; and sec 3 & 4 Will. 4, c. Mann. & Gran. 271. 87, as to past awards. (A) Doe v. Edgar, 2 Bing. N. C. 498 ; (e) Cassamajor r. Strode, 2 Mvl. & see Doc r. Ilcllard, Barn. & (^rpss. Kee. 706. " 78d; post, ch. II, s. .5. [*525J 598 EQUITABLE TITLE. to estates sold before a Master under tlie decree of a court of equity, where the legal estate is vested in an infant, for the Court in such a case will compel the purchaser to complete his contract on the usual decree, that the infant shall convey when he comes of age, unless he then shoivs cause to the contrary ; and that the purchaser shall in the meantime hold and enjoy ; because he buys with notice, and it is said it must be presumed that, in the price given for the estate, allowance was made for the infancy of the heir (i) (1). 67. Thus in a case (Jc) where, upon sale of an estate before a Master, in pursuance of a decree under Lord Waltham's will, the purchaser objected to the title, on the ground of the legal estate heing in an infant ; Lord Rosslyn, without the least hesitation, compelled the purchaser to take the title, making his decree for the infant to convey in the usual form ; because, as the purchaser bought under the decree, he was bound to accept such a title as the Court could make him (/). And I learn that in a case of this *nature. Lord Rosslyn would not sanction an application by the purchaser, at his own expense, for an act of parliament to divest the infant of the legal estate. Nor, if the estate be copyhold, will the Court retain any part of the purchase-money in order to defray the expense of the fine that would be payable, in case the infant heir should die before he surrendered (?«). 68. But in a case of a sale under a decree of a copyhold estate for payment of debts with which the estate was charged, where the conditions of sale provided that the sellers should procure the surrenders, and the remainder-man had gone abroad, and so a surrender from him could not be obtained. Lord Eldon refused to order the money into Court. He said that the Court would struggle to get over an objection to an application of this sort, but if it was coupled with such a circumstance as that some time might elapse before the surrender or conveyance was got, it would hesitate before it made the order. In the case of an infant, the purchaser had no reason to complain ; but in this case, the Court declared nothing upon its record as in the case of infancy. The noncom- (i) 3 Swanst. 56G, jicr Master of the erec Avill not be compelled to take a Rolls. doubtful title. See Marlow v. Smith, 2 (A) Ch. MS. See Chandler v. Beard, P. Wms'. 198. 1 Dick. 392. {»i) Morris v. Clarkson, 1 Jac. & Walk. (/) But note, a purchaser under a de- 601, n. ; 3 Swanst. 558. (1) But see Bryan v. Read, 1 Dev. & Bat. Eq. 86, where it was held that, on a bill for specific perfonnancc the vendee will not be compelled to take a title founded on a decree against an infant, because the latter may show cause against it when of ago. [*526] EQUITABLE TITLE. 599 pliance with the conditions of sale miffht in this case annul the contracts (?i). 69. Nor although the sale is under a decree can equity make a man take a title which he is to support by a bill for an injunc- tion (o). 70. And although a purchaser under a decree will be compelled to accept a title of this nature, yet, if he sell the estate, the Court will not enforce a specific performance against the second pur- chaser. 71. This was also decided by Lord Rosslyn. The purchaser of Lord Waltham's estate sold the estate to a person who objected to the title upon the same ground as he had objected to it, and re- fused to coniplete the contract. The first purchaser very confi- dently filed a bill for a specific performance, but Lord Rosslyn dis- missed it ; because such second purchaser did not buy under the decree, and therefore was not compellable to accept an equitable title (p). 72. But where the estate is not sold by the Court, although the purchaser agree to go before the Master upon a reference of title in a suit in Court for the administration of the estate, yet he is not bound to take an equitable title (y). 73. In a case where a seller after the contract died intestate, ^leaving an infant heir, who filed a bill against the purchaser, pray- ing that he might elect either to complete or abandon the contract ; and the purchaser submitted to perform the contract, and paid the purchase-money into Court, the Master of the Rolls refused to pay it out without the consent of the purchaser during the infancy of the heir (r). 74. In another case, where after a contract for sale the seller died intestate, leaving an infant heir, and his widow, who was his administratrix, filed a bill for a specific performance against the purchaser and the heir, it was decreed, and a day given to the heir to show cause (s). But the objection, that the purchaser was not bound to accept the title in consequence of the infancy of the heir, was not taken (t) (I). (w) Noel r. Weston, Uoo]). 138. (/•) Bullock r. Bullock, 1 Jac. .S; Walk. {0) Shaw 1-. Wright, ;i Vcs. jun. 22, G03. per Lord Rosslyn. " (.s) IloUand v. Hill, Rolls, 18 Mar. {p) MS.; Powell y. Powell, 6 Madd. 1S18, MS. 53. (0 King f. Turner, 2 Sim. .519. (?) Cann v. Cann, 1 Sim. & Stu. 284. (1) Sec Brvau v. Read, 1 Dev. & Bat. Eq. 8G, cited ante, .525 in note. [*5-27) 600 PRESUMPTION OF CONVEYANCE. 75. But the acts of the 1 Will. 4, to which we have already referred (u), remove most of these anomalies by enabling the Court to make a good legal title. With this view, as we have seen, a tenant for life may convey the inheritance ; an infant may convey as if he were an adult ; and a committee may convey in the place of the lunatic (I). And a devisee subject to a charge, who refuses to convey after a sale under a decree with an order that all proper parties shall join in the conveyance, may be divested of his estate by a conveyance by a third party under the direction of the Court (u). And by a later act, an executor or administrator of a mortgagee entitled to the mortgage money, was authorized, upon redemption, to convey the legal estate in the land where possession had not been taken by virtue of the mortgage, and no action or suit was depending (x) ; but this provision has been repealed, as from the 1st of October 1845 (y). 76. Although an estate is not sold under a decree, and the legal estate appears to be outstanding, and cannot be got in, yet, if the circumstances of the case are such as would induce a court of law, ^'under those grounds upon which presumptions are in general raised, to presume a reconveyance, the purchaser will be compelled to take the title (z). Reconveyances have been frequently presumed upon trials at law in favor of justice ; but this doctrine was never applied to a contract between a vendor and purchaser, until the case of Hillary v. Waller, which has not met with the approbation of the bar. The decision has occasioned considerable difficulties in practice. As no man can say where exactly the line is to be drawn, at what period the presumption is to arise, and what (u) Supra, p. 224 ; Jemmett on the 8 East, 248 ; Doe v. Briglitwen, 10 East, Statutes ; see Price v. Carver, 3 Myl. & 583, which show that the circumstance Cra. 1.57 ; Jones v. Ham, 3 Ir. Eq. Kep. of the equitable estate being in the per- 65. son who claims the benefit of the pre- (y) 1 WiU. 4, c. GO, s. 8 ; Robinson v. sumption, is not sufKcient of itself to Wood, 5 Beav. 246. raise it ; and see Barnwell v. Hari'is, 1 (x) 7 & 8 Vict. c. 76, s. 9. Taunt. 430; Doe v. Calvert, 5 Taunt. (!/) 8 & 9 Vict. c. 106, s. 1. 170 ; Cooke v. Soltau, 2 Sim. & Stu. (i) Hillary f. Waller, 12 Ves.jun. 239; 154; and see 10 Barn. & Cress. 312; Emery i'. Grocock, ex parte Ilolman, ^'jos^, Noel v. Bewley, 3 Sim. 103 ; Doe v, Da- ch. 15, s. 4 ; but see Goodi-ightv. Swym- vies, 1 Adol. & Ell. N. S. 430. mer, 1 Kenyon, 385 ; Keene v. Dcardon, (I) An act has just passed (3 Vict. c. 60,) Avhich extends the 1 Will. 4, c. 47, so as to authorize courts of equity to direct mortgages as well as sales of estates of infants, heirs, or devisees, and also of estates devised in settlement, and to au- thorize such sales and mortgages to be made in cases where such tenant for life or other person having a limited interest, or such first executory devisee is an infant. The writer did not object to this act, but sales by such jiersons, being infants, were aUeady fuUv provided for by the 1 Will. 4, c. 47, and 1 Will. 4, c. 60. [*528J PKESUMPTION OF CONVEYANCE. 60 1 circumstances are sufficient to rebut it, each party puts iiis own construction on almost every case which arises. This, of course, leads to endless discussion and expense, and the very parties in whose favor the doctrine was introduced, ultimately feel how much it would have been to their interest, that the general rule of the Profession had not been relaxed. This rule was, that a vendor was bound to get in all outstanding legal estates, which were not barred by the statutes of limitations. The certainty of the rule amply compensated for any individual hardship which it might sometimes occasion. And now that the time is shortened by the late statute of limitations, there is less room than before for presum- ing a conveyance of a legal estate against a purchaser. 77. In Emery v. Grocock (a), the Vice Chancellor, Sir John Leach, stated the rule to be, on presuming a surrender of a legal term, as between a seller and purchaser, that if the case be such that, sitting before a jury, it would be the duty of a Judge to give a clear direction in favor of the fact, then it is to be considered as without reasonable doubt ; but if it would be the duty of a Judge to leave it to the jury to pronounce upon the effect of the evidence, then it was to be considered as too doubtful to conclude a purcha- ser. He added, that he should consider it his duty to give a clear direction to the jury, that they were bound to find the term surren- dered, and he must therefore hold that there was no sufficient doubt to entitle the purchaser to be relieved from the contract (6). («) 6 Madd. 54 ; and see ex i^artc IIol- (i) Sec now 8 & 9 Vict. c. 112, for the man, post, and ch. 15, s. 4. cesser of satisfied terms. Vol. I. 76 602 GOOD TITLKS AT LAW. ^SECTION V. OF GOOD AND DOUBTFUL TITLES AT LAW. 1. Good titles at law. 2. Alpass V. Watkins : estate tail. 3. Rotnilly v. James : estates tail by im- jiUcation. 4. Boyman v. Gutch : ambiguous pro- viso. 5. Doubtful title not recognised at law : Hartley v. Pehall ; Oxenden v. Skinner. 7. Wilde V. Fort. 9. Curling v. Shuttleicorth. 10. Boyman v. Gutch. 12. Equitable objections allowed at law. 13. Alpass V. Watki7is. 1-1. Elliot \. Edtoards ; Johnson V. John- son ; Maberley v. Robins. 15. Willett V. Clarke. 17. Seller must have tJie legal estate. 1. Of the decisions at law, a few instances may suffice where a purchaser has been compelled to take a title depending upon am- biguous instruments as a good one. 2. Where in a settlement there was a limitation to the intended husband for life, remainder to the intended wife for life, remainder to the heirs of the body of her by him to be begotten, and of their heirs and assigns for ever, and for ivant of such issue to his right heirs, it was held to be an estate tail (a). 3. Where by a will the testator devised the bulk of his estates to his brother in fee, and a particular estate to his nephew in fee, and in case his brother and nephew should happen to die, having no issue of either of their bodies, then he gave all his real estate to another in fee, it was held that the nephew took an estate tail, remainder by implication to his father in tail, remainder to the devi- see over in fee (b) (1). 4. Where the title depended upon the construction of an ambig- uous proviso suspending a power of sale (c). 5. We may now inquire whether, where an action is brought against a purchaser for non-performance of an agreement, a court of ((f) Alpass f. Watkins, » Tenn Kop. (c) IJoyman v. Gutch, 7 Bing. 379. 51 (J. See Curling v. Shuttlcworth, 6 Bing. {b) Romilly v. James, 1 Marsh. 592. 121. (1) 1 Jarman, Wills, (2d Am. cd.) 148 to 4.51. [*529] NO TITLE nOTTRTFUL AT LAW. 603 law will act upon the doctrine of equity as to a doubtful title. In a case before Lord Kenyon at nisi prius (d), where an objection was made to the title, he said he would not then determine the point, nor was it necessary to do so. He thought it a question of *some nicety ; but whether it was or not, he thought it equally a defence to the action. When a man buys a commodity, he expects to have a clear indisputable title, and not such a one as may be questionable, at least, in a court of law (T) (1). No man is obliged to buy a law-suit ; and a verdict was given for the purchaser. Tjord Kenyon, however, expressed a different opinion in a later case, where the question was, whether a grant could be presumed of a portion of tithes. He said, that a court of equity in these cases has a discretion, which he, sitting where he did, could not exercise, as he was bound to tell the jury that the plaintiff, the purchaser, could not recover his deposit if there were a good title to the tithes ; and on all the circumstances, he thought there was a good title. He added, however, that he thought he should exercise his discretion in a court of equity in the same way he did his judgment there, where he was bound by strict law, and must tell the jury there was a good title (e). 6. And the same learned Judge even held, as we shall presently see, that a court of law could only look at legal, and not at equita- ble objections in actions between a vendor and purchaser. 7. In a case in the Common Pleas, Mansfield, C. J., was of opinion that the objection taken was a solid one, but that at all events the purchaser was not bound to try that question (f). But in a later case, in the same court, when Gibbs was Chief Justice (o-), where the same argument was urged on behalf of a purchaser who was plaintiff, the C. J. said, it was intimated that if any doubt could l)e cast on the title of the vendor, the plaintiff would be entitled to recover back his deposit. Now, if he had gone into a court of (d) Hartley v. Pchall, Teake's Ca. (,/') Wilde v. Fort, -1 Taunt. 334. 131 ; Wilde v. Fort, 4 Taunt. 334. (;/) llomilly v. James, 1 Marsh. GOO. (e) Oxenden v. Skinner, 4 Gwil. 1513. to (I) This expression seems to refer to the question, whether equitable objections a title are a defence at law. Vide infra, p. o32. (1) See Garnett v, Macon, 6 Call, 308 ; Roach v. Rutherford, 4 Desaus. 183 ; Tharin v. Ficklin, 2 Richardson, 361 ; Brcithaupt r. Thurmond, 3 Richardson, 216. In anaction to recover the whole or a part of the purchase money of lands sold, proof of a want of title in tlie vendor to the jiropcrty, is a complete defence in law and in equity, and such evidence is admissible. Miles r. Stevens, 3 llarr, 21; Whitehurst r.'Boyd, 8 Alabama, 37o ; Tyler r. Youn^, 2 Scamnion, 444; Mvers v. Aikman, 2 Scammon, Iol' ; Duncan r. Charles. 4 Scammon, oGl. [*530] 604 NO TITLE DOUBTFUL AT LAW. equity, the Chancellor would not, perhaps, have obliged an unwil- ling purchaser to ratify the contract. But if he come into a court of law to recover the deposit, on the ground of an insufficient title, he must abide by the decision of that court, and that is the diffi- culty which the party had brought upon himself by coming into a court of law. 8. And in another case, Gibbs, C. J., observed, that it iiad been determined that if parties resort to a court of law for their judgment on a title, they must be content with the judgment of the court of law ; and if that court says the title is good, the party who comes for the judgment of the court shall be bound by it, however *doubtful the point, and shall not afterwards refuse the purchase because it was a doubtful one (A). 9. Yet in a later case in the same court (i), where the question turned upon, whether a later charge by way of mortgage, without any power of sale, had destroyed a power of sale in a former mort- gage, and the property was proposed to be sold under a power, Tindal, C. J., observed, that the rule was, that where upon a sale there is such a doubt upon the vendor's title as to render it probable the purchaser's right may become a matter of investigation, the Court will not compel him to complete the purchase. Here, ac- cording to the conditions of sale, the policy was to be sold under a power, the vendors, therefore, should have shown an unquestion- able power ; for there are no means of calculating the compensation to be allowed in case of any mistake. Supposing the power to have been only suspended, there may be a candid doubt how far that suspension may be considered to operate in a court of equity ; and if there were a reasonable degree of doubt, the Court would not expect the purchaser to proceed. The other Judges concurred in this view, and the purchaser recovered his deposit. 10. But in the last case upon this subject, in the same court, where also the point depended upon {k) the construction of a power — a power of sale with a proviso suspending it — the former case of Curling v. Shuttleworth was cited in the argument, and Alderson, J., observed, that that case had been questioned in the Court of King's Bench ; and in delivering the judgment of the Court, Tindal, C. J., in stating the question to be decided, observed, that they were not to consider themselves as a court of equity, where the seller is seeking to enforce the purchase by bill for a {h) See 5 Taunt, r.26, 627. {I) Curling v. Shuttleworth, 6 Taunt. 121. (Ic) Bovman r. ( Jutch, 7 Bing. 390. [*531] EQUITABLE OBJECTIONS AT LAW. 605 specific performance, — in which case that court frequently refuses the aid of its authority to enforce a performance where the title is of an unmarketable or even doubtful description, leaving the party to his action at law for damages, — but they were called upon to answer the simple question upon the record, whether, on the con- struction of a deed, the defendant has or has not a legal title to convey to a purchaser. After examining the question upon its merits, the Chief Justice added, that it appeared to the Court that the defendant had, at the time the interest was exposed to sale, the right to put up the same to sale, and to sell the same. Whether a court of equity would compel a purchaser to accept such a title was a question which they were not called upon to determine. All *that they professed to determine was, the legal construction of the deed, which appeared to them to negative the purchaser's allegation. They therefore thought there was no defect of title in the defendant. 11. This, as was long since observed in this work, seems to be the true rule. The courts have taken no distinction between the cases where the purchaser is plaintiff, and where he is defendant. Where he is plaintiff, he, of course, by this rule encounters the risk of being compelled to take a title which a court of equity would not force upon him ; a purchaser, therefore, should not bring an action, if he can avoid it, where the title is of a doubtful nature ; but in many cases he cannot avoid it, for the vendor may refuse to take a step, and he may wish to recover his deposit. Where the seller brings an action, the purchaser may avoid the strict rule of law by fihng a bill for a specific performance, or for his deposit, if a good title cannot be made, taking care not to allege that the feller cannot make a title (/). 12. But after some difference of opinion it appears to be settled, as no doubt the rule should he, that even in a court of law equitable objections to a title may enable a purchaser to resist a contract, or to rescind it. 13. In a case before Lord Kenyon (in), where a purchaser sought to recover his deposit, on the ground that although the seller could make a legal title under a settlement, yet in equity he would be compelled to resettle it, the Chief Justice observed, that sitting in a court of law, they could not take notice of an equitable title, and that the defendant could make a good legal title could not be doubted. He was clearly of opinion that sitting, therefore, in a (/) See p, 26, supra. (m) Alpass ». Watkins, 8 Term Rep. 616. [*5:j2] 606 E(iUITABLK OBJECTIONS AT LAW. court of law, they could not do otherwise than determine that the defendant might make a good title to the plaintiff, and consequently was not liable to repay the deposit money. 14. But in a case before the Common Pleas (n), where the pur- chaser brought his action to recover the deposit on the ground of an equitable lien for part of the price upon a former sale, Lord Alvanley, in delivering judgment, observed, that if the purchaser would be liable in equity, that would be a sufficient objection. After showing the nature of the equity, he added, that he thought a court of equity would hold it to be a lien, though he did not know that it would be binding at law. Now what was the nature of the purchaser's deposit ? Was it not made upon the condition *that the purchase should be completed free from all reasonable objections ? It was quite clear that a court of equity would not compel a specific performance of the agreement for the purchase of these premises. He thought that the purchaser had made out a reasonable objection to the title offered by the defendant, and con- sequently must recover his deposit, and the other Judges concurred in this view. This case is certainly a very strong authority, be- cause no Judge sitting in a court of law could be more averse than Lord Alvanley was to assume any equitable jurisdiction (o). His decision was followed in a later case {p) '■ A mere trustee in fee of the legal estate, sold the estate without the concurrence of his cestuis que trust, who were infants (I). The purchaser brought an action to recover his deposit. Gibbs, C. J., referred to the decision that a purchaser must take the title if the court of law thought it a good one, however doubtful the point, but the doctrine had never been carried to the extent the defendant then contended for. Here was a contract to make out a good title. If that contract were a contract to make a good title both at law and equity, and the contract were brought before that Court (C. P.), they must colla- terally look to see whether the title be good in equity as well as at law ; it was true they sat there only as a court of law to administer the legal rights which arise out of the contract, but one of those rights is to have a title good in equity. See to what a length the (n) Elliott-. Edwards, 3 Boss. &Piill. Pull. 1C2. 181. (;j)Maberley v. Robins, 5 Taunt. G25 ; (0) See Johnson v. Johnson, 3 Bos. & 1 Marsh. 258. (1) There is a mistake in the report in Taunt. The devise, I suppose, was to the trustees to sell, and not, as stated, in trust for Tiady Kead. [*533] EQUITABLE OBJECTIONS AT LAW. 607 defendanl's doctrine would proceed. If a deed appeared on the abstract whereby lands were conveyed to A and his heirs to the use of B and his heirs, in trust for C and his heirs (I), it would prove that a good title at law was made out in B and his heirs, to convey without the concurrence of C. 15. But notwithstanding these authorities, in the later case of Willett V. Clake {cf), where the assignee of a bankrupt having pur- chased the bankrupt's estate, resold it, but there was a second agreement between the assignee and the purchaser from him, stipulating for a bond in case a title should not be made out by a given time, and the action was by the assignee, the seller, against *the purchaser from him, for not accepting the bond and paying the purchase-money, Richards, C. B., admitted the force of the objection as stated, and that there were conclusive authorities for that ; yet he could not admit that they applied to this case, for that objection was wholly matter of equity, and could not be raised by the defendant in that proceeding at law, so as to deprive the plaintiff of his right to sue the purchaser at law in respect of a con- tract so contrary to law. — He did not consider that the equitable objection to the title could in any way be available in such an action at law. He knew from experience that nothing could be more dangerous than mixing up matters of equity with maxims of law, and carrying maxims of equity to courts of law, where ques- tions of a very different nature are to be disposed of in a different manner and upon different principles. Courts of law, if they would consider topics of equity, had not the machinery for sifting such questions. Courts of equity have the means of getting at trusts and various other latent interests unknown to courts of law. Equitable matter must therefore be left to equitable courts, for they would only serve to embarrass courts of law with the con- sideration of evils over which they could exercise no control, and which they wanted the power and the means to remedy. The learned Judge added, that although in point of equity an assignee may not purchase the estate of a bankrupt, and his purchase being void or voidable, he might be able to make a good title him- self, and his conveyance might not be avoided, non constat that he (e title, the Court properly refused to compel the purchaser to take the title. Sir W. Grant observed, that if (a) 6 Madd. 57. Vol. I. 77 (6) Lowes r. Lush. 14 Vps.jun.o47. [*5361 610 DOUBTFUL TITLES UPON FACTS. the plaintiff could with precision ascertain that there was no creditor who could take out a commission, there was an end of the force of the objection, but the difficulty was, by what process that could be ascertained. It was truly stated, that even under a reference to inquire what debts were owing by the vendor at the time when he executed the deed, a report that there were none, would not give such an assurance. What obligation was there upon any creditor to come in before the Master ? Now by not coming in, would he be barred from the remedy which the law gives him by taking out a commission ? A report then that no creditor appeared upon the advertisement would not give security to the title. The Court therefore refused to oblige the purchaser to take a title which it could not warrant to him. The learned Judge observed on another occasion, that there was no defect in title, properly speaking, but the party could not give the estate, as ultimately it might not be his, but the estate of the assignees (c). 3. Upon the same principle, where (d) the title depended upon a deed executed by the seller, which it was contended was either a fraudulent preference or an act of bankruptcy, the Court observed that, assuming that such a deed would be valid if made upon good consideration and bona fide, it was plain that the bona fides, and consequently the validity of the deed, might depend upon circum- stances of conduct extrinsic the deed. With these circumstances the purchaser had no connexion, nor any adequate means of ^ascertaining their existence. This was not like the case where a grantor, who was himself affected with an equity, could yet give a clear title to an assignee without notice. Here the deed, if not made bona fide, was as much void at law as in equity, and an assignee without notice could have no better title than his assignor. His opinion therefore was, that a court of equity ought not to compel the purchaser to accept the title, because, assuming it not to be fraudulent ex facie, it still might be avoided by circumstances extrinsic, which it was neither in the power of the purchaser or of the Court to reach (1). 4. So where a testator, who appeared to be seised of the entirety of an estate, devised his undivided moiety or half part of it, and all other his shares, proportions, and interests, if any, therein, and no evidence appeared that he had not the entirety, and the words (c) 14 Ves. jun. 557. (rf) Hartley v. Smith, Buck, 360. (1) See Gans v, Renshaw, 2 Barr, 34. [*537] DOUBTFUL TITLES UPON FACTS. 611 were sufficient if he had to pass it, Lord Eldon was of opinion that the title was good ; but he was also of opinion, that this was not a reasonably clear marketable title with that doubt as to the evidence of it which must always create difficulty in parting with it, and therefore he refused to force the title on a purchaser (e). 5. In Nouaille v. Greenwood (/), a recital in a will stated that the testator's wife had passed a fine of her estate, and had settled the same in trustees, and had given them a power to raise 500/., and to make the estate chargeable with the payment thereof. A recovery was suffered by the wife, who survived the husband, although no estate tail was shown, and a mortgagee, to whom she had previously conveyed in fee, did not concur. If a legal estate tail had been created, the recovery was bad, and it was insisted that such was the presumption from the recital of a settle- ment and from the recovery ; but Lord Eldon said, that although the expressions in the recital were inaccurate, the presumption seemed to be that the legal estate was vested in the trustees. The settlement was not noticed in the deed to lead the uses of the recov- ery ; but although there was no doubt that many recoveries had been suffered unnecessarily, it was reasonable to suppose that the recovery was suffered with reference to the settlement. If, then, the legal estate was in the trustees, he thought the recovery a good equitable one. 6. In the above case Lord Eldon relied upon the continued enjoyment under the title as made out, and also upon a transfer of mortgage to Mr. Baron Smyth, in 1746 ; for he said, although at the time of that transfer there was no evidence that he had all *the antecedent instruments before him, yet it was a strong thing to say that the title was not examined ; we ought to give credit to men of eminence in the Profession who were dealing for their own secu- rity, and therefore must conceive that the title was not accepted without examination. 7. So in a later case (o-), where the devise was to such child who should be brought up and educated as a member of the established church of England, and should be a constant frequenter thereof, and it was objected, that this description was in its nature of uncertain proof, and was, in fact, inadequately proved; Leach, V. C, held, that it could not be insisted that a purchaser was not bound to take (c) Stapylton i'. Scott, 16 Ves. juu. (/) Turn. & Russ. 26. 272; sec Magcnuis v. Fallon, 2 Moll. (y) Siuith v. Ucftth, o Madd. 371. oSO. [*538] 612 DOUBTFUL TITLES UPON FACTS. a title which in some measure depended upon matter of fact, for almost every title must in some degree depend upon such matter ; that the matter of fact upon which a title depended might be such as not in its nature to be capable of proof, as in the case of Lowes V. Lush, and such a title a purchaser could not be compelled to take ; or the fact might, in its nature, be capable of satisfactory proof, and yet not satisfactorily proved ; and courts of equity, by assuming a jurisdiction to compel the specific performance of agree- ments, necessarily forced upon themselves the difficulty of determin- ing such questions ; and that in the present case it did appear to him that the fact was capable of proof, and was satisfactorily proved. 8. But where the title depended upon a will, by which the estate was given to a cousin, if living at a given period, in fee ; and if not, to her issue in fee ; and there was a codicil in which the testa- tor stated that he had, by his will, devised to / ^ in fee, as therein mentioned ; J A was the son of the cousin, and therefore really a devisee in the will, although not nominatim. The objection was, that another will might be the one referred to ; but the Court was of opinion that the codicil did refer to the will that had been pro- duced. If the codicil had referred to a person who did not take under the will, that might have been a good ground of objection. The reference in the codicil was therefore held to be no objection to the title (h). 9. A purchaser has been compelled to take a title depending up- on the construction of an ill-penned shifting clause requiring the devisee to live and reside on the estate, although the fact of resi- dence in a strict sense was not made out (i). The title therefore depended upon a question of law, and one of fact, both of difficult solution. *10. Where a doubt has been raised upon a pedigree in a title, the Court has directed an issue to try the fact, making the purchaser the defendant. In such a case a new trial will be granted or refused upon the ordinary rules of evidence (Jc). This is certainly a strong measure to try such a question behind the back of the party who would be entitled if the seller's title failed. H. There are many cases in which a jury will collect the fact of legitimacy from circumstances in which it might be attended with so much reasonable doubt, that ecjuity would not compel a (A) Howarth i\ Smith, 6 Sim. 1(51. & Russ. ooO. (t) Fillingham v. Bromley, Turn. {k) Edwards i\ Harvey, Coop. 39. [*539] DOUBTFUL TITLES UPON FACTS. 613 purchaser to take it merely because there was such a verdict. The Court ought to weigh whether the doubt is so reasonable and fair that the property is left in his hands not marketable (/). 12. In a case where it was argued that difficulties appeared upon the abstract that could not be altogether accounted for, unless upon some doubt of legitimacy, and evidence of rumors of legitimacy was proposed before the Master, Lord Eldon observed, that it would be very dangerous as to that to say the Master was to be at liberty to receive such evidence in order to entitle him to call for proof of legitimacy. After examining the nature and weight of the evidence in the case, Lord Eldon added, that under the circumstances, strong in favor of legitimacy, if the question was between those parties, it could not, though the register of marriage could not be produced, be stated to a jury as an in- ference fairly questionable. It was, he admitted, very different as to a purchaser. But admitting that principle of distinction, the Court, he said, ought to hesitate long before it would act upon such grounds to the destruction of legitimacy not appearing to have been ever before this transaction called in question (m). It became, however, unnecessary to decide the point. 13. And where the title depends upon a fact which is left in doubt, a court of law will act upon the doubt as well as a court of equity. Thus in a case before Lord Kenyon at nisi prius, where the estate sold was alleged to be subject to a right of common every third year. Lord Kenyon said, if there was any color for the claim, that was sufficient to entitle the purchaser to avoid the bargain ; he was not obliged to buy a law-suit (n) (1). {1} Per Lord Eldon, 8 Ves. jun. 428. (n) Gibson v. Simmer, Peakc's Add. (m) Lord Braybroke v. Inskip, 8 Ves. Cases, 49. jun. 417. (1) See ante, 530, and note. \ -< mw^"^ ^ommni'^ o ^ WUUNIVtKV/, -< ^^tUBRARYQ^ ^^HIBRARYc 5^1 ir-'^ ^^.0FCAIIF0% ,^0FCA1IF0% o ^ w / m <^ \WE UKIVEW//, o AWFUNIVERS//, ^lOSANCFl^. i > %- - -I "v/yajAiNnjwv^ ^ evHIBRARYQr^ <^IIIBRARY< ^oiimi^"^ ^^ ^ >&Aav!jan-iv- .^lOSANCElfj^ WnillllllSr,,".^,^;iJr:^'BRARy '^.{/ojnv.Tjv .'OJIIVDJO'^ vy;lOSANCflf, ^, of CAll FOftf^ ^Of CAll F0/?4^. University of California Library Los Angeles TTiis book is DUE on the last date stamped below. UCLA LAW LIBRARY FEB151996 I.LL_35 r:r^'' my 41396 All |©\| 1^1 I .WE UNIVERS/A.