^^^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
^<!/ojnv3jo>^ ^iHOjnvjjo'^
XWEUNIVERi/A
v^lOSANCElfj>
09
<rii30Nvsoi^ '^/jaaAiNrtJWV'
-^Of CALIF0/?4^ ^0FCA1IF0%
,^WEUNIVER5-//i
^lOSANCElfx^
<C7l3DNVSOV^ "^/SaaAINnJHV
4s^
\V\EUNIVER% ^lOSANCElfjv. ^;^UIBRARYQc^ -^UIBRARYQc
O
"^/SilJAINniWV^ ^<!/0JllV3J0^ ^tfOJUVDJO"^
I
=3
AWEUNIVERS/a
o
^•lOSANCElfj>
"^/^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. (<?) Swanborough i\ Coventry, Biiig.
Gibson, 2 Dow. 301 ^ see Compton r. 30-5 ; 2 Moo. & S. 362.
Richards, 1 Price, 27 ; Beaumont 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<is, door, distillery, and horse-mills, passed by the deed. Kii-wan v.
Latour, 1 Harr. & John. 284. Sec Ilovey r. Smith, 1 Barbour, 372.
The rule that objects must be actually and firmly affixed to the freehold, to be
considered realty, or otherAA^ise to be considered personalty, is far from furnishing
a criterion of what shall be deemed fixtures. Doors, window-])linds and shutters,
capable of being removed without the slio-htcst damage to a house, and even
though, at the time of couA-eyancc, attachment, or mortgage, actiially detached,
would be deemed a part of the house and pass with it. And so mirrors, ward-
robes, and other heavy articles of furniture, though fastened to the wall by screws
AAith considerable firmness, must doubtless be regarded as chattels. Wmslow i-.
Merchants Bank, 4 Metcalf, 314.
See further on the subject of fixtures, Chitty Cont. (8th Am, ed.) 314 et seq.
and notes.
[*38]
CONDITIONS AS TO DEEDS, ATTESTED COPIES, &£C. 47
64. And there must be express conditions where the seller intends
to throw upon the purchaser the expense of searches, of making
out the representation to attendant terms, or of the assignment of
them, or the expense of travelling to a distant place to examine the
abstract with the deeds or the like.
65. Where the title-deeds cannot be delivered up, some provision
should be made as to the expense of the attested copies, and the
covenants to produce them, which will otherwise fall upon the
vendor (e) ; and where the estate is sold in many lots, and the title-
deeds are numerous, nearly the whole purchase-money may, per-
haps, be exhausted. In one case, the lots were more than 200, and
the copies came to 2,000/.
66. If the estate is leasehold, and the vendor cannot procure an
abstract of the lessor's title, this fact should be stated in the con-
ditions (/).
67. A purchaser of a leasehold estate must covenant with the
vendor to indemnify him against the rent and covenants in the
lease, although he is not expressly required to do so by the con-
ditions of sale (o-j ; and it will not vary the case that he is not
entitled to any covenants for title ; for example, where the sale is
by an executor of an assignee (^) ; but assignees of a bankrupt
selling a lease which was vested in him, cannot require the pur-
chaser *to enter into such a covenant for their indemnity or the
indemnity of the bankrupt (J).
68. And although a purchaser is not required by the conditions
of sale to give an indemnity against the rent and covenants, and
an assignment is actually executed without any indemnity being
given ; yet, even a verbal agreement by the purchaser, before the
sale, to secure such indemnity, will be carried into a specific exe-
cution, if it be distinctly proved (k).
69. Where a vendor is only an assignee of a leasehold estate,
and is not bound by covenant to pay the rent, and perform the
covenants in the lease, his liability to do so ceases upon his assign-
ing the estate over (/), and consequently, in such case, there is not
(e) Dare t: Tucker, 6 Yes. jun. 460 ; {/i) Staines r. Morris, 1 Ves. & Beam. 8.
and Berry r. Young, 2 Esp. Ca. G40, n. (i) 'Williins i-. Fry, 1 Mer. 2H. See
Seepos/, c. 9. 6 (ieo. 4, e. 16, s. 75, post ; Slack v.
(/) Hecposf, ch. 10 ; and see Dencw Sharpc, 8 Adol. t*c t^ll. 366.
r.Deverell, 3 Camp. -lol. (/,) Pember v. Mathers, 1 Bro. C. C.
iff) See Pember v. Mathers, 1 Bro. C. o2 ; and see post, ch. 3 ; ch. 4, s. 2, pi.
C. 52 ; Ex parte Little, 3 Molloy, 67 ; and 12, &c. &c.
see post, ch. 4, as to the oblij>"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 (</).
72. The usual condition, '•' that if -the purchaser shall fail to
comply with the conditions, the deposit shall be forfeited, and the
proprietors be at liberty to re-sell the estate; and the deficiency,
if any, by such sale, together with all charges attending the same,
shall be made good by the defaulter," should never be omitted.
It forms a lien on the estate for the purchase-money, &£c., and if
the purchaser do not comply with the conditions, the vendor may,
*by virtue of this stipulation, re-sell the estate, and recover the defi-
ciency and charges from the purchaser (r) (1). And if the money
produced by the second sale exceed the original purchase-money, the
purchaser who has violated the agreement will not be entitled to
the surplus, but the vendor himself will be entitled to retain it.
73. It is now usual to stipulate, that in case of default by the
purchaser he shall forfeit the deposit, and that the amount of the
expenses of a re-sale, he, shall be recoverable as stipulated
damages. Upon such a stipulation Lord Tenterden held at nisi
prius, that whether the term used was penalty or liquidated da-
(m) Burnett v. Lj-nch, 5 Barn. & Cress. Scott, 5G1.
589 ; 8 Dowl. & K. 368. (<?) Hce post, eh. 4, sec. 4 ^S^ 58 et seq.
(h) Mills r. Harris, 1 Xcv. & Per. 569, (r) Ex -parte Hunter, 6 Ves. jun. 94 ;
cited ; see Bcale r. Sanders, 3 Bi:ig. N. and see Moss r. Matthews, 3 Ves. jun.
C. 850. 279 ; Mortens r. Adcock, 4 Esp. Cas.
(0) Close i". Wilberforce, 1 Beav. 112. 251; scd vide 7 Ves. jun. 275. See
\p) Wolveridge f. Steward, 3 Nev. & Greaves v. Ashlin, 3 Camp. Ca. 466.
(1) And the vendor cannot maintain an action against the vendee, for a breach
of the contract of sale, until, on a re-sale, the deficit shall have been ascertained.
Webster i\ Hoban, 7 Cranch, 399.
[*40J
A\
FOKFEITURE OF DEPOSIT. 49
mages, a party who claims compensation for default should only
be allowed to recover what damage he had really sustained. He
confined his opinion to contracts not under seal ; instruments in
that forai might, perhaps, receive a different construction (s). But
in a later case before Best, C. J., he expressed a different opinion,
— that whether a contract be under seal or not, if it clearly states
what shall be paid by the parly who breaks it to the party to whose
prejudice it is broken, the verdict in an action for the breach of it
should be the stipulated sum (t). But whichever be the correct
opinion, a jury may, without proof of damage, give the whole sum
named. This observation applies to a stipulation that the deposit
.shall be forfeited and belong to the seller as stipulated damages.
Where the expenses of the re-sale, k,c., are stipulated for, the
measure of damages would be those expenses, &£c.
74. But a condition, that if the purchaser shall neglect or fail
to comply with any of the conditions, the deposit shall be forfeited
as liquidated damages, to be retained by the seller, with power to
him to rescind the contract and re-sell, and the deficiency to be
made good by the purchaser, does not preclude the seller from main-
taining an action for general damages, where the purchaser breaks
off from the contract altogether. It applies in case of a breach of
any of the particular conditions (ii).
75. Where there is no specific provision, the question whether
the deposit is forfeited depends on the intent of the parties, to be
collected from the whole instrument. Therefore, where 300/. was
paid by way of deposit, and in part of the purchase-money, and the
agreement stipulated that if either party should refuse to perform
the agreement he should pay to the other 1,000/. as liquidated
damages, it was held to be clear that there should be no other
*remedy ; consequently, although the purchaser had made default,
and the vendor might have sued for the penalty, and recovered
damages, yet, as he had sold the estate to another, the purchaser
was allowed to recover the deposit (x).
16. The general question, whether one contracting for tlie pur-
chase of landed property, who refuses to complete his contract,
may recover the deposit from the vendor on his afterwards selling
the property to another, was not decided in the above case ; but
the impression of the Court seems to have been, that the deposit
(s) Rundal v. Everest, 1 Mood. & Malk. 240.
41 ; sec Boys v. Anccll, 5 Bing. N. C. («<) Icclyv. Grew, 6 Nev. & Man. 467.
390. ■ {x) Palmer v. Temple, 1 Per. & Dav.
(t) Crisdee v. Bolton, 3 Carr. & Payn. 379 ; 9 Adol. & Ell. 508.
Vol. I. 7 [*4l]
50 FORFEITURE OF DEPOSIT.
would not be forfeited by a breach of the contract on the part of
the purchaser, unless there is a clause to that effect in the contract.
It was asked by one of the learned judges, whether, supposing the
contract contained no stipulation for a forfeiture of the deposit, the
vendor could retain the deposit and sue for damages too ( y) ? But
where a purchaser is in default, and the seller has not parted with
the subject of the contract, it is clear that the purchaser could no-t
recover the deposit ; for he cannot, by his own default, acquire a
right to rescind the contract. The question will then remain,
whether the seller's resale of the estate will give the purchaser a
right to rescind. It would seem not, if the sale was after the pur-
chaser's default ; for as the purchaser by his act has lost the right
to enforce the contract, the disposal of the estate by the seller pre-
judiced no right of the purchaser, and could impart to him no right
to rescind a contract which he had already broken. The sale does
not purge the previous default of the purchaser. To him it matters
not whether the seller receives the profits himself, or lets or sells
the estate, for in either case he cannot enforce the contract. The
sale, it is argued, prevents the seller from performing the first con-
tract. But the answer to this is, that he cannot be compelled to
perform it. How, therefore, does it differ the case that he has
sold what he might, in spite of the purchaser's claim, retain in his
own hands for his own use. He has sold what the purchaser has
lost his right to demand. The second sale does not give to the
purchaser a right of action for damages, although the subject of
the first contract is disposed Of. If, therefore, in consequence of
the purchaser's default the seller is at liberty to resell for his own
profit, he does a lawful act from which no damage results to the
first purchaser, and which, it should seem, cannot revive in the lat-
ter a right to recover the deposit which did not exist before the
second sale.
77. If the purchaser, after breaking the condition, become bank-
rupt, *and the estate is re-sold at a loss, the expenses of the sale,
kc, being in the nature of unliquidated damages, cannot be proved
under the commission ; but as the vendor has a lien on the estate,,
he may apply the money produced by the last sale of the estate,
first, in payment of those articles which it is just he should receive,
but which he could not prove under the bankruptcy ; then towards
(y) See 1 Per. & Dav. 3S2.
[*42]
LIEN AFTER RESALE. 61
jpayment of the original purchase-money ; and the balance may be
proved under the commission (z).
78. In a recent case (cr), a leasehold house and furniture had
been sold for 4,370/., and the assignment was executed, but neither
it nor the lease, nor possession, had been delivered ; and the pur-
chaser declining to complete the contract, the sellers brought ai^
action and recovered the whole amount of the purchase-money and
costs. The purchaser became a bankrupt, and the assignees took
possession of the house. The seller then sold the house and fur-
niture at a considerable loss : and Lord Eidon considered that they
were entitled to a lien for the amount of the sale and costs, and to
a proof for the difference, although it was insisted that they were
concluded by their action.
79. Where a time is allowed by the conditions obviously for the
purchaser's convenience, although not so expressed, it will be held
to be confined to him. This was decided upon the sale of goods —
hemp — by auction, where the condition was, that the goods were
to be cleared in fourteen days at the purchaser's expense ; and it
was held that this was an allov/ance to the purchaser, and that
the seller was bound to deliver the hemp immediately on de-
mand (b).
80. The other provisions, which ought to be inserted in condi-
tions of sale, are so well known as not to require notice.
81. Although a vendor ought, by proper conditions, to be re-
lieved from obvious difficulties and from expenses which may be
unfairly pressed as against him, but which a purchaser, if left
to bear them, would take care should fall lightly upon himself, yet
the general practice between vendor and purchaser should be ad-
hered to as near as may be. In some instances, for example, the
sale for the first time of houses in a town which have long been the
property of one famil)^, purchasers may be found to purchase, sub-
ject to any conditions which the seller may think fit to impose ; yet,
in the general run of sales, unusual conditions alarm or disgust
parties or their solicitors, and they stay away from the sale, or, if
*they purchase, they interpose every possible obstacle in the way of
the title, as a set-off against the hard conditions to which they
were compelled to subscribe- The common conditions of sale will
(z) Ex parte Hunter, 6 Ves. jun. 94 ; (a) Ex parte Lord Seaforth, 1 Rose,
Bowles V. Rogers, ibid, 95, n. ; 1 Cooke, 308 ; ex parte Gj^de, 1 Glyn. & Jam. 323.
123 ; see Hope v. Booth, 1 Barn. & Adol. (h) Hagedorn v. Laing, 6 Taunt. 514;
507. 1 Marsh. 162.
[*43]
52 OF WRITTEN CONTRACTS.
always be found to facilitate the completion of the purchase, where
the seller has a good title.
82. Conditions of sale, giving a right of entry to take away
produce, for example, may, as a license, bind a third party who
has assented to them, although he is not a seller (c).
83. Immediately after sale of an estate by auction, an agree-
ment (c?) to complete the purchase should be signed by the parties
or their agent, because sales by auction of estates are within the
statute of frauds (e) ; and consequently, the contract could not be
enforced against either of the parties who had not signed an agree-
ment (/). Although a man purchase several lots, yet a distinct
contract arises upon each lot, and consequently if no lot is of the
value of 201. no stamp is necessary, although altogether they are
of more value (§•) (1), but they may all be comprised in one agree-
ment.
84. An auctioneer, however, as the agent of the purchaser, which
for this purpose in law he is, may bind him to the bidding, by sign-
ing for him ; if therefore he put down the purchaser's name as
the buyer, and the amount of the bidding opposite to the lot in the
particulars and conditions of sale, or make an entry in his books of
all the requisite particulars, the purchaser will be bound ("2). And
on the other hand the auctioneer's .receipt for the deposit may
amount to an agreement, binding upon the seller, if it contain the
names of the seller and purchaser, the description of the estate
sold and the price, and refer to the conditions so as to enable the
Court to read them. For in either case, the memorandum, entry,
or receipt by the auctioneer, must in itself, or with the particulars
or other paper which it embodies by a reference, contain all the
particulars required to the validity of a written agreement. But
this subject properly belongs to the third chapter, in which the
statute of frauds is considered ; to which, therefore, the reader is
referred. I may here, however, observe, that an auctioneer signing
an agreement as in his own name, may show that it was really on
behalf of his principal (A).
(c) See "Wood v. Manley, 11 Adol. & (/) See post, ch. 3. See a form of an
Ell. 34. agreement, Appendix, No. 3.
(fZ) Sec a form of an agreement, Ap- (r/) Emmerson v. Heelis, 2 Taunt. 38.
pendix, No. 2. (/() .See 2 Nov. & Per. 519.
(e) See post, ch. 3.
(1) And where land is sold at auction in separate lots, and several of the lots
are purchased by one person, it is not an entire contract ; and if the vendor cannot
give a title as to all the lots, the vendee cannot rescind the agreement in toto, but
must take the conveyance for such of the lots as the vendor is authorized to con-
vey. Van Eps v. Schenectady, 12 John. 436.
(2) Tost, p. 132. ch. 3. sec. 5, § 8.
OF THE AUCTIONEER S LIABILITY.
53
*SECTION IV.
OF AUCTIONEERS AND AGENTS, AND OP THE DEPOSIT
AND PURCHASE-MONEY.
1. Auctioneer liable if no atUkority.
3. If sale defeated by his negligence,
not entitled to commission.
4. Amount of commission on sale.
5. Amoimt for finding a imrchaser.
6. When it is pagahle.
7. Agent bidding beyond his authority.
9. Agent to sell not entitled to receive
the money.
10. Auctioneer cannot give credit.
11. Set-off.
12. Remittance by seller's direction.
13. Purchaser may stop his check if con-
tract void.
14. Must not pay agent before the fixed
time.
15. Seller's direction to pay third person
binding.
16. Deposit is part payment.
17. Auctioneer to retain it till contract
completed.
18.
22.
24.
25.
26.
27.
28.
29.
30.
31.
32.
33.
34.
35.
Interpleader by auctioneer in equity.
At late.
Loss by insolvency of auctioneer falls
on seller.
Auctioneer liable xchere principal not
disclosed.
Not liable to interest.
May pay to insolvent princijjal.
Payment to agent payment to 2^rin-
cipal.
DejMsit invested by Court at risk of
seller.
Where loss by sale cannot be throiC7i
on jiurchaser.
Seller not botind by investment with-
out his assent.
Waver of payment of deposit.
No election to forfeit deposit.
Forfeiture of deposit relieved against.
Seller to repay deposit although his
bill dismissed.
1. It frequently happens that estates advertised to be sold by
auction, are sold by private contract, instead of being brought to
the hammer, and the sale is not announced to the public till the
day fixed for the auction, and even sometimes not till the auc-
tioneer's appearance in the auction-room. Notice of an intended
sale by auction is said to be a contract with all the world : and
the parties to whom the notice is addressed ought not to be put to
the expense and trouble of attending the auction unless the sale is
to take place. It should be stated, therefore, in the adv^ertise-
ments, that the estate will be sold by auction at the place and
time fixed upon, unless previously sold hj 'private contract ; in which
case notice of the sale shall be immediately given to the imhlic : and
notice should be given accordingly.
2. If an auctioneer sell an estate without a sufficient authority,
[#44]
54 OF THF, auctioneer's COMMISSION.
SO that the purchaser cannot obtain the benefit of his bargain, he
(the auctioneer) will be compelled to pay all the costs which the
^purchaser may have been put to, and the interest of the purchase-
money, if it has been unproductive (a), for there being no principal
who is responsible, the auctioneer is answerable as principal,
otherwise the purchaser would have no remedy (b) (1).
3. And if an auctioneer do not insert usual clauses in the condi-
tions of sale, whereby the sale of the estate is defeated, he cannot
recover any compensation from the vendor for his services ; and it
is immaterial that he read over the conditions of sale to the seller,
who approved of them. The same rule of course applies to negli-
gence generally on the part of the auctioneer, whereby the sale is
defeated (c) (-2).
4. The auctioneer is, of course, entitled to a fair remuneration
for his labor ; the amount must generally depend upon private
agreement, although where there is no special agreement, and
there is a particular commission commonly charged, and the seller
was aware of the custom, that would, no doubt, in most cases, be
the measure of the allowance (rf). Upon large sales this difficulty
is mostly obviated by making a contract beforehand with the auc-
tioneer. Mr. Justice Lawrence, upon one occasion, observed that
considering the great sums of money which auctioneers were paid
for preparing particulars and selling estates, they ought to be more
correct. They contended some time ago, he added, that they were
entitled to have the full sum of 5/. per cent, commission, even if a
man advertise an estate to be sold by auction, and it was after-
wards sold by private contract ; and then they contended for half
the full commission (e). It has since been decided, that if a con-
tract be made to pay a given per centage on the sale by auction,
but nothing if no sale, and the auctioneer take the usual steps
preparatory to the sale, he is, by the custom of the trade,
(a) Bratt i-. Ellis, MS. ; Jones v. (c) Dencw v. Deverall, 3 Camp. Ca.
Dyke, MS. App. Nos. 4 anclo ; and see 4.51 ; Jones v. Nannev, 13 Price, 76.
Nelson r. Aldridge, 2 Stark. Ca. 43.5. (d) See Maltbyr. Christie, 1 Esp. Ca.
(6) See Gaby r. Driver, 2 You. &Jcrv. 340.
549. ■ (e) 3 Smith, 440 (1806).
(1) Sec Duscnbury r. Ellis, 3 John. Cas. 70.
(2) Where an auctioneer, in makinn; an entry of a siilc in his sale-book, omitted to
comply with the reciuii'cmcnts of the statute (of New YorkJ regulating sales at jiub-
lic auction, in conseciuence of -which the sale could not be enforced, and the OM'ner
of the property suffered a loss on the re-sale, it was held, that, the auctioneer
being answerable only for gross negligence or ignorance, was not liable in dama-
ges ; the act having been recently passed, being of doubtful construction, and
not havmg received a judicial interpretation. Hicks y. Minturn, 19 Wendell, 550.
[*4.5]
BIDDINGS BY AGENTS, 55
which is in law part of the contract, entitled to the commission,
although the owner himself, or his solicitor, sell the property by-
private contract (/). This should be guarded against by express
stipulation.
5. If several land-agents are employed to sell an estate, one who
finds a purchaser may be entitled to a commission for so doing,
although the purchase is made of another of the agents, who
receives his commission ; but the jury are not bound to give what
*is termed the usual commission for finding a purchaser, viz., two
per cent (g).
6. If an agent for sale of an estate is to be paid a per centage
on the sum obtained, he cannot recover his commission until the
money is received by the principal. If, therefore, it is paid into
the bank under an Act of Parliament, by the authority of which
the property was purchased, the commission is not recoverable
until at least the seller's right to the money is ascertained, and it
is owing to his wilful default that he has not received it (/i).
7. If an attorney or agent bid more for an estate than he was
empowered to do, he himself would be liable ; but it seems that his
principal would not (/). But unless he were expressly limited as
to price, and not enabled to go beyond the limits of his authority,
his principal would be bound (k).
8. Where the principal denies the authority, and the agent is
compelled to perform the agreement himself, because he cannot
prove the commission, he may afterwards file a bill against his
principal ; and if the principal deny the authority, an issue will
be directed to try the fact ; and if the authority be proved, the
principal will be compelled to take the estate at the sum which he
authorised the agent to bid (/). If the agent make the agreement
in that character, and his authority is denied, and he pays the
deposit, he may recover it back in his own name if a good title
cannot be made (m). If the agency be established, the agent will
be compelled to transfer the benefit of the contract to his prin-
cipal, although he made the contract in his own name, and swears
that it was on his own account («).
(/) Driver v. Cholmondelcy, 8 Carr. (/:) Hicks r. Hankin, 4 Esp. Ca. 114.
& Puyn. 559, n. ; llainy v. Vernon, ib. See East India Company v. Hcnsley, 1
559. ' Esp. Ca. ] 12.
(</) Murray r. Currie, 7 Carr. & Payn. (/) "Wyatt v. Allen, MS. App. No. fi.
584. (;«) Langstroth v. Toixlmiii, 3 Stark.
(h) Bull V. Price, 7 Bin?;. 237 : 5 Moo. Ca. 145.
& Pay. 2 ; and see Cannon i-. Kelly, 1 («) I^ccs v. Nuttall, 1 Russ. & Myl.
Hayes & Jo. Goo. " 53 ; 2 Mvl. & Kee. 819 ; Taylor v. Sal-
(i) See Ambl. 498 ; 10 Yes. jun. 400. mon, 4 Mvl. & Cra. 134.
[*46]
Ob PAYMENT OP THE PURCHASE-MONEY.
9. An agent employed to sell has no authority as such to
receive payment of the purchase-money (o) (1) ; nor has an auc-
tioneer, under common conditions, any authority to receive more than
the deposit (^).
10. And if an auctioneer, being anthorised to receive, give
credit to the vendee, or take a bill or other security for the pur-
chase-money, it is entirely at his own risk ; the vendor can compel
him to pay the money ((^) (2). As between an agent for the seller and
*a purchaser, it seems that an agent with an undisclosed principal
may vary the terms of payment after the sale is completed ; the prin-
cipal may interfere at any time before payment, but not to rescind
what has been before done. This is essential to the safety of the
purchasers. But if a man sell, acting as a broker, the moment
the sale is completed he is functus officii. The terms of the con-
tract cannot then be altered, except by the authority of the prin-
cipal (r).
11. But if the seller is indebted to his agent, whom he autho-
rises to receive the money out of which he intends the agent
should pay himself, the purchaser, to the extent of the agent's
debt against the seller, may discharge the purchase-money by
setting it oft' in account with the agent, if he is indebted to the
purchaser ; for this can make no difterence to the seller if the
agent takes care to receive in cash the balance due to the seller.
A person, however, who does not take the ordinary and proper
course of paying the whole in money, must take care to be able
to prove that the agent is in this situation. If, therefore, he pays
by a settlement in account, he takes upon himself the risk of being
able to show the debt due from the principal to the agent, and the
specific circumstances under which the agent was appointed to
receive the money (s).
(o)Mynur. Jolitfc, 1 Mood. & Kob. Blackst. 81. See "VViltshLro r. Sims, 1
326. " Camp. Ca. 258.
{p) See Sykes r. Giles, 5 Mces. & (r) See Blackburn r.Scholes, 2 Camp.
Wels. 64.5 ; a case of special conditions. Ca. 3-13.
(g) "Williams v. Millington, 1 11. (s) Barker v. Greenwood, 2 You. &
Coll. 414.
(1) But sec Yerby c. (Jrisby, 9 liCiRh, 387 ; Dunlap's Paley's Agency, 279 in
note ; Story, Agency, ^^ 108 and note; Hackney v. Jones, 3 Humph. 612.
Under a letter of attorney authorizing an agent to make sale of real estate and
receive the purchase money, he has authoi-ity to execute the proper instrument
required by law to carry the side into eli'ect. Yalentine v. Piper, 22 Pick. 85.
But he is not authorized in such case to make sale Avithout receiving the money.
Falls r. Gaither, 9 Porter, 605.
(2) See State of Illinois v. Delafield, 8 Paige, 527 ; S. C. 26 Wendell, 192; S.
C. 2 Hill, 160.
[*47]
PAYMENT OP THE PURCHASE-MONEY. 57
1*2. If the seller direct the purchaser to remit, or pay the pur-
chase-money in a particular manner, as by the post, or to a
banker's, the purchaser so remitting or paying the money will be
discharged, although it be lost, if he have used due caution in
the transaction (^) (1).
13. If a purchaser, instead of paying the deposit in cash, give
a cheque for it, and he might have recovered the deposit if paid
on account of a misdescription, for example, — the cheque, though
not given without consideration, may be avoided ; and therefore
he may successfully defend an action upon the cheque (u).
14. If a purchaser pay his money to the agent of the vendor
before the time when the latter is authorised to receive it, he
makes that agent his own for the purpose of paying over the
money to the right owner (x) (2).
15. If the seller for a valuable consideration direct his agent to
*pay over the proceeds of the sale to a third person, he cannot
revoke the order (y) (3).
16. A deposit is considered as a payment in part of the pur-
chase-money (z), and not as a mere pledge, which was also the
rule of the civil law where money was given ; but if a ring or the
like was given by way of earnest or pledge, it was to be returned (a).
17. The auctioneer should not part with the deposit until the
sale be carried into effect (b) ; because he is considered a stake-
holder, or depositary of it (c). And the same rule would of course
apply to a solicitor receiving a deposit (d). In a late case, where
the auctioneer was also the attorney of the seller, and paid over
the money to the seller after he knew that objections to the title
had been raised, an action against him for the deposit was sus-
(<) Warwick v. Noakcs, Peake's Ca. brose v. Ambrose, 1 Cox, 19-1 ; Palmer
67 a ; Hawkins v. Rutt, ib. 186 ; Evles v. Temple, 9 Adol. & Ell. 508 ; 1 Per.
T. Ellis, 4 Bing. 112. " & Dav. 379.
(m) Mills V. Oddy, 6 Carr, & Payn. («) Yiunius, 1. 3, 24.
728. (6) Eurrough v. Skinner, 5 Burr.
{z) See Pamtherc. Gaitskill, 13 East, 2639; Berry v'. Young, 2 Esp. Ca. 640,
432. n. ; Spurrier v. Eldcrton, 5 Esp. Ca. 1 ;
(y) Metcalf v. Clough, 2 Mann. & and aeejMst, ch. 10.
Ryl. 178. (f) Jones v. Edney, cor. Lord Ellen-
"(s) Pordage v. Cole, 1 Saund. 319; borough, 4 Dec. 18 i2.
see Main v. Melbourn, 4 Yes. jun. 720 ; (</) Wiggins v. Lord, 4 Bcav. 30.
Klinitz V. Surry, 5 Esp. Ca. 207 ; Am-
(1) Wakefield v. Lithgow, 3 Mass. 249.
(2) Story, Agency, ^ 98. But sec Scott v. Irving, 1 Adol. & Ellis, 005 ; Dun-
lap's Paley's Agency, 284 and note.
(3) See Hunt c. Itousmanicr, 8 "SMieat. 174 ; Mansfield r. Mansfield, 6 Conn.
•559 ; ^\^leeler r. Wheeler, 9 Cowen, 34; Story, Agency, ^ 477, and note; Dun-
lap's Palev's Agency, 184, 185 and note.
Vol.' I. ' 8 [*48]
58 OF THE UEPOSIT.
taineH, but the Judges cautiously abstained from pointing out the
duty of an auctioneer in any other case (e). However, in a hiter
case, where the auctioneer had paid over the deposit to the vendor,
without any notice from the purchaser not to do so, and before any
defect of title was discovered, it was held that the purchaser (the
title being defective) might recover the deposit from the auc-
tioneer {/). For the payment of the deposit depends u|X)n the
want of a good title being made out. If a good title is not
made out, the purchaser becomes entitled to his deposit ; and, in
strictness, an action may be maintained for it without giving notice
of the default to the auctioneer, (^g).
18. If both the parties claim the de]X)sit, the auctioneer may
file a bill of interpleader, and pray for an injunction, which will be
granted, upon payment into court of the deposit (A).
19. But if after the sale of the estate, and payment of a deposit
to the auctioneer, the estate be again sold to another purchaser
who also pays a deposit to the same auctioneer, and the seller
bring an action against the auctioneer for both deposits, and
each purchaser insists upon his contract, the auctioneer cannot
mix up the cases of the seller and the two purchasers in one bill of
interpleader (J).
*20. An auctioneer cannot maintain a bill of interpleader if he
insist upon retaining out of the deposit either bis commission or
the auction duty ; for interpleader is where the plaintiff is the
holder of a stake which is equally contested by the defendants, as
to which the plaintiff is wholly indifferent between the parties, and
the right to which will be fully settled by interpleader between
the defendants (k) (1).
21. If upon a bill filed for an injunction, the Court order the
deposit to be paid into court, it will, it seems, be after deducting
the auctioneer's charges and expenses (J), although perhaps this
deserves re-consideration ; for the purchaser's deposit may not
ultimately be the fund out of which those charges are to be paid ;
(e) See Edwards t'. Ilodding, 5 Taunt. 303; 1 Dan. 64.
815 ; 1 Marsh. 377. (/) Hoggart v. Cutts, 1 Cra. & Phil.
(/) Gray v. Gutteridge, 1 Mann. & 197.
Rvl. 614. ' (/.) Mitchell v. Harne, 2 Sim. & Stu.
\ff) Duncan v. Cafe, 2 Mees. & Wels. 63 ; see 11 Sim. 28.
244. (1) Annesley v. Muggridge, 1 Madd.
(A) Farebrother v. Prattent, 5 Price, 593.
(1) 3 Dan. Ch. Pr. 1753, 1754.
[*49]
OF INTERPLEADER. 59
but this is done without prejudice to any question as to so much
of the deposit as is retained (ni) (1).
22. Under the Interpleader Act (n), by which authority is given
to a court of law to make such order between such defendant and
the plaintiff as to costs and other matters as may appear just and
reasonable, the Court has gone the length of saying, that in the
first instance, upon application for a rule to interplead, the fund
shall bear the costs, and the party in the wrong shall afterwards
make up the fund (o). This operates severely against the right of
a purchaser entitled to a return of his deposit.
23. And in a case where the action was brought by the pur-
chaser against the auctioneer, and the seller had brought an action
against the purchaser for the residue of the purchase-money, and
the Court had ordered the money into court and directed the seller
to proceed with his action, but he failed to do so and became in-
solvent, the Court under the Act, directed that the seller's claim
against the auctioneer should be barred. The question then arose
as to the stakeholder's costs, and the Court allowed him to take
them out of the fund in court, that is, out of the deposit which
belonged to the purchaser, and left the latter to his right of action
against the insolvent seller for having subjected the purchaser's
deposit to this deduction, and the Court refused to take into ac-
count that the seller was insolvent (p).
24. In a case where 1,000Z. was paid as a deposit to an auc-
tioneer, according to the conditions of sale, and the vendor opposed
two motions by the purchaser, in an original and cross-cause filed
concerning the contract, for payment of the deposit into court, and
*the auctioneer became a bankrupt, the loss was holden to fall on
the vendor, although the second motion had succeeded, and the
day named for payment of the money into court was subsequent
to the bankruptcy (fi). And perhaps a loss by the insolvency of
the auctioneer will, in every case, fall on the vendor, who nomi-
nates him, and whose agent he properly is (r).
25. And unless an auctioneer disclqse the name of his principal,
(m) Yates v. Farcbrothcr, 4 Madd. 239. June 1807, :MS. ; S. C. 14 Ves. jun. 144.
(«) 1 & 2 Will. 4, c. 58. (r) See 2 H. Blakst. 592 ; 13 Ves. jun.
(o) 4 Bing. N. C. 723. 602 ; 14 Ves. jun, 150 ; Annesley i: Mug-
{p) Pitchers v. Edney, 4 Bing. N. C. gridge, 1 Madd. 593 ; Smith i." Lloyd, 1
721. Madd. G18.
(y)Bro-wnw. Fenton, eteconU Rolls, 23
(1) 3 Dan. Ch. Pr. 2011.
[*50]
60 OF INVESTING THE DEPOSIT.
an action will lie against him for damages on breach of con-
tract (*)(!).
26. Generally speaking, an auctioneer is not liable for interest ;
but that subject will be considered fully in the chapter on
interest (j).
27. An auctioneer being only an agent, may safely pay over the
proceeds of the sale to the seller, his principal, although the latter
is to his knowledge in embaiTassed circumstances (u) (I). It must
be a very special case in which he can set up theyus tertii (x) (2).
28. Where a man is completely the agent of the vendor, a pay-
ment to him is in law a payment to the principal ; and in an action
against the latter for recovery of the deposit, it is immaterial whether
it has actually been paid over to him or not (y) (3).
29. If, pending a suit for specific performance, a deposit be laid
out in the public funds, under the authority of the Court, it will be
binding on both vendor and vendee ; and, if laid out without
opposition by the seller, it must be presumed to be with his assent ;
and, in either case, he must take the stock as he finds it (2;).
30. If a purchaser is entitled to a return of his deposit, he is not
compellable to take the stock in which it may have been invested,
unless such investment were made under the authority of the Court,
or with his assent. And an assent will not be implied against a
party because notice was given to him of the investment, to which
*hemade no reply (a). Therefore, where the deposit is considerable,
and it is probable that the purchase may not be completed for a
(s) Hanson v. Roberdeau, Pcake's Ca. Ross. 298.
120;sceSimon r.Motivos, 3BuiT. 1921; {y) Duke of Norfollt v. Worthy, 1
Owen i\ Goocli, 2 Esp. Ca. 567 ; 12 Ves. Camp. N. P. 337.
jun. 352, 484. (r) Poole r. Riidd, 3 Bro. C. C. 49 ;
(<) Post, ch. 16, s. 1. and see Doylcv v. the Countess of Poms,
(u) White V. Bartlett, 9 Bing. 378 ; 2 2 Bro. C. C. 32 ; 1 Cox, 206.
Moo. & S. 515. (a) Roberts v. Massey, 13 Ves. jun.
(x) Crosskey v. Mills, 1 Cro. Mees. & 661 ; M'Cann v. Forbes, 'l Hogan, 13.
(I) K a man obtain possession of goods by fraud between him and the owner,
which an auctioneer sell for him, the auctioneer cannot safelv pay over the pro-
ceeds to his principfd after notice from the assignees of the" insolvent owner ;
Hardman v. Willcock, 9 Bing. 382, n.
(1) 2 Kent, (6th cd.) 630 et seq. ; Dunlap's Palcy's Agency, 372, 373, and in
notes; Mills v. Hunt, 20 Wendell, 431; Mauri" t;. Heffernan, 13 John. 58;
:M'Comb V. Wright, 4 John. Ch. 659 ; Story, Agency, i267 ; Jones v. Littledale. 6
Adol. & Ellis, 486.
(2) Story, Agency, >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 (</). But if
the scheme of selling by auction has been tried and failed, the
assignees are justified in selling by private contract (e). And a
purchaser may be bound, although the assignee may not have
strictly followed the directions of the creditors (/).
6. The insolvent's estate is to be sold within six months after
the appointment of the assignee, or within such other time as the
court for the relief of insolvents shall direct (§•).
7. The bankrupt's estate should be sold without delay, and
assignees will not be justified in postponing the sale against the
demand of any individual creditor (h). There appears to have been
a difference of opinion between Lord Thurlow and Lord Eldon upon
the point whether the Lord Chancellor had power to postpone the
sale against the demand of a creditor (i), although Lord Eldon fully
assented to Lord Thurlow's doctrine as a general rule (k).
8. A sale by private contract by an agent authorised to sell by
auction is not valid, although the price be greater than was re-
quired Q), nor could such a sale by trustees in the like case be
supported.
9. The sale may be made in lots or altogether, as may be
deemed most advantageous.
(J)) 10 Ves. jun. 309 ; as to rights of (r/) Sect. 47 ; see Doe v. Evans, 1
pre-emption given through trustees, see Crompt. & Mees. 450.
11 Ves. jun. 4oi, 4oo, and;ws^ ch. 4. (A) Ex parte Goring, 1 Yes. jun. 168.
{c) Per Lord Eldon, ex parte Dun- (<) 2ix;jarte Kendall, 17 Ves. jun. 519,
man, 2 Rose, 06. 522.
(rf) 1 & 2 Vict. c. 110, s. 42, 47, 48. (A) See 6 Ves. jun. 622, 623.
(ej Mather r. Priestman, 9 Sim. 352. {I) Daniel v. Adams, Ambl. 495 ; see
(/) Wright V. Maunder, 4 Beav. 512 ; post, ch. 4.
•nd see Borell v. Dann, 2 Hare, 440.
[*56]
68 TRUSTEES, &.C. SELLING BY AUCTION.
10. Where a trust estate was put up to sale by auction in
several lots, upon the deliberate opinion of the auctioneer that the
estate would sell most advantageously in lots, and such sale
*having been tried without effect, the estate was put up at the
same sale in one lot and sold, so that competition was not invited
by any previous notice that such a sale would take place, the
purchaser was, upon slight circumstances, refused a specific per-
formance Qn).
11. Where the sale by trustees, &;c. is made by auction, with all
those circumstances of caution which a provident owner would
have applied in the case of his own property, it would form no
objection to the specific performance of the contract that the
estate had not obtained a full price. Those who sell by auction
submit themselves to the chance of competition, and must abide
by it (?i).
12. Every trust deed for sale is upon the imphed condition that
the trustees will use all reasonable diligence to obtain the best
price ; and that in the execution of the trust they will pay equal
and fair attention to the interest of all persons concerned. If
trustees or those who act by their authority fail in reasonable
diligence — if they contract under circumstances of haste and
improvidence — if they make the sale with a view to advance the
particular purposes of one party interested in the execution of the
trust at the expense of another party, a court of equity will not
enforce the specific performance of the contract, however fair and
justifiable the conduct of the purchaser may have been. The
remedy of the law is open to such a purchaser, but he has no claim
to the assistance of a court of equity (o).
13. There have been cases, Lord Eldon observed, upon contracts
by trustees to sell, which is the situation of assignees, where the
Court has said, not that it will order the contracts to be cancelled,
but that if the trustee has been negligent, not taking that care to
preserve the interest of his cestui que tnisis which he ought to have
done, it will not pemiit the party dealing with him to take advan-
tage of that negligence ; if he was dealing with one whom he knew
to have a duty, and if that duty was plainly neglected, the contract
will not be enforced Q;).
(wijOrd V. Noel, 5 Madd. 438; sec 4il; Bridger v. Rice, 1 Jac. & Walk.
Hobson r. Bell, 9 Sim. 17. 74 ; \idepost, ch. 4.
(«) Per Leach, Y. C. ; Ord v. Noel, o {p) Per Lord Eldon, in Turner v. Har-
Madd. 440 ; see 3 Mer. 208. vev, Jac. 178 ; White v. Cuddon, 8 Cla.
(o) Per Leach, V. C. 5 Madd. 440, & iFin. 766.
1*57]
SALE STOPPED BY INJUNCTION. V
14. The usual direction is, to sell with all convenient speed,
which is no more than the ordinary duty implied in a trustee, and
there must necessarily be some discretion which the trustee may
*safery exercise (q) ; and if there are several trustees, one is not
bound to surrender his opinion as to the fittest time of sale to the
other (/•) ; and acting providently, they may buy in the estate ;
but trustees who do buy in an estate and delay the resale, incur
a great risk of answering i'or any loss which may be sustained (s).
Where the trust is for sale with a view to a conversion out and
out, the trustees must sell at once, and will not be justified in first
mortgaging the property (^).
•15, The Court has refused to stay a sale by trustees, although
to be made the next day, and the notice of the intended sale was
alleged to be much shorter than usual, because this was not one of
the cases in which, on account of irreparable injury to the plaintifi",
the Court proceeds in this summary way. If the trustees should
be guilty of a breach of trust in making the proposed sale, they
will be answerable to the cestui que trust for the damage sustained (ii).
But in a later case, where a trustee to sell in a mortgage had not
apprised the mortgagor of his intention to proceed to a sale, and it
being his duty to attend equally to the interest of both cestui que
trusts, and to apprise both of the intention to sell, so that each
might take the means to procure an advantagous sale, the Court
stopped the sale. If the trust for sale had been in the mortgagee
himself, the Court thought that the mortgagor might, where due
notice had not been given so as to afibrd a fair probability of an
advantageous sale, relieve himself by giving notice to the purchaser
that he had filed a bill to impeach the sale, and that it was better
to put him to the inconvenience of an additional party to his suit
'than to risk a possible injury to the mortgagee by interrupting the
bale (:c).
Injunctions ought not to be granted upon slight grounds in such
cases, but the opinion above quoted of Sir John Leach's, as to
giving notice instead of applying for an injunction, was one upon
which he frequently acted in other cases, but the rule was always
disapproved of by Lord Eldon.
16. Although a trust for sale has been established by decree,
(ry) GaiTctt V. NoUc, C Sim. oOi; (t) Haldenby f< SpofFortli, 1 Beav.
Buxton V. Buxton, 1 Mvl. & Cia. 80. 390.
(/•)Buxtour. Buxton, iMyl.&Cra. 80. (?<) Sir John Pccliel v. Fowler, 2
(«) See Taylor v. Tahruni, (1 Sim. 281. Anstr. ;)1"2.
Qn. If not heard upon appeal. (a-) Anon. G Madd. 10.
[*58]
7D TRUSTEES BUYING IN THE ESTATE,
yet if there be an appeal, the Court will, in a proper case, stop the
sale until the final decision (//).
*17. If a bill is filed for the execution of the trust, a sale cannot
be made without the leave of the Court (z).
18. If a trustee falsely represent the state of the jncumbrances
to a purchaser, he would, as we have seen, be bound to make good
the loss sustained through his misrepresentation (a).
19. Although a man selling his own property may sell subject
to such conditions as he pleases, yet trustees and assignees cannot
impose any conditions for the benefit of the creator of the trust or
the bankrupt, which would reduce the value of the property (b) (1).
But strict conditions of sale, although somewhat unusual, will not
lightly be deemed of such a depreciating character as to amount
to a breach of trust or constitute an objection to the title (c).
20. And all the trustees should see that the sale is duly made,
for they will be responsible for the act of any to whom they
delegate the duty (r/). For where several trustees sell, although
there is the usual clause that each shall be liable only for his own
receipts and defaults, yet if they allow one of them to receive and
retain the purchase-money, they will be answerable for any loss
occasioned by his dishonesty or insolvency (e). As soon as a trus-
tee is fixed with knowledge that his co-trustee is misapplying the
()/) Jenkins r. Ilcrrics, -whilst depend- (c) Hobson v. Bell, 9 Sim. 17.
ing in Dom. Proc. MS. (d) Sec 8 Price, 166, 167.
(;) 'Walker v. Smallwood, Ambl. 676. (e) Bone v. Cook, 13 Price, 332 ;
(a) See s»;jra, p. 0, 6. M'Clcl. 168; see Brice v. Stokes, 11
(6) Sec 3Mer. 268 ; Robinson i-. Mus- Ves. jun. 319.
grove, 2 Mood. & Rob. 92.
(1) In Goodalc i\ "WTieeler et al., 11 X. Hamp. 424, the case was, that a town
having a right in a meeting-house, voted to sell it by auction, upon certain terms
of sale prescribed by them, and appointed the defendants a committee for that
purpose. They accordingly advertised the property, and in addition to the con-
ditions prescribed by the town, they i:)rovided that ,'|20 of the i^urchase-moncy
should be paid at the time of the sale, to be forfeited to the town, if the purchaser
should not complete the contract. The plaintilf was the highest bidder, but
refused to make the deposit required, and the defendants tliereupon refused to
make a conveyance of the property to him. The plaintilf then brought a suit, on
account of such refusal by the defendants ; and it was decided by the court that
it was competent for the defendants to rc<iuire tlie deposit to be made, as it was
calculated to enable them to effect the purpose of the town by ensuring a sale ;
and that, as the plaintiff had not made the deposit, this action could not be main-
tained. The court, however, farther decided, that even if the defendants had no
authority to requii'c the deposit to be made, for a refusal to convey, they would
be liable to no persons but their employers. In reference to this last point, the
court said : — '* If they," [the defendants] " had refused to convey, so that the
town lost the opportunity of selUng the jiroperty, the tovn\ would have a remedy
against them by action." " It does not appear that the town have complained of
thcu- conduct ; and as they are satistied with the acts of their agents, no other
person has any right of action." 11 N. Hamp. 430.
1*59]
TRUSTEES BUYING IN THE ESTATE. 7 I
money, a duty is imposed upon him to bring it back into the joint
custody of those who ought to ta^e better care of it (/) (1).
21. An assignee of a bankrupt may buy in an estate with the
previous consent or subsequent approbation of the creditors (^) ;
but if he do so of his own authority he will be deemed the pur-
chaser, and held to the bargain (A) (2).
22. Upon a sale under an order in bankruptcy upon a petition
by the mortgagee, the assignees are not allowed to have a mere
reserved bidding, and if they buy in the estate without authority
they will be held to the purchase (i). If they desire actually to
bid for the property they may have permission, but then the pro-
(/) 11 Yes. jun. 327 ; ;je>- 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 <i "f
So in another case Avherc bv the conditions of sale, it was ])rovidca tnat, ii
the purchaser did not comply with the conditions, the property should be I't'^^oicl,
the officer was held not bound ujion a failure of the purchaser to comply ^\llll
the conditions, to make a second sale, though requested to do so by the clclena-
ant in the execution. Wgodhull r. Neatie, 1 Green Ch. 409. bee Ihompson r.
Dimond, 3 Edw. 295 ; Hewlett i\ "Da\'ies, 3 Edw. 338.
[*72]
86 OF PAYMENT OF PURCHASE-MONEY.
and the Court has refused in such a case to allow the next bidder
to stand as tlie purchaser, notwithstanding all the parties in the
cause desired it, as they apprehended the estate would not sell for
so much to any other person. Tlie estate was ordered to be resold
generally (c).
2S. When the report is absolutely confirmed, the purchaser is
entitled to a conveyance on payment of the purchase-money, and
may, after giving notice of his intention (/), apply to the Court for
leave to pay his purchase-money into the Bank (§•), and to be let
into possession of the estate ; but this application should of course
not be made until the title be approved of (Ji). When the money
is paid according to the order, the purchaser must, at his own
expense, obtain a certificate of the payment of it (1).
'24. If the estate be subject to an incumbrance which appears
upon the report, the purchaser should, after giving notice of his in-
tention (i), apply to the Court for leave to pay off the charge, and
to pay the residue of the purchase-money into the Bank. But
where an incumbrance on the estate does not appear on the report,
and any of the parties refuse, or are incompetent to consent, a
purchaser cannot apply any part of his purchase-money in dis-
charge of the incumbrance, though perhaps, if the parties be all
competent to consent, and do consent, it may be done (k).
25. Where two or more persons purchase one lot, the money
must be paid altogether ; the Court will not allow them to pay
their proportions separately, on account of the confusion which
might ensue (/).
26. In the Exchequer, purchase-money is allowed to be paid in
without prejudice to any objections which the purchaser may be
advised to make upon subsequent investigation (m). And this is
sometimes allowed in the Court of Chancery upon special applica-
*tion, but it is a practice not to be encouraged, and a purchaser will
not be allowed to pay in his purchase-money and to take posses-
sion of the property unless he accepts the title (n).
(e) Blackbeard v. Lindrigen, 1 Cox. (h) See 2 Fowl. Tract. 317.
205. (/) For a form of such notice, see 2
(/)Forformsoftlie notice, sec 2 Turn. Turn. Pract. G48.
Pr. 647 ; Park. Anal. 140. (A) v. Stretton, 1 Yes. jun. 266.
(y) For the mode of i)ayin!:; the money (l) Darkin v. Marve, 1 Anst. 22.
into the Bank, see 1 Turn. Pract. 210'; (m) Marfil v. Ruclge, 2 You. & Coll.
and for a form of the order, see 2 Fowl. .566.
Pract. 313. (/j) Hutton v. Mansell, 2 Beav. 260.
(1) But a purchaser of a Chancery sale is not answerable for any disposition
which the Court may make of the purchase-money. Brown v. Wallace, 4 Gill
& John. 479.
[*731
OF POSSESSION, RENTS AND PROFITS. 87
27. A purchaser under a decree is entitled to be let into posses-
sion of the estate from the quarter-day preceding his purchase,
paying his money before the following one (o) ; which proposition
has no relation to the time of his being declared by the master to
be the highest bidder, but to the confirmation of the report (p),
for until then he is not the purchaser (1).
28. Where a purchaser allows the time to elapse, he is entitled
to the rent only from the quarter-day preceding the payment of the
money into Court (2). This is the settled practice here, although it led
to a difference of opinion in Ireland before it was settled there (q).
29. And a purchaser is not entitled to the rents for a period
beyond the quarter-day preceding the payment of his money,
merely because he has been ready to complete his purchase, and
had his money ready lying dead in a banker's hands ; for he might
have moved to pay the money into Court, when it would have
been laid out ; and this, if done by special application, would not
have been an acceptance of the title (r).
30. When a mortgagee purchases, and his principal and interest,
calculated up to the last quarter day, exceed the purchase-money,
he will be let into possession as from the preceding' quarter-day (s).
31. But a purchaser will not be allowed profits not really belong-
ing to the quarter ; for example, a purchaser of a manor must pay
to the vendor the fines payable on account of deaths of copy-
holders before the quarter, although the admissions do not take
effect until after he is let into possession, for such fines will be
considered as having accrued before the period from which the
purchaser is entitled (t).
32. A life annuity stands upon a different footing, and a pur-
chaser will be entitled to it from the time he could have confirmed
the report absolutely, and pays interest from that day (jt).
33. And where a life interest was sold in three per cent, consols,
and reduced, and the day after the sale half a year's dividends on
(o) Twigg (,-. rifield, 13 Yes. jun. .517; (/•) Barker r. Harper, Coop. 32 ; Ilindlo
see Garrick v. Earl Camdeu, 2 Cox, 231 ; v. Dakciis, C. Coop. 381.
vide post, ch. IG. (s) Bates r. Bonner, 1 Sim. 427.
(;j) See 1 Hep. t. Plunk. 170, 177. {t) (iarrick v. Lord Camden, 2 Cox,
{q) See Gowan v. Tighc ; Prendergast 231.
V. Eyre, 1 liep. t. Plunk. 1G8. 180. (m) Twigg v. Fifield, 13 Ves. jun. 517.
(1) Immediate possession will not be ordered where it will be attended with
the loss of the then growing crops. Chajiline v. Chapline, 1 Bland, 364 ; Wright
T. Wright, 1 Bland, 3G.5 ; Taylor v. Colcgate, 1 Bland, 365 ; Dorsey c. Camiibell, 1
Bland, 3()o.
(2) In Wood V. Mann, 3 Sumner C. C. 318, the rents and profits were allowed
to the purchaser only trom the time of the completion of the conveyance.
88 OF THK CONVKYANCt.
the consols became due, and the purchase was confirmed, and the
money paid before the end of the month, the purchaser was held
to be entitled to the half year's dividend. Lord Eldon observed
*that the rule of the Court in the purchase of a fee simple estate
was to give the profits from the quarter-day preceding the pay-
ment of the purchase-money ; but was that so, he asked when a
iDan buys a life estate which may not last five minutes ? It would
be difficult to state any difference between the dividends on the
consols which became due the next day, and those on the reduced,
which were not payable till three months after. Could anything
turn upon the report not being confirmed ? There was a case
about a house being burnt 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 ? The report, he thought,
when confirmed, must have relation back to the purchase ; and the
contract was made the moment that the purchaser's name was
entered in the Master's book. If the tenant for life (I) had lived
till the day after the sale and then died, the purchaser would have
had nothing if he was not entitled to these dividends (r).
34. Nor does the general rule apply to a colliery, which is con-
sidered as a trade. The profits are settled monthly, and therefore
the purchaser is entitled to the profits only from the commence-
ment of the month in which he purchased, paying his purchase-
money in the course of that month (y).
35. If a purchaser enter into possession, he will be compelled to
pay the money into Court, although he entered with the permission
of the parties in the cause. The Court only can give such per-
mission (~).
3G. When the report is absolutely confirmed, and every thing
arranged, the draft of the conveyance must be drawn by the pur-
chaser's solicitor, and either settled by the Master, if the parties
insist upon it, or, which is more customary, by a conveyancing
counsel of whom the Master approves. The Master's clerk will, at
the purchaser's expense, ingross the deed, procure the report or
certificate of its being allowed, and then deliver the deeds to the
(x) Anson v. To-\vp;oocl, 1 Jac. & Walk. (//) Wren v. Kii-tou, 8 Ves. jun. 502 ;
637 ; see Vincent r. (iohv.;, 1 Flan. &Kcl. "Williams r. Attenborough, Turn. &
250 ; 3 Ir. Eq. Eep. -180 ; Vesev v- El- llu.ss. 70.
wood, 1 Flan. & Kel. 667 ; 3 Dru. & War. (c) Anon. L. I. Hall, 16 July 1816, MS.
75.
(I) In the report it is the purchaser, because the purchaser -was himself the tenant
for life, whose interest was sold.
[*74]
OF THE CONVEYANCE. 89
purchasers ; and it is usual to obtain the Master's signature to
every skin. The report must be filed (a).
37. It is usual, however, to so word decrees, that the draft shall
*not go before the Mast-er unless the parties differ. Where this
mode is adopted, the business is transacted in the same way as
upon a sale by private contract, unless the parties cannot agree, in
which case, resort is had to the Master.
38. When the deeds have been properly executed by all neces-
sary parties, an affidavit of the due execution of them must be
made, and filed in the affidavit office, and an office-copy of the
affidavit must be taken ; this being done, the money directed to be
paid in consequence thereof, may be procured in the usual man-
ner (6). When all proper parties have been directed to convey, and
a party to the cause withholds his concurrence, the motion that he
do convey should be made against him personally (c).
39. If the parties disagree as to the necessary parties, &;c. to
the conveyance, the Master will report his approbation of the draft,
as settled by him. To this report exceptions may be taken (c?),
and then the question will come before the Court in a regular
way.
40. It has been held that the purchaser obtaining the legal
estate cannot require, at the seller's expense, a release from equi-
table incumbrances whose demands have been satisfied by the
Court (c).
41. Where a Master is directed to settle a conveyance in case
the parties differ about the same, the party entitled to prepare the
conveyance is to bring in the draft of the conveyance into the
Master's office and give notice of his having so done to the other
party ; and at any time within eight days after such notice, such
other party will have liberty to inspect the same without fee, and
may take a copy thereof if he thinks fit, and at or before the expi-
ration of the eight days, or such further time as the Master shall
in his discretion allow, he must then either agree to adopt the con-
veyance or signify his dissent therefrom, and will thereupon be at
liberty to deliver a statement in writing of the alterations which he
proposes in the draft of the conveyance. But if he deliver no such
statement in writing, or if the other party refuses to adopt the pro-
(rt) 1 Turn. Pract. 145. Tipping v. Gartside, 2 Fowl. Pract. 328 ;
(6) 1 Turn. Pract. 145. Wakcman r. Duchess of Rutland, 3 Ves.
(c) StillwcU v. Mellersh, 4 Myl. & jun. 504.
Cra. 581. (e) Kcatingc v. Keatinge, 6 Ir. Eq.
(rf) Lloyd V. Griffith, 1 Dick. 103; Rep. 43 ; Webber f. Jones, »"6. 142.
Vol. I. 12 [*15]
90 OF COSTS in SALES BY COURTS OF EQUITY.
posed alterations in the draft of the conveyance, the Master is then
to proceed to settle the conveyance according to the practice of
the Court. And in case the Master shall adopt the proposed alter-
ations in the draft, the costs of the proceeding with respect to the
conveyance are borne by the other party (/).
*42. So if the parties differ as to the validity of the title to the
estate, the Master must make his report upon the title, to which
exceptions may in like manner be taken {g).
43. A purchaser must apply to the Court for the relief to which he
is entitled, and will not, for example, be permitted to bring an action
for any document of title, the possession of which he claims (h).
44. If the title prove bad, the purchaser will be paid out of the
funds in the cause, the costs of the orders for confirming him as
purchaser, of the reference, and of the application, and the expense
of investigating the title. The order in such a case is for payment
out of the fund, of the purchaser's costs of, and consequent upon
his having become purchaser, and also of the application, and his
reasonable charges and expenses of investigating the title (^).
45. If there are no funds in Court, the plaintiff will in a com-
mon case be ordered to pay the purchaser in ihe first instance (A:)
his costs, charges and expenses incurred in the investigation of. the
title, together with the costs of the application ; and this, although
the plaintiff be only a legatee ; but he will be at liberty to recover
them over in the suit (I).
46. In every case the purchaser is entitled to the costs of the
motion for a reference of title, and to the costs of that reference (rn).
Where the title proves good, the purchaser bears his own costs of
the investigation.
47. But if a purchaser is relieved from the purchase upon a col-
lateral ground which he ultimately takes, of course he will not be
allowed his costs of investigating the title (/?).
48. In a case before Lord Hardwicke (o), where a man having
bought an estate before the Master, filed a bill against the heirs at
law of a devisor under whom the title was made, and also against
the persons who were to convey the property, in order to have the
(/) General Order, 23d Nov. 1831, 7G. (/) Berry v. Johnson, 2 You. & Coll.
(^) For forms of exceptions, see 2 564.
Turn. Pract. 589. (w) Camden r. Benson, 1 Kee. 671 ;
(A) Stubbs V. Sargon, 4 Beav. 80. see Fielder v. Higginson, 3 Ves. & Bea.
(j) Reynolds v. Blake, 2 Sim. & Stu. 142 ; Reynolds v. Blake, 2 Sim. & Stu-
117 ; Attorney General v. Corporation 117.
of Newark, 8 Sim. 74. (n) Mageimis v. Fallon, 2 Moll. 592.
(A) Smith V. Nelson,-2 Sim. fc Stu. o67. (o) Mackrell v. Hunt, 2 Madd. 34, u.
[*76]
OF SALES CONTRARY TO A DECREE, 91
conveyance made, and to establish the will, and perpetuate the
testimony, and the bill was dismissed (but without prejudice to
the evidence for perpetuating the testimony) with costs as to the
heirs at law, who examined no witnesses, but contested the will
by their answer, and without costs as to the other parties, the pur-
chaser was allowed so much of the costs of the suit as related to
the perpetuating the testimony of the execution of the will, and
the costs paid to the heirs at law, although Lord Hardwicke did
*not think it was absolutel}'^ necessary to perpetuate the testi-
mony.
The purchaser, it will be observed, was not allowed the costs of
the suit so far as it sought a conveyance to him, which he could
have obtained without suit, and clearly the other costs would not
now be allowed to a purchaser, for he is not at liberty to file a bill
against adverse parties in order to clear up the title before a con-
veyance, much less to throw the costs of such a suit upon the
estate.
49. In a case where there was error in the decree under which
the estate was sold, the purchaser was discharged, upon motion,
from his purchase, although the parties were proceeding to rectify
it (^p). Lord Eldon said, that he would not extend the rule which
the Court had adopted, of compelhng a purchaser to take the estate
where a title is not made till after the contract, to any case to
which it had not already been applied, but as to costs. Lord Eldon
observed, that the rule in general was that the suitor must pay for
the mistakes of the Court. It was true the purchaser was not a
party to the suit, but still the other parties had been misled by the
Court ; they had been acting on its judgment, and it required con-
sideration whether they should be made to pay the costs. The
purchaser waived the costs, but he ought, it should seem, to have
been allowed them.
50. If a purchaser of an estate under a decree of the Court,
after the absolute confirmation of the report, and before any con-
veyance made to him, die, having devised his interest therein, the
Court will order a conveyance to be made to the devisees, without
the consent of the testator's heir at law where he is an infant (y).
5L If an estate directed to be sold before a Master, is sold by
private contract, or in any other manner contrary to the order of
(jo) Lechmere v. Brasier, 2 Jac. & Rep. 602; Calvert jj. Godfrey, 6 Beav.
Walk, 287 ; see Chamberlain r. Lee, 10 97.
Sim- 444 ; Plumtre v. O'Dell, 4 Ir. Eq. (9) The King r. Gregorj-,4 Price, 380.
[*77]
92 OF SALES BY COURTS OF EQUITY IN IRELAND.
the Court, and not actually conveyed to the purchaser, the Court
will not take notice of the sale, but will direct the estate to be sold
before the Master according to the decree (r). And a person who
has notice of the decree cannot be advised to purchase the estate
unless it be sold before the Master (s) : and the money should be
paid into court, and not to the party (t).
52. If an estate be sold contrary to the order of the Court, and
the purchaser had notice of the decree, he will have no remedy ;
*but if he bought without notice, he may recover at law for breach
of the agreement (u).
53. A sale before a Master is not within the statute of frauds,
and after confirmation of the Master's report of the best purchaser,
the sale will be cafried into effect even against the representative
of the purchaser, although he did not subscribe ; the judgment of
the Court taking it out of the statute (x).
54. And even if the authority of an agent not being admitted
cannot be proved, yet if the Master's report could be confirmed,
the sale would be carried into execution unless some fraud were
proved (y).
55. As a purchaser under a decree does by the act of purchase
submit himself to the jurisdiction of the Court, he may, if he
obtain possession of the estate before the contract is completed, be
restrained by injunction from committing waste (z) (1). .
(r) Annesley v. Ashurst, 3 P. "\Vms. («) Rajinond v. Webb, Lofft. 66 ; see
282. Sec &nd consider ex parte Hughca, Mortlock v. Buller, 10 Ves. jun. 314.
6 Ves. jun. 617. (x) Att. Gen. v. Day, 1 Ves. 218.
(s) See 3 vol. Ca. and Opin. 224, 225. (y) Att. Gen. v. Day, 1 Ves. 218.
(0 See 2 Scho. & Lef. 581 ; see Price (;) Casamajor c. Strode, 1 Sim. & Stii.
V. North, 2 Yoii. & CoU. 627, which qii. 381.
(1) "Where a person becomes a purchaser under a decree of the Court of Chan-
cery, he submits himself to the jurisdiction of the Court in that suit, as to all
matters connected with such sale, or relating to him in the character of purchaser.
Requa v. Rea, 2 Paige, 339 ; "Wood r. Mann, 3 Sumner C. C. 318.
SECTION II.
OF THE PRACTICE IN IRELAND.
[As this Section contains only a statement of the local practice
in Ireland, it is deemed superfluous to retain it in this place.]
[*78]
OF OPENTNG BIDDINGS.
93
^SECTION III.
OF OPENING THE BIDDINGS, AND OF RESCINDING
THE CONTRACT.
1. Opening biddings.
3. Advance required.
5. When report absolutely confrmed
advance of price not sufficient.
12. Fraud sufficient.
13. Costs of first purchaser.
14. Re-allotment upon re-sale.
16. Person present at sale mag open it.
17. Sham biddings.
18. Person opening not repaid his costs.
20. Where lots, all to be opened.
21. Opening sale of lots to differetit pur-
chasers.
SubstitiUinn of sub -purchaser.
Return of stock on rescinding con-
tract.
Inequitable sale rescinded.
But not a hard bargain.
Unless there is mistaA-e.
But there inust be tto delay.
Solicitor bound although only buy-
ing in.
Remedy against executors.
No costs to purchaser of extended
estate although Jio title.
1. Thus far we have traced a sale before a Master where no
opposition is made to the absolute confirmation of the Master's
report of the best bidder, and the sale is regularly concluded. But
where estates are sold before a Master under the decree of a court
of equity, the Court considers itself to have a greater power over
the contract than it would have were the contract made between
party and party (a) ; and as the chief aim of the Court is to ob-
tain as great a price for the estate as can possibly be got, it is in
the habit of opening the biddings after the estate is sold (1).
(«) See 1 r. Wms. 7-17.
(1) It appears from the report of the case of Wood v. Mann, 3 Sumner, C. C.
318, 319, that the biddings were re-opened under a decretal order of the Court.
But the English practice of opening biddings, upon an advance on a Master's sale,
is not recognized in New York, North Carolina, ^laryland, Tennessee, New Jersey,
or South Carolina ; Gardner v. Schermcrhorn, 1 Clarke, 101 ; Andrews c. Scot-
ton, 2 Bland, 629 ; Young r. Tcague, 1 Bailey Eq. 11 ; Seaman r. Kiggins, 1
Green Ch. 2U; Williamson ». Dale, 3 John. Ch. 290; Henderson c. Lowry, 5
Yerger, 230; Gordon r. Suns, 2 M' Cord Ch. lo8 ; and the (Jhanccllor of New
York, in Duncan r. Dodd, 2 Paige, 100, observes, that it is not desirable that it
should be introduced there. Sec also to the same cti'ect, Collier r. Whipple, 13
Wendell, 224. See farther upon the practice of opening biddings, Scott v. Ncs-
bit, 3 Bro. C. C. (Perkins* cd.) 475, notes (1), (a) and (b), and cases cited ; Anon.
1 Sumner's Vesey, 453, note (a) and cases cited ; Andrews v. Emerson, 7
Sumner's Vesey, 420, note (a); Chetham r. Grugeon, 5 ib. 86, note (a) ; Ander-
[=^84]
94 OF OPENING BIDDINGS.
2. Where a person is desirous of opening a bidding, he must, at
his own expense, apply to the Court, by motion for that purpose,
stating the advance offered. Notice of the motion must be given
to the person reported the purchaser of the lot, and to the parties
in the cause (b). If the Court approve of the sum offered, the ap-
plication will be granted, and on the order being drawn up, entered
and served, a new sale must be had before the Master. The order
is made at the expense of the person opening the biddings, and
he must bear the expense of paying in his deposit, and pay the
costs of the first purchaser (c), and interest at the rate of 41. per
*cent. on such part of the purchase-money as the Master shall find
to have lain dead (d).
3. Mere adv^ance of price, if the report of the purchaser being
the best bidder is not absolutely confirmed, is sufficient to open
the biddings (1), and they will be opened more than once, even on the
application of the same person, if a sufficient advance be offered (e) ;
but the Court will stipulate for the price, and not permit the bid-
dings to be opened upon a small advance (f) ; and, although an
advance of 10 per cent, used generally to be considered sufficient
on a large sum, yet no such rule now prevails (g") ; but 10 per
cent, has been accepted upon a sum under 1,000/. (h) ; and in the
case of a sale under a creditor's suit, the Court permitted the bid-
(6) For a form of the notice, see 2 jun. 140.
Turn. Pract. 649, 650. (/) Anon. 1 Yes. jun. 453 ; Anon. 2
(c) 2 Fowl. Pract. 318 ; 1 Turner's Ves. jun. 487 ; Upton v. Lord Ferres, 4
Pract. 131; see Sullivan v. Baylcy, 1 Ves. jun. 700; and Anon. 5 Yes. jun.
Flan. & Kel. 460, as to investigation of 148.
title. (y) Andrews v. Emerson, 7 Yes. jun.
{d) This was directed on opening the 4 ; White v. Wilson, 14 Yes. jun. 151.
biddings for Gen. Birch's estate, MS. See Anon. 3 Madd. 494.
(e) Scott r. Ni-sbitt, 3 Bro. C. C. 476 ; {h) Connell r. Hardie, 3 You. & Coll.
Hodges r. Jones, '2 Fowl. Pract. 318; see 677 ; Bourn v. Bourn, 13 Sim. 189. As
Baillie v. Chaigneau, 6 Bro. P. C. by to the rule in Ireland, see Hutchins v.
Toml, 313 ; Preston v. Barker, 15 Yes. Hutchins, 1 Ir. Eq. Rep. 378.
son r. Foulke, 2 Harr. & Gill, 346. The biddings will not be opened in New York,
except for sjiecial cause, and not then, imless the purchaser is fully indemnified
for all damages, costs and expenses, to wliich he has been subjected. Duncan v.
Dodd, 2 Paige, 100 ; Collier v. Whipple, 13 Wendell, 224 ; Lansing v. M'Pherson,
3 John. Ch. 425 ; Williamson v. Dale, 3 John. Ch. 290 ; Ilcqua v. E,ea, 2 Paige,
339 ; North Kivcr Ins. Co. v. Holmes, 1 Hotf. Ch. 146, 149 ; American Ins. Co. v.
Oakley, 9 Paige, 257 ; Post v. Leet, 8 Paige, 357. So in South Carolina, Frazier
V. Hull, 2 M'Cord Ch. 159 note (2). So in Maryland, Anderson v. Foulke, 2
Harr. & GiU, 346. So in Tennessee, Henderson r. Lowry, 5 Yerger, 240. See
Wood r. Hudson, 5 Munf. 423. Biddings will not be opened in South Carolina
because the price is too high or too low. Gordon v. Sims, 2 M'Cord Ch. 158.
The effect of opening the biddings is to discharge the purchaser from his pur-
chase entirely. Price v. Price, 1 Sim. & Stu. 386.
(1) But see Gordon v. Sims, 2 M'Cord Ch. 158; Gardners. Schermerhom, 1
Clarke, 101 ; Tripp v. Cook, 26 Wendell, 143.
[*85]
OF OPENING BIDDINGS. 95
dings to be opened, upon an advance of 5 per cent, on 10,000?. (i).
An advance of 350/. upon 5,300/. was refused, and it was said
that the former cases only estabhshed that where an advance so
large as 500/. is offered the Court will act upon it, though it be
less than 10 percent. (Jc). But in a /crfer case, 300/. was accepted
on 5,030/. (/), and 365/. (being 5 per cent.) on 7,300/. (m).
Biddings, it seems, will not be opened unless 40/. at least be
offered in advance (n) ; and the common rule does not apply to a
colliery (o) (1).
4. Where the timber is separately valued, the price upon which
the advance is to be made is the aggregate of the purchase-money
and valuation of the timber (jp).
5. The determinations on this subject assume a very different
aspect when the report is absolutely confirmed. Biddings are in
general not to be opened after confirmation of the report (y) : in-
*crease of price alone is not sufficient, however large, although it is
a strong auxiliary argument where there are other grounds.
6. In a case (r), however, before Lord Rosslyn, this rule, al-
though so frequently acknowledged and acted upon, was not at-
tended to, but biddings were opened after the report was absolutely
confirmed, merely on an advance of price. This case is now com-
pletely overruled,
7. But very particular circumstances may perhaps induce the
Court to open the biddings after confirmation of the report, if
the advance be considerable (I).
{{) Brooks V. Snaith, 3 Yes. & Bea,
144.
(A) Garstone v. Edwards, 1 Sim. & ( p) Bates v. Bonner, fi Sim. 380.
Stu. 20 ; Lefroy v. Lefroy, 2 Russ. 60G
Cochrane c. Cochrane, 2 Russ. & Mvl
684.
(I) Lawrence r. Ilalliday, 6 Sim. 296
see Ward v. Cooke, 9 Sim. 87
Coll. 723,
(m) Farlowi'. Wcildon, 4 Madd. 460
(o) WiUiams v. Attenborough, Turn.
& Russ. 70.
{q) 2 Ves. jun. 53 ; Scott r. Nisbitt, 3
Bro. C. C. 475 ; Boyer v. Blackwell, 3
Anstr. 656 ; Prideaux v. Prideaux, I
Bro. C. C. 287 ; 2 Yes. jun. 53 ; 1 Cox,
35 ; Aubrey r. Denny, 2 Moll. 508 ; Yin-
(m) Domville v. Berrington, 2You.& cent r. Thwaites, 5 Ir. Eq. Rep. 526.
(r) Chetham v. Grugeon, 5 Yes. jun.
86 ; and see his Lordship's decision in
Brookfield v. Bradley, 1 Sim. & Stu. 23 ; Prideaux v. Prideaux, ubi sujj. when
licland V. Griffith, 2 Moll. 510 ; see Lord Commissioner.
Mayne v. Macartney, 2 Ir. Eq. Rep. 324.
(I) In Ireland, a sale under a decree was actually set aside after the purchaser
was put in po.ssession, and the conveyance to him executed and registered, because
another person offered 200/. more than the purchaser had paid. Conran v. Barry,
Vern. & Scriv. 111. See Ex parte Partington, 1 Ball & Beatty, 209 ; see 3 Mont.
& Ayr. 545.
(1) There is in Ireland no tixed rule of advance; therefore the Court will
always open the biddings, where it is for the benetit of the estate to do so. Dig-
[*86]
96 OF OPENING BIDDINGS.
8. Thus in a case (s) where the owner of the estate . (who joined
in a motion for the purpose of opening biddings a^er the report
was absolutely confirmed) was in prison at the time of the confir-
mation, and it appeared that he would have opened the biddings
before confirmation of the report, had he been able, and had even
directed persons to bid more than what the estate sold for, who
deceived him, and an advance of 4,000/. (being more than one-fourth
of the original purchase-money) was offered, the biddings were
opened on the deposit of the 4,000Z. being made.
9. Strong as the circumstances in this case were. Lord Eldon
expressed great disapprobation of the decision, and determined
generally, that after a purchaser has confirmed his report, unless
some particular principle arises out of his character, as connected
with the ownership of the estate, or some trust or confidence, or
his own conduct in obtaining his report, the bidding ought not to
be opened (t).
10. And Lord Redesdale, also, in a case before him, held that
biddings could not be opened after the report was absolutely
confirmed, unless on the ground of fraud on the part of the pur-
chaser. And he considered it to the advantage of suitors to
observe great strictness in opening biddings, as it would procure
better sales (u).
*n. In a still later case. Lord Eldon adhered to the same rule,
and said tliat he could not do a thing more mischievous to the
suitors than to relax further the binding nature of contracts in
the Master's office; half the estates that are sold in the Court
being thrown away upon the speculation that there will be an
opportunity of purchasing them afterwards by opening the bid-
dings (x).
12. Fraud will, of course, be a sufficient ground for opening the
biddings (1). Therefore, if the parties agree not to bid against each
(s) "Watson v. Birch, 2 Ves. juii. 51 ; (m) Fergus v. Gore, 1 Schoales & Le-
4 Bro. C. C. 172. froy, 3-50.
(<) Morice v. the Bishop of Durham, (x) Wliitc v. Wilson, 1-1 Ves. jun. 151.
11 Ves. jun. 57.
by V. Browne, 1 Irish Eq. 377. Whether the biddings ^yi]l be opened or not is a
question to be determined by the particular circumstances of each case. Maj'ne
V. Macartney, 2 Irish Eq. 321 ; O'Connor v. Kichard, Sausse & S. 246.
(1) Collier v. Whipple, 13 Wendell, 224 ; Williamson r. Dale, 3 John. Ch. 296;
Tripp V. Cook, 26 Wendell, 146. So mistake in some cases. Laight r. Fell, 1
Edw. 577 ; Gordon r. Sims, 2 M'Cord Ch. 159 ; Post v. Leet, 8 Paige, 337 ; An-
derson V. Foulke, 2 Harr. & Gill, 346 ; Requa v. Ilea, 2 Paige, 339 ; American
Ins. Co. V. Oakley, 9 Paige, 259. So a sale will be opened and a resale ordered
when there is surprise upon any party in interest, created by the conduct of the
[*87]
OF OPENING BIDDINGS. 97
other (t/), or a survey be made of an estate with some degree of
collusion with the tenants (z), and it misrepresents the value and
quality of the estate, and some of the purchasers are aware of this
fraud in making the survey, and the owner is ignorant of it ; or
the purchaser of the estate be partner with the solicitor of the
cause, and is in possession of some particular knowledge to the
benefit of which the other parties were entitled (a) (1), or is the re-
ceiver, and buys in the name of a third person, without the leave
of the Court (b) ; in all these cases the Court would open the bid-
dings, although the report had been absolutely confirmed. And
lately in Ireland biddings were opened after confirmation, because
the plaintiff in a foreclosure suit was the purchaser, although he
was by the practice at liberty to purchase (c).
13. Where the biddings are opened, the advance is to be depos-
ited iaimediately (d), and the costs of the purchaser to be paid
by the persons opening the biddings (e) ; but the Court will not
direct the Master to allow a specific expense (/)• If the last
purchaser himself opened the biddings, the person again open-
ing them must pay the costs of the former opening (^).
14. If the biddings are opened, the estate may be allotted for
sale in a different manner to what it at first was (A).
15. As the biddings are opened for the benefit of the suitor, no
other person will be favored in that respect. Thus, upon a mo-
tion to open a bidding of 5,020Z. (i), upon the ground of mistake as
*to the time of sale, and an over-bidding of 150/. ; the Lord Chan-
cellor refused it, saying, he would not open it for a less sum than
500/., and that the circumstance that the bidder was too late was
no ground at all.
16. The person who is desirous of opening the biddings having
been present at the sale, and having bid, is no objection to their
(y) Sec 2 Yes. ]\xn. .j2. (rf) Anon. G Yes. jun. 513. See Anon.
(z) Ilyder v. Gower, 6 Bro. P. C. IIS ; 1 Hayes & Jo. 719.
and see 2 Yes. jun. 53. (e) .See "Watts r. Martin, 4 Bro. C. C.
(«) Price V. Moxon, July 14, 1754, 113 ; and see ibid. 178 ; Upton v. Lord
before Lord Ilardwicke. Sec 6 Bro. P. Ferrers, 4 Yes. jun. 700. See Digby v.
C. loo ; 2 Yes. jun. 54. Browne, 1 L.-. Eq. Hep. 377.
(6) Alvcn r. Bond, 1 Flan. &Kel. 196. (/) Anon. 1 Yes. jun. 286.
(c) O'Connor v. Richards, 1 Sauss. & (17) See 6 Sim. 382.
Scul. 246 : but see tliis explained in 1 (h) Watts r. iLirtin, 4 Bro. C. C. 113.
Flan. & Kel. 210. Sec Ward v. Cooke, 9 Sim. 87.
(t) Anon. 1 Yes. jun. 453.
purchaser or other person directing the sale ; so when the interests of infants are
concerned in opening the sale, or where a guarantor has misundei-stood his liabil-
ity. G-ardner v. Schermerhorn, 1 Clarke, 101 ; Francis v. Church, 1 Clarke, 475.
(1) See Brinkerhotf v. Bro-s^-n, 4 John. Ch. 675.
Vol. I. 13 [*88]
98 OF OPENING BIDDINGS.
being opened, although a greater advance may, on that account^
be required (k). Nor is it material that the applicant is entitled to
a part of the produce of the estates (I).
17. A man opening the biddings on behalf of a person not in
existence, will himself be decreed to be the purchaser, and sham
biddings on such a resale will be set aside by discharging tlie report
of the bidders being the best, and the Master will be directed to
report the person who procured the biddings to be opened as the
best bidder at the price at which he opened them (m), although
this might not fully meet the justice of the case in some in-
stances.
18. Where a person is permitted to open the biddings upon the
usual terms, paying the costs, and making a deposit, and the estate
is bought by another person, the person opening the biddings is
entitled to take back his deposit ; but he is not entitled to an
allowance for his costs, as they are in the nature of a premuim paid
by him for the opportunity of bidding (n).
19. Under special circumstances, however, they might be allowed.
If a person came forward for the benefit of the family, and the
estate at the first sale was knocked down by mistake, or sold at a
great under-value, he would be allowed his expenses (o).
20. It seems, that if a person purchase several lots of an estate
and the biddings are opened as to one, he shall have an option to
open them all (p). The person desirous of opening the biddings
as to some of the lots must submit to take the others at the sum
*for which they were sold, if the purchaser desires to relinquish
them, and they shall not upon the resale fetch that sum (y). This
is with a view to protect the estate from loss.
In two late cases the distinction was taken that where the lots,
the biddings for which are sought to be opened, were purchased
before the other lots bought by the same purchaser, he is entitled
(/i) Kigby V. M'Xainara, 6 Ves. jun. 466 ; Earl of Macclesneld ». I31ake, 8
117. See Tait r. Lord Xorthwick, 5 Ves. Yes. yun. 214; Trefusis v. Clinton, 1
jun. 65.5 ; see 15 Ves. jun. 14 ; and see Ves. & Beam. 361 ; Chester v. Gorges,
M'CuUock V. Cotbach, 3 Madd. 314, 2 Moll. 505.
■where the Vice-chancellor ruled contra ; (o) Earl of Macclesfield v, Blake, ubi
but the rule is established by ThornhiU sup. ; Owen v. Foulkes, 9 Ves. jun. 348 ;
*. ThornhiU, 2 Jac. & Walk. 347 ; Pear- West v. Vincent, 12 Ves. j:un. 6; Chap-
son 1-. Pearson, 13 Price, 213 ; Tyndale man v. Fowler, 3 Hare,. 577. See Filder
v. Warre, Jac. 525 ; Lefi-oy v. Letroy, 2 r. Bellingham, 1 Coll. S'. C. 526, -where
Russ. 606 ; Biggs v. Rowe, 1 Saus. & interest abo was allowed.
Scul. 152. . ( p) See Boyer r. Blackwell, 3 Anstr.
(/) Hooper v. Goodwin, Coop. 95. 657 ; ex parte Tilsley, 4 Madd. 227, n. ;
(7?t) MolesAVorth v. Opie, 1 Dick. 289. see 2 Myl. & Cra. 726, 731.
(m) liigby r. M'Namara, 6 Ves. jun. (y) Bates t\ Bonnor. 6 Sim. 380.
[*89] '
am
OF RESCINDING THE SALE. 99
to have the biddings opened as to all the lots (r) ; but the rule
ought to be universal.
21. Where several lots are sold to different purchasers, a separate
motion must be made to open the biddings for each lot ; one
motion to open all, although on an advance of a certain sum for
each lot, will not be permitted (s).
22. If after the report is absolutely confirmed, the purchaser
sell to another, the second purchaser may be substituted in the
place of the first purchase!', although he (the first purchaser) is
dead and his heir is abroad (t),
23. If a purchase be rescinded, and the purchaser has paid his
money into court, and it has been laid out upon his application,
he is to take back the stock, whether the funds have fallen or risen
since the investment (u).
24. The authority which the Court has over these contracts
enables it in a proper case to relieve the purchaser as well as the
suitor. Therefore, where the contract is inequitable, the purchaser,
on submitting to forfeit his deposit, will be discharged from his
purchase (x) (1).
25. Where, however, the contract is not inequitable, a purchaser
must proceed in his purchase, and will not be permitted to forfeit
his deposit, and abandon the contract, however disadvantageous
it may be (2).
Thus, on an application to the Court by the person who opened
the biddings for General Birch's estate (y), to forfeit their deposit,
which was resisted by the creditors for whose benefit the estate was
sold ; the Court held the purchasers to their bargain, and would
not permit them to rescind the contract, although they had given
a price which was considered much beyond the value of the
estate,
*26. But where the purchaser has by mistaJce given an unreason-
(r) Price v. Price, 1 Sim. & Stu, 386. See 1 Per. & Dav. 387 ; 9 Adol. & EU.
(5) Goodall V. Pickford, 6 Sim. 379. 520 ; in Ireland, Gregg v. Glover, 1 Ir.
{t) Pearce v. Pearce, 7 Sim- 138. Eq. Rep. 211.
(m) Hodder v. Ruffin, V. C, 21 Mar. (y) MS. ; and see Sewel v. Johnson,
1825, MS. Bunb. 76.
(x) Savile r. Savile, 1 P. Wms. 745,
(1) See Gardner v. Schermerhorn, 1 Clarke, 101 ; Tripp v. Cook, 26 Wendell,
143 ; Reed v. Brooks, 3 Litt. 127 ; Hart v. Bleight, 3 Monroe, 273 ; Gist v. Fra-
zier, 2 Litt. 118.
(2) Wood c. Mann, 3 Sumner, C. C. 318.
[*90]
wo OF rescindin;g the sale.
able price for the estate, the Court \yill in a proper case wholly
rescind the contract (1).
27. This equity was enforced in the case of Morshead v.
Frederick (r), where it appeared that Smiths, the bankers, were
tenants in possession of the house in question, for which they paid
two rents, one a ground rent of 5G/. to the defendant, and the
other an improved rent of 210/. to a third person. The house was
directed to be sold, under a decree ; and the plaintiffs, by a broker,
treated for the purchase of it, and employed him to value it. The
broker had an interview with the attorney concerned in the sale,
who stated, that the rent payable for the house was the 56/. and the
broker valued the estate accordingly. A written agreement was
not entered into, but the contract was approved of by the Master,
and the money paid into the Bank. The purchasers then moved
the Court to rescind the contract, on the ground of mistake, and
the broker proved that the purchasers had not informed him of the
rent of 210/. ; and that he was ignorant of the existence of it at
the time he made his valuation : and the Court ordered the purchase-
money to be repaid, and rescinded the contract. This, however,
may be considered a strong case. It might be argued that the
purchasers' only equity was their own negligence.
28. If a party be entitled to come to the Court to rescind a sale
not completed by conveyance, on the ground of mistake, he must
not be guilty of delay after the mistake is discovered (a) (2).
29. Although the solicitor in the cause buy in an estate merely
to prevent a sale at an undervalue, yet if he act without authority
he will not be discharged from his purchase. Lord Eldon has
said, that it would be a very wholesome rule to lay down, that the
solicitor in the cause should have nothing to do with the sale ; as
the certain effect of a bidding by the solicitor in the cause is that
the sale is immediately chilled (b).
(s) Ch. 20 Feb. 1800, MS. App.No. 7. (b) Ncltlioi-pc v. PennjTnan, 14 Ves.
See Coote r. Coote, 2 Ir. Eq. Rep. 159. jun. 517. See ex parte Tomkins, Ch. 23
(0) Price V. North, 2 You. & Coll. Aug. 1816, MS. App. No. 8; ex parte
620. Lucas, 1 Mont. & Ayr. 93.
(1) So a sale Tva."? set aside at the instance of the purchaser, on account of a
serious mistake in the representation of the lands. Gordon v. Sims, 2 M'Cord Ch.
159 ; Laight v. Pell, 1 Edw. 577. So a sale was set aside because the proi^erty
was knocked off to the purchaser prematurely, by a mistake of the auctioneer,
who did not hear a higher bid. Gordon v. Sims, 2 M'Cord Ch. 159. See Anderson
f. Foulke, 2 Harr. & GUI, 346. See, for other causes for Avliich a resale will be
ordered, Millspaugh i'. McBride, 7 Paige, 509 ; Tripp v. Cook, 26 Wendell, 143 ;
BroA\Ti V. Frost, 10 Paige, 243 ; American Ins. Co. v. Oakley, 9 Paige, 259.
(2) Hough V. Richardson, 3 Story C. C. 659 ; Doggett r. Emerson, 3 Story C.
C. 700 ; Veazie i-. Williams, 3 Story C. C. 611 ; Vigers r. Pike, 8 Clarke & Fin.
o26.
OF RESCINDING THE SALE. 101
30. Where a person bought under the decree for another who
died without having adopted the contract, although dn order nisi
to confirm the purchase in his name had been obtained, the Court
refused to order the executors of the purchaser to pay the purchase-
money, and the heir decHning the purchase, the order nisi was set
*aside, and a re-sale ordered, and the consideration as to any defi-
ciency that might arise on the re-sale, and by whom the costs of
it were to be repaid, were reserved ; it was held that the executors,
in a purchase by their testator from the Court, could not be com-
pelled by the heir to pay for the estate without filing a bill (c).
31. If an extended estate be sold under the 25 Geo. 3, c. 35,
and the sale be confirmed by the Remembrancer's report, and the
usual orders, yet where a good title cannot be made, the Court of
Exchequer will, upon the motion of the Crown, discharge the pur-
chaser without payment to him of any costs incurred in investigating
the title, or in procuring the reports (d).
(c) Lord V. Lord, 1 Sim. 503.
Id) Rex V. Cracroft, 1 M'Clel. & You. 460.
[*911
102 OV PAROL AOREEMKNTS.
^CHAPTER III.
OF PAROL AGREEMENTS.
With a view to prevent many fraudulent practices which were
commonly endeavored to be upheld by perjury, it was enacted by
the 29 Car. II. c. 3, usually called the statute of frauds, that (a)
" all leases, estates, interests of freeholds, or terms of years, or any
uncertain interests of, in, or out of any messuages, manors, lands,
tenements, or hereditaments, made and created by livery and seisin
only, or by parol, and not put in writing by the parties so making
or creating the same, or their agents thereunto lawfully authorized
by writing, shall have the effect of leases or estates at will, any
consideration for making any such parol leases or estates notwith-
standing." But, nevertheless, leases not exceeding three years,
whereupon the reserved rent should amount to two-thirds of the
full improved value, were excepted (b). The Act then requires the
assignment, grant, and surrender of existing interests to be made
by writing (c) ; and then (d) enacts that " no action shall be
brought, whereby to charge any person upon any agreement made
upon any contract, or sale of lands, tenements, or hereditaments, or
any interest in or concerning them (I), unless the agreement, upon
which such action shall be brought, or some memorandum or
note thereof shall be in writing, and signed by the party to be
charged therewith, or some other person thereunto by him lawfully
authorized."
In treating of these legislative provisions, we may consider —
1. What interests are within the statute : — 2. What is a sufficient
agreement : — 3. What agreements will be enforced, although by
parol : — and we may reserve for a separate chapter the considera-
tion of the cases in which parol eivdence is admissible to vary or
annul written instruments.
(a) Sect. 1. (c) Sect, 3.
(6) Sect. 2. Id) Sect. 4.
(I) "Or upon any agreement not to be performed mthin a year;" which clause
does not extend to any agreement concerning lands, llollis v. Edwards, 1 Vern.
lo9. It is quite clear, that an agreement for sale of lauds must be in writing,
although the contract is to be performed the next day. See Bracebridge v. Heald,
1 Barn. & Aid. 722.
[*92]
OF THE STATUTE OF FRAUDS.
^SECTION I.
OF THE GENERAL CONSTRUCTION OF THE STATUTE.
lUS
1. Construction of first section.
3. Construction of fourth section.
5. Construction of third section. Sta-
tute o/ 8 1.^ 9 Vict.
Parol license valid.
Collateral agreement valid.
Void agreement may operate as a
license.
1. It was observed in the case of Crosby v. Wadsvvorth (e), that
collecting the meaning of the first section by aid derived from the
language and terms of the second section, and the exception
therein contained, the leases, &ic. meant to be vacated by the first
section, must be understood as leases of tlie like kind with those in
the second section, but which conveyed a larger interest to the
party than for a term of three years, and such, also, as were made
under a rent reserved thereupon ; and the Court therefore deter-
mined that a sale of a standing crop of mowing grass, then grow-
ing, was not within the first section of the statute, because neither
of the foregoing circumstances was to be found in the agreement,
although, as the agreement conferred an exclusive right to the
vesture of the land during a limited time, and for given purposes,
it was, the Court held, a contract or sale of an interest in, or at
least an interest concerning lands.
2. It was not, however, necessary in the above case, to decide
upon the precise construction of the first section, which seems in
this respect to be co-extensive with the fourth, and, consequently,
every interest which is within the fourth section is equally within
the first, unless it come within the saving of the second sec-
tion. The first and second sections appear to enact, that all
interests actually created without writing shall be void, unless in
the case of a lease not exceeding three years, at nearly rack-rent,
which exception must have been introduced for the convenience
of mankind, and under an impression that such an interest would
not be a sufficient temptation to induce men to commit perjury.
Perhaps, therefore, the first section ought to extend to every pos-
(e) 6 East, 010.
f*981
104 OF THE FIRST FOUR SECTIONS
sible interest which is not within the exception in the second
*clause. If an estate, of whatever value, should be conveyed to a
purchaser by livery of seisin, without writing, the act would avoid
the estate, although the purchaser had paid his money. An
actual lease for any given number of years, whether with or with-
out rent, or any interest uncertain in point of duration, must, it
should seem, equally fall within the provision of the first section,
and cannot be sustained unless it come within the saving in the
second section (/).
3. This, however, of itself would not have prevented all the
evils which the act intended to avoid ; for although actual estates
could not be created, yet still parol agreements might have been
entered into respecting the future creation of them. To remedy
this mischief, the provision in the fourth section was inserted,
which, it is conceived, relates not to contracts or sales of land, &z,c.,
but to any agreement made upon any contract or sale of lands,
&;c. (I), and as agreements were more to be dreaded than contracts
(/) See Lord Bolton v. Tomlin, 5 see Cooch v. Goodman, 2 Adol. & Ell.
Adol. & Ell. 857, for the extent of the N. S. 596.
second section; as to the first section,
(I) This appears to be the true meaning of the statute, although this branch of
the fourth section has been sometimes read as a distinct clause, in -n-hich case the
■word arjrcenient is dropped, and the clause runs thus, " no action to be brought
upon any contract or sale of lands," &c. See Anon. 1 Ycntr. oGl, and 6 East, Gil,
and ^Icchelem v. "Wallace, 1 iN'ev. & Per. 224 ; but this clause seems to be gov-
erned by the preceding one in the same section, as to agreements made upon con-
sideration of marriage. The statute says, no action to be brought, " to charge
any person upon any agreement made upon any consideration of marriage, or upon
[any agreement made upon] any contract or sale of lands," ice. The words be-
tween crotchets must, it is submitted, be implied. At the same time, there is cer-
tainly ground to contend, that the clause would have the same operation if not
governed by the words in the preceding clause.
The statute seems to have been strangely misuirderstood in the case of Charle-
wood V. Duke of Bedford, 1 Atk. 497, the report of which agrees with the Reg-
istrar's book. The object of the bill was to compel the performance in specie of a
parol afpyemcnt, by the Uukc's steward, to grant a lease. The case, therefore, fell
within the fourth section, but the defendant pleaded the first, and to bring his
case within it, stated the words of the statute, at the close of that section, to be
" any contract for makiiig such lease, or any former law to the contrary notwith-
standing." The words really nrc "any consideration," &c. The framer of the
plea must have adopted an error ^^•hich has been sometimes entertained, that the
first section relates to leases, and the fourth to sales, and tliis notion compelled
him to alter the statute in the way he did, for he covdd not otherwise have brought
his case within it. It is obsen-able that Lord C. B. Comyns, before whom the
cause was heard, did not notice the mistake.
Lord Keeper North seems to have entertained the erroneous opinion above
noticed ; for, in a case which came before him on a parol agreement for a lease,
he said that the difficulty that arose upon the act was that it makes void the estate,
but does not say the agreement itself shall be void, and therefore, though the es-
tate itself is void, yet, possibly, the agreement may subsist, so that a man may recov-
er damages at law for the non-performance of it ; and if so, he should not doubt
to degree it inequity ; and he actually sent the parties to law, in order to have the
[*94]
OF THE STATUTE OF FRAUDS. 105
'"'actually executed, no exception was inserted after the fourth sec-
tion, similar to that which follows the first section, and conse-
quently an agreement by parol, to create even such an interest as
is excepted in the second section, would be merely void (1).
4. If this be the true construction of the Act, it answers the pur-
poses for which it was passed, and the question in all cases must
be — Is the interest in dispute actually created by the parties, or
does the contract rest in fieri 1 If it be actually created, it is
avoided by the first section, unless saved by the second. If it be
not actually created, the agreement cannot be enforced by reason
of the fourth section, whatever be the nature of it. But if the first
section were to be restrained beyond the express provisions of the
second section, then, although every parol agreement for any in-
terest in lands would be void, yet many estates might still be
actually raised by parol. The first section, however, seems to em-
brace interests of every description, whilst the exception relates
only to leases of a particular description. One consequence of
qualifying all the interests specified in the first section, in the
manner proposed by the aid derived from the second section, would
be, that an estate in fee might still, as formerly, be conveyed by
livery of seisin without writing. But if the doctrine should even
be confined to leases, it would open a considerable door to perjury.
If the two requisites are to concur to bring a lease within the first
section, namely, a larger interest than that mentioned in the
second section, and a reserved rent, then it should seem that a
lease by parol for a thousand years without rent would be valid,
notwithstanding the statute. If one only of these requisites be
essential, yet cases of importance may be taken out of the Act ;
an estate, however valuable, may be claimed under a parol lease
for any term short of three years without rent. This is the temp-
tation to perjury which the statute intended to remove. And
this mischief must necessarily follow, that if the parties swear
to an agreement for such an interest, it will be within the statute ;
point decided, and for that purpose directed the defendant to admit the agree-
ment. Hollis V. Edwards, 1 Vern. 159. The plaintiff was of course nonsuited
in the action, and thereupon Lord North dismissed the bill. His impression be-
fore the trial must, it should seem, have been that the tirst section related to
leases, and the fourth only to sales ; or at least he must have thought that the
fourth did not embrace agreements for leases.
(1) A parol contract to buy land jointly and divide it, is void under the statute
of frauds. Henley v. Bro^^•n, 1 Stewart, 144. So an agreement to procure an-
other to convey land. Gray v. Fatten, 2 B. Monroe, 12.
Vol. 1. 14 [*95]
whereas if they swear to an actual demise, the case will be taken
out of the statute.
5. The construction suf^gested in Crosby v. Wadsworih, of the
first section of the statute, has since been attempted to be extended
to the third section. It has been contended that the leases men-
tioned *in the third section, as requiring to be assigned by writing,
must be intended such leases as are required by the first and
second sections of tl>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<<tcalf, 251, there was an agreement for an in-
terest in land of a more pcnnancnt character, and being by parol, the court held
it to be of no legal validity as against a subsec^uent grantee of the land. In this
case S. gave to J. an oral license to erect and continue a mill dam on S.'s land,
and to dig a ditch throngh said land, to convey water to a mill that J. was about
108 PAROL LICENSE VALID.
the sole use of that part of the close upon which he was to have
the liberty of stacking coals (I). Lee, C. J., and Dennison, held
the agreement to be good. They relied upon the case of Webb
(I) Sayer is but an inaccurate reporter. It is not stated, but the fact is, that an
annual payment was reserved in respect of the easement.
to build on his own land ; J. erected the dam and dug the ditch, and afterwards
erected the mUl, and continued them tlu'cugh the life of S. ; After 8. had granted
said license, he conveyed his land to M., without any reservation ; J. continued
the dam and ditch, after the decease of S., for the purpose of working said mill,
and M. requested him to remove the dam and fill up the ditch, and, upon J.'s
refusal so to do, M. attempted to remove the dam, and tore down a part of it,
and J. forcibly interposed, prevented M. from proceeding farther, and repaired the
injury so done to the dam by M. The court held that J. was not responsible for
any acts done in pursuance of the license before it was countermanded, and there-
fore was not liable to pay any expenses incurred by M. in removing the old dam ;
but that he was liable for building a new dam or repaiiing the old one, after the
license was countcmianded, and that M. Avas entitled to have the same abated at
the expense of J. In this case Wilde J. said ; "The defendants claim a perma-
nent interest in the plaintiif 's land, and this claim has been maintained by force,
against the will of the plaintiff; and there is no case in which it has been deci-
ded that such an iiiterest can be created by parol. Such a decision would be
against the express language of the statute of frauds. In the case of Wood v.
Lake, Sayer, 3, it was decided by a majority of the court,, that a parol agreement,
granting a license to stack hay on the land of the grantor for seven years, was a
valid contract, notwithstanding the statute of frauds. It is said in that case, that
the agreement was only for an easement, and not for an interest in the land. But
the true ground of the decision appears to be, that the agreement was not with-
in the words of the statute, not being an agreement, for any uncertain interest in
land. If tliis was the ground of decision in that case, it would not be applica-
ble to the provision in Mass. Rev. Stat. c. i)7, § 29. But it is perfectly well set-
tled, in England, that no incoriDoreal right, in the nature of an easement, can be
created or conveyed by a parol agreement ; although a parol license mat/ be an ex-
cuse for a trespass, till such license is countermanded ; and that a freehold interest
can be created or conveyed only by deed."
In Sampson v. Burnside, 13 N. Hamp. 26-1, it was decided that a parol license,
to enter on land and lay down aqueduct logs, for the purpose of conveyuxg water
from a spring to adjoining land, with license to enter from time to time to exam-
ine and repau- the same, is not a sale of land, or an interest in land, within the
statute of frauds, so far as that such license may not be set up in answer to an
action of trespass for an entry on the land imder such license, while it remains
unrevoked. I'pham J. in tliis case said; " Where a license is given, and entry
made in pursuance of it, the individual entering is of course not a wrong doer.
He cannot be regarded as guilty of a trespass, when he entered by express per-
mission of the owner of the land, any more than the servant, who enters on land
wliile in the ordinary employ of his master and under Ms immediate direction,
can be regarded as a trespasser. That a license may be given, and the person re-
ceiving it act under it Avithout being liable as a trespasser, until it has been revoked
prior to suit, seems not to have been contested. In the case of Mumford v. Whit-
ney, 15 Wendell, 380, Mr. Chief Justice Savage, held that a Ucense was a mere
authority to do a particular act, as to hunt, or fish, or erect a temporary dam, and
conveyed no interest in land. Such license is executory, and may be revoked at
pleasure ; but acts done under it before revocation are no trespass. In Bridges
V. Purcell, 1 Dev. & Bat. 492, it was held, that a mere Ucense is revocable, but
acts done under it until countermanded are lawful. And in Barnes v. Barnes, 6
Vermont, 388, it is held that a License to erect a building on another's land can-
not be revoked so entirely as to make the jicrson Avho erected it a trespasser for
entering and removing it after the revocation." Whether the license given in
the case of Sampson v. Burnside, was one, wliich, when executed by an entry on
the land and laying down the aqueduct logs, could be revoked without full re-
muneration for the expense incurred, was a question raised and left undecided in
PAROL LICENSE VALID. 109
and Paternoster (i), where they said it is laid down, that a grant
of a license to stack hay upon land, does not amount to a lease of
the land. As the agreement in the present case was only for an
easement, and not for an interest in the land, it did not amount to
a lease, and consequently it was not within the statute of frauds.
Mr. Justice Forster concurred in opinion, that the agreement did
*not amount to a lease, but he inclined to be of opinion, that the
words in the statute, any uncertain interest in land, did extend to
this agreement ; but Lee and Dennison thought those words re~
(0 ralm. 71.
that case, although previous cases in the same court seem to hold that such rev-
ocation could not take place ■without the remuneration. As where the owner of
land, gave to another person a parol license to erect a dam on the land of the for-
mer, for the benetit of both, it was hold that after the license had been executed,
it could not be revoked ■without a tender of the expenses of erecting the dam, by
the owner of the land, to the person erecting it. Woodbury v. Parshley, 7 N.
Hamp. 237. Such a license was held in this case not to be within the statute of
fi-auds and not to require a contract in writing to support it. " Certainly," say
the court, " the owner of the land could not revoke this license without tendering
to the person erecting the f/a»» the expenses that had been incurred in the project."
The case of Ameriscoggin Bridget". Bragg, 11 N. Hamp. 102, was very similar
to the preceding. The court there held, that a license to build and maintain a
bridge on another's land may lie proved by parol, and is not suih an casement or
interest in land as to hn within the statute of frauds ; and that such license is
either irrevocable, or can only be revoked on payment of all expense and damage.
*' A license," say the court, " to an individual to do an act beneficial to him, but
requiring an expenditure upon another's land, is held not to be revocable after
it has been once acted upon. Such a Uccnse is a direct encouragement to expend
money ; and it is said, it would be against conscience to revoke it as soon as the
expenditure begins to be beneficial. A license to erect a dam on another man's
land is held to be of this description. A license to erect a bridge for the taking of
toll is clearly distinguishetl from a mere easement of passing and repassing ; and
we think when it is once executed it is either irrevocable wliilo the bridge con-
tinues; or, if revocable at all, can only be so on full compensation for all expen-
ditures made, and damage occasioned, by such revocation." If by this it is to be
understood that an erection of the kind siiggcsted in these cases, by one person on
the land of another, under such a license, may be maintained against the wUl of
the owner of the land, until it decays, or until payment is made for the expendi-
ture of the erection, the doctrine certainly may well be regarded as open to a great
deal of doubt. That the permission should be regarded as an excuse for what would
otherwise be a trespass or a series of trespasses up to the time of revocation, it is
easy to ])reccive. This latter doctrine is well supported by the authorities. The
other, though supported by some liighly respectable authorities, is yet open to
great difficulties, as efi'ected by the statute of frauds. The cxpencliture made
under the license may ])erhaps su])ply the jilacc of a consideration for the license,
and how docs it meet tlic necessity of a Avriting r In A\'ilson r. Chalfant, \'> 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 (</) (1).
6. And even where such an exclusive right is not given as
amounts to an interest in or concerning lands, yet an agreement
to sell a crop which would not go as emblements to an executor,
(a) Anon. 1 Yentr. 361 ; see Poultney (d) Crosby v. AVadsworth, 6 East, 602 ;
V. Holmes, 1 Str. 40o. see also Carrington v. Roots, 2 Mees. &
(6) Seaman r. Price, lRy.& Mood. 19.5. "Wels. 248. [Uriffith r. Puleston, 14
(c) Supra, pi. 9. Law J. Hep. N. S. Excheq. 33.]
(1) The case of Crosby r. Wadsworth -was questioned in Frear r. Hardenburgh,
5 John. 272. See also Munii'ord r. Whitney, lo AVendell, 386, 387 ; Cutler v.
Pope, 13 Maine, 379, 380. In this last case, it -vvas held, that grass already grown,
and in a condition to be cut, may be sold by parol.
[*99]
OF THE SALE OF STANDING CROPS. 113
€. g. a crop of grass, cannot be deemed a chattel, and therefore
can only be bound by a written contract (e).
7. Upon the same principle, a sale of growing poles (/), or of
standing underwood (g), and of course therefore of timber, is
within the fourth section, and a written contract of sale cannot
be dispensed with.
8. But any crop which would be emblements, and might be
taken in execution, for example, wheat, may be considered goods
and chattels, and therefore not within the fourth section (A) (1).
9. So an agreement to sell standing timber, as trees, at so much
a foot, which the proprietor had begun to cut down, and the pur-
chaser bought them after two had been actually felled, was held
to be a contract for the trees when they should be cut down and
severed from the freehold, and consequently not to be within the
fourth section (i) ; the timber was to be made a chattel by the
seller (A:). This, therefore, is an exception from the general case
of selling standing timber ("2).
(e) See Evans v. Roberts, 5 Bam. & 396.
Cress. 829 ; Smith v. Surman, 9 Barn. & (/«) See 3 Barn. & Cress. 364.
Cress. (566. (0 Smith v. Surman, 9 Bam. & Cress.
(/) Teall V. Auty, 4 Moo. 542. 561 ; 4 Man. & Ry. 455.
{g) Scorell v. Boxall, 1 You. & Jerv. {k) See 1 Crompt. & Mees. 105.
(1) Austhi V. Sawyer, 9 Cowen, 39 ; "SMiipple v. Foot, 2 John. 422 ; Stewart v.
Doughty, 9 John. 112.
(2) Li Clatiin r. Carpenter, 4 Mctcalf, 580, a contract for the sale of gro^^'ing
wood and timber, to be cut and removed by the purchaser, was held not to be a
contract for the sale of any interest in or concerning lands, &c. within the Massa-
chusetts statute of frauds. " Such a contract," said ^Ir. Justice Wilde, " is to
be construed as passing an interest in the trees, when they are severed from the
freehold, and not any interest in the land." So an oral agreement for the sale
of mulberry trees gro^^ing in a nursery and raised to be sold and transplanted,
to be delivered on the ground where they are gro\\-ing, upon payment therefor
being made, is not within the statute. Wliitmarsh v. Walker, 1 ^letcalf,, 313.
So an agreement, by an owner of land, that another may cut down the trees on
the land, and peel them, and take the bark to his own use, is not within the stat-
ute. Nettleton r. Sikes, 8 ^letcalf, 34. See Erskine v. Phimmer, 7 (Jreenl. 447 ;
Mumlbrd v. Whitney, 15 Wendell, 380 ; Adams v. Smith, Breese, 221.
But in Green r. Armstrong, 1 iJenio, 550, an agreement for the sale of growing
trees, with a right to enter on the land at a future time and remove them, was
held to be a contract for the sale of an interest in land and to require a writing to
support it. So in Olmstead v. NUes, 7 X. Ilamp. 522, a sale of timber growing
upon land with an agreement that the purchaser should have twenty-five years
within wliich to take it off, was held to be a sale of an interest in land, and reqiiir-
ing a writing witliin the Stat. 1791, of New Hampshire. ISIr. Justice Parker said :
" It purports to be a transfer of an interest in land, as the plaintiff was to have the
timber remain and grow upon the land, if he pleased, and take it off at such
period within the twcnty-tive years as he should see fit." Sec Putney r. Day,
N. Hamp. 430. Tliis "appears to be the ground, upon wliicli the case of Crosby
V. Wadsworth, 6 East, 602, cited ante 99, turned, namely, that it was for the
sale of a crop of growing grass, for the continued growth and maturity of which,
a certain interest in the land was necessarv. See Parker r. StanUand, 11 East,
362 ; Cutler v. Pope, 13 Maine, 380, Per Weston C. J. ; Griffiths v. Puleston. 14
Law J. Rep. N. S. Excheq. 33.
Vol. 1. 15
114 OF THE SALE OF STANDING CHOPS.
10. And sales of potatoes in the ground, which would be emble-
ments, do not fall within the fourth section ; whether sold at so
much per sack, to be dunj by the purchaser and taken away imme-
diately, which is considered as a sale merely of the potatoes, and
it is quite accidental if they derive any further advantage from
being in the land, which is a mere warehouse for them, and the
purchaser has only an accommodation, and no interest in the
*soil (/) ; or whether they are then growing and sold at so much an
acre, to be dug and carried away by the purchaser, without any
time limited, which is considered still as a sale only of the pota-
toes, and whether at the time of sale they were covered with earth
in a field or in a box, still it is a sale of a mere chaitel (m) ; or
whether the crop be in a growing state, and be sold by the cover,
to be turned up by the seller (n) ; or the crop be sold at so much
a sack, to be dug by the purchaser at the usual time, and to be
then paid for, which is a contract to pay so much per sack for the
potatoes when delivered (o).
11. So a crop of turnips, even recently sown is not within that
section (p) (1).
12. Neither, it seems, would a parcel of growing hops fall within
its provisions (cj) (2).
13. And a parol agreement for the sale of crops may be good
between an outgoing and incoming tenant, for there would be
no sale of any interest in the land, for that would come from the
landlord (/•).
14. But although a parol agreement, which is within the fourth
section, cannot be enforced before it is executed, yet if the agree-
ment is executed by delivery and acceptance of the subject-matter
of the sale, the seller may then recover (s).
15. And the consequence of the sale of such various crops, not
(J) Patker v. Staniland, 11 East, 362. (/;) Dunne v. Ferguson, 1 Hays, 541,
{m) Warwick, v. Bruce, 2 Mau. & {q) WadcUngton v. Bristo-\v, 2 Bos. &
Selw. 20.->. 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.
(<?) Allen V. Bonnet, 3 Taunt. 169 ; 735.
Western v. Russell, 3 Yes. & Bea. 187 ; {s) Dobell v. Hutchinson, 3 Adol. &
Dobell V. Hutchinson, 3 Adol. & Ell. Ell. 371 ; 6 Nev. & Man. 260, supra.
Vol. I. 18 [*120]
138 LETTERS OPERATING AS AGREEMENTS.
31. In a case (!*) where an agreement for sale was reduced into
writing, but not signed, owing to the vendor having failed in an
appointment for that purpose ; the vendee's agent wrote to urge
the signing of the agreement ; and the vendor wrote in answer a
letter, in which, after stating his having been from home, he said^
*' his word should always be as good as any security he could
give." And this was held by Loi'd Thurlow to take the case out
of the statute, as clearly referring to the written instrument. The
ground of this decision was, that the vendor had agreed, by
writing, to sign the agreement. If he had said he never would
sign it, he could not have been bound ; but if he said he never
would sign it, but would make it as good as if he did, it would be
a promise to perform it ; if he said he would never sign it, because
he would not hamper himself by an agreement, it would be too
perverse to be admitted(M). It appears that Lord Thurlow was
diffident of his opinion in this case ; and Lord Redesdale has
declared that he had often discussed the case, and he could never
bring his mind to agree with Lord Thurlow's decision, because he
(Lord Redesale) thought the true meaning of the agreement was^
" I will not bind myself, but you shall rely on my word " (x).
32. But in these cases there must be a clear reference to the
*particular paper, so as to prevent the possibility of one paper being
substituted for another (y) (1).
33. In a case where the memorandum was "Sold 100 Mining
Purdy's, at 17s. 6d., J. Greene," the purchaser insisted that the
defect in the memorandum was removed by the seller having him-
self admitted the agreement by sending to the purchaser another
paper, containing these words : "I hereby undertake to have trans-
ferred to Messrs. John h J. Boyce one hundred shares in the
Mining Company of Ireland, as soon as the books are opened for
that purpose. Value received, 7th January 1825. James Greene."
(0 Tawncv r. Crowthcr, 3 Bro. C. C. 320.
161,318; and see Forstcrr. Hale, 3 Yes. (.r) Sec 1 Scho. & Lef. 34; and sere
jun. 696 ; Cooke r. Tombs, 2 Anstr. 420 ; Tauncr v. Smart, 6 Barn. & Cress. 603 ;
Saunderson r. Jackson, 2 Bos. & Pull. 9 Dowl. & 11. .549.
238; and 9 Yes. ]un. 250; Hoadlv v. (y) Bovdell v. Drummond, U East,
M'Lain, 10 Bing. 4H2. " 142.
(w) Per Lord Thurlow, 3 Bro. C. C.
(1) An imperfect memorandum of the sale of real estate hy an auctioneer, and
a letter -written by the purchaser to the seller, cannot be connected together by
parol, so as to take the case out of the statute, there being no reference in the one
to the other. Adams t. M'^Millan, 7 Porter, 73; Freeport r. Bartol, 3 Greenl.
340.
[*121]
RECEIPTS, ETC., BY AUCTIONEER. 139
But it was held that this document could not answer the objection
made to the other, for it did not refer to it, and could not be con-
nected with it or called in aid of it ; and, besides, this document
varied from the other in two respects ; first, in the names of the
parties ; for it w^as an undertaking to transfer to Messrs. John
& J. Boyce ; secondly, a certain condition was introduced into it
which was not in the other instrument (z).
34. A letter written as an abandonment of a contract cannot
operate within the above rule, as a ratification of it so as to supply
the want of a signature to the original contract (a).
35. And if the agreement is defective, and the letter refers to a
different contract from that proved by the opposite party, the letter
cannot be adduced as evidence of the contract set up. The letter
must be taken altogether, and if it falsify the contract proved by
the parol testimony, it will not take the case out of the statute (b).
36. As we shall hereafter see, an auctioneer is an agent lawfully
authorized for the vendor and purchaser within the statute (1). Upon
the sale of estates by auction, a deposit is almost universally paid,
for which the auctioneer gives a receipt, referring to the particulars
or indorsed on them, and amounting, in most cases, to a valid
agreement on the part of the vendor within the statute (c). And
it seems that a bill of sale, or entry by the auctioneer, of the
account of the sale, in his books, stating the name of the owner,
the person to whom the estate is sold, and the price it fetched,
would be deemed a sufficient memorandum of the agreement to
satisfy the statute (rf). This, however, it clearly would not, unless
it either contained the conditions of the sale and the particulars of
*the property, or actually referred to them, so as to enable the Court
to look at them (e).
37. In a case upon the sale by auction of a chattel which was
within the statute, the sale was made subject to conditions, which
were read by the auctioueer before the biddings commenced, but
they were not attached to the catalogue, or referred to by it, and
(;) Batty, fi08 ; supra, p.- 117. (d) Sec Enimcrsont\ Heelis, 2 Taunt.
(a) Gosbell v. Archer, 2 Adol. & Ell. 33, et infra ; but see Mussell i-. Cooke,
500 ; 4 Xev. & Man. 48.5. Prec. C'ha. 533 ; Charlewood v. Duke of
(6) Cooper r. Smith. 1.5 East, 103. Bedford, 1 Atk. 497 ; Kamsbottom v.
(c) Blagden r. Bradbear, 12 Ves. jun. Mortley, 2 Mau. & Sehv. 44o.
4:66, et supra; Gosbell f. Archer, 2 Adol. (e) Blagden v. Bradbear, ubi supra;
& Ell. 500. Ilmde l\ Whitehouse, 7 East, 558.
(1) Post, 131, 132.
[*122]
140 LETTER TO THIRD PERSONS.
the sale was held to be void, although the auctioneer wrote the
purchaser's name and the price against the article in the catalogue.
The conditions, although in the room, not being actually attached
or clearly referred to, formed no part of the thing signed. If the
conditions had been separated from the catalogue during the pro-
gress of the sale, still the signature to the latter, made after the
separation, would have been unavailing (/).
38. A note or letter, written by the vendor to any third person,
containing directions to carry the agreement into execution, will,
subject to the before-mentioned rules, be a sufficient agreement to
take a case out of the statute (o-). This was laid down by Lord
Hardwicke, who said, that it had been deemed to be a signing
within the statute, and agreeable to the provision of it. And the
point was expressly determined, in the year 1719, by the Court of
Exchequer (A). — Upon an agreement for an assignment of a lease,
the owner sent a letter, specifying the agreement, to a scrivener,
with directions to draw an assignment pursuant to the agreement ;
and Chief Baron Bury, Baron Price, and Baron Page, were of
opinion, that the letter was a writing wnthin the statute of frauds.
And the same doctrine appears to apply to a letter written by a
purchaser (i) (1).
39. In Kenedy v. Lee (k), Lord Eldon observed, that in order
to form a contract by letter, he apprehended nothing more was
necessary than this, that when one man makes an offer to another
to sell for so much, and the other closes with the terms of his offer,
there must be a fair understanding on the part of each as to what
is to be the purchase-money, and how it is to be paid, and also a
reasonable description of the subject of the bargain. It must be
understood, however, that the party seeking the specific performance
of such an agreement, is bound to find in the correspondence, not
*merely a treaty, still less a proposal for an agreement, but a treaty
with reference to which mutual consent can be clearly demonstrated,
or a proposal met by that sort of acceptance, which makes it no
longer the act of one party but of both. It follows, that he is
(/) Kenworthy v. Schofield, 2 Bam. (/*) Smith r. Watson, Bunb. 55 ; S. C.
& Cress. 945 ; 4 Dowl. & Ry. 556. MS.
(g) Welford v. Bcazelv, 3 Atk. 503. (i) Rose v. Cunynghame, 11 Ves. jun.
See Seagood v. Mealc, Prec. Cha. 560 ; 550.
Cooke V. Tombs, 2 Anstr. 420 ; Owen v. (k) 3 Mer. 441 ; and see Ogilvie v. Fol-
Thomas, 3 Myl. & Kec. 353, jambe, 3 Mer. 53.
(1) See Givens v. Calder, 2 Desaus. 171, cited ante, 115, in note.
[*123]
RENT-ROLLS, ABSTRACTS, ETC. 141
bound to point out to the Court, upon the face of the correspond-
ence a clear description of the subject-matter relative to which
the contract was in fact made and entered into. But he did not
mean (because the cases which had been decided would not bear
him out in going so far) that he was to see that both parties really
meant the same precise thing, but only that both actually gave
their assent to that proposition, which, be it what it may, de facto
arises out of the terms of the correspondence (1). The same con-
struction must be put upon a letter, or a series of letters, that would
be applied to the case of a formal instmment ; the only difference
between them being, that a letter or a correspondence is generally
more loose and inaccurate in respect of terms, and creates a greater
difficulty in arriving at a precise conclusion.
40. In Cooth V. Jackson (/), Lord Rosslyn put the case of a
bond of reference to a surveyor, the price to depend upon his valua-
tion, only to ascertain how much an acre the purchaser was to pay
for the land. And his Lordship said, he should conceive that not
to be within the statute (2).
4L But rent-rolls, particulars of estates, abstracts, &;c. delivered
by the vendor on the treaty for sale, will not be considered as an
agreement, although signed by him, and containing the particulars
of the agreement ; nor will letters written, or representations made
by him, to creditors, concerning the sale, receive that construc-
tion.
42. Thus, in a qase (m) where A agreed by parol with B for the
purchase of lands ; shortly afterwards, a rent-roll was delivered to
A, which B dated and altered in his own hand-writing ; and it
was intituled, " Land agreed to be sold by J5 to ^4 from, &ic., at
twenty-one years' purchase, for the clear yearly rent." An ab-
stract of the title, also, stating the contract, was delivered by A^s
agent, and also further particulars and papers at different times.
B also wrote to several of his creditors, informing them that he'
had agreed with A for the sale of the estate, at twenty-one years'
purchase; referred tenants to^ as owner of the estate; and set
up the contract as a bar to an elegit. B afterwards refused to
perform the agreement ; and to a bill filed for a specific perform-
ance, pleaded the statute of frauds, and the plea was allowed.
(/) 6 Yes. juu. 17. (w) Whalcy v. Bagoncl, (J Bio. P. C. 5.
(1) Chitty Contr. (8th Am. ed.) 9, et seq. and notes.
(2) See Brown i-. Bello-ws, 4 Pick. 179, 189, 190.
142 AGREEMENT SENT AS INSTRUCTIONS.
*43. So, in a later case (n), upon a bill filed by a vendee, for a
specific perl'ormance of a parol agreement for sale of lands, it ap-
peared that the vendor gave the purchaser a particular of the pro-
perty to be sold, with the terms and conditions, all in his own
hand-writing, and signed by him ; and it was aTterwards delivered,
by agreement of both parties, to an attorney, to prepare the con-
veyance from, who prepared a draft, and brought it to the parties,
and they read over and approved of it, and agreed to execute the
same, whenever a fair copy could be written out. The defendant,
however, refused to fulfil his part of the agreement, and pleaded
the statute of frauds to the bill; and, as the particular was de-
livered at the outset of the treaty, no agreement being then made,
the Court held it could only be delivered as a list or catalogue of
the matters for sale, to enable the purchaser to form a proper
estimate of their value ; that the signing the particular could have
no other effect than to give it authenticity, as a true list of the
items then oftered for sale ; and that the subsequent acts could not
affect the original nature of the particular, and turn it into an
agreement (1).
44. Although an agreement be reduced into writing by a person
present at the making of it, yet if the parties do not sign it, they
will not be bound by it (o) ; and the mere preparation of a draft
of the conveyance which recites the agreement in the usual terms,
although approved of by the agents on both sides, will not amount
to an agreement (p).
45. If an agreement contain all the terms, the sending of it, as
instructions to a person to prepare a proper agreement, will not be
deemed an intention to extend the agreement, but merely to
reduce it into technical language (2).
46. Thus, in Fovvle v. Freeman (g), after some treaty for the
purchase of an estate, certain terms were agreed upon and written
down by Freeman the vendor, and afterwards written out by him,
as an agreement; viz. — "March 12th, 1803. I agree to sell to
Mr. Fowle my estate, &c. for the sum of 27,000Z. upon the follow-
(m) Cook V. Tombs, 2 Anst. 420 ; and Xoi-\vich, 1 Hop. II. & W. by Jac. 308,
see Cass v. "Watcrhousc, Free. Cha. 29. n. vide i)ifra.
(0) Gunter r. Halsey, Ambl. 586; (9) Rolls, 8th March 1804, MS. ; 9 Ves.
"Whitchurch v. Bevis, 2 Bro. C. C. 669 ; jun. 351, S. C. ; Dowling v. Maguu-e, 1
Kamsbottom r. Tuiibridgc, Ramsbottom Rep. temp. Plunket, 1 ; Thomas v. De-
r. Mortlev, 2 Mau. & Sclw. 434. 445. ring, 1 Kee. 729.
(;;) Marquis of Townsend v. Bishop of
(1) See Hobby r. Finch, Kirby, 14.
(2) See Givens v. Calder, 2 Desaus. 172.
[*124]
AGREEMENT SENT AS INSTRUCTIONS. 143
ing conditions, &;c." [stating them.] Freeman signed this agree-
ment, and read it to Fowle, who approved of it. Freeman then
underwrote a letter to his sohcitor in town to the following effect ;
* — " Sir, please to prepare a proper agreement for Mr. Fowle and
me to sign, and send it to me at this place. You will also deliver
to Mr. Everett," (the gentleman who carried the letter to town,)
" an abstract of my title deeds for his examination. As soon as
the title-deeds are approved of, he engages to lend me 5,000/. till
Michaelmas next. The letter was signed and dated by him, and
was delivered by Mr. Everett to the solicitor in town. Freeman
afterwards refused to perform the agreement ; and, to a bill filed
by Fowle for a specific performance, pleaded the statute of frauds.
The Master of the Rolls held, that if the attorney had prepared an
agreement, according to the letter. Freeman would have been com-
pelled to execute ii, and the attorney could not alter the agreement
itself in any one respect. A letter or proposal will do, although
the party repents ; and many decrees have been founded merely on
letters. If this objection were to hold, he said it might be con-
tended, that if an agreement contained a reference to title-deeds
to be formally executed, it would not do ; and his Honor decreed
a specific performance.
47. In these cases it should be observed, that letters may be
stated in a bill as constituting the alleged agreement, or as evi-
dence of an alleged parol agreement. In the first case, the defen-
dant may insist that they do not make out a concluded agreement,
and no extrinsic evidence can be received ; in the latter he may
plead the statute of frauds (r).
[48. Where the reducing an agreement into writing, or the signing
such agreement when reduced into writing, has been j^revented by
fraud, the court of Chancery will support it, because it is one of the
principal objects of a court of Equity to reheve against fraud (1).
Where it appeared that the defendant, upon conveyance of lands
to him in fee, upon a private trust, promised to reduce the agreement
to writing, and keep it as a private memorandum, to be found among
his papers in case of his death, in order to secure the rights of the
cestui que trust, but afterwards refused so to do ; this was held sufli-
cient to take the case out of the statute (2).]
(r) Birce v. Bletchley, 6 Madd. 17.
(1) 2 Cruise Di-;. bv Mr. (Jrccnlcaf, Tit. 32, ch. 3. s^28 ; MuDett v. Halfpenny,
Prec. in Chan. 404 ; Maxwell v. Montacute, Prec. in Chan. 526; Post, 139, note and
CB,S6S cited
(2) Jenkins v. Eldridge, 3 Storv C. C. 181.
[*12.5]
144
OF THE SIGNATURE TO AN AGREEMENT.
SECTION IV.
OF THE SIGNATURE TO AN AGREEMENT.
1. Of specialties and parol contracts.
4. Of the place of the signature.
7. Signature in form as witness valid.
9. But not a signature as an attesting
witness.
1 1 . Name of agent sufficient.
12. Initials sufficient.
14. Signature on particulars and condi-
tions of sale.
16. Alterations of draft of conveyance,
SfC. insufUcient.
17. Draft unstamped, evidence.
1. We are next to consider what is a sufficient signature by the
party or his agent. Before the statute of frauds, an agreement,
although reduced into writing and signed, was not considered as
*a written agreement unless sealed ; but it was regarded as a parol
agreement, and the writing as evidence of it (a).
2. It has been justly said that the same rule prevails since the
statute of frauds (b) ; for the law of England recognizes only two
kinds of contracts ; viz. specialties and parol agreements, which
last include all writings not under seal, as well as verbal agree-
ments not reduced into writing (c) (1). In the case of Wheeler v.
Newton (rf), the agreement not having been sealed, seems to have
been insisted upon, as leaving the case within the statute : and
Lord Commissioner Rawlinson said, that agreements in writing,
though not sealed, had some better countenance since the statute of
frauds and perjuries than they had before (I).
3. This doubt must have arisen from the common-law doctrine
before noticed, that an agreement not under seal is simply a -parol
agreement, and the writing evidence of it ; but there certainly was
no foundation for the doubt : - the statute makes signing only
(«) Sec 1 Ch. Ca. 8.>. (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<ireement might, he
said, be received ; but no evidence of matter dehors was admis-
sible to alter the terms and substance of the contract. In the
present case, the purpose for which the parol evidence was tendered
on the part of the defendant was, not to enforce a collateral stipu-
lation, but to show that the transaction was conducted on the
basis of an exchange, a circumstance which, if true, was totally at
variance with the language and plain import of the instrument.
Nothing could be more dangerous than to admit such evidence ;
for, if the agreement between the parties were in fact conducted
(l) Winch V. Winchester, 1 Ves. & (m) Croome v. Lediard, 2 Myl. & Kee.
Beam. 375. 251.
[*161]
FOR A DErENDANT. 189
Upon the basis of an exchange, why was the instrument so drawn
as to suppress the real nature of the transaction ?
27. The decision in the above case was probably well founded,
although it is not perhaps placed altogether upon the true grounds.
The evidence, it is submitted, was inadmissible, not because it was
not to enforce a collateral stipulation, but because it did not prove
that by fraud, mistake, or surprise, the agreement did not state the
alleged real contract, viz., for an exchange between the parties.
The defendant was an attorney, and fraud was not alleged, nor
indeed was mistake or surprise, for he had himself prepared the
agreement, and he preferred making it a mutual contract for sale
and purchase, instead of an exchange, and of course he could not
be permitted to alter its character by parol evidence of the mode
in which the negotiation was conducted, and of the views of the
parties, in order to avoid the consequences which attached to the
nature of the contract which the parties, with their eyes open,
having regard to other objects, had thought it proper to adopt.
It seems important to refer this case to the true ground upon which
*it is to be supported, in order to prevent the rule from being
misunderstood.
28. In a case where a written agreement for a lease was subse-
quently varied in part by parol, and upon a bill filed by the tenant
for a specific performance of the original agreement, the landlord
set up a subsequent parol waiver of the written agreement, and a
new agreement entered into at his solicitor's, every term of which
was to the disadvantage of the plaintiff, without any consideration
for the variation ; the Master of the Rolls decreed a specific per-
formance according to the prayer of the bill ; he considered the
case made out by the landlord 7iot a waiver of the contract, but
a variation by parol which had not been acted upon, and which
was made without consideration (n). The first parol variation, it
may be observed, was admitted, and the plaintitf was willing to
execute it.
29. Where after the written agreement for sale was signed, a
variation was made and reduced into writing, but not signed, the
purchaser having filed a bill for a specific performance, either with
or without the variation, the Court put the seller to his election,
and he having declined to elect, decreed a performance of the
original agreement without the variation (o).
(u) Price v. Dyer, MS. 17 Yes. jini. (o) Robinson v. Tagc, 3 lluss. 114.
•3oti ; Robinson i'. Page, 3 Russ. lit.
1*162]
190 OF PAROL EVIDENCE OF MISTAKE, ETC.
30. The case before Lord Eldon (^p) shows the rule of equity in
a strong hght. Tlic landlord filed a bill for a specific performance
of the written agreement, varied by the parol evidence ; the tenant
filed a cross-bill for a specific performance of the written agreement.
The result was, that both bills were dismissed ; the first, because
parol evidence was not admissible as a foundation for a decree
enforcing a specific performance ; the second, on the ground that
such evidence was admissible to rebut the equity of the plaintiff in
the second bill.
31. A similar case appears to have been decided by Lord
Macclesfield. The case has, I believe, never been cited, and it
requires some attention to get at the facts. They appear, however,
to be, that the plaintiff in the first bill sought a specific perform-
ance of an agreement by him to grant a lease to the defendant.
The defendant set up a parol agreement by which he was to have
liberty to grub bushes, and exhibited a cross-bill for a performance
in specie of the written agreement, with the addition of a clause to
grub bushes according to the parol agreement, and both the bills
were dismissed, but without costs (jq).
*32. Upon the admissibility of parol evidence, as a defense to a
bill seeking a specific performance. Lord Redesdale has forcibly
observed, that it should be recollected what are the words of the
statute : " No person shall be charged upon any contract or sale
of lands, unless the agreement, or some memorandum or note
thereof, shall be in writing, and signed by the party to be charged
therewith, or some other person thereunto by him lawfully author-
ized." No person shall be charged with the execution of an
agreement who has not, either by himself or his agent, signed a
written agreement ; but the statute does not say, that if a written
agreement is signed, the same exception shall not hold to it that
did before the statute. Now, before the statute, if a bill had been
brought for specific performance, and it had appeared that the
agreement had been prepared contrary to the intent of the defend-
ant, he might have said, " That is not the agreement meant to
have been signed." Such a case is left as it was by the statute :
it does not say, that a written agreement shall bind, but that an
unwritten agreement shall not bind (r). And nearly the same
(;;) Lord ToA\nislicnd. v. Stangroom, 6 searched the Register's books for tliia
Ves. jun. 328. case "without success.
(?) Hosier v. Read, 9 Mod. 8G. I have (r) 1 Scho. & Lef. Rep. 39.
[*163]
FOR A DEPENDANT. 191
observations upon the negative words of the statute, were made by
Chief Baron Skinner, in the case of Rann and Hughes (s) (I).
33. But if parties enter into an agreement which is correctly
reduced into writing, and at the same time add a term by parol,
equity cannot look out of the agreement, although the person
insisting upon the parol agreement is a defendant, and sets it up as
a bar to the aid of the Court in favor of the plaintiff.
34. Thus, in Omerod v. Hardman (t) (2) the vendor filed a bill for
a specific performance. It was not mentioned in the written agree-
ment at what time the purchaser was to take possession of the
estate ; but the purchaser, the defendant, offered parol evidence to
show that it was at the same time agreed, though not made part of
the written agreement, that he should be let into possession at a
stated time ; and he resisted a performance of the agreement, on
the ground of possession not having been delivered to him accord-
ing to the parol agreement. Mr. Justice Chambre objected to the
evidence being read. He said, that it was urged for the defendant,
that evidence may be read where the parol agreement is not incon-
sistent with the written agreement. This, (that is, the parol
agreement, in the case before him,) he added, was to further the
written agreement, and to secure what was through carelessness
omitted to be provided for in the written agreement, viz. delivery
*of possession, according to the custom of the country. Mr. Baron
Graham said, that the parol agreement could only be admitted
where the written agreement was not drawn according to the
intention of the parties at the time. You cannot by parol add any
thing to what was the real agreement at the time after that has
been correctly reduced into writing. And he entirely agreed with
Mr. Justice Chambre, that the parol could not be made to form
part of the written agreement (3).
(a) 7 Term Rep. 3o0, n. (0 5 Ves. jun. 722 ; and see pi. 28,
supra; qu. the distinction.
(1) See 1 PM. Ev. (4th Am. ed.) 568, 569 ; Cummings r. Arnold, 3 Metcalf,
490, 491, Per "Wilde J. ; 2 Story Eq. Jur. ^^770.
(2) See 2 Story Eq. Jur. ^^770, in note.
(3) Where by the terms of a written contract no time or place is fixed for the
performance of the -whole or of any particular part, the time and place vriW in
general depend upon the construction -which the law gives to the contract upon
a consideration of the character of its stipulations ; and under such circumstan-
ces, parol evidence of a specific time or place of performance agreed upon -when
the contract was made is not admissible, either to attach a term to the written
contract, or to affect the legal construction of it. Crocker r. Franklin Hemp and
Flax Manuf. Co. 3 Sumner, C. C. ")30 ; I-a Fargo r. Kickcrt, 5 Wendell, 187;
Thompson v. Ketcham, 8 John. 190 ; Atwood r. Cobb, If) Pick. 231 ; Warren v.
Wheeler, 8 Metcalf, 97. See Lawrence v. Dole, 11 Vermont, 549 ; Wvman r,
[*1641
192 OF PAROL EVIDENCE
35. Lord Hardwicke is reported (ii) to have said, that a plaintiff
seeking a specific performance might enter into parol evidence to
show that the defendant was to pay the rent clear of taxes, no
mention heing made of taxes in the agreement ; because it was an
agreement executory only, and as, in leases, there were always
covenants relating to taxes, the Master would inquire what the
agreement was as to taxes, and therefore the proof would not be a
variation of the agreement. And this extra-judicial opinion appears
to have been approved of by two other Judges (.r), one of whom (y)
laid it down, that parol evidence was admissible to prove collateral
matters, concerning which nothing was said in the agreement, as
who was to put the house in repair, or the like.
36. But notwithstanding these dicta, it has been expressly
decided, that parol evidence of even collateral matters, such as the
payment of taxes, &;c. which are of the essence of the agreement,
is inadmissible both at law and in equity. Thus, in Rich v.
Jackson (;r), it appeared that William Stiles and William Jackson
entered into a treaty for the lease of a house belonging to Stiles,
and in a conversation between them on the subject, Jackson
offered 80/. a year rent, and that he would pay all the taxes, which
Stiles agreed to accept. An agreement was drawn up by Jackson,
in his own hand-writing, in which no notice was taken of taxes.
Rich, who claimed under Stiles, refused to execute a lease unless
the rent was made payable clear of taxes, and Jackson, the defend-
ant, who claimed under William Jackson, refused to accept such
a lease. Jackson having paid some money for land tax, brought
an action in the Court of Common Pleas for the recovery of it, the
plaintiff having refused to deduct it in the payment of the rent.
The cause was tried at Guildhall, before Lord Rossyln, then Chief
Justice of the Common Pleas. The defendant was suffered to give
parol evidence of the real agreement, and the Judge gave credit to
the veracity of the witnesses, notwithstanding which he rejected the
^evidence, and directed a verdict to be given for Jackson, with
costs ; and, upon an application to the Court of Common Pleas,
the Court approved of the verdict, and refused a rule to show cause
why the same should not be set aside.
(m) 3 Atk. 389, 390 ; but sec -t Uro. C. 221.
C. 518 ; G Ves. jun. 335, n. ; 1 Scho. & (y) Mr. Justice Blackstone.
Lef. 38. {:) 4 Bro. C. C. 514 ; 6 Ves. jun.
(a:) See 2 Blackst. 1250 ; 7 Ves. jun. 334, n.
"SYixislow, 2 Fairf. 398 ; llobinson v. Bachelder, 4 N. Hamp. 45, 46. But see Ben-
son r. Peebles, 5 Missouri, 132.
[*16.5]
TO VARY WRITTEN INSTRUMENTS. 193
37. In this branch of the case, therefore, the point was solemnly
decided in a court of law, and the same determination was after-
wards'made upon the same case in a court of equity. Rich being
defeated at law, filed his bill for a specific performance of the agree-
ment, varied by the parol evidence ; and the cause came on to be
heard before Lord Rosslyn, then Lord Chancellor, who said, that
the prior conversations, and the manner of drawing up the agree-
ment by one party, and signing it by another, would have no influence.
The real question was, whether in equity, any more than at law,
the evidence ought to be admitted ; whether there is any distinc-
tion in a court of equity, where a party comes to enforce a written
agreement by obtaining a more formal instrument, and to add, in
doing that, a term not expressed in the written agreement, and of
such a nature as to bear against the written agreement. He had
looked into all the cases, and could not find that the Court had
ever taken upon itself, in executing a written agreement by a speci-
fic performance, to add to it by any circumstance that parol evi-
dence could introduce (1). And he accordingly dismissed the bill,
but without costs.
38. Indeed Lord Rosslyn appears to have made a similar
decision in a case prior to that of Rich v. Jackson. The case to
which I allude is Jordan v. Sawkins (a) ; where a bill was filed for
a specific performance of a lease, and it was stated, that there was
a memorandum annexed to the original agreement, that the tenant
(I) was to pay the land tax (which, it must be presumed, was not
signed, and was therefore only tantamount to a parol agreement).
The cause was heard before the Lords Commissioners Eyre, Ash-
hurst, and Wilson, who decreed a performance of the contract
with the variation, that it was to be at a clear rent of 40/. without
deducting land-tax. The cause was reheard before Lord Rosslyn,
who said, that if the agreement had been carried into execution as
it originally stood, the landlord must have paid the land tax. The
Court could not specifically perform an agreement with a variation,
and he therefore reversed the decree, and dismissed the bill (2).
(a) Jordan v, Sawkins, 3 Bro. C. C. the cases infra as to the discharge of a
388 ; 1 Ves. jun. 402 ; and see O'Connor parol agreement.
V. Spaight, 1 Scho. & Lef. 305 ; and see
(I) In the Report, the name of the landlord, is by mistake inserted for that of
the tenant.
(1) See ante, 156, note.
(2) See ante, 156, note.
Vol. I. 25
194 OF I'AKOL EVIDKNCB
*39. As a term agreed upon by parol cannot be added. to a
written agreement, by a parity of reason a written agreement can-
not be varied by parol (1).
This was decided by Lord Thurlow in a branch of the last-
mentioned case (b). It appeared that a lease was agreed, by
writing, to be granted of a house for twenty-one years, to com-
mence from the 21st of April 1791, and that it was afterwards
agreed by parol, that the lease should commence on the 24tli of
June instead of the 21st of April. To a bill filed by the tenant for
a specific performance of the written agreement, varied by the parol
agreement, the statute of frauds was pleaded, and Lord Thurlow
held, that the different period of commencing the lease made a mate-
rial variation, as it gave the estate from the owner for so many
months longer, and therefore he allowed the plea.
40. So, in the case of Price v. Dyer (c), which has already been
mentioned, where a parol waiver of a written agreement was set
up as a defense to a specific performance, Sir William Grant was
of opinion, that there was not an abandonment of the agreement,
but merely a variation, and that as the variation was without con-
sideration, and had not been acted upon, it was not a good defense
to the plaintiff's demand. After premising that the original
written agreement was binding, and had not, in his opinion, been
waived, he added, that here was a niere variation. The question
then was as to the variation. His opinion was, that verbal varia-
tions were not a sufficient bar where the situation of the parties
in all other respects remained unaltered. The defendant had lost
nothing ; would lose nothing. He had only lost what he had
gratuitously gained. A specific performance of the original agree-
ment was decreed, but without costs.
41. So in Goss v. Lord Nugent (d), a case at law, where the
contract stipulated for a good title to several lots, but the pur-
chaser, after the contract, and with notice of a defect in the title
to one lot, waived the objection, and entered into possession, but
afterwards resisted the contract ; it was held, that the seller could
not rnantain an action for the purchase-money, on account of the
statute of frauds.
(b) See 7 Ves. jun. 133. Marshall v. Lynn, 6 Mees. & Wels. 109 ;
(c) MS. RoUs, 17 Ves. jun. 356. , cases on the" 17th sect, to which the
(d) 5 Bam. & EU. 58 ; 2 Nev. & Mann, same law applies.
28 ; Stead v. Dawber, 10 Add. & Ell. 67 ;
(1) See Stevens v. Cooper, 1 John. Ch. 425.
1*166]
OF WAIVER OF OBJECTIONS. 195
The Court observed, that by the general rules of the common
law, if there be a contract which had been reduced into writing,
verbal evidence was not allowed to be given of what passed between
the parties, either before the written instrument was made, or dur-
ing *the time that it was in a state of preparation, so as to add to
or subtract from, or in any manner to vary or qualify the written
contract (1) ; but after the agreement had been reduced into writing,
it was 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 vary or qualify the terms of it,
and thus to make a new contract ; which was to be proved partly
by the written agreement, and partly by the subsequent verbal
terms, engrafted upon what would be thus left of the written agree-
ment (2). But the present contract was subject to the control of the
statute of frauds. As this was only a waiver and abandonment
of a part of the agreement, it might be said by the plaintiff that
this did not in any degree vary what was to be done by either
party ; that the same land was to be conveyed, there was to be
the same extent of interest in the land, and it was to be conveyed
at the same time, and the same price was to be paid, and that it
was only an abandonment of a collateral point. But the Court
tljought that the object of the statute was to exclude all oral evi-
dence as to contracts for the sale of lands, and that any contract
which was sought to be enforced must be proved by writing only.
In the present case the written contract was not that which was
sought to be enforced, it was a new contract which the parties had
entered into, and that new contract was to be proved partly by
the former written agreement, and partly by tlie new verbal agree-
ment ; the present contract, therefore, was not a contract entirely
in writing ; and as to the title being collateral to the land, the
title appeared to the Court to be a most essential part of the con-
tract ; for if there was not a good title the land might, in some
instances, better not be conveyed at ah. But the Court added,
that their opinion was not formed upon the stipulation about the
title being an essential part of the agreement, but upon the general
effect and meaning of the statute of frauds, that the contract in
question was not wholly one in writing.
42. The Court, in the above case, observed, that wiiether the
(1) Ante, 153, 154 and note ; Parkhurst v. Van Coitlandt, 1 John. Ch. 273.
(2) Ante, 154, note.
1*161]
196 or PAROL VARIATION
seller might not have relief in a court of equity they gave no
opinion. Now, although the general rule of law upon the statute
is the same at law as in equity, yet a purchaser is at liberty to
accept a defective title if he think proper ; and if, as in the above
case, he do so, and thereupon is let into possession, equity would
bind him by his act, and compel him to complete the purchase.
43. In the above case (e) the Court referred to the cases at law
on contracts within the statute of frauds, where verbal evidence
*has been allowed to prove that the time for the performance of
the contract had been enlarged by a verbal agreement (/), and
where the decisions proceeded on the ground that the original con-
tract continued, and that it was only a substitution of different
days of performance(l). It was not necessary, the Court said, to say
whether those cases were rightly decided. If they were so, still
the case before them was a different case, for there, without doubt,
the terms of the original contract were varied.
44. And in a later case at law, it was decided that the time
could not be enlarged by parol (g) (2). The agreement was, that the
assignment should be made and possession delivered on the 3d of
May. Neither party was ready to carry the contract into effect
on that day, and the purchaser on and subsequently to that day
endeavored to remove an obstacle in the way of the title, and
within what the Court considered a reasonable time, the objection
would have been removed, had not the purchaser demanded a
return of the deposit. So that the simple question arose. Can the
day for the completion of the purchase of an interest in land in-
(e) 2 Nev. & Mann, 35. & EU. 57.
(/) Warren v. Staggs, 3 Term Rep. {ff) Stowell v. Robinson, 3 Bing. N. C.
591, cited; Thresh v. Rake, 1 Esp.N. P. 928 ; see Home v. Wingfield, 3 Scott's
C. 53 ; Cuff V. Penn, 1 Mau. & Selw. 21 ; N. C. 340.
overruled by Stead v. Dawber, 10 Adol.
(1) "It is also well settled," says Mr. Greenleaf, 1 Greenl. Ev. §304, " that in
a case of simple contract in -writing, oral c\idencc is admissible to show that by a
subsequent agreement the time of performance was enlarged, or the plaee of per-
formance changed, the contract having been performed according to the enlarged
time, or at the substituted place, or the performance having been prevented by the
act of the other party." Watkins v. Hodges, 6 Harr. & John. 28 ; Clement v.
Durgin, 5 Greenl. 9 ; Robinson v. Batchelder, 4 N. Hamp. 40. See Franchot v.
Leach, 5 Cowen, 506 ; Youquar. Nixon, 1 Peters C. C. 221 ; Bank v. Woodward,
5 N. Hamp. 99 ; Bailey v. Johnson, 9 Cowen, 115 ; Frost v. Everett, 5 Cowen,
497; Keating «. Price, 1 John. Cas. 22; Fleming v. Gilbert, 3 John. 530, 531 ;
Medomak Bank ». Curtis, 24 Maine, 36 ; Blood v. Goodrich, 9 Wendell, 68 ;
Low V. Treadwell, 3 Fairf. 444 ; Central Bank v. Willard, 17 Pick. 150 ; Walker
V. RusseU, 17 Pick. 280 ; Avery v. Kellogg, 11 Conn. 574, 575.
(2) See next preceding note and cases cited ; Famham t. Ross, 2 Hall (N. Y.)
171, Per Oaklev J.
[*168]
ria
PART PERFORMED. 197
serted in a written contract be waived by a parol agreement, and
another day be substituted in its place, so as to bind the parties ?
And it was held that it could not. The Court could not get over
the difficulty that to allow the substitution of a new stipulation as
to the time of completing the contract, by reason of a subsequent
parol agreement between the parties to that effect, in lieu of a stip-
ulation as to time, contained in the written agreement signed by
the parties, was virtually and substantially to allow an action to
be brought on an agreement relating to the sale of land, partly in
writing signed by the parties, and partly not in writing, but by
parol only, and amounted to a contravention of the statute of
frauds. They thought that the reasoning upon which the Court
of King's Bench proceeded in Goss v. Lord Nugent went directly
to the point, that the evidence then under consideration was
inadmissible (1).
45. These decisions will drive many cases into equity, where, as
we shall hereafter see, time may be enlarged or waived by the acts
of the parties, or even the nature of the title may induce the Court
to consider it not of the essence of the contract (A). Where the
time is varied by the agreement of the parties, courts of equity,
who, according to their general rule, consider themselves as
*having full power to open the time apointed, would of course
adopt that which the parties themselves had agreed upon, although
only by parol. And they might fairly consider it, as heretofore it
was considered even at law, as not varying the substance of the
contract itself, which is still to be executed, although at the
enlarged time.
46. Where the parol variation has been in part performed,
equity, acting upon its general principles, will decree a specific
performance of the agreement as varied by parol.
47. Thus in a case reported by Viner (i) : A leased a house to B
for eleven years, and was to allow 20/. to be laid out in repairs ;
the agreement was reduced into writing, and signed and sealed by
both parties. B repaired the house, and finding it to take a much
greater sum than the 20/., told A of it, and that he would never-
theless go on and lay out more money if he would enlarge the term
to twenty-one years, or add fourteen, or as many as B should think
(A) See Chap. 5. (i) Anon. 5 Vin. 522, pi. 38 ; 4 Geo. 1.
(1) Hasbrouck v. Tappen, 15 John. 200 ; Dubois v. Del. & Hudson Canal Co.
4 Wendell, 285 ; Jewell v. Schroeppel, 4 Cowen, 564.
[*169]
198 OK HAROI, VARIATION
fit. A replied, that they wouUl not fall out about that, and after-
wards declared that he would enlarge the term, without mentioning
the term in certain. The question was, whether this new agree-
ment, made by parol, which varied from the written agreement
should be carried into execution, notwithstanding the statute of
frauds. The Master of the Rolls said, that before the statute, a
written agreement could not be controlled by a parol agreement,
contrary to it, or altering it ; but this was a new agreement, and the
laying out the money was a part-performance on one part, and
ought to be carried into execulion ; and built his decree on these
cases : first, where a parol agreement was for a building lease, and
before it was reduced into writing, the lessee began to build, and
after dlftering on the terms of the lease, the lessee brought a bill,
and the lessor insisted on the statute of frauds ; the Lord Keeper
dismissed the bill, but the plaintiff was relieved in Dom. Proc. :
and the second was a case in Lord JefFeries's time.
48. So, in the case of Legal v. Liller (k) : The agreement was
for taking a house at 32/. per annum, and part of the agreement
was, that the owner should put the house in repair. It was after-
wards discovered not to be worth while barely to repair the house,
but better to pull it down ; and, therefore, without any alteration in
the written agreement, the house was pulled down by consent of the
tenant, apprised of the great expense it would be to the landlord ;
and an agreement was made by parol only, on the part of the
tenant, to add 8/. per annum to the 321. The tenant brought a
bill for specific performance, on the foot of the written agreement,
*by which he was to, pay only the 32/. rent. The defendant, by
his answer, set up the parol agreement. Sir John Strange said,
such evidence is frequently suffered to be read, especially to rebut
such an equity as now insisted on by the bill : as where the agree-
ment is in part carried into execution, parol evidence is allowed to
prove that ; or where it is a hard agreement ; and the Court may,
therefore, decree against the written agreement, as iri 1 Vern. 240,
(^Gorman v. Salisbury) ; and the single question being here, whe-
ther the Court should decree a specific performance of the agree-
ment the plaintiff insists upon, and being satisfied, from the parol
evidence, that it should not, the Court must dismiss the bill. And
in the subsequent case of Pitcairne v. Ogbourne (/), Sir John
Strange referred to this decision, and approved of it.
(k) 2 Ves. 299. {I) 2 Yes. 375.
[*170]
Ml
PART PEKFORMED. 199
49. And in Price v. Dyer (m), Sir Wm. Grant said, that varia-
tions acted upon as in Legal v. Miller, would be a bar ; that is a
fraud.
50. The result of the authorities as to a parol variation, appears
to be,
1st. That evidence of it is totally inadmissible at law.
2dly, That in equity the most unequivocal proof of it will be
expected.
3dly, That if it be proved to the satisfaction of the Court, yet
it cannot be used as a defense to a bill demanding a specific
performance of the original contract alone, or as a ground for
granting a specific performance of the original contract, with the
variation introduced by parol, unless there has been such a part-
performance of the new parol agreement, as would enable the
Court to grant its aid in the case of an original independent
agreement, and then, in the view of equity, it is tantamount to a
written agreement (w), and effect will be given to it either in
favor of a plaintiff or a defendant.
51. But we must bear in mind that some variations, not ad-
mitted at law, for example, the title and time, equity has always,
exercising its peculiar jurisdiction, deemed to be subjects which
th~b parties might waive by their acts.
52. Even where part of the subject-matter of the agreement
might have been valid by sale and delivery, and an agreement in
writing was not requisite, yet if the agreement be entire, it must
so continue, and it cannot be separated or altered otherwise than
by writing (o) (1).
(wt) Supra, IGG. (o) Ilarvey v. Crrahani, .5 Adol. & Ell.
(») See Van v. Corpe, 3 Myl. & Kee. 01.
277.
(1) 2 Stoi-y Eq. Jur. §770, in note.
200
OF PAROL EVIDENCE
^SECTION IX.
OF THE ADMISSIBILITY OF PAROL EVIDENCE TO ANNUL WRITTEN
INSTRUMENTS.
r.
7.
Robinson v. Page.
8.
Goss V. Lord Nugent.
9.
Result.
10.
Waiver of parol agreement cannot
proved.
1. Principle of the rule : parol waiver.
2. Gorman v. Salisbury.
3. Backhouse v. Crossby.
6. Davis V. Symotids.
6. l^rice v. Dyer.
1. The rule of law is, nihil tarn conveniens est naturali cequitati,
unumquodque dissolvi eo ligamine quo ligatum est : and therefore
a covenant under seal not broken cannot be discharged by parol
agreement (a) (1). And in general, as we have seen, an agreement
(a) Kaye v. "VVagliom, 1 Ta\mt. 428.
(1) Chitty Contr. (8th .\m. ed.) 107 ; Bond v. Jackson, Cooke, 500 ; Sinard v.
Patterson, 8 Blackf. 353 ; 1 Phil. Ev. (4th Am. ed.) 563, 564, & Cowen & HiU'8
notes, Pt, 2, pp. 1479 to 1481 ; Suydam v. Jones, 10 Wendell, 180, 184 ; 1 Greenl,
Ev. ^^302. In Dearborn v. Cross, 7 Cowen, 48, it was decided that a bond might
be discharged by the parol agreement and acts of the parties. In Munroe v. Per-
kins, 9 Pick. 302, the court said ; — " It is objected, that as the evidence was
parol, it is insufficient in law to defeat or avoid the special contract ; and many
authorities liave been cited, to show that a sealed contract cannot be avoided or
waived but by an instrument of a like nature ; or generally, that a contract under
seal cannot be avoided or altered or explained by parol evidence. That this is
the general doctrine of the law cannot be disputed. It seems to have emanated
from the common maxim, umunquodque dissolvitur eo ligamine quo ligatur. But
like other maxims, this has received qualifications, and indeed was never
true to the letter, for at all times, a bond, covenant or other sealed instrument
might be defeated by parol evidence of payment, accord and satisfaction, &c."
Sec Lattimorc v. Harsen, 14 John. 330 ; Fleming v. Gilbert, 3 John. 358 ; Keat-
ing I'. Price, 1 John. Cas. 22 ; Edwin v. Saunders, 1 Cowen, 250 ; Bullard v. "Wal-
ker, 3 John. Cas. 64 ; LeFevre v. Le Fevre, 4 Serg. & Rawle, 241 ; Grafton Bank
V. Woodward, 5 N. Hamp. 99; Bailey v. Johnson, 9 Cowen, 115; MiU Dam
Foundery v. Hovey, 21 Pick. 417 ; Blood v. Hardy, 15 Maine, 61, 64 ; Lawrence
V. Dole, 11 Vermont, 549 ; Neil v. Tillman, 1 Bailey, 538, n. (a) ; Merrill v. I. &
O. R. K. Co. 16 Wendell, 586 ; Watchman v. Crook, 5 Gill & John. 239 ; Ford v.
Campficld, 6 Halst. 327.
In Delacroix v. Bulkley, 13 Wendell, 75, Mr. Chief Justice Savage, after having
reviewed the New York authorities upon this point said ; — " The extent to which
these cases have gone is this ; that after a breach of a sealed contract, the parties
to it may discharge any liability upon it by entering into a new agreement in re-
lation to the same subject matter, which new agreement is a valid contract,
founded upon sufficient consideration. In Fleming v. Gilbert, it is assumed that
the plaintiff prevented the defendant from performing his contract, and therefore
should not take advantage of his failure. To bring this case within the principle
[*171]
1
I
TO ANNUL WRITTEN INSTHUMENTS. 201
in writing cannot be controlled by averment of the parties, as it
would be dangerous to admit such nude averments against matter in
writing (Z>). 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 (<q).
22. And if the purchaser had, previously to the purchase, made
his will, by a general bequest in which the term would have passed,
yet the legatee would not be entitled to it, although the bequest
were not expressly revoked ; because the term, by the construc-
tion of equity, attended the inheritance immediately on the pur-
chase of the fee, and it must therefore follow it in its devolution
on the heir or devisee (r).
23. The same rule, it seems, must prevail where the term is
even specifically bequeathed ; for if the fee had been actually con-
veyed, the conveyance would have operated as a revocation (s) ;
and as the vendee is seised of the fee in contemplation of equity,
although the conveyance be not executed, the same rules ought to
be adhered to in each case.
24. Although the estate may, subsequently, to the will, be con-
veyed, or surrendered, either to the purchaser (f), or to a trustee for
him (m), yet that will not operate as a revocation of his will (I).
*The legal estate will of course descend to the heir at law, and he
{q) Per Sir "\Vm. Grant, in Capel v. Amb. 116 ; and see 1 Ves. jun. 256 ; 2
Girdler, liolls, 16Mayl804,MS. ;9Ycs. Yes. jun. 429,602; 6 Ves. jun. 220; 8
jun. 509 ; Cooke v. Cooke, 2 Atk. 67. Ves. jun. 127 ; and Piideux v. Gibbin,
(/•) Capel f. Girdler, ubi sup. See now 2 Cha. Ca. 144.
8 & 9 Vict. c. 112. (?<) Jenkinson v. Watts, Lofft, 609,
(s) Galton v, Hancock, 2 Atk. 424, reported ; cited moot. Watts i\ Fullarton,
427,430. Dougl. 718; Rose t'. Cunynghame, 11
(t) Parsons v. Freeman, 3 Atk. 741 ; Ves. jun. 550.
(I) In Brydgcs r. Duchess of Chandos, 2 Ves. jun. 429, Lord RossIjti, in treat-
ing of tliis point, said, " Another case is supposed to arise, in which this Court
determines upon a principle of et^uity, it is not said directly against the rule of
law, but without attending to what the law would be ; that is the case where an
equitable estate is dcA'iscd, and after the will the legal estate is taken, the Court
has said that does not revoke the will. It is difficult to state that, at this time of
day, in a court of law, which could not look at the equitable interest, but looks
only at the legal ; but as the legal interest is only a shadow, the justice of the
case is very evident ; but it is a decision iii conformity to the like case at law.
The very case occurred at law in Roll. Abr. 616, pi. 3. Cestui que use, before the
statute of iises, devises ; afterwards the feoffees made a feoffment of the land to
the use of the devisor ; and after the statute the devLsor dies ; the land shall pass
by the devise ; because, after the feoffment, the devisor had the same use which
he had before. That is exactly the case of an equitable estate devised, and a con-
vevance taken afterwards of the legal estate ; and this Court was so far from de-
"[*197]
I
BEFORE THE 1 ST VICT. C. 26. 233
will in equity be deemed a mere trustee for the devisee, unless
*the devisee, thinking the estate did not pass by the will, permit
termining ■without considering what the rule of law would be, that here is the
verA- point decided by a court of law."
The case referred to is thus stated in Rolle : — " Si homme aiant feffees a son use
devant le statiit cle 27 H. 8. ust devise le terre aZauter, et puis hs feffees font feffment
■del terre al rise del devisor et puis le statut le devisor moricst, le t^rre passera per le de-
vise, car apres le feffment le devisor avail mesme I'use que il avoit devatit.'"
The case then appears to be this. The cestui que use made his will, and the
feoffees afterwards made a feoffment of the lands to his iise ; that is, enfeoffed
other persons to the use of him. This appears by the reason given for the decis-
ion, namely, " because after the feoffment the devisor had the same use which he
had before." Whereas, if the facts of the case were as Lord Rosslyn supposed,
the devisor would, before the feoffment, have been a mere cestui que use, entitled
at law to neither Jjis in re, nov jus ad rem ; and after the feoffment he would have
been actually clothed "with the legal seisin of the estate ; the case, therefore,
seems only a decision, that where a man devises an equitable estate, a transfer of
the legal estate to other persons, in trust for him., is not a revocation of his will.
And such is still the rule of law (Doe v. Pott, Dougl. 2d edit. 710.) as well as of
equity, Jenkinson v. Watt, Lofft, 609.
It may, however, be objected, that the devisor did not die till after the statute
of uses ; and therefore admitting the force of the foregoing remarks, it still appears
that the legal estate was, by the operation of the act, vested in the devisor. To
this it may be answered, that the statute was expressly passed to prevent aliena-
tion of estates by de^'ise, although it declared that wills made before the statute,
by persons who were or should be dead before the 1st of May lo06. should not be
invalidated by the act. We miist therefore presume that the devisor died before
that time ; otherwise the will would have been void by virtue of the act itself, as
was expressly decided in a case where cestui que use before the statute devised the
use ; and then came the statute, which transfei'red the use into possession ; and
although the testator survived the statute of wills, yet the operation of the statute
of uses was holden to be a revocation, because the use teas thereby gone. 1 Roll.
Abr. 61G, (R.) pi. 2 ; Putbury v. TrevaUon, Dyer, 142, b.— Indeed the statute of
Hses could not have come in question in the above case, if the feoffment had been
made to the devisor himself.
Lord Hardwicke seems to have construed the case in Rolle in the same manner
as Lord Rosslyn did, (see Sparrow v. Ilardcastle, 3 Atk. 798 ; Ambl. 224), al-
though he appears to have been struck with the reason given for the decision ; in
e.xplanation of which, he is in Atkyns stated to have said, "The use at law was
the beneficial and profitable interest, the same as a trust in equity, and which re-
mained in the same manner after the feoffment as before, and the feoffees there
granted the dry legal estate to the devisor." In Ambler, his Lordship is report-
ed to have said, " Thus the law considers two interests in the land : the legal
estate, and the use ; now the use remains the same at the making the devise, and
at the death of the devisor ; and therefore accepting the grant of the feoffees
makes no alteration in it."
Lord Hardwicke' s attempt to reconcile what he conceived to be the decision in
this case, with the reason given for it, evinces the impossibility of making them
consLstent. According to his argument, the equitable interest was not merged by
its union with the legal estate, but still subsisted in the contemplation of law.
In the case of WiUet v. Sandford, 1 Ves. 186, Lord Hardwicke classed the dif-
ferent interests in land into three kinds : First, the estate in the land itself ; the
ancient common-law fee. Secondly, the use ; %ohich was originally a creature of
equity ; but since the statute of uses it draws the estate in land to it ; so that
they are joined, and make one legal estate. Thirdly, the trust ; luhich the com-
mon law takes no notice of but which carries the beneficial interests and profits
into this court, and is still a creature of equity, as the use teas before the statute.
This judicious classification proves (what indeed could not be doubted), that
the true principles of this subject were familiar to this great master of equity,
and that he was led into a false argument by endeavoring to account for a prin-
ciple which did not exist.
Upon the point in this note, see fvirther n. (a) to 2 V-es. & Bea. 385 ; and note
(I) to 2 Sugd. Powers, 6.
Vol. J. 30 [*198]
234 or A DEVISE CfF AN ESTATE CONTRACTED FOR
the heir to take the estate, and acquiesce in this for a long while ;
in which case equity will not relieve him (x).
25. But in analogy to the decisions upon legal estates (y), it has
been held, that a devise of a freehold estate contracted for, is
revoked by a subsequent conveyance to the usual uses to bar
dower (c:), even where the contract was by parol (o), but it is
difficult to say, in the latter case, that a conveyance to the usual
uses to bar dower is not within the contract of the parties. If,
however, it were stipulated in the contract that the estate should
be conveyed to the purchaser in fee, or to such uses as he should
appoint, a conveyance to uses to bar dower, would not, it is appre-
hended, operate as a revocation of the will.
26. Estates contracted for after the will, will not pass by it (6)
(1) : nor will lands pass by the will, although conveyed to the pur-
chaser subsequent to his will in pursuance of a contract prior to the
will, unless it was a valid binding contract (c) (2).
27. Any codicil executed according to the statute of frauds
amounted to a re-publication of a prior will of lands ; and there-
fore, if a ])urchaser, previously to a contract, made a general devise
of all his lands, and after the contract executed a codicil, according
to the statute of frauds, unless an intention appeared not to affect
it (d), the after-purchased estate passed under the devise in the
*will (3), although legacies only were given by the codicil, and no
notice was taken of the estate (e).
(x) Davie v. Beardsham, 1 Cha. Ca. 39 ; (6) Langford v. Pitt, 2 P. Wms. 629" ;
and see Pigott v. "Waller, 7 Yes.juii. 98. Allevn r. ^Vllevn, Mose. 262 ; Potter v.
(?/) See Tickncr r. Tickncr, 3Atk. 742, Potter, 1 Yes. "137 ; and sec 1 Atk. 573 ;
cited ; Kcnyon v. Sutton, 2 Yes. jun. White v. White, 2 Dick. 522 ; Peg. Lib.
600, cited; and Nott v. Shirley, ibid. B. 1775, fol. 650.
604, n. ; and sec 2 Yes. jun. 429, 600; {c) Iloset'. Cunj-nghame, 11 Yes. jun.
6 Yes. jun. 219 ; 8 Yes. jun. 115, 211 ; 50.
10 Yes. jun. 249, 256. See also Luther (d) Lady Strathmore v. Bowes, 7
V. Kidby, 3 P. Wms. 170, n. ; and ob- Term Rep". 482 ; 2 Bos. & Pull. 500 ;
serve the distinction. Smith v. Dearmer, 3 You. & Jerv. 278 ;
(;) Rawlins v. Burgis, 2 Yes. & Bea. Monypenny v. Bristow, 2 Russ. & MyL
382. There was an appeal to the Lord 117.
Chancellor .which was for particular rea- (e) Barnes r. Crowe, 1 Yes. jun. 486 ;
sons withdJrawn. BuUer r. Fletcher, 1 Pigott v. Waller, 7 Yes. jun. 98; Good-
Kee. 369 ; 2 Sugd. Powers, 6. See title v. Meredith, 2 Mail. & Selw. 5 ;
Poole r. Coates, 2 Dru. & War. 493. Hulme v. Hejgate, 1 Mc-rr. 285. '
(rt) Ward V. Moore, 4 Madd. 368.
(1) M'Kinnon v. Thompson, 3 John. Ch. 307.
(2) A will made in Ohio in 1811, by one in possession of real estate under a
verbal contract, and for which he afterwards obtained a deed, was held good to
pass the legal as well as the equitable title. Smith v. Jones, 4 Ohio, 115.
(3'> 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 (</) Backr. Kett, 1 Jac. 534; Johnson
Ves. jun. 209, affirmed in Dom. Proc ; v. Telford, 1 Russ. & Myl. 244.
and see Sugdcn on Powers, ch. 10, sec- (h) Chnrehman v. Ireland, 4 Sim. 520;
tion 5. 1 Kuss, & Myl. 250.
(1) 1 Jarraan, Wills (2d Am. ed.) 200 et acq. and notes, 290.
(2) See 1 Jarman, Wills (2d Am. cd.) Chap. XV. p. 373 ct scq. and notes, -Nvhere
this subject of election is fully discussed, and see Noys v. Mordaunt, & Streath-
field V. Strcatlilield, in Wliite's Leading Cas. in Equity (Am. ed.) [223] et seq.
and notes.
236 OF REVOCATION OF A DEVISE OF AN ESTATE.
purchased other copyhold estates, and surrendered them to the uses
*declared by his will (/*), or even to the uses declared by his will of
and concerning the same (Jc), the after-purchased estates would pass
under the general devise, although the will was not republished.
Therefore, where a copyhold estate has been surrendered to the
use of a will, and the purchaser is buying of the heir at law, who
claims in the absence of any devise subsequently to the purchase
by his ancestor (the case not falling within the late act), he must
be satisfied that the estate did not pass under any general devise
in a will prior to the purchase.
The act for rendering a surrender to a will nnnecessary (Z),
rendered it unlikely that this point should again arise, and now
the doctrine is wholly confined to wills or codicils made before the
1st January 1838, for by the late statute, whatever copyholds a
man may have at his death, whether there is a custom to devise
them or not, and whether he has been admitted or not, and of course,
therefore, although not surrendered to the will, will pass by it (in).
32. From the time of the contract, the purchaser, and not the
vendor, being owner of the estate in equity, it followed that if a
man devised his estate, and afterwards contracted for the sale of it,
the devise would thereby be revoked in eqnity (n) (1).
33. And even where an estate was by a will directed to be sold,
and the money to be paid to certain persons, and the testator
himself afterwards sold the estate, it was held, that the legatees
were not entitled to the money produced by the sale (o), and it was
immaterial that the contracts were abandoned by the purchasers
because they could not obtain a conveyance from the devisees,
who were infants (I), for althougli the contracts were properly
abandoned, yet the will was revoked (p) (2).
34. If, however, an agreement were such as a court of equity
would not carry into execution against the representatives, there
(i) Heylyn r. Iloylyii, Cowp. 130 ; (n) Ryder v. Wager, and Cotter v.
Lofft, 604. 'This point has since been so Layer, 2 P. AVms. 332, 623; and see 2
decided at nisi jn-im. Ves. jun. 436 ; Vawser v. Jeffrey, 16 Vea.
{k) Attorney- general r. Vigor, 8 Yes. jun. 519 ; 3 Russ. 479.
jun. 256. See Smart v. Prujean, 6 Yes. (o) Arnald v. Arnald, 1 Bro. C. C.
run. 565 ; and the last cd, of GUbert on 401 ; 2 Dick. 645. Kenbold v. Road-
Uses, n. (5), p. 72. knight, 1 Russ. & Myl. 677 ; 1 Toml.
(I) 55 Geo. 3, c. 192. 492.
(m) Infra. (p) Tebbott v. VoTvles, 6 Sim. 40.
(I) But now see 1 Will. 4, c. 60.
(1) 1 Jarman, Wills (2d Am. ed.) 177, 178.
(2) 1 Jarman, Wills (2d. Am. ed.) 180, to 182.
[*200]
OF A DEVISE OF AN ESTATE CONTRACTED FOR. 237
seemed ground to contend that it would not revoke the will,
because the agreement could operate as a revocation in equity
only ; and therefore, if equity would not sustain the agreement in
respect of which the will was held to be revoked, there appeared
*to be no solid reason why the devise of the estate should not take
effect. In Onions v. Tyrer (5'), the Lord Chancellor held, that a
second will, devising lands to the same person as the former, and
revoking all former wills, but not duly executed, should never
revoke the former will so as to let in the heir (1) ; iiay, if by the lat-
ter will the premises in question had been given to a third person, it
should never have let in the heir, in regard the meaning of the second
will was to give the second devisee what it had taken from the first,
without any consideration had to the heir ; and if the second devisee
took nothing, the first would have lost nothing.
35. These principles ought, perhaps, to be referred to the words
of the statute of frauds (r) ; but still as an agreement was only an
equitable revocation, the same reasoning applied to the case before
us. Where a man contracts for the sale of his estate, he intends
to increase his personal estate, and not to benefit his heir ; and if
the Court will not carry the agreement into a specific execution for
the benefit of the personal estate, " the personal estate takes
nothing, and the devisee can have lost nothing."
36. In the two cases (s) in which it has been holden, that an
agreement will revoke a will in equity, it makes a term of the pro-
position, that the agreement amount in equity to a conveyance.
And it should seem that Lord Eldon was of this opinion, for in
KnoUys V. Alcock (f), where it was contended that an agreement
in equity is a revocation only where it can be performed, he did
not deny the rule as stated, but showed, that the agreement in
that case was such as equity would perform (w), (I) ; and in Clynn
V, Littler (x). Lord Mansfield laid it down, that covenants had
{q) 1 P. Wms. 345. See 7 Ves. jun. which was compromised; and see May-
379. or V. (iowland, 2 Dick. 563. See also
(r) See Pow. Dev. G41. 2 Ves. jun. 436.
(s) Ryder ». Wager, and Cotter y. Lay- ((«) See Savage v. Taylor, Cases T.
er, ubi sup. Talb. 234.
{t) 7 Ves. jun. 558. There was an (x) 1 Blackst. 345.
appeal from the decision in this case,
(I) It appears by an abstract of the title to the estate, in respect of which the
litigation in Savage v. Taylor was commenced, that the hcii- at law of the testator
in his answer to the bill of the devisee, insisted, that il' the will was originally
vaUd, yet it was revoked by the articles for sale, although the Court ought not to
carry them into execution.
(1) See 1 Jarman, Wills (2d Am. ed.) 183 et seq. and notes.
[*201]
238 OF A DEVISE OF AN ESTATE CONTRACTED FOR.
never been allowed to be revocations, unless where the covenantee
has a right to a specific performance.
37. Whether an abandonment of an agreement would prevent
the contract from operating as a revocation of a prior will, seems
to be a more doubtful point. In the case of KnoUys v. Alcock,
before referred to, it was also contended, that an agreement which
*was abandoned was not a revocation in equity ; but Lord Eldon
said, he did not admit, that if there is an agreement in equity,
which at the moment is a completely operative revocation, a sub-
sequent abandonment will of necessity set up the will. He added,
that he did not say whether it would be so or not, for he was of
opinion he could not raise the question in the case before him, as
the agreement was never abandoned. Sir Wm. Grant upon the
same point said, that he very much doubted whether the aban-
donment of the contract in tlie testator's lifetime would set up the
will without a republication. But where the will was revoked at
the testator^ s death by the contract, of course no subsequent event
could render the will operative and effectual (y). In the first case
in the books (z), in which the question arose whether a covenant
to convey an estate devised should operate at law as a revocation
of the will, it was holden that such a covenant without more, was
not any revocation of the will ; because perhaps the devisor's inten-
tion would alter before performance of the covenant. At law,
therefore, a contract does not revoke the will ; but a conveyance
in pursuance of the contract would of course operate as a revoca-
tion, or to speak more technically, as an ademption. Now it may
be contended, that the same rule must prevail in equity, and that
a contract for sale ought not to affect the validity of a prior will,
until it is carried into execution, or, which in equity is tantamount
to a conveyance, until the Court decree a specific performance of
it. While an agreement rests in fieri, and the validity of it has
not been acknowledged by a decree, it seems equitable that the
owner should be at liberty, with the concurrence of the other
party, to alter his mind. Indeed in the absence of intention there
seems to be no weighty distinction between an agreement which
has been abandoned, and an agreement which equity will not per-
form. If a man make a second will without expressly revoking
the first, and afterwards cancel the second will, the first is revived,
(y) Bennett i\ Lord Tankers'ille, 19 {z) Montague v. Jefferics, 1 Ro. Abr.
Ves. jun. 170. 615 (?.), pi- 3.
[*202]
OF A DEVISE OF AN ESTATE CONTRACTED FOR. 239
the second will being considered only intentional (a) (1) ; and al-
though it is true that a will is ambulatory till the death of the
testator, yet the same ground may be taken in support of a
will impliedly revoked by an agreement afterwards abandoned.
Why should not^ a mere agreement be deemed ambulatory till it
is completed, when it is clear that the parties may rescind the
agreement, and the estate of the devisor is not altered so as to
effect a revocation at law ?
*38. The seller after the contract and before the conveyance was
not considered so absolutely a trustee as to prevent the estate from
passing by a devise by him, subsequently to the contract, of his
real estate to trustees to sell (b). But where an estate under con-
tract was devised expressly by name, it was held that the legal
estate only passed to enable the devisee to carry the contract into
execution, and that the devisee was not entitled to the purchase-
money beneficially (c). The principle of this decision will neces-
sarily furnish many exceptions to the rule laid down in the case of
Wall V. Bright (2).
39. When an estate is contracted to be sold, it is in equity con-
sidered as converted into personalty from the time of the con-
tract (I) : and this notional conversion takes place, although the
election to purchase rests merely with the purchaser (f/) (3).
40. Thus in a case before Lord Kenyon, at the Rolls (e), Whit-
more demised to Douglas for seven years, with a covenant, that
if the tenant after the 29th of September 1761, and before the
29th of September 1765, should choose to purchase the inheritance
for 3,000/., Whitmore would convey to him. In 1761, before any
(a) Goodright v. Glazier, 4 Burr, terms of the devise.
2512. (rf) La-n-es r. Bennett, 7 Ves. jun. 436 ;
(6) Wall V. Bright, 1 Jac. & Walk. 14 Yes. jun. 596, cited; 1 Cox, 167, re-
490. ported ; S. C. cited, 16 Ves. 2o3, 254,
(c) Knollys v. Shepherd, 1 Jac. & no?n. Douglas v. Whitrong; Ripley v.
Walk. 499, cited. This case was affirm- Waterworth, 7 Ves. jun. 425. la re
ed in 1825 in Dom. Proc. MS. The de- Crofton, 1 Ir. Eq. Rep. 204.
cision depended upon the particular (e) Whitmore's case iibi sup.
(I) The decision in the case of Foley v. Percival, 4 Bro. C. C. 419, seems to
depend on the personal estate haAing been charged -with the legacies ; and the
dictum of the Lord Chancellor, that an estate contracted to be sold, is not convert-
ed into personalty, -where it -will disappoint the testator's intention as to the pay-
ment of legacies charged upon the estate by his will, appears not to be warranted
by either principle or authority. The case of Comer t. Walkley, 2 Dick. 649, is
misreported. See post, ch. 9.
(1) 1 Jarman, WiUs (2d Am. ed.) 188.
(2) 1 Jarman, Wills (2d Am. ed.) 561, 562.
(3) See Craig v. Leslie, 3 AVheaton, 563, 577 ; Postell v. Postell, 1 Desaus. 173.
[*203]
240 OF A DEVISE OF AN ESTATE CONTRACTED FOR.
election, Whitmore died, and left all his real estate to Bennett in
fee, and all his personal estate to Bennett and his sister equally.
In 1765, before the time mentioned. Waller, who purchased the
lease and benefit of the agreement from Douglas, called on Bennett
to convey for 3,000/. ; which conveyance was made in considera-
tion of that sum. Afterwards the sister and her husband filed a
bill against the representative of Bennett, claiming a moiety of the
3,000Z. and interest, and it was decreed accordingly.
This decision was followed by Lord Eldon, in a case (/) where
the estate had not been devised. He observed, that he did not
mean to say that a great deal might not be urged against it, but
*where there was a decision precisely in point it was better to follow
it. There appears to have been no difficulty in the case before Lord
Eldon, where the contest was between the heir at law and the per-
sonal representative only. It would have been difficult to extend
the rule to a devise of the estate by name, although every devise
of real estate is in its nature specific. In deciding in favor of the
conversion in Lawes v. Bennett, Lord Kenyon observed, that no
stress could be laid upon the will of the testator, for that was ex-
pressed in very general terms. He had two species of property,
one of which he gave to Bennett, the other to Bennett and his
sister. Then which kind of property was the present ? A contract
to sell an estate made it personal property, and he thought it made
no distinction that it was left to the election of the tenant whether
it should be real or personal (^).
41. It has lately been decided, that a devise of the very lands by
description does not fall within the rule in Lawes v. Bennett, but
the purchase money will belong to the devisee (A).
42. In these cases, until the option is declared, the rents belong
to the heir or dev^isee. And where in a common contract, to be
completed by a future fixed day, " but all rent and other profits to
accrue in the meantime," were to belong to the vendor, his heirs,
executors, and administrators, and the vendor died before the day,
it was held, that the intermediate rents belonged to the heir, as the
words showed an intention that the estate should be kept as realty
up to the time when it was to be converted absolutely into personal
estate (i).
43. Upon the same principle it has been determined, that if a
(/) To-miley v. Bedwell, 14 Ves. jun. (/;) Drant v. Vause, 1 You. & Coll. C.
691. C. 580.
{ff) 1 Cox, 171. (0 Shadforthv. Temple, 10 Sim. 184.
[*204]
OF A DEVISE OF AN ESTATE CONTRACTED FOE. 24 i
man having a timber estate, agree to sell a given quantity per
annum, to be chosen by the buyer, although the owner die, and
the option is in the buyer, yet the timber cut after the owner's
death, however large in quantity, will be part of his personal
estate (k).
44. The rule established by these decisions must frequently sub-
vert the vendor's intention ; where, therefore, a vendor intends the
estate, as between his real and personal representatives, to be
deemed real estate, a declaration to that effect should be inserted
in the agreement for sale.
45. We may here observe, that equity will not only enforce a
contract to sell, although the election is in the other party alone,
as in the cases above quoted, but would execute a will proposing
*a right of pre-emption (I). If an estate is stated in a will to have
been valued at 50,0001., and it is directed to be offered to a par-
ticular person at 30,000/., clearly the Court would act. In the
more difficult case, where a testator directs trustees to offer the
estate at such price and upon such terms as they may think pro-
per to fix, the Court will, if the trustees will not act, place itself
in their stead, and refer it to the Master to fix a price. Again,
if the testator ordered the trustees to put a reasonable value upon
the estate and to offer it to a particular person at that value, and
they die or refuse to act, the Court might direct a reference to the
Master to fix the value and execute the trust by proposing the
estate to him at that value, and if he did not accept the proposal,
putting it up by public sale (II). Neither the nature of the pro-
perty nor the difficulty of executing the trust ought to alter the
rule. Such a will amounts in substance to a devise of the estate
itself, if the favored object elect to take it. But he must in his
lifetime or by his will do some act, denoting that he accepts the
{k) See 7 Ve.s, jiui. 437 ; 1 Cox, 171.
(I) As to a right of pre-emption of timber wliich a lessee is authorized to cut
down, see Goodtitle v. Savillc, lo East, 87 ; and as to such a right in a real estate
belonging to a partnership, see Cookson r. Cookson, 8 Sim. 529 ; and as to enlarg-
ing the time by conduct, see Pj'kc r. Northwood, 1 Bea. 152. A claim for re-
purchase must be literally pursued, Joy r. Birch, 4 Clar. & Fin. 89. As to a right
in a public body to purchase under an Act of Paiiiament, as a railway company,
see Webb v. Manchester and Leeds Railway Company, 4 Myl. & Cra. IIG ; Stone
V. Commercial Railway Company, ib. 122. A right of pre-emption in a tenant is
at an end where the tenant's interest in a part of the land is bought by the lessor,
Sparrow v. Cooper, 1 Hay. & Jo. 401.
(II) This latter would be with a view to a general sale : it could hardly be an-
other mode of leaving the favored object to work out his i-ight by buying at the
auction.
Vol. I. 31 i*206]
5242 OF A DEVISK OF AN ESTATE CONTRACTED FOR
benefit, or the Court cannot consider him as the purchaser of the
estate (I).
46. But the purchase must in substance be conckided within
the prescribed time, as far as depends upon the purchaser, and
therefore, where a devise to trustees was in trust, to permit the
testator's son at any time within three months to become the pur-
chaser at a certain price, and to convey the same to him in fee,
but should he not complete the purchase within tlie three months,
to sell the same generally, a verbal intimation by the son of his in-
tention to purchase, assented to by them, but not followed by pay-
ment of the money, and the title-deeds were not delivered to the
solicitor to the trustees with instructions to prepare the conveyance
until the last day of the three months, was held not to give the
son the right to enforce the sale to him, for the son ought at the
least to have placed the purchase-money under the control of the
*trustees : a mere verbal notification of an intention to purchase
could not be said to be a completion of the purchase (m).
47. Where the contract is binding at the death of the vendor
although the purchaser by subsequent laches lose his right to a
specific performance, yet the estate will belong to the next of kin
and not to the heir at law (n).
48. We may further observe, that if a lease be granted, with
power to the lessee to cut and sell the timber, and the lessee is
required when and so often as he intends to sell ihe limber, or any
part thereof, to give notice to the lessor to whom the pre-emption
was given ; the lessee having a bo7ia fide intention to cut down
all the timber, may give a general notice to the lessor, and if the
lessor decline to purchase the timber, the lessee may cut it down at
intervals and need not repeat the notice (o).
49. But to return to the cases of devises before or after con-
tracts, secondly, we are to consider the law as it applies to wills
executed upon or subsequently to the 1st January, 1838. Every
such will speaks and takes effect with reference to the property
comprised in it, as if it had been executed immediately before the
death of the testator, unless a contrary intention appear (^p) (I).
{I) The Earl of Radnor v. Shafto, 11 (o) Goodtitle v. Saville, 16 East, 87;
Ves. jun. 454, 455, per Lord Eldon. see Doe v. Abel, 2 Mau. & Sehv. 541.
(wj Dawson v. Dawson, 8 Sim. 346. (;>) 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(</).
29. The decreeing a specific performance is a matter of discretion >
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 ^<nll entertain jurisdiction, and grant relief as
justice may require." See Cowles r. Whitman, 10 Conn. 121, 125 ; Murphy r.
Clark, 1 Smedes & Marsh. 221, 232 ; Butler v. Hicks, 11 Smedes & Marsh. 79, "85 ,-
Mechanics Bank of Alexandria v. Seton, 1 Peters (S. C.) 300, 305 ; Chamberlain
V. Blue, 6 Blackf. 491, 492 ; Brown v. Gilliland, 3 Desaus. 539, 541 ; Hoy v.
Hansborough, 1 Freeman Ch. 533; 2 Star\' Eq. Jur. §717; Sanquirico r. Bene-
detti, 1 Barbour, 315 ; Stuyvesant v. Mayor, &c. of N. York, 11 Paige, 414; Phil-
lips V. Berger, 2 Barbour Sup. Ct. Rep. 608.
(2) St. John V. Benedict, 6 John. Ch. 117 ; Seymour v. Delancev, 6 John. Ch.
225 ; S. C. 3 Cowen, 445 ; Peikins r. Wright, 3 Har. & M'Hen. 326 ; Simmons
V. Hill, 4 Har. & M'Hen. 258 ; Clitherall v. Ogilvie, 1 Desaus. 257 ; Jenkins v.
Hogg, 2 Const. Rep. (S. Car.) 841 ; Hester r. Hooker, 7 Smedes & Marsh. 768;
Tobey v. Bristol, 3 Story C. C. 800 ; Clement v. Reid, 9 Smedes & Marsh. 535 ;
Wedgewood v. Adams, 6 Bevan, 600.
(3) Kendall v. Almy, 2 Sumner, 278 ; Carr v. Duval, 14 Peters, 77 ; German v.
Machin, 6 Paige, 288 ; Seymour r. Delamcey, 6 John. Ch. 225 ; S, C. 3 Cowen^
445 ; Acker v. Phoenix, 4 Paige, 305.
[*235]
mSREPRESENTATlON. 275
consideration (it) (1). The Court will never decree a specific per*-
formance, unless the case of the plaintiff is perfectly clear from cir^
cumventioii and deceit (u) (2),
30. Therefore (x) where the purchaser was plaintiff, and was the
seller's agent, a specific performance was refused, because be had
represented to the seller that the houses had been injured by a
flood, and would require between 40l. and 50?. to repair them,
whereas 405. would havo repaired the damage. He was considered
to have been guilty of a degree of misrepresentation operating to a
certain though a small extent, and that misrepresentation disquali-
fied him from calling for the aid of a court of equity, where he must
come, as it is said, with clean hands. He must, to entitle him to
relief, be liable to no imputation in the transaction. And in a later
•case (y), the Court observed, that there was no case where the
Court had, when misrepresentation was the ground of a contract,
decreed the specific performance of it, and nothing would be more
dangerous than to entertain such a jurisdiction. The principle
upon which performance of an agreement is compelled requires
that it must be clear of the imputation of any deception. The con-
duct of the person seeking it must be free from all blame ; mis-
representation, even as to a small part only, prevents him from
^applying to equity for relief. He must come with perfect pro-
priety of conduct ; if he does not, that alone is a sufficient answer
to him (3).
31. And accordingly, where a person for whose life the property
was held, was described to be a very healthy gentleman, and in
another passage, a healthy gentleman, and the sellers had, shortly
before the sale, insured the life at a sum exceeding the highest
(t) Per Lord Ilardwicke, see 1 Ves. (m) See 1 Cox, 407.
279 ; and see 3 Atk. 386; Ellard ». Lord (x) Cadman v. Horner, 18 Ves. jun,
Llandaff, 1 Ball & Bcatty, 241 ; Martin 10.
V. Mitchell, 2 Jac. & Wallc. 413 ; Stanley (i/) Lord Ckrmonti). Tasburgh, 1 Jac,
T. llobinson, 1 liuss. & Myl. 527. & Walk. 112.
(1) Seymour v. Delancey, G John. Ch. 222 ; S. C. 3 Cowen, 445 ; Cole v. Tre-
cothick, 9 Vesey (Sumner's ed.) 234 ; Moth v. Atwood, 5 ib. 845, in note.
(2) Clement c. lieid, 9 Smedes & Marsh. 535 ; Miller i-. Chetwood, 1 Green Ch.
199 ; Seymour v. Delancey, 6 John. Ch.225 ; S. C. 3 Cowcn, 445 ; Acker r. Phoe-
nix, 4 Paige, 305 ; Nellis v. Clark, 20 Wendell, 24 ; Cathoart v. Eobinson, 5 Peters,
(S. C.) 264, 276.
(3) Best r. Stow, 2 Sandford Oh. 298 ; Schmidt r. Livingston, 3 Edwards, 213 ;
Benedict r. Lynch, 1 John. Ch. 375, 379 ; Hodman v.ZUley, 1 Saxton (N. J.) Ch.
320 ; Patterson r. Mertz, 8 Watts, 374 ; I/ivingston v. Peru Iron Co. 2 Paige,
390; Perkins v. M'(iavock, Cooke, 417 ; King v. Morford, 1 Saxton (N. J.) Ch.
274 ; Cathcart v. Robinson, 5 Peters (S. C.) 264, 276 ; Fisher r. Worrall, 5 Watts
& Serg. 478 ; Gurley v. Hiteshue. 5 Gill, 217 ; Young v. Frost, 5 GUI, 287, 313.
1*236]
276 PRICE : INTOXICATIOW,
rate charged for a healthy life of the same age, the bill of the sellers
for a specific performance was dismissed with costs (z).
32. But, as we have seen, general statements by a seller may
not amount to a misrepresentation — as in the case before quoted,
where the fine for renewal was stated to be a small one, and that
the estate was nearly equal to freehold, and those representations
were considered to be indefinite. Such representations ought to
put a purchaser upon inquiry. But if the seller knew that a larger
fine would be required, and that the purchaser entertained a different
idea of the fine, that would be a ground for rescinding the contract.
Where the purchaser wished to ascertain the fine, and offered 150Z,
towards it, if the seller would pay the remainder, which he refused
to do, the Court said that they could not put the purchaser in the
situation in which he would have been, if the 150/. had been ac-
cepted. That circumstance (the refusal to pay beyond the 150/.)
ought to have put him upon inquiry, and he did not bring himself
within any rule to avoid the contract ; and if he bad, he could only
have rescinded the contract (a).
33. A court of equity does not affect to weigh the actual value,
nor to insist upon an equivalent in contracts, where each party has
equal competence. When undue advantage is taken, it will not
enforce the contract ; but it cannot listen to one party, saying,
that another man would have given him more money or better
terms than he agreed to take. It may be an improvident contract ;
but improvidence or inadequacy do not determine a court of equity
against decreeing specific performance (b) (1).
34. Equity will not decree a specific performance of an agreement
made in a state of intoxication, although the party was not drawn
in to drink by the plaintiff; nor will it decree the agreement to be
delivered up ; but will leave the parties to their remedy at law (c) (2),
(r) Brcaley v. Collins, You. 317. (c) (Jragg v. Holme, 18 Ves. jun. 14,
(a) Fcnton v. Bro-mic, 14 Ves. jxai. cited. [Sumner's ed. note (a).] See
144. Sec Lo^vndes v. Lane, 2 Cox, 363. Sav v. Bar-\\ick, 1 Ves. & Bea. 95 ;
(6) Sullivan v. Jacob, 1 Moll. 477 ; Lightibot v. Heron, 3 You. & Coll. 586 ;
per Hart, L. C. Nagle v, Baylor, 3 Dru. & War. 60.
(1) Coles V. Trecothick, 9 Vesey (Sumner's ed.) 234 and note ; Moth». Atwood,
5 ib. 845 and note; 1 Story Eq. Jur. ^^245, ^246 ; Seymour v. Delancey, 6 John.
Ch. 225, 232 ; S. C. 3 Cowen, 445 ; Minturnr. Seymour, 4 John. Ch. 500; Wood-
cock 1'. Bennett, 1 Cowen, 733 ; Cathcart v. Robinson, 5 Peters (S. C.) 264.
(2) See 1 Story Eq. Jur. ^V230, §231 ; GampbeUw. Ketcham, 1 Bibb, 406 ; White
V. Cox, 3 Haw. 82 ; Wigglesworth v. Steers, 1 Hen. & Munf. 70 ; Taylor v.
Patrick, 1 Bibb, 168 ; Rutherford r. Ruff, 4 Dcsaus. 350; Barrett r-. Buxton, 2
Aiken, 167 ; Morrison v. M'Lcod, 2 Dev. & Bat. 221 ; Hutchinson v. Brown, 1
Clarke, 408 ; Ford i\ Hitchcock, 8 Ohio, 214 ; Conant v, Jackson, 16 Vermont,
335 ; Prentice v. Achorn, 2 Paige, 30.
HARDSHIP OF CONTRACT. 277
35. If it be stipulated in a contract, that immediate possession
shall be given to the purchaser, which is done, but in consequence
*of disputes as to the title, the seller afterwards turn the purchaser
out of possession, he abandons his right to a specific perform-
ance (d) (1).
36. A court of equity frequently decrees a specific performance
where the action at law has been lost by the default of the very
party seeking the specific performance, if it be notwithstanding
conscientious that that agreement should be performed, as in cases
where the terms of the agreement have not been strictly performed
on the part of the person seeking specific performance ; and to
sustain an action at law, performance must be averred according
to the very terms of the contract. Nothing but specific execution
of the contract, so far as it can be executed, will do justice in such
a case (e) (2).
37. Although damages may be recovered at law, yet equity is
not therefore obliged to decree a specific performance ; but the
Court will judge on the whole circumstances of the case, whether
it be such an agreement as ought to be carried into effect ; for a
jury, upon inquiry, may find very small damages, and then it would
be very hard to carry such an agreement into execution in equity,
when it would be greatly to the prejudice of the party against
whom it should be decreed to be executed (/) (3).
38. Thus in a case where a man was entitled to a small estate
under his father's will, given on condition that if he should sell it
in twenty-five years, half the purchase money should go to his
brother ; he agreed, in writing, to sell it, and afterwards refused
to carry the sale into execution, pretending to have been intoxi-
(d) Knatchbiill v. Grubor, 8 Mer. 124. Pope v. Harris, Lofft, 791, cited ; White's
(e) Davis v. Hone, 2 Scho. & Let". 341, case, 3 Swanst. 108, n. ; Coote v. Coote,
748. See Lennon v. Nappcr, ibid. 684. 1 Sauss. & ScuL 693.
(/) Per Lord Hardwicke, MS, See
(1) Where a purchaser of land was let into possession, and paid a part of the
purchase money, under the contract, but being sued by the vendor for the bal-
ance of the purchase money, he defended on the ground that the contract Avas
void by the statute of fi-auds, and so defeated the action, it was held, that the pur-
chaser after disaffirming and abandoning the contract, -was not entitled to a spe-
cific execution thereof in equitv. Pavne r. Graves, 5 Leigh, .561.
(2) See 2 Story £([. Jur. ^^775 ; Fonbl. Eq. B. 1, Ch. 6, §2 note (e) ; Winne v.
Kevnolds, 6 Paige, 407 ; Taylor v. LongAvorthv, 14 Peters, 173 ; Perkins r. Wright,
3 Har. & M'Hen. 326 ; CHtherall v. Ogilvie, i Desaus. 263; Edwards r. Handley,
Hai-din, 102 ; Voorhces v. DeMeycr, 2 Barbour, Sup. Ct. 37 ; Lewis v. Woods, 4
Howard, (Miss.) 86 ; Tevis r. Richardson, 7 Monroe, 6.56.
(3) See Sears v. Boston, 16 Pick. 357 ; Ellis v. Burden, 1 Alabama (N. S.) 4.58 ;
Perkins v. Wright, 3 Har. & M'Hen. 326 ; HaU v. Boss, 3 Hayw. 202 ; Perkins
t'. Hadlev, 4 ib. 143.
278 HARDSHIP OF CONTRACT.
cated at the time. A bill was brought against him to compel a
specific performance ; and Lord Hardwicke held, that without the
other circumstance, the hardship alone of losing half the pur-
chase-money, if carried into execution, was sufficient to determine
the discretion of the Court not to interfere, but leave them to
law (§•).
39. Nor will equity interpose, if the party who is called upon
to do the act is not lawfully competent to do it ; for that,
amongst other inconveniences, would expose him to a new action
for damages (h) (1).
*40. But although a covenant ought not to be performed liter-
ally, yet equity will execute it according to a conscientious
modification of it, to do justice as far as circumstances will
permit (?') (2).
41. Prima facie, a man who agrees to take an under-lease
must know that he is bound by all the covenants contained in
the original lease, and therefore, such a purchaser cannot object
to usual covenants. And as it is his duty to inform himself of the
covenants contained in the original lease, if he enters and takes
possession of the property, he may be bound by even unusual
covenants. And if the deeds are brought to his solicitor for
inspection before the contract, who does, or might inspect them,
he will be considered to have purchased with notice of the cove-
nants (k). But although a man knows that the seller is only a
lessee, yet if the agreement contains stipulations, the purchaser
may rely upon them, because such an agreement amounts to a
representation that the seller is not prevented from granting such
terms, and if they are contrary to the covenants in the original
lease, the purchaser is not bound (/). So if the purchaser state
the object which he has in purchasing, and the seller is silent as
to a covenant in the lease prohibiting that object, his silence
{g) Fain v. Brown, 2 Yes. 307, cited; Ball & Beatty, 241, ^oe post, p. 242.
Costigan v. Hastier, 2 Scho. & Lef. 160. (<) Davis v. Hone, 2 Scho. & Lef. 348.
See 2 Ball & Beatty, 283 ; Howell v. (/,) Cosser v. Collinge, 3 Myl. & Kee.
George, 1 Madd. 1 ; "Wedgwood v. Ad- 283 ; Flight r. Barton, ib. 282 ; Propert
ams, 6 Beav. 600. v. Parker, ib. 280.
(A) Harnett v. Yielding, 2 Scho. & (I) Van v. Corpc, 3 Myl. & Kee. 269.
Lef. 554 ; EUard v. Lord Llandaff, 1
(1) Equity will not help a party in the performance of an agreement made on
purpose to defraud creditors. St John v. Benedict, 6 John. Ch. Ill ; Herrick v.
Grew, 5 Wendell, 579. See M'Dermed v. M'Cartland, Hardin, 18 ; Ilannay v.
Eve, 3 Cranch, 242.
(2) See Champion v. Brown, 6 John. Ch. 398 ; Ramsay v. Brailsford, 2 Desaus.
583.
[*238]
SUPPRESSIO VERI : SUGGESTIO FALSI. 279
would be equivalent to a representation that there was no such
prohibitory covenant ; and it is unimportant that the seller was
not aware of the extent or operation of the covenant (m).
42. Suppressio veri, as well as suggestio falsi, is a ground to
rescind an agreement, or at least not to carry it into execution (n)
(1), and even an industrious concealment, during a treaty, of the
necessary repair of a wall to protect the estate from a river, which
was a considerable outgoing, has been deemed a sufficient ground
to withhold the aid of equity from a vendor (o).
43. So where there is a mistake between the parties as to what
was sold, the Court will not interfere in favor of either party (j?)
(2), And it will not carry an agreement into effect where, by the
death of a party, which was unknown to both seller and purchaser, the
seller had a greater interest than was supposed, although he
*sold all his present and future interest ( q). And if a man, being
employed to bid for an estate to prevent its being sold at an under-
value, by mistake buy another estate belonging to another person
previously put up on the same day and place, by the same auc-
tioneer, the Court will not compel him to complete the purchase,
but will leave the seller to his action for damages (r).
44. Ev^en mere surprise on third persons at a sale by auction,
has been deemed sufficient to prevent the Court from assisting a
l)urchaser (3) ; as where the known agent of the seller bid for the
estate on behalf of the purchaser, and other persons present, think-
ing he was bidding as a puffer on the part of the vendor, were
deterred from bidding (s). So, in a recent case, where a purchaser,
previously to the sale by auction, told the vendor that he would
have nothing to do with the estate, but afterwards went to the
(w)Flightf. Barton,3Myl. & Kee. 282. Clowes, 15 Vcs. jun. loG; Clowes v.
(rt) See Buxton v. Cooper, 3 Atk. Ilisgiiison, 1 Ves. & Bea. 524 ; Harnett
383 ; S. C. MS. ; Howard v. Hopkins, 2 v. Yielding, 2 Scho. & Lef. 55^ ; Neap
Atk. 371 ; Young r. Clerk, Prec. Cha. v. Abbott, C. Coop. 333.
138 ; 1 Trea. Eq. ch. ii. s. 8 ; 1 Ball & (q) Colyor r. Clay, 7 Beav. 188 ; con-
Beattv, 21 1 ; I^ord Clermont v. Tas- sider the extent of tlie relief,
burgli, 1 Jae. & Walk. 112. (r) Malins v. Freeman, 2 Kee. 25.
(0) Shirley i: Stratton, 1 Bro. C. C. (s) Twining r. Morris, 2 Bro. C. C.
4i0 [Perkins's cd. notes.] See Small t'. 326. [Perkins's ed. notes.] See G Yes.
Atwood, 6 Cla. & Fin. 232. jun. 338 ; 10 Yes. jun. 305, 313, 398 ;
(/)) See 1 Yes. jun. 211; 6 Ves. jun. and see Willan r.^YiUan, 16 Yes. jun.
339 ; 13 Yes. jun. 427 ; Higginson v. 72 ; Magrane v. Archbold, 1 Dow. 107.
(1) Warner v. Daniels, 1 Wood. & Minot, 90, 108 ; Torrey i\ Buck, 1 Green
Ch. 367 ; Waters v. Mattingley, 1 Bibb, 244 ; Livingston v. Peru Iron Co. 2
Paige, 390.
(2) See Greene v. Bateman, 2 Wood. & Minot, 359.
(3) See Mortlock v. Buller, 10 Vesey (Sumner's ed.) 292 and note (d).
[*239]
280 SALE BY AN AGENT.
sale, ivhere he ivas considered by the company as a puffer (I), and
bid 8,000Z. for the estate, which was knocked down to him at that
sum from the misapprehension of the person appointed to bid for
the vendor, who ought to have bid 9,000/., and the mistake was
instantly explained, a specific performance was refused (t).
45. If the contract be founded on fraudulent misrepresentations,
such as would in a court of law be sufficient to support an action
on the case, it may in a court of equity be rescinded. The fraud
may consist in the misrepresentation of a fact material to the con-
tract, where the truth of that is known to the one party, and un-
known to the other, and the misrepresentation is intentionally
made with a view of procuring a more advantageous contract than
the real facts, if truly stated, would have warranted ; and in such
a case equity would rescind the contract (u).
46. If an agent, employed to sell an estate, sell it in a manner
not authorized by the authority given to him, a specific perform-
ance will not be decreed against the principal, although the estate
be sold for a greater price than he required for it (y). At least,
*it is clearly settled, that if an agent is empowered to sell an estate
by public auction, a sale by private contract is not within his
authority. For although the owner may have fixed the price, yet
the estate might have sold for more at a public auction. But if
an agent is directed to sell an estate by private contract, and he
dispose of it by public auction for a larger sum than the principal
required, it still seems open to contend that the purchaser may
enforce a specific performance of the contract, unless some partic-
ular reason should occur to induce the Court to refuse its aid.
47. In Mortlock v. Buller (x), Lord Eldon said he should hesitate
long before he should state as a clear proposition, that where
the title to a specific performance is founded in a gross breach of
trust by an agent to his principal, a court of equity would assist
the plaintiff in the purpose of availing himself of that breach of
trust ; and whether the principal would not authorize the Court
to leave him to law, and not to let him come for a remedy beyond
that. There were, he added, dicta enough well to authorize that.
(<)Masonr. Armitage,13 Yes.jun. 25. sham v. Langley, 1 You. & Coll, C. C.
Sec Hill V. Buckley, 17 Ves. jun. 394. 175 ; '\Vlute v. Cuddon, 8 Cla. & Fin. 766.
(w) Lovell r. Ilicks, 2 You. & Coll. (.r) 10 Yes. jun. 292 ; and see the close
46 ; vide infra, s. 4. of the judgment, Ord v. Noel, 5 Madd.
(i-) Daniel v. Adams, Ambl. 495 ; et 438 ; Uridger v. Rice, 1 Jac. & AValk.
vide a diction by Lord Eldon in Coles v. 74 ; Turner & HaiTcy, Jac. 169 ; Neale
Trecothick, 1 Smith's liep. 247 ; Hel- v. Mackenzie, 1 Kee. 474.
(I) This is stated in the judgment, but qu. whether it appeared in evidence.
[*240]
SALE BY TRUSTEES. 281
48. And where trustees for sale of an estate enter into a con-
tract, which would be deemed a breach of trust, equity will not
only refuse to interfere in favor of the purchaser, but will even at
the suit of the cestuis que trust restrain the trustees from executing
the contract, and the purchaser will be left to his remedy at
law (y).
49. Where a power of sale is given to trustees, although to be
executed at the request of the tenant for life, it is discretionary
in them whether they will exercise the power, and therefore if
they think it disadvantageous to their cestuis que trust, they can-
not be compelled to adopt a contract entered into by the tenant
for life for sale of the estate (;r).
50. But if the tenant for life sell, it may be referred to the Mas-
ter to inquire whether he can, by application to the trustees, pro-
cure a good title to be made («).
51. If a person, entitled in default of execution of a power of
sale, contract to sell the estate, not as owner, but merely as the
agent of the trustees, and the contract could not, under the cir-
cumstances, have been carried into execution against the trustees,
*it will not be enforced against the agent, although he himself
become entitled to the estate before the decree (b), (I).
52. Where a person takes upon himself to contract for the sale
of an estate, and is not absolute owner of it, nor has it in his power
by the ordinary course of law or equity to make himself so ; though
the owner offer to make the seller a title, yet equity will not force
the buyer to take it, for every seller ought to be a bona fide con-
tractor (c) : and it would lead to infinite mischief if one man were
permitted to speculate upon the sale of another's estate. Besides,
(y) Mortlock V. Buller, 10 Vcs. jiin. (c) Tcndring r. •London, 2 Eq. Ca.
292. See Hill r. Buckley, 17 Yes. 'jun. Abr. G80, pi. 0. See 10 Yes. jun. 315 ;
394 ; Bridger v. Ilice, 1 Jac. & ^^'alk. and 1 Jac. & AYalk. 421 ; and query,
74 ; ^Vood f. Richardson, 4 Beav. 174 ; whether there is any case, in which a
Thompson v. Blackstone, 6 Beav. 470. man, knowing himself not to have any
(z) Thomas v. Dering, 1 Kee. 729 ; title, has been allowed to enforce the
vide supra, eh. 2. contract by procuring a title before the
(a) Graham r. Oliver, 3 Beav. 124. report. See Brj-an v. Lewis, 1 Mood. &
(6) Mortlock r. Buller, 10 Yes. jun. lly. 386.
292.
(I) From the papers in this cause, it seems that Mr. BuUer treated with Mr.
Mortlock as the owner of the estate, and this appeared from the receipt for the
purchase-money, where the estate was called, " the property of John Buller, Esq.,"
and Mr. Mortlock had not any knowledge whatever that the estate was i\\ settle-
ment. See Lawrenson v. Butler, 1 Sch. & Lef. 13.
Since this note was written, an action brought by Mr. Mortlock against Mr.
Buller, for breach of contract, came on for trial, when it was compromised on
terms very advantageous to the plaintiff. See 2 Ball & Beatty, 60 ; and see 2
Dow, .518.
Vol. 1. 36 f*241]
'282 SALE BT PERSONS NOT OWNERS.
the remedy is not mutual, which perhaps is of itself a sufficient
objection in a case of this nature. In Armiger v. Clarke (d), a
tenant for life contracted to sell the inheritance ; after his death,
his son who was entitled to the estate in remainder, and was not
bound by his father's covenant, brought a bill for a specific per-
formance against the purchaser, and it was dismissed chiefly upon
this principle, that the remedy was not mutual. And in Noel v.
Hoy (e), it was said, that if A sells J5's estate, although B is wil-
ling to confirm the contract, A. cannot enforce it : there is no
mutuality. So an infant cannot specifically enforce a contract by
himself for sale, because there is no mutuahty (/). But in Williams
V. Carter («•), the estate was sold, and it was afterwards discovered
that it was bound by marriage articles, which it was decided in a
suit instituted for the purpose, authorized the introduction of a
power of sale in the trustees, and thereupon a bill was filed by
them and the seller for a specific performance. The Vice-Chan-
cellor overruled the objection, that there was no mutuality in the
agreement, and decreed a specific performance.
*53. But of course the rule does not apply to a seller in posses-
sion, where it turns out that he has not a title to a small part; he
may purchase the part, and make good his own sale (/t) ; or where,
although there is a power to impeach his title to the whole estate,
he obtains a release of the adverse right before the purchaser is
entitled to be released (i)(l).
54. On the other hand, where a hona fide vendor has not a title
to the estate, the Court will leave the purchaser to his remedy
upon the articles at law (Ic), where in most cases he would obtain
nominal damages only (J). But where the purchaser is willing to
take the title, such as it is, it is apprehended that he may do
so (m).
55. But where a tenant for life with a power of sale, first set-
tling other estates of equal or better value, sold Tlie estate under
{(i) Bunb. Ill ; &ce post, ch. 7 ; Ham- C. C. 608.
ilton V. Grant, 3 Dow, 33. {k) Crop r. Norton, 2 Atk. 74 ; 9
(e) Y. C. 23 Feb. 1820, MS. Mod. 233 ;. Cornwall v. "Wniiams, Colles,
( /■) Flight V. Bolland, 4 Russ. 298. P. C. 390 ; Benet College v. Carey, 3
(g) MS. V. C. 1821 ; London and Bir- Bro. C. C. 390.
mingham llailway Company v. "Winter, {I) Flc-aureau r. Thornhill, 2 Blackst.
1 Cra. & Phil. 57*; see Adams r. Broke, 1078 ; and see 3 Bos. & Pull. 167. See
1 You. & Coll. C. C. 627 ; Salisbury v. Brig's case, Palm. 36t. Yide;;osi!.
Hatcher, 2 You. & Coll. C. C. 54. ' (»*) See Harnett v. Yielding, 2 Scho.
(Ji) Chamberlain v. Lee, 10 Sim. 444. & Lef. 549 ; axiApost, ch. 10.
(j) Eyston r. Symonds, 1 You. & Coll.
(1) See Yoorhees v. De Meyer, 2 Barbour Sup. Ct. 37 ; McKay v. Carriiigton,
1 McLean, 64.
[*242j
PURCHASER NOMINAL CONTRACTOR. 283
an apprehension that he had power to convey the fee, the Court
refused to compel hiia to settle another estate, in order to enable
him to complete his contract (??.).
56. To enable the Court to decree a specific performance against
a vendor, it is not, however, necessary that he should have the
legal estate ; for if he has an equitable title, a performance in
specie will be decreed (o), and he must obtain the concurrence of
the persons seised of the legal estate (1).
57. Although, as we have seen, a vendor cannot demand the
aid of equity, unless he is a hoim fide contractor, yet the circum-
stance that the purchaser is a nominal contractor, and purchases
in trust for another person, is immaterial ; for it happens, in a vast
proportion of cases, that the contract is entered into in the name
of a trustee (p), and the mere fact of a quarrel having taken place
between the vendor and the real purchaser, totally unconnected
with the subject of the contract (5'), or even a bare refusal by the
vendor to deal with the real contractor (r), is not a sufficient
ground to refuse a performance in specie of the agreement.
58. But if a person apply to purchase an estate, and the vendor
expressly refuse to treat with him, unless the money is paid down,
which he is unable to do, but procures some other person to pur-
{n) Howell v. George, 1 Madd. 1. {q) S. C.
(0) Crop r. Norton, 2 Atk. 74. See (/•) Lord Irnham v. Child, 1 Bro. C.
Costigan v. Hastier, 2 Scho. & Lef. 160. C. 92,
(p) Hall V. AVarreu, 9 Yes. jun, GOo.
(1) Courts of Equity will not decree the specific performance of an agreement
of sale, and oblige the purchaser to accept a title, which the vendor cannot make
out to be clearly good and free fi'om incumbrance. Butler v. O'Hear, 1 Desaus.
282 ; licwis v. Herndon, 3 latt. 3;58 ; Kellcy v. Bradford, 3 Bibb, 317 ; Seymour
V. Dclanccv, 1 Hopkins, 43G ; Young v. Lillard, 1 Marsh. 482 ; Morgan v. Mor-
gan, 2 Wheaton, 290, 299 ; Kecd v. Noe, 9 Yerger, 283 ; Watts v. Waddle, 6 Pe-
ters, 389 ; Hepburn v. Dunlap, 1 Wheaton, 179 ; Beckwith r. Kouns, 6 B. Mon-
roe, 222 ; Wiiiue v. lieynolds, (j I'aige, 407. It is sufficient, however, if the ven-
dor is able to make out a good title before decree j^ronounced, although he had
not a good title when the contract was made ; Hepburn v. Auld, Ci'aiich, 262,
275 ; Fiuley i'. I*ynch, 3 Bibb, .566 ; Tyrcc v. Williams, 3 Bibb, 366 ; Seymour r.
Delancey, 3 Cowen, 44.3 ; Pierce v. Nichols, 1 Paige, 244 ; Colton r. Ward, 3
Monroe," 304, 313; Baldwin v. Salter, 8 Paige, 473 ; Dutch Church, &c. r. Mott,
7 Paige, 78 ; unless there is material injury caused by the delay ; Dutch Church,
&c. r. Mott, 7 Paige, 78 ; Nodine v. Greenfield, 7 Paige, .544 ; or time is of the
essence of the contract; Wells r. Smith, 7 Paige, 22 ; S. C. 2 Edwards, 78 ; Mar-
quis of Hertford v. Boore, .5 Ycsey, (Sumner's ed.) 719, in note. Butecjuity will
not reUeve a purchaser, who had a full knowledge of the defect in the title ;
Craddock v. Shirley, 3 Marsh. 288 ; or if liis conduct has amounted to a waiver
of the objection; lioachr. lluthcrford, 4 Desaus. 126. See Kamsay c. Brailsford,
2 Desaus. .590, .591. See farther on the subject of enforcing agreements in cases
of doubtful and defective titles, Tomlin v. M'Chord, o J. J. Marsh. 136 ; Beale v,
Seiveley, 8 Leigh, 608 ; Bryan r. Keed, 1 Dev. & Batt. Eq. 86 ; Watts r. Waddle,
1 M'Lean, 200 ; Cooper v. Donne, 4 Brown, C. C. (Perkins's ed.) 87, 88, & notes;
Roake r. Kidd, 5 Sumner's Yesey, 647, note.
284 PURCHASER NOMINAL CONTRACTOR.
chase *the estate on his account, it seems clear, that at least the
time appointed for payment of the money will be deemed of the
very essence of the contract (s) (I). So if a person apply to pur-
chase an estate on behalf of A, for whom the vendor has a great
value or affection, and the vendor is induced to take less for the
estate than he otherwise would have done ; or even, perhaps^
without this circumstance, the agreement cannot be enforced
against the vendor, if it be made on behalf of any other person
than A ; but if A will patronise the sale, execution of the agree-
ment must be compelled, although he may sell the estate the next
day to the fraudulent purchaser (t) (II).
59. The case of Scott v. Langstaffe (u), was decided on the
same principle. A purchaser of a bouse adjoining to a house
^occupied by the vendor, agreed with the vendor, though it was
not made part of the written contract, that he would not lease the
(s) Popham v. Eyre, Lofft; 786. IMr. Featherstonhaugh v. Fenwick, 17 Yes,
Brown's note of this case evinces the jun. 298.
danger of relying on short notes of {f) Phihps v, Duke of Buckingham,
cases ; see 1 Bro. C. C. 95, n. See O'Her- 1 Vcrn. 227.
lihy V. Hedges, 1 Shoales & Lefroy's (m) Lofft, 797, 798, cited; and see
Rep. 123 ; but note, that case was be- Bonnett v. Sadlei", 14 Ves. jun. 527 ;
tween landlord and tenant ; and see Fellowes v. Lord Grwydyr, 1 Sim. 63.
(I) The L. C. B. in delivering judgment in Davis v. Symonds, 1 Cox, 407, ob-
served, that in Eyre v. Popham [according to the false report of it], it seemed as
if concealing the name of a piirchaser was a sufficient reason for not decreeing a
performance ; adding, however, we may doubt particular cases without shaking
the principle [upon which the Court acts in refusing to interfere], which is clear,
(II) In Mr. Raithby's edition it is said that a specific performance Avas decreed.
The principle, however, is now Avell established. In Roger North's Life of the
Lord Keejicr (vol. ii. p. 130, 131), ho thus states the case: —
I may state another case, in which it appeared his Lordship's consideration of
justice surmounted his will, which was always inclined to be good to those of his
profession, especially if ho had a real value and esteem for them. The Duke of
Bucks was disposed to sell an estate in Leicestershire. It was while my Lord
Nottingham had the great seal. His son Heneage, a celebrated orator in Chancery
practice, liad formerly bought of the duke an estate at Aldborough in Sussex :
and not a few suits depended in court between his grace and his creditors and
trustees, in which the contention ran high. Mr. Ambrose Philips, an emuient
practiscr in the court, sought to buy the Leicestershire estate of the Duke of
Bucks, and contrived to use the name of Mr. Ileneage Finch in the treaty. On
the other side, it was told the duke that, if he let Mr. Fmch have the purchase at
an easy rate, it would be taken as a respect, and turn to an account in his causes.
So the matter went on, and the j^urchase, by payment and scaluig, finished. Then
the duke found out he had been imposed on, and that Philips, and not Finch, was
the real purchaser ; which if he had known before, ho would not have taken un-
der 2,000Z. more than the price he had received. He was so unsatisfied, that he
brought a 1)111 against Philips to be relieved as to tlris 2,000/., and, by cii-cumstan-
ces in the cause, it Avas plain to his lordship that the duke's price took in that
2,000;., but that, for Mr. Finch's sake (or rather his father's), he had bated it;
and also, that it was so ]n-ctcnded to him only to make him batqthat sum ; so that
his lordship decreed I'liilips to pay that sum, over and above liis purchase-money ;
which 2,000/. he had got off by a wily false pretence of Mr. Finch's being the
purchaser.
[*243J 1*2441
(
SELLER CONTRACTING AS AGENT. 285
house to any person not agreeable to him. LangstafFe applied
for a lease, and stated that he knew the vendor intimately, and
that there would be no objection to grant him a lease. The
vendor, however, disapproved of LangstafFe, and, so far from know-
ing him intimately, had only seen him at a tavern. Lord Camden
said, this was the case of Philips v. the Duke of Buckingham. No-
body, who had read that case, could easily forget it. And his Lord-
ship set aside the agreement which LangstafFe had obtained, with costs.
60. A similar case is mentioned in Hawkins's life of Johnson,
which was also decided on the authority of Philips's case. Peele
the bookseller had a house near Garrick's at Hampton. Peele
had often said, that as he knew it would be an accommodation to
Garrick, he had given directions that at his decease he should
have the refusal of it. On Peele's death, a man in the neighbor-
hood applied to his executors, pretending that he had a commis-
sion from a friend or relation of Peele's, who lived in the country,
to buy the house at any price, and he accordingly obtained a con-
veyance of it to a person nominated by him under a secret trust
for himself. Garrick filed a bill against him, and the purchase
was decreed fraudulent, and set aside with costs.
61. But although a seller falsely assume the character of an
agent to another, when he is himself the real seller, and the pur-
chaser be deceived by the representation, yet it has been decided
that if the purchaser cannot prove damage, or that the misrepre-
sentation induced him to enter into the contract, a specific per-
formance will not be refused (x). But where a purchaser had a
suspicion of the ownership of the subject offered for sale — a Claude
— and the ownership, in his view, enhanced the price, and the
seller's agent knowing that the purchaser labored under a decep-
tion, permitted him to remain in it, although the point was one*
which he thought material to influence his judgment, the contract
was held to be void at law (y).
62. An agreement for the sale of an annuity for three lives, to
be named by the purchaser, and to commence immediately, will be
decreed, although the lives have not been named, if the delay has
been occasioned by the seller (2;).
*63. In some cases (a), it has been holden, that where no action
(ar) Fellowes r. Lord Gwvdvr, 1 Sim. («) The Marquis of Normanby r. Duke
63 ; 1 Russ. & Myl. 83. See Crosbie v. of Devonshire, 2 Frccm. 21G ; Dr. Bet-
Tooke, 1 Myl. & Kee, 431. esworth v. Dean and Chapter of St.
(ij) Hill r. Gray, 1 Stark. Ca. 134; Paul's, Scl. Cha. Ca. 6G ; and see 2 Eq.
Pilmore r. Hood, 5 Bing. N. C. 97. Ca. Abr. 15,23, mo^w; and Fonbl. n. (c) to
(;)Pritch'd i-.Ovey, 1 Jac. & Walk. 396. 1 Trca. Eq. 138, and n. (/;) to p. 20i,ibid.
[*245]
286 SPECIFIC PERFORMANCE.
at law will lie to recover damages, equity will not execute the
agreement in specie ; for equity will never make that a good agree-
ment, which is not so by law (1) ; but in other cases (6), the contra-
ry has been holden, and relief been given accordingly (2). Perhaps
the following distinctions are authorized by the cases, and will recon-
cile them.
64. First, That although the agreement be void at law, yet a
specific performance will be decreed, if there is a clear ground for
the interference of equity, according to the general rules of the
Court ; and, however unqualifiedly the contrary rule may have been
laid down, there is not (that I am aware of) any case clearly
entitled to the aid of the Court, to which this rule has been success-
fully opposed as a bar to the relief.
65. Thus a bond from a woman to her intended husband has
been enforced in equity, although void at' law by the intermarriage;
and an agreement for sale of an estate has been decreed against an
heir at law, although his ancestor died before the time appointed to
convey the estate, and therefore no action would lie against him.
In the first of these cases the impropriety of the security was deemed
immaterial ; for it was sufficient that the bond was a written
evidence of the agreement of the parties, and the agreement being
upon a valuable consideration, ought to be executed in equity.
The decision in the other case depended upon the doctrine, that the
articles were a lien upon the land ; the contract being a purchase
in equity. But,
66. Secondly, Equity cannot contradict or overturn the grounds
or principles of law (c) ; and therefore, in many cases, it must be
considered whether damages could be recovered at law, and the
Court will be guided by the result (r/).
67. Thus agreements for sale of an estate have (as we have
already seen) been decreed on mere letters which have passed
between the parties, but not unless all the terms of the agreement
were therein specified ; and even this was going a great way. In
the first case, therefore, in which even a trifling omission appeared
(6) Winf^ed v. Lcfebury, 2 Eq. C. 275 ; 1 Smith's Ilcp. 213.
Abr. 32, pi. 43 ; Acton r. Pierce, 2 Vern. (c) See 2 P. Wins. 753 ; Eaii of Bath
480 ; Camiel v. Buckle, 2 P. Wms. 243 ; v. Sherwui, 10 Mod. 1.
Norton v. Mascall, 2 Yarn. 24 ; and Hall (d) See IloUis v. Edwards, 1 Ycni.
V. Hardy, 3 P. Wms. 187. See East 159.
India Company v. Donald, 9 Yes. jun.
(1) See Tevisr. Richardson, 7 Monroe, 056 ; Hickman r. Grimes, 1 A. K. Marsh.
87 ; Smiths. Carnev, 1 Litt. 295.
(2) Fonbl. Eq. B.'l, Ch. 1, §5 note (o^l ; ib. B. 1, Ch. 3, §1 note (c) ; 2 Story Eq.
Jur. §738, §739.
PENALTY. 287
in the letters, it was natural to pause before the performance of the
^agreement was decreed, and to ascertain whether damages could
be recovered at law ; for the statute of frauds and perjuries must
receive the same construction in a court of equity as in a court of
law, unless in the case of fraud, Sic. where equity interposes and
relieves against the abuse, or allays the rigor of the law. The
case of the Marquis of Normandy v. the Duke of Devonshire, was,
I believe, the first in which this point occured ; and, according to
a manuscript note, it appears that Lord Somers called in the two
chief justices on the point, whether the party, on the letters which
had passed, could have recovered damages at law? They were of
opinion that he could not, and Lord Somers accordingly dismissed
the bill.
68. So there are very few cases in which a court of equity can
decree a performance of an agreement upon which there can be no
action at law, according to the ivords of the articles, and the events
that have happened (e).
69. A proviso, in a contract for sale, that if either party break
the agreement he shall pay a sum of money to the other, will only
be considered in the nature of a penalty (/) (I) ; and consequently
a specific performance will be decreed just as if no such proviso
had been inserted. The defendant will not be allowed to forfeit the
penalty and get rid of the agreement (^) (1).
70. Where an action is brought for the recovery of the penalty,
to entitle the party bringing it to recover, he ought punctually,
exactly, and literally, to have completed his part (A). And it has
been said, that if, for breach of an agreement, to which a penalty
was annexed, either party recover damages at law beyond the
penalty, equity will relieve against the verdict, on payment of the
penalty only (^) ; but this is not well founded, for if the party have
two remedies at law, one for breach of contract upon the covenant,
(e) Whitmcl v. Farrcl, 1 Vcs. 250. <51o ; Bclcliicr i\ llepiolds, 2 LordKcny,
If) Howard r. Hopkins, 2 Atk. 371. 2 part, 87.
See" 2 Scho. & Lef. 684: ; and Magranc v. (h) Duke of St. Alban's v. Shore, 1 H.
Archbold, 1 Dow, 107 ; Davies r. Pen- Blackst. 270.
ton, OBani. &Cress. 216, ODowl. & lly. (/) Shenton i\ Jordan, lUmb. 132_;
369. ' but the reporter adds a qiieri/, for this
{(/) Hopson r. Trevor, 1 Str. 533 ; 2 seems an extraordinary opinion.
P. Wins. 191 ; Parks y. Wilson, 10 Mod.
(I) As to liquidated damages, vide supra, s. 2, pi. 21.
(1) Gordon v. Brown, 4 Iredell Eq. 399. See Ayers i-. Pease, 12 Wendell, 393.
[*246J
•288
OF BREACH OF CONTRACT.
or agreement, toties quoties ; the other for the penalty at once (Jc),
there appears to be no pretence for equity to relieve ; although
where large damages have been recovered at law, under a covenant
*which it was unconscientious strictly to enforce, the party may be
relieved in equity, upon offering to perform the covenant according
to conscience : but even this seems, in some measure, to be usurp-
ing the province of a jury, and the equity is administered with
great caution (1).
71. Lastly, to enable equity to enforce a contract it must be
enabled to specifically perform every part of it (Z).
(k) See Harrison v. Wright, 13 East,
343.
80.
(Z) Gervais v. Edwards, 2 Dru. & War.
(1) See 2 Storv Eq. Jur. §1313 at seq. ; Skinner v. Davton, 2 John. Ch. 526 ;
Fonbl. Eq. B. l,"Ch. 3, §2, note (d) ; B. 1, ch. 6, §4, note (h) ; Sloman v. Walter,
1 Brown C. C. (Perkins's ed.) 418, 419 and notes.
SECTION IV.
OF THE REMEDIES FOR A BREACH OF CONTRACT.
I. The remedy in equity.
II. The remedy at law.
2.
Injunction to prevent injury.
31.
Action by purchaser for fraud after
3.
Reference of title.
decree.
5.
Purchase-money ordered into Court.
32.
Party having xoaived, cannot bring
7.
Where not.
action after decree.
11.
Time allowed.
33.
Nor where bill dismissed for want of
12.
Seller ordered to pay in deposit.
title.
13.
Multifariotistiess.
34.
Actions by parties after bill dis-
lo.
16. Receiver s agents not proper par-
missed.
ties.
35.
A second action not allowed.
17.
Nor Adverse claitnants.
37.
Money had and received.
18.
Mortgagee not a proper party.
42.
No damages for loss of bargain.
20.
Plaintiff proving different agree-
44.
Loss by selling out of the finds.
ments.
45.
Interest on deposit.
22.
Upon dismissal of hill, no account.
46.
Expenses of investigating title.
23.
Damages to purchaser.
47.
Particulars of fact and law.
26.
No compensation for defective title.
51.
Averment of title : proof of title-
27.
New defence by purchaser.
deeds.
29.
Seller cutting ornamental timber
52.
Extent of damages to seller.
pending suit.
53.
Action by heir or executor of pur-
30.
Bill for injunction arid specific per-
chaser.
formance.
54.
Delivery of agreement to be stamped.
[*247]
INJUNCTION AGAINST SELLER OR PURCHASER. 289
','j. Agreement bij letters, otie stamp. has re-sold.
36. Mutual covenants. 68. Purchaser let into possession not a
■59. Seller to execute eonvei/ance before tenant.
action. 69. Ejeetmeni against him.
61. Purchaser to tender conveyance and 71. Condition that purchaser shall be
purchase-money. deemed tenaMt,
67. Unless i/iere is a bad title, or seller 73. Nc exeat.
1. If either the vendor or vendee refuse to perform the contract,
the other may bring an action for breach of contract, or file a bill
*for a specific performance («) ; although it appears to have been
formerly thought that as a vendor only wants the purchase-money,
his remedy was at law (6) (1).
I. As to the remedy in equity.
2. If a bill be filed for a specific performance, the Court will
enjoin either party not to do any act to the injury of the other.
Therefore, if the purchaser is in possession, and has not paid the
money, the Court will grant an injunction against his cutting
timber (c) (2), so, on the other hand, the vendor will be restrained
from conveying away the legal estate in the property ; because
such a measure might put the purchaser to the expense of making
another party to the suit (d) (3), and a fortiori, he will be restrained
from selling the estate to a third person (e). But in Spiller v.
Spiller (/), the Lord Chancellor expressly laid it down, that upon
a bill filed for a specific performance, he wished it to be under-
stood, that the Court would not take from a seller the disposition
of his property. So injunctions may be granted against the agents
of the parties. But an injunction will not be granted against a
(a) Lewis v. Lord Lechmere, 10 Mod. {d) EchlifF v. Baldwin, 16 Yes. jun.
503. 267.
(6) See Armigcrt). Clark, Bunb. Ill ; (e) Curtis r. Marf[uis of Buckingham,
Withy V. Cottle, 1 Sim. & Stu. 174. See 3 Yes. & Beam. 168 ; but see Turuer v.
Keniiey v. "VVenham, 6 Madd. 315. "Wight, 4 Bcav. 40.
(c) Crockford v. iUexandcr, 15 Yes. (/) 30 June 1819, MS. S. C. 3 Swanst.
jun. 138. 556.
(1) 2 Story Eq. Jur. §723 ; Cathcart v. Robinson, 5 Peters (S. C.) 264, 278 ;
Brown v. Haff, 5 Paige Ch. 235.
(2) See Hanson r. Gardiner, 7 Yesey (Sumner's ed.) 305 and notes ; 3 Daniell
Ch. Pr. (Perkins's cd. ) 1853, 1854 and notes. But it is said that such an injunction
ought not to be granted, uidess the vendor bring his suit to subject the land to
the payment of the purchase money ; and unless he charge the defendant with
committing waste in such manner as to render the land an incompetent security.
Scott f. Wliai-ton, 2 Hen. & Munf. 25.
(3) Daniell Ch. Pr. (Perkins's cd.) 1873.
Vol. 1. 61 [*2481
290 MONEY TO BE PAID INTO COURT.
person who is not a party to the suit ; and, in a late case, in which^
upon a bill filed by a seller for a specific performance, and an in-
junction against the purchaser's proceeding at law to recover the
deposit from the seller's attorney, to whom it was paid, Sir John
Leach, V. C, refused the motion, with costs, because the attorney
was not a party to the suit (if) (1). But in a later case, the same
Judge granted an injunction to restrain the purchaser from pro-
ceeding in an action against the auctioneer, although he (the
auctioneer) was not a party to the suit ; the seller offering to bring
the deposit into Court. Pending a suit by a purchaser for a spe-
cific performance of an agreement to sell a presentation to a living,
tlie seller may be restrained by injunction from presenting, and
the Bishop from instituting, or in the case of a lapse from collating
to the living any clerk not named by the purchaser (A).
3. In all cases where a bill in equity is filed for a specific
performance, either party may in general, if he please, have a refer-
ence as to the title. The relief afforded in equity, where the ques-
tion of specific performance depends upon the state of the title
*will be fully considered in the chapter devoted to Title (i) ; but we
may here observe, that where the purchaser files a bill, and insists
that the vendor cannot make a good title, equity can only dismiss
the bill with costs, although the Court will compel him to make
out the title if he have the ability (^j) (2).
4. We shall hereafter see that the title may be referred to the
Master before the answer is put in, unless the purchaser's counsel
can state that there are other objections (k) ; but 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 (/). If however by an untrue statement in
the answer, the plaintiff is unable to ol)tain the usual reference on
xnotion, the defendant will be ordered ultimately to pay the costs
occasioned by such defence up to and inclusive of the hearing (m).
5. A new practice has sprung up, by which certainly some suits
have been quickly disposed of^ but which has been a surprise upon
{(;) Brown r. Frost, E. T. 1818, MS. (A) Matthc-n-s v. Danx, 3 Madd. 470,
(h) Nicholson v. Knapp, 9 Sim. 32.6. jMst, ch. 8 & 10.
(0 Pout, ch. 10. (/) Post, ch. 8 & 10.
(J) Nicloson V. Woodsworth, 2 (m) Hydei'. Dallaway, 4 Beav. 606.
Swaust. 365 ; sec ch. 8 & 10, jMst.
(1) 3 Danicll Ch. Pr. 1S34 ; Fellows r. Fellows, 4 John. Ch. 25 ; Waller v. Har-
ris, 7 Paige, 167.
(2) 3 Daniel Ch. Pr. (_Pei-kins's ed.) 1548.
[*2491
MONEY TO BE PAID INTO COURT. 291
many parties. 1 allude to the practice of ordering a purchaser in
possession of the estate upon motion to pay the purchase-money
into Court. This, under special circumstances, has even been done
before answer (n) ; but the purchaser has, in some cases, had the
option to pay the money, or give up possession (o) ; in others, an
occupation rent has been set, deducting interest on the deposit ( j?) ;
and, in others, a receiver has been appointed (jq) ; and payment of
the money will be ordered, although by the agreement it is payable
by installments, and a portion of it is to remain secured upon the
estate (r).
6. This rule has been adopted where the possession has been
given under a mutual apprehension that the title could be imme-
diately made good (s) where the purchaser had a sort of mixed
possession with the vendor, and had paid part of the purchase-money,
was insolvent, and had attempted without effect to sell the estate (t) —
where the purchaser approved of the title and prepared a convey-
ance, and then raised objections (ii) — where the purchaser had
*been guilty of laches, and cut underwood (y). Even in a case
where it appeared on the face of the abstract that the title was
bad, but the purchaser had sold and conveyed the estate to another
purchaser (x). So where from circumstances an acceptance of the
title was inferred (y) — again, where the time was fixed for payment
of the purchase-money by installments, and the property was a coal-
mine (z). In all these cases the rule has been applied, and if the
estate be sold under a decree, and the purchaser enter into posses-
sion, he will be compelled to pay his purchase-money into court,
unless he entered with the express consent of the Court (a).
7. But where the sale is not by the Court, and the seller has
thought proper to put the purchaser into possession, witii an un-
(rt) Dixon V. Astlev, 1 Mer. 133. See and seeCrutchley v. Jcrningham, 2 Mer.
Burroughs v. Oakley, 1 Mer. 52, 376; 562; Fournicr r.' Edwards, T. T. 1819,
Blackburn v. Stace, 6 Madd. 69. Y. C. The deeds were executed, and an
(n) Clarke v. Wilson, 15 Ves. 317 ; application was made for the completion
Smith V. Lloyd, 1 Madd. 83 ; Morgan v. of the purchase, but the purchaser had
Shaw, 2 Mer. 138 ; Wickham i'. Everest, not the money. The motion ^vas made
4 Madd. 53. upon the answer, by which the defendant
(p) Smith V. Jackson, 1 Madd. 618 ; claimed compensation for some charges.
Smith V. Lloyd, 1 Madd. 83. (i) Burroughs v. Oakley, 1 Mer. 52,
(q) Hall V. Jenkinson, 2 Yes. & Beam. 376 ; Dixon v. Astley, 1 Mer. 133, 378,
125. See Clarke v. Elliot, 1 Madd. 606. n. ; Bradshaw v. Bradshaw, 2 Mer. 492.
(>•) 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 (</).
15. A purchaser should not make the stewards or receivers of
the vendor parties to his bill for a specific performance ; for
although, as we have already seen, the vendor is deemed a trustee
for the purchaser, yet this rule does not extend to the agents of
the vendor (r).
16. If a person sell as an agent, the purchaser cannot, in a bill
(t) Townshcnd v. Townshend, L. I. (m) Wynne v, Griffith, 1 Sim. & Stii.
Hall, Murch 3, 1817, Master of the llolls U7.
for the Lord Chancellor, MS. («) Rayner v. Julian, 2 Dick. C77 ;
(A;) Brown v. Kelty, Michaelmas Term, Brookes v. Lord "Whitworth, 1 Madd. 8G.
1816, MS., the Vice Chancellor for the (o) Brookes v. Whitworth, 1 Mad. 86.
Lord Chancellor ; Townshend u. Towns- (p) Bull r. Allen, Bunb. 61).
hend. (q) Patcrson v. Lon<j;, 3 Beav. 186.
(/) Bradshaw r. Bradshaw, 2 Mer. (r) Macnamara r. Williams, (> 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
<upon that distinction, was not according to the principles of the
Court (d). Ir Jenkins v. Parkinson, before Lord Brougham, he
observed that, in Todd v. Gee, Lord Eldon did not in express terms
•overrule Denton and Stewart, but he did everything short of deny-
ing it to be law ; that in Green away v. Adams, it was reluctantly
followed, and in Gwillim v. Stone il, was not followed ; and he
added, that the current of all the previous authorities against it, to
which Lord Eldon refere in Todd n. Gee, may therefore be consid-
■ered as restored after a temporary and dubious interruption, and
qt may now be affirmed that those two cases — Denton and Stewart
and Greenaway and Adams — are no longer law (e) ; and this view
Sias been confirmed by Lord Cottenham (/") (1). But if pending
a suit for specific performance, the seller dispose of part of the
property, e, ,£^. stone in a quarry, the Court will take care that the
purchaser, if he succeed in the suit, bave full compensation for the
•damage which he sustains by the seller's act, and will, if necessary,
■enable an action to be brought to ascertain the amount of the
damage («•),
25. In a late case (A), where a seller had-, after a contract for sale,
sold at ar« advance to another person, the bill filed by the first pur-
chaser prayed, that if the second ^xjrchaser bought without notice,
the seller might account to the plaintiff for the advanced price. It
(c/) Todd i\ Geo, 17 Vcs. jiin„ 273 ; (/) Sainsbury v\ Jones, 5 Myl. &
'Bloro V. Sutton, 3 ISIer. 237 ; Kendall r. Cra, 1.
.Beckett, 2 Kuss. & Myl. 88. (.-7) Nelson i\ Bridges, 2 Beav. 239.
(e) 2 Mvl. & Kee. o, scd qi(^ (h) Daniels r. Davison, 16 Ves. jun.
249.
compensation for the injury. To do this is not to assume a jurisdiction, which
"does not legitimately belong to it, for the juiisdiction had already become right-
fully vested and fixed there If the much contested case of Denton v. Stewart,
as Lord Eldon states in Todd c. (ice, Avas decided upon these jirinciples, it -would
not seem to be liable to the strong disa])probation of it, expressed in other decided
cases." 2o Maine, 541. See Morss v. Elmendorf, 11 Paige, 277 ; WiswaU r. Mc-
Gown, 2 Barbour Sup, Ct. llep. 270.
(I) See in next preceding note. In Person v. Sanger, Davies's Rep. 252, 261,
Mr. Justice Ware said ; — " Upon a review of all the cases, the rule practically
established seems to be, that a court of cc^uity will not take jurisdiction of a suit
for damages, when that is the sole object of the bill, and when no other relief
can be given." "But when other relief is sought b}' the bill, which a court of
C(|uity is alone competent to grant, and damages arc claimed as incidental to relief,
which cannot be obtained at law, then tlie court being proi)crly in possession of
the cause for the purpose of relief purely equitable, will, to prevent multiplicity
of suits, proceed to determine the whole cause."
Vol. I. 38 [*254]
298^ ACTION BT ?trRCHA3ER'.
was not necessary to decide the point ; but Lord Eldon observed, tha*
the estate by the first contract, becoming the property of the vendee,,
the effect was, that the vendor was- seised as a trustee for hiin ; and'
the question then- would be, wh-ether the vendor showld be per-
mitted to sell for his osvir advantage the estate of which he was so-
seised in trust, or should net be considered as selling it for the-
benefit of that person foF whom, by the first agreement, he became-
trustee, and th-erefore liable to account. The ultimate decision'
was, that the first purchaser was entitled to a specific performance-
against the seller and the second purchaser, the latter being consid-
ered to take subject to the equity of the first purchaser, to have
a conveyance of the estate at the price which he agreed to pay
for it {i) (1).
26. Equity cannot give the purchaser any compeosation wher& J
*he files a bill to have tlie contract delivered up on aceouait of the-
defective title of the versdor. But he will obtain a decree for the
delivering up of the contract without prej,udice to his remedy at law
for breach of it (j). Neither can he require such mterest as the
seller has in the estate and damages in respect of his defect of
title (k). m
27. Nor where tlie contract has been executed,, can a bill be
filed simply for compensation, e. _§-. where the rental of the estate
was represented higher than its actual amount (I) (2).
28. If a purchaser take a line of defence which fails, yet if he
have a good ground to avoid the co4itract, he may still avail him-
self of it as a bar to a specific performance (m).
29. A purchaser may of course have a right to avoid a purchase
by matter ex post facto — as where the sabject of sdtie was a gentle-
man's residence, and some of the ornamental timber was cut pend-
ing an investigation of the title (n).
30. If the abstract be not delivered in time, or objections arise
to the title, the vendee may brin-g an action at law for non-
performance of the agreement, in which case the vendor'^s remedy
(i) 1 7 Ves. jun. 433. (/c) William v. Higden^ 1 C. Coop. 500.
{j) (J^yi]lim.v. Stone, 11 Vcs. }un. 128, (/) Newham v. May, 10 Price, 117.
[Sumner's ed. notes.] sed qu., as to the (m) Magen-nis v. Fallon, 2 MoU. 591-
latter branch. («) S. C.
(1) Ante, 191 ; Stone v. Bucknor, 12 Smedes & Marsh. 73.
(2) "Where an agreement has been executed, a court of equity "«ill not decree a
further specific performance. Tucker v. Clarke, 2 Sandiord Ch. 96. So, where
one Avithout title, conveys land, -with covenant of seisin, he cannot afterwards
maintain a liill to compel the grantee to receive a good title, but the grantee will
be entitled to hi.-? action for the b.vcach of covenant, ib.
1*255]
ACTION BY PURCHASF-R. 299
|ir "he can insist upon the contract being specifically performed) is,
to file a bill for a specific performance, and an injunction to restrain
the proceedings at law, and the vendor may file his bill for a per-
formance in specie, although the vendee may have recovered his
'deposit at law (o) (1).
11. Of the Remedy at Law.
31. If a purchaser, upon a bill being filed for a specific perform-
ance, pay the purchase-money without putting in an answer, and
iifterwards dviscover that a ifrawd was committed in the sale, he is
not precluded from bringing an action for damages if he come
recently after discovery of the deception (^p).
32. Bwt if a defendant in a suit for a specific performance, after
£ decree, bring an action at law against the plaintiff in equity for
"(ilamages, and the decree proceeded upon the ground that he had
waived the literal performance of the thing, for breach of which
the action is brought, e. g. the time appointed for performance of
ithe contract, equity will enjoin the action (5-).
33. So equity will restrain the seller from bringing an action
where the bill was dismissed because he had no title (r).
*34. But although a seller's bill for a specific performance be
<iismissed, yet he may in general still bring his action at law for
Ijreach of the agreement ; and there are instances of sellers recov-
«rino: damages in such cases. When the Court refuses its inter-
(Terence, and 3'^et thinks that the seller is entitled to enforce his
contract at law, it is usual to add a declaration to the decree, that
&t is without prejudice to the plaiintifF's remedy at law. In like
manner, a purchaser, although he cannot prevail upon the Court
to assist him, is frecjuently left at hberty to enforce his right to
■damages at law (s) (2).
35. If a purchaser recover damages in an action for breach of
the agreement, he cannot bring a seccwid action, ov resort to any
•other means to enforce the contract. The first action alleges the
grievance to be the loss sustained by breach of the contract, and
that is to be deemed an election as to the remedy sought (J) (3).
(0) Vide infra, ch. 8 & 10. (r) M'Namara r. Artliur, 2 Ball. &
(/>) 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<?r back mr)ney paid by hinri
1
MONEY HAD AND RECEIVED. 301
38. In this latter action, however, the plaintiff cannot recover
more than the inoney paid, although the estate has risen in value ;
while, on the other hand, it may perhaps be thought, that if the
estate has experienced a diminution in value, he can only recover
the damages he sustained by the estate not being conveyed, that
being the only money retained by the defendant against conscience ;
and therefore the plaintiff, ex cequo et bono, ought not to recover
any more (y).
*39. The right to disaffirm the agreement is, in some cases, of
great importance. If an agent enter into an agreement on behalf
of his principal, but on the face of the agreement the agent appear
to be the real purchaser, and is so considered by the vendor, yet if
the purchaser actually pay the deposit, although through the
medium of his agent, and the vendor do not complete his engage-
ment, so that the contract is rescindable, the purchaser himself may
maintain an action for recovery of the deposit, which will be con-
sidered as money received by the vendor to the use of the real
purchaser (2;). Where the purchase-money is paid to the seller's
agent, he is not, like an auctioneer, a mere stakeholder, and con-
sequently the action to recover the money must be against the seller
himself («).
40. But if a man enter into a contract expressly as agent for
a third person, although really for his own benefit, and the other
party has no notice that the supposed agent is the principal, the
latter cannot maintain an action upon the contract without first
disclosing to the other party that he is the principal (b) (1).
41. Although the contract is under seal, and the purchaser
might for a breach of the contract maintain an action of covenant
for the breach of the contract, yet he may also, if he have a right
to rescind the contract, bring an action for money had and received,
to recover back his purchase-money. The seller holds the money
against conscience, and therefore might be compelled to refund it
by an action for money had and received (c) (2).
(y) Sec Moses v. M'Farlan, 2 Eurr. 5 Man. & Schv. 385, 391, cited.
100.5; Dutchr. Warren, ib. 1010, cited; (a) Barnfordi-. Shuttlcworth, 11 Adol.
and Str. 406 ; S. C. Dale v. Sollet, 4 & Ell. 926.
Burr. 2133, serf ry;<. (6) Bickerton i'. Burrell, 5 :Mau. &
(;) Duke of Norfolk r. Worthy, 1 Scl. 383.
Camp. Ca. 337. See Eddcn v. Read, 3 (c) Greville r. Da Costa, Peakc'sAdd.
Camp. Ca. 338 ; Bethunc u. Farebrothcr, Cas. 113.
on the contract, ib. Green v. Green, 9 Cowcn, 4G; Ketchum v. Evertson, 13
John. 365 ; Sims r. Boaz, 11 Smedes & Marsh. 318.
(1) SeeDunlap's Paley's ARcncv, 362, 363.
(2) But SCO fioddard >'. :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 (</).
43. And in a case (e) where an auctioneer who had advanced some
money on an estate, sold it by auction after the authority from his
}Mincipal had expired, and the principal refused to confirm the sale,
the Court of Common Pleas, in an action brought by the pur-
chaser, in which he declared on the agreement, and for money had
and received, &.c. would not allow him damages for the loss of his
bargain, although it was proved that the estate was worth nearly
twice the sum which he gave for it.
*44. Nor in a case of this nature is a purchaser entitled to any
compensation, although he may be a loser by having sold out of the
funds, which may have risen in the meantime, because he had a chance
of gaining as well as losing by a fluctuation of the price (/) (1).
45. But a purchaser is entitled to interest on his deposit (^) ; 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).
Where the plaintiff recovers under a special count on the original
contract, which, we have seen, affirms the agreement, interest will
be given as part of the damages for non-performance of the agree-
ment (2) ; where he can only recover under a count for money had
and received, which disaffirms the contract — as if the contract
was by parol for the sale of lands (i) (3) ; or the seller had not bound
himself by the signature of himself or his agent (Ar), he cannot
recover interest, for, as a general rule, interest cannot be recovered
in an action for money had and received (I) (I) (4). But where the
(fZ) //)//•(/, ch. 8. 492.
(e) Bialt V. KUis, >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<i, 350 ; Swan v,
Drury, 22 Pick. "485 ; "Warren c. Wheeler, 21 Maine, 484 ; Sewall r. Wilkins, 1-Jf
Maine, 168 ; Ledyard v. Manning, 1 Alabama, 153 ; Halloway r. Davis, Wright,
129 ; Sims v. Boaz, 11 Smedes & Marsh. 318 ; Green v. Green, 9 Cowen, 49 ;
Morrison v. Ives, 4 Smedes & Marsh. 652. A mere readiness to peyforra is not
sufficient. Johnson r. Wygant, 11 Wendell, 48, 49, Per Sutherlajid J. But see
Tinney v. Ashley, 15 Pick. 546 •, Low v. Marshall, 17 Maine, 232.
(2) Green r. Reynolds, 2 John. 207 ; Jones v. Gardiner, 10 John. 266 ; Porter
J-. Rose, 12 John." 212 ; Pajrke.r r. Parmele, 20 John. 130 ; Gazley t. Price, 16
John. 267 ; Hudson r. Swift, 20 John. 24 ; Hunt r. Livermore, 5 Pick. 395 ; War-
ner V. Hatfield, 4 Blackf. 392 ; Taylor v. Perry, 5 Blackf. 599 ; Snnth v. Henry,
2 English, 207. In an action, by a vendor against a vendee, on a contract by
which the latter covenants to pay to the former a sum certain in three annual in-
stalments, upon the payment whereof, he is to receive a deed of land, the plain-
tiff, if he waits to bring his action until all the instalmcnrs have fallen due, must
aver in his declaration an actual tender of a deed or an offer to execute the same^
Johnson r. Wygant, 11 ^Vendell, 48. But see Tinney i>. 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. (<?) See ch. 19.
(0) See ch. 6. (r) Bingham v. Bingham, 1 Ves. 126.
(;;) Ch. 6.
(1) Taylor v. Fleet, 4 Barbour Sup. Ct. Kcp. 102. See 2 Kent (6th ed.) 487 ;
Seymour v. Dclancey, 6 John. Ch. 222 ; Osgood v. Franklin, 2 John. Ch. 23, 24 ;
■\Vhite r. Damon, 7 Vescy, 30 and note.
(2) " But an entire failure of consideration in the receipt of what is mere
moonshine," says Mr. Justice Woodbury, "is often sufficient to rescind aeon-
tract." Warner v. Daniels, 1 Woodb. & Minot, 110; Hardeman v. Burge, 10
Yergcr, 202 ; Fripp v. Fripp, Rice Eq. 84.
(3) Fox r. Macreth, 2 Bro. C. C. (Perkins's ed.) 400, 425, note (e) and cases
cited ; S. C. White's Leading Cases in Equity, 72 et seq. and notes.
(4) Ante, 267 note.
or RESCINDING A CONTRACT. 319
the principle of that decree, it might not be easy to distinguish that
*cas6 from any other purchase, in which the vendor turns out to
have had no title. In both there is a mistake, and the effect of it
in both is that the vendor receives and the purchaser pays money
without the intended equivalent (s).
The facts, as they appear in the registrar's book, are shortly
these (^) ; John Bingham devised an estate tail in certain lands to
Daniel, his eldest son and heir, with the reversion in fee to his
(the testator's) own right heirs. Daniel left no issue, but devised
the estate to the plaintiff in fee. The bill stated that the latter
being ignorant of the law, and persuaded by the defendant and
his scrivener and conveyancer that Daniel had no power to make
such devise, and being also subjected to the action of ejectment,
purchased the estate of the defendant for 80/., and it was conveyed
to him by lease and release. The bill was to have the money
repaid with interest. The defendant, by his answer, insisted that
Daniel had no power to make such devise, but if he had, then he
insisted that the plaintiff should have been better advised before
he parted with his money, for that all purchases are to be at the
peril of the purchaser.
16. Lord Redesdale observed, that if it were clear that a man
had the fee simple, and that fraud, or perhaps mere ignorance, had
induced him to accept a lease from another person, the Court
might control the setting up of the lease : in a case of fraud it
certainly might ; in a case of mere ignorance, though he inclined
to think it might, yet after looking a little into the subject, he
found great difficulty in holding that a court of equity would
interfere (u).
17. The authorities certainly are not easily to be reconciled on
this head, although there are several in which relief has been given
on the mere ground of mistake as between parties not standing in
the relation of vendor and purchaser (v) (1).
18. In a case where a devisee under a tenant in tail, who had
not barred the entail, obtained a conveyance from the heir at law,
a poor man, who upon being sent for by a friend of the family, in
company with a solicitor, agreed to convey to the devisee for
(«) Stewart V. Stewart, 6 Cla. & Fin. Sclio. & Lcf. 101.
968. (v) Iian.sdo\An r. Lansdown, Mose.
(t) Hep;. Lig. 1748, A. fol. lo4. 30 1 ; Leonard v. Leonard, 2 EaU. & Heat.
(u) Saunders v. Lord Anneslcy, 2, 171 ; and see 2 Mer. 233.
(1) See 1 Story Eq. Jur. ^116 et seq.
[*270]
320 OF RESCINDING A CONTRACT.
200/., but did not know the value of the estate, nor that the
devise was void, and afterwards conveyed, there having been time
for deliberation, Lord Kenyon, Master of the Rolls, upon a bill to
set aside the conveyance, as obtained by fraud and imposition,
observed, that no case had been cited, and therefore the case before
*him must stand upon its own circumstances, which were such as
did not, in his opinion, amount to a proof of fraud and imposition.
If the plaintiff after the offer had gone home and consulted his
friends, and had afterwards accepted it, and joined in the convey-
ance, he thought he ought not to be relieved ; but from its being
suddenly accepted, without further inquiry or information, the con-
veyance ought to be set aside as improvidently entered into, and
therefore decreed for the plaintiff (iv) (1).
19. In a modern case, where the sellers knew of a defect in the
title to a part of the estate, which was material to the enjoyment of
the rest, and did not disclose the fact to the purchaser, and it could
not be collected from the abstract, the purchaser was relieved
against the purchase in equity. The sellers were decreed to repay
the purchase-money, with costs, and likewise all expenses which
the purchaser had been put to relative to the sale, together with an
allowance for any money he laid out in repairs during the time he
was in possession (x). This is a case of the first impression.
Sir W. Grant observed, that the bill was rather of an unusual
description. It could not certainly be contended that, by the law
of this country, the insufficiency of a title, even when producing
actual eviction, necessarily furnishes a ground for claiming restitu-
tion of the purchase-money. By our law the vendor is, in general,
liable only to the extent of his covenants ; but it had never been
laid down that, on the subject of title, there could be no such mis-
representation as would give the purchaser a right to claim a relief
to which the covenants do not extend. Whether it would be a
fraud to offer as good a trtle which the vendor knew to be defec-
tive, it was not necessary to determine ; but if he knows and con-
ceals a fact material to the validity of the title, he was not aware of
any principle on which relief could be refused to a purchaser.
(w) Evans v. Llewellyn, 2 Bro. C. C. question as to repairs, MS. S. C. 2
1{50 ; the distinction is not very satis- Swanst. 287. See Pike v. Vigors, 2 Dru.
factorv. & Walsh, 258 ; Attwood r. Small, 6 Cla.
{x) "Edwards V. M'I>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. (<?) Attwood v. Small, 6 Cla. & Fin.
ll) lb. p. 75. 232. See p. 424, 432.
(1) See ante, 253, in note.
(2) See Fonbl. Eq. B. 1, Ch. 2, §13 and notes ; 1 Story Eq. Jur. §345 and notes ;
Gwynne v. Ileaton, 1 Brown C. C. (Perkins's ed.) 3, and cases in note (t) ; Sadler
V. Robinson, 2 Stewart, 520. AVhere a party intends to abandon or rescind a
contract, on the ground of a violation of it by the other party, he must do it
promptly and decidedly, on the first information of such breach. If he negoti-
[*275]
RIGHT TO RESCIND LOST BY CONFIRMATION. 325
conduct abandon or reject an agreement into which he has entered,
and so prevent his claiming the benefit of it (r).
30. And a seller, having a right to rescind a contract if interest
on the purchase money be not duly paid, may of course bind his
right by enlarging the time, upon an advance of the interest by a
third party (s).
31. So if there be a condition that the purchaser shall state his
objections to the title within a limited period, and that if the
seller shall not be able or willing to remove them, the seller may
rescind the contract, that would give to the seller the option
expressed ; but if the seller express a willingness to remove the
objections, he makes his option not to take advantage of the
condition, and he cannot, at any time afterwards, rescind the con-
tract (t).
32. If a party with full information freely confirms a contract,
which he was at liberty to rescind, he will be bound by it, and no
new consideration is requisite to give validity to the confirma-
tion (u).
33. If a purchaser, instead of repudiating the transaction, deal
with the property as his own, iie is bound, although he afterwards
discover a new circumstance of fraud, for that can only be con-
sidered as strengthening the evidence of the original fraud, and
it cannot revive the right of repudiation which has been once
waived (x).
*34. But where the contract itself is founded in fraud or oppres-
sion from the nature and terms of it, with which of course the
party is from the first aware, acquiescence whilst he is under the
same difficulty and embarrassment as he was at the time of the
transaction, will not of itself bar his right to relief (y).
35. It has been said that where the original transaction is
fraudulent, and the fraud is clearly established by circumstances
(/•) Morris v. Timmins, 1 Beav. 411. "Wins. 290 ; Morse v. lloyal, 12 Vcs. jun.
(s) Sec Dawson r. Yates, 1 Beav. 301. 355.
(i!) Tanner v. Smith, 10 Sim. -tlO; (.c) Campbell r. Fleming, 1 Adol. &
Cutts V. Thodoy, 13 Sim. 20G. Ell. 40; 3 Nov. & Mann. 834.
(re) Chesterfield 1-. Jansscn, 2 Vcs. 14(i, (y) Wood v. Downcs, 18 Vcs. jun.
149, 152, 158, 159 ; Roche v. O'Brien, 1 130 ; D'Arcy, v. D'Arcy, 1 Hay. & Jon.
Ball & Beat. 355 ; Cole v. Gibbons, 3 P. 115.
ates with the other party, after knowledge of the breach, it is a waiver of his
right to rescind the contract. Lawrence r. Dale, 3 John. Ch. 23; M'Nevcn r.
Livingston, 17 John. 437. A party cannot claim a rescission of a contract for
fraud, after entering into new stipulations concerning it, with a full knowledge of
the fraudulent circumstances. Sadler i\ Robinson, 2 Stewart, 520. Sec also Roys-
ter V. Shackleford, 5 Little, 229; Vail r. Nelson, 4 Rand, 478; Mayo ,-. rurccli,
3 Munf. 243 ; Stockton r. f^ook, 3 Munf. ns.
326 RIGHT TO RESCIND LOST BY CONFIRMATION,
not liable to doubt, a confirmation of such a transaction is said to
be so inconsistent with justice, so unnatural, so likely to be con-
nected with fraud, that it ought to be watched with the utmost
strictness, and to stand only upon the clearest evidence as an act
done with all the deliberation that ought to attend a transaction,
the effect of which is to ratify that which in justice ought never
to have taken place (z).
36. In one case, where the original purchase from an expectant
heir was deemed fraudulent, it was set aside, notwithstanding
letters from the seller after the estate fell into possession, recog-
nizing the transaction, and that a bill filed to be relieved had been
dismissed without further proceedings, and a deed had been exe-
cuted by the seller reciting the bill filed and that the purchase was
a fair one, and confirming the purchase, and that afterwards there
was a settlement of accounts with the intervention of a common
friend, whom the seller thanked for his kindness. As the original
purchase was deemed fraudulent, and the seller was considered to
have never been fidly apprised of his rights, but was continued in
a state of delusion by the purchaser, who imposed upon him in
every transaction, the stopping the suit in chancery and the release
thereupon given were considered a double hatching the fraud, and
the purchase, notwithstanding the acts of confirmation, was set
aside even after the seller's death (a).
37. The reporter says in a note, that the judges said there was no
instance where the original contract was fraudulent, that any sub-
sequent act could purge it. But this carries the rule too far,
although a contract not affected by fraud may be held to be con-
firmed by an act which might not be deemed a confirmation of a
really fraudulent transaction (b).
38. And even where a third person (who was tenant for life of
the estate) bought a remainder subject to a contingency at its full
value, of a purchaser who had obtained it fraudulently at a gross
*under value, to the knowledge of the last purchaser, the original
seller was relieved, although he improvidently joined in the second
sale, as it was held that the second purchaser ought to have seen
that the interests of the original seller were protected (c).
39. To give validity to a confirmation of a voidable conveyance,
the party confirming must not be ignorant of his right, nor of course
(z) Per Lord Ersldne, 12 Ves. jun. (6) Sec De Montmorency t;. Devereux,
373, 374. 7 Cla. & Fin. 225.
(a) Bau<^h v. Price, 1 Wils. 320. (c) See and consider Addis v. Camp-
bell, 4 Boav. 401.
[nil]
RIGHT TO RESCIND BARRED BY TIME. 327
must his right be concealed from him by the person to whom the
confirmation is made (f/). He must know the transaction to be
impeachable that he is about to confinn, and with this knowledo-e
and under no influence he must spontaneously execute the
deed (e).
40. The act of confirmation must of course, therefore, take place
after ho has become fully aware of the fraud that has been prac-
tised ; but it is not necessary that the party should be aware of all
the circumstances of the transaction, but he must be aware that the
act he is doing is to have the effect of confirming an impeachable
transaction, otherwise the act amounts to nothing as a con-
firmation (/) (1).
41. Nor can a man be held by any act of his to have confirmed
a title, unless he was fully aware at the time, not only of the fact
upon which the defect of title depends, but of the consequences in
point of law (^).
42. No act of confirmation will be valid if not given freely, but
under the influence of the former transaction (A), and therefore a deed
of confirmation called for under the pressure and influence of the
former transaction, when the confirming party cannot be represented
as a free agent, will not avail (i) (2).
43. Time might of itself bar the remedy (k), even where the old
statutes of limitation aflbrded no bar (3).
44. If a purchaser of a mine in which there is a fault which has
been concealed, is let into possession, and must immediately have
known of the circumstances connected with the fault, it would be
(d) Cann v. Cann, 1 P. Wms. 723. Myl. 42-5.
((,') Dunbar t;. Tredcnnick, 2 Ball & (A) Crowe r. Ballard, 3 Bro. C. C. 117.
Beat. 317. [Gregg r. llarllec, C. ^V. [Perkins's ed. notes.] See Scott v. Da-
Dud. Eq. 42.] Perhaps relief ought vis, 4 Myl. & Cra. 91.
not to have been given in lloche v. (/) Wood v. Downes, 18 Yes. jiin.
O'Brien, 1 Ball & Beat. 330. 120.
(/)7VrLord llcdesdale, in Murray (A) See Mcdlicot r, O'Donel, 1 Ball
V. Palmer, 2 Scho. .S; Lei". 48G. ' & Beat. loG ; Morse v. Koyal, 12 ^'c.•^.
(y) Cockerell v. Cholmeley, 1 E,uss. & jun. 374.
(1) Where a sale of timber lands -was made in 1835, and a bill -was broiight in 1841
to set it aside, for mistake and fraud, and it appeared that false statements liiul
licen made by the seller, going to the essence of the bargain, on -which t)ic buyer
had relied, and that the existence of the fraud had not before come to the know-
ledge of tlie plaintiff, the lapse of time was held, under the circumstances, not to
be a bar to the suit. Doggett r. Emerson, 3 Story C. C. 700.
(2) 1 Story Ecj. Jur. §34.j.
(3) Bength of time, short of the statute of limitations, is sometimes a bar; but
not il' fraud exists, or if the delay is accounted for, or if such a course would
work injustice. Warner c. Daniels, 1 Woodb. & Minot, tK). See Person v. San-
ger, Davies's Hep. 2.52.
'S2S OF INTEREST ANL> 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. <e) Ibid.
iOo. (/) Small V. Attwood, tibi sup.
(d) Small V, Attwood, tibi suj).
p28n
332 OF FOLLOWING THE PURCHASE-MONEY.
not have been done at the time of the decree ; therefore, if instal-
ments of money were then due, which the Court, if it had dismissed
the bill (as it should have done), could not have ordered payment
of to the defendant, the subsequent decree of reversal will not
enable the Court below to order the payment of such instalments,
although they may then have actually become payable (g).
64. In Small v. Attwood (A) the purchase was rescinded by
decree ; 200,000/. had been paid long before the bill was filed, and
possession had been given to the purchasers of the estate, with
which they had acted as owners. They had long had possession,
which they still retained, and claimed a lien upon the estate for the
portion of the purchase-money paid. After the decree they filed a
supplemental bill, stating the payment of the 200,000/., and
tracing its investment in stock and the transfer of the stock to a
third person without consideration, as it was alleged, and praying
that they might, without prejudice to their lien on the estate, be
decreed to be entitled to the specific stock, and Lord Lyndhurst, C. B.,
so decided, and accordingly granted an injunction.
65. This is the only case in which equity followed the purchase-
money and ordered it to be specifically restored. There was an
appeal against the order to the House of Lords, which it became
unnecessary to prosecute, as the decree in the original suit was
reversed, on the ground that no fraud was practised by the seller (i).
But the decree could hardly have been maintained. It was a con-
siderable argument against the relief, that it had never been admin-
istered, and the inconvenience is obvious. In the case of a mere
naked fraud, which altogether vitiates a contract both at law and in
equity, there is not much difficulty in attaching the money if it can
be traced, as it never of right belonged to the seller. But in a case
*like Small and Attwood, the relief although granted, and upon the
ground of a fraudulent concealment, proceeds rather upon equitable
rules than upon absolute legal nullity. Much arrangement is
required to do justice between the parties in such a case, and the
following of the money does not seem to be justified by the practice
of the court, nor can it perhaps be supported upon principle. In
the case in question, the purchaser had possession of the seller's
estate, and had had that possession for a long time, and dealt with
it as owner, and continued to retain it, and insisted upon his right
to do so, and to enjoy it as owner, subject ultimately to account,
until the accounts were finally settled. By the injunction he
(g) Ibid. (h) You. 407 (?) 6 Cla. & Fin. 232.
[*282]
OF FOLLOWING THE PURCHASE-MONEY. 333
obtained the security of the return of his money, as well as retained
his Hen on the estate for it, and possession of the estate itself. It
had never before occurred to any one that such relief could be
obtained. If the case had remained undisturbed, it would have
introduced a practice of attempting in all such cases to follow the
money, and for that purpose of introducing charges and interroga-
tories into bills which would tend to great prolixity, and expose
every dealing and transaction of a defendant, between the receipt
of the money and the time of answering.
[ 334 ]
^CHAPTER V.
OP THE TIME ALLOWED TO COMPLETE THE CONTRACT.
SECTION I.
OF THE MATERIALITY OF TIME.
1. Lunar or calendar mont/is,
2. Time essence of contract at law.
4. Lang V. Gale.
6. Observations upon it.
7. Where no time fixed.
10.
11.
Waived at law. ,
Waived or enlarged by writing ot
parol.
Where not material in equity.
1. In sales by private agreement it is usual to fix a time for
completing the contract. In such a contract the word month may
be construed either lunar or calendar, according to the intention of
the parties, to be collected from the whole instrument taken
together (a) (1).
2. The time fixed is, at law, deemed of the essence of the con-
tract (h) (2), for it is the duty of the seller to be ready to verify the
abstract on the day on which it was agreed that the purchase
should be completed ; and if he have not the title-deeds in his
possession, or the abstract set forth a defective title, the pur-
chaser may resist the completion of the contract, and recover his
deposit (3).
3. But it is no objection that at the time of the agreement (c)
(a) Lang v. Gale, 1 Mau. & Selvr.
Ill ; sec llip-\vell v. Knight, 1 You. &
Col. 419, which, is, perhaps, not express
enough to justify the marginal abstract.
(6) Berry v. Young, 2 Esp. Ca. 640 n.
(c) The marginal abstract is wrong in
substituting for the time of the agree-
ment the time agreed upon for the as-
signment and giving possession.
(1) See Hardin v. Major, 4 Bibb, 104 ; Shapley v. Garey, 6 Serg. & R. 539 } Hart
V. Middleton, 2 Carr. & Kirw. 9.
(2) Hill r. School District No. 2, in Milburn, 17 Maine, 316, 322 ; Norris v.
School District in Windsor, 12 Maine, 293 ; Allen v. Cooper, 22 Maine, 133 ; Wis-
wall V. McGown, 2 Barbour Sup. Ct. E.ep. 270.
(3) Stitzell V. Kopp, 9 Watts & Serg. 29.
[*283]
TIME IMPERATIVE AT LAW. 335
matters remained to be done to complete the title, which in their
nature were capable of being effected before the completion of the
purchase ((/).
4. In a late case (e), upon a sale by auction, the conditions
stipulated that the abstract should be delivered to the purchaser
within a fortnight, and should be returned at the end of two
*months ; that a draft of the conveyance should be delivered to the
purchaser within three months, and be returned to the seller within
four months ; and that the remainder of the purchase-money should
be paid on the 24th day of June then next (which was five months
after the sale), when the purchaser should receive his conveyance
duly executed by all parties ; to be prepared by the seller's attor-
ney, at the expense of the purchaser. It was contended that the
stipulation in regard to the delivery of the conveyance was not a
condition precedent, and it was compared to the case of Hall v.
Cazenove (f), where a charter-party contained a covenant by the
owner, that the ship should sail on a specified day, and the owner
afterwards brought an action of covenant for the freight ; it was
held that he need not aver that the ship sailed on that day,
although the defendant (the freighter) covenanted to pay the
freight in consideration of every thing above mentioned. It was
not necessary to decide the point ; but Le Blanc, J. said, that it
was clear that it was a condition precedent that a draft of the
conveyance should be delivered to the purchaser ; the question
was, whether it must be done by a particular day. It was not
necessary, however, to enter upon that question ; if it were, it
might perhaps be material to advert to the rule, that where a con-
dition does not go to the whole consideration («•) of the contract,
but to a part only, it is not a condition precedent (1). Bayley, J.
was of the same opinion. It was not a condition precedent that the
draft should be delivered by a particular day, for he did not con-
sider ihe precise time of the delivery as an essential ingredient in
that condition, which was meant only to secure a delivery within
a reasonable time.
5. The general opinion has always been, that the day fixed was
(rf) Stowell V. Robinson, 3 Bing. N. (/) 4 East, 477.
C. 928. Iff) See Ilavelock v. Geddcs, 10 East,
(e) Lang v. Gale, 1. Mau.& Selw. 111. 564.
(1) Bennet v. Pixlcy, 7 John. 2oO ; Roberts v. Marston, 20 Maine, 27-5, 277;
Boone v. Eyre, 1 II. Black. 273, n; 1 Saund. 320 n. (c) ; Tompkins v. Elliot, 5
Wendell, 496 ; Payne v. BettisMorth, 2 Marsh. 429 ; Ohermyer r. Nichols, 6 Bin-
nev, 166.
[*284]
336 TIME IMPERATIVE AT LAW.
imperative on the parties at law (h) (1), Tliis was so laid down by
Lord Kenyon, and has never been doubted in practice. The con-
trary rule would lead to endless difficulties. In the above case,
for example, the different times appointed, 1. for delivery of the
abstract ; 2. for the return of it ; 3. for the delivery of the convey-
ance ; 4. for the return of it ; and 5. for the completion of the
purchase, were all links of the same chain, and if one link were
broken, the whole chain would be destroyed. If the time ap-
pointed for the delivery of the conveyance was not an essential
ingredient, but was meant only to secure a delivery within a
reasonable time, it follows that the same rule must apply to the
time fixed for the return of it, and also to the time appointed for
*the completion of the purchase. The effect of this rule would be,
that the appointment of a day would have no effect, and in every
case it must be referred to a jury to consider whether the act was
done within a reasonable time. The precise contract of the parties
would be avoided, in order to introduce an uncertain rule, which
would lead to endless litigation. This cannot be compared to a case
like Hall v. Cazenove : there the ship did sail without being coun-
termanded, and the substance of the covenant was considered to be,
that the ship should go to the place named on freight and return
again, and if the freighter sustained any damage by reason of the
ship not having sailed on the particular day, he might recover it
by bringing an action on the covenant. In favor of justice the
covenants were not considered as dependent on each other. It
would be monstrous that the ship should be permitted to sail to
the place named, and return again, and yet not earn any freight,
because it did not sail on the day appointed. So where covenants
go only to a part of the consideration, and a breach may be paid
for in damages, the defendant has a remedy on the covenant, and
shall not plead it as a condition precedent. If A covenant with B
to build a house for him according to a certain plan, and B cove-
nant with A to pay for the house so built, it is clear, notwithstand-
ing some authorities to the contrary, that if ^ build a house, although,
not strictly according to the plan, yet B must pay for it, and may
(A) See 9 Adol. &EU. 517.
(1) Shaw V. Wilkins, 8 Humph. 647 ; Shuffleton v. Jenkins, 1 Morris, 427 ; Ty-
ler V. Young, 2 Scammon, 444 ; Chitty Contr. (8th Am. ed.) 27G, G26 ; Tyree v.
Williams, 3 Bibb, 366. Where the purchase money is to be paid or secured, and
the conveyance executed on a particular day, and neither party performs or offers
to perform on the day, neither can sustain an action at law on the contract. Ste-
venson r. Maxwell, 2 Comstock, 408.
[*2851
TIME IMPERATIVE AT LAW. 337
recover in a distinct action against the builder for any damage
sustained by the departure from the plan (1). The justice, of this is
evident. But in the case under consideration, the agreements go
to the whole consideration on both sides ; they are mutual con-
ditions ; the one precedent to the other (i). If the draft of the
' conveyance, for instance, is not delivered on the day appointed,
the party who ought to deliver it has broken his agreement, and
therefore cannot recover upon it at law. This works no injustice ^
for the further execution of the contract is at once stopped ; the
seller retains his estate, and the purchaser his purchase-money, and
I the party making default is liable, as he ought to be, to an action
for breach of his engagement. It is to be hoped, therefore, that
the day appointed will always be deemed of the essence of the
contract at law. It has so been held in a recent case in the Common
Pleas (k). And in a later case upon a sale of goods, where
fourteen days were allowed from the day of sale to the purchaser to
clear away the goods, the seller was not prepared to deliver them
' *the day after the sale to the purchaser, who applied for them ; and
it was held, that he (the seller) had broken his agreement, and
could not recover against the purchaser, who refused to perform
the contract (/). Where the purchaser by a covenant in the con-
tract, was to pay a further sum of money, provided the adjoining
houses should be completed, that is, paved in front, &;c. before a day
named, and the pavement was not completed until after the day
appointed, although the delay was occasioned by the bad weather,
which prevented the workmen from proceeding, yet the seller was
held not entitled to recover the money (m).
6. In a case at law (n) where the agreement was to let a house
for a year from the 25th March, the tenant to take the fixtures at
a vahiation in the usual way, and to pay for the same on entry, it
was held that if by the terms of the agreement the party was to enter
on the 25th of March, and was to pay an ascertained amount on
that day, he would, unless he paid on that day, have no ground of
action for not being let into possession : yet here the clause in the
(0 Boone r. Eyre, 1 H. Blackst. 273. ell v. Robinson, 3 Bing. N. C. 928 ; see
See 10 East, 564 ; Lloyd v. Lloyd, 2 Martindale v. Smith, 1 Adol. & Ell. N.
Mvl. & Cra. 192; Franklin v. Miller, 4 S. 389.
Adol. & Ell. 599. (m) Maryon v. Carter, 4 Carr. & Pay.
(A) Wilde V. Forte, 4 Taunt. 334. 295.
(l) Hagcdon v. Laing, 1 ^NLirsli. 514 ; (n) Edman r. Allen, 6 Bing. N. C. 19.
and see Cornish, v. Rowley, post ; Stow-
(i; Chitty Contr. (8th Am. ed.) 492 et seq. and notes.
Vol. 1. 4a [*286]
338 TIME NOT FIXED.
agreement was that he must take the fixtures at a valuation, and
pay on entry, that is, when he enters he must pay : a tender there-
fore and demand of possession after the 25th March was valid, for
the tenant had a continuing right of entry, and there was a continued
refusal to admit him on the part of the lessor.
7. Where a precise time is not fixed for making out a title, it
will not be implied from slight circumstances ; and in such a case
the seller must be allowed a reasonable time (1). Therefore where by
the conditions of sale, the abstract was to be delivered within
fourteen days, objections to the title were to be communicated to
the vendor within twenty-one days after the delivery of the abstract,
a conveyance was to be prepared on or before the 10th of November,
and the purchaser was to sign an agreement to pay the purchase-
money on or before the 28th, it was held that as there was no express,
so there was no implied time for making out the title ; for the condi-
tion to pay on the 28th bound the purchaser, not the vendor, and the
purchaser's signing such an agreement did not imply an agreement by
the vendor that he will at all events complete the title by that day (o).
8. But a party may even at law waive the forfeiture, and enlarge
*-he time of his contract (p).
*9. And where a purchaser of a coffee-house, after a valuation
which was not completed until 10 o'clock at niglit of the last day,
at a quarter before 12 o'clock, tendered the purchase-money and
demanded possession to be given of the whole of the premises,
including certain cottages which were let to weekly tenants, and
as that could not be complied with, brought his action to recover
the deposit and damages, the Lord Chief Justice stated to the jury
that, as it appeared the purchaser was aware of the cottages being
occupied by weekly tenants, his postponing the demand of posses-
sion till the last moment might be looked upon as a waiver, and
that it appeared to be a device on the part of the purchaser to
obtain a rescission of the contract, and the verdict was for the
seller (^).
10. Where the contract is under seal, a subsequent agreement
not under seal, made before breach of the afrreement, enlarsins; the
(0) Sansom v. Rhodes, 6 Bing. N. C. Smith, 1 Crompt. & Mees. 685; and see
261 ; 8 Scott, 54-i ; seel qu. Stowell r. Robinson, 3 Bing. N. C. 928.
{p) Carpenter v. Blandford, 8 Bam. & (y) Temple v. Palmer, 1 Per. & Dar.
Cress. 57-5 ; and qu. see Sweetland v. 381, cited.
(1) Chitty Contr. (8th Am. ed.) 277, G2o and notes; Watts v. Sheppard, 2
Alabama, 425 ; Sawyer v. Hammatt, 16 Maine, 40 ; Cocker v. Franklin H. & F.
Man. Co. 3 Sumner, 530.
[*287]
TIBTE ENLARGED IN EQUITY. 339
time for performance of the contract, is invalid at law (r). And
even where the agreement is not under seal, a subsequent parol
agreement to alter or enlarge the time is void (s) (1).
11. But equity, which from its peculiar jurisdiction is enabled to
examine into the cause of delay in completing a purchase, and to
ascertain how far the day named was deemed material by the
parties, will in certain cases carry the agreement into execution,
notwithstanding that the time appointed be elapsed (2) ; and although
there has been no waiver ; for, as Lord Eldon remarks, the title to
an estate requires so much clearing and inquiry, that unless sub-
stantial objections appear, not merely as to the time, but an altera-
tion of circumstances affecting the value of the thing ; or objections
arising out of circum.stances not merely as to the time, but the
conduct of the parties during the time ; unless the objection can be
so sustained, many of the cases go the length of establishing, that
the objections cannot be maintained (t) (3). Perhaps there is cause
to regret that even equity assumed this power of dispensing with the
literal performance of contracts in cases like these.
12. Objections on account of delay seem divisible into two kinds.
The one where the delay is attributable to the neglect of either
party ; the other where the delay is unavoidably occasioned by the
state of the title ; and of each of these we shall treat in its order.
(r) Eippingall v. Lloyd, 2 Nev. & {t) Per Lord Eldon, see 7 Ves. jun.
Mann. 410. 274 ; and see Hearne v. Tenant, 13 Ves.
(s) Stowell f. Robinson, 3Bing. N. C. jun. 287. SeeLennon?;. Napper, 2 Scho.
928 ; see Lawrence v. Knowles, 7 Scott, & Lef. 683.
381.
(1) See ante, 168 and notes ; Wiswall v. McGown, 1 HoiF. Ch. Rep. 126 ; Avery
e. Kellogg, 11 Conn. 575.
(2) See Chitty Contr. (Sth Am. ed.) 276, note; post 302, §28 and note ; Waters
V. Travis, 9 John. 450 ; Voorhees v. De Meyer, 2 Barbour Sup. Ct. 37 ; Leggett v.
Edwards, Hopkins, 530 ; Gibbs v. Champion, 3 Ham. (Ohio,) 335.
(3) So if, on the other hand, from the lapse of time, the circumstances have
been so changed that a specific performance, such as would answer the ends of
justice, has become impossible, the objection is decisive. Pratt v. Carroll, 8
Cranch, 471; Pratt r. Law, 9 Cranch, 456,494; Brashier v. Gratz, 6 Wheaton,
528.
340
OPERATION OF DELAY IN EQUITY.
^SECTION II.
OF DELAYS OCCASIONED BY THE NEGLECT OF EITHER PARTY.
I. Time in equity : Gibson v. Paterson.
3. Purchaser must he prompt.
5. Dilige7ice necessanj in equity.
6. Agreement void at law if title not
ready.
8. But in equity both parties must be
active.
9. Waiver by receipt of abstract after
the day.
10. Where vendor loses his remedy.
12. There must be gross negligence.
14. Time required for repairs, or to get
possession.
15. Effect of delay by purchaser.
16. TJmcilling purchaser.
17. Reversion sold : time important.
18. Or if sale is to pay debts, <Src.
19. Or by ecclesiastical corporatioti.
1. The time fixed on for the completion of a contract, had for-
merly less attention paid to it in equity than is now given to it,
which seems to have arisen from the case of Gibson v. Paterson (a),
where, according to the report, a specific performance was decreed
in favor of the plaintiff, the vendor, without any regard had to his
negligence in not producing his title-deeds, &c. within the time
limited. And Lord Hardwicke is reported to have said, that most
of the cases which were brought into the Court, relating to the exe-
cution of articles for the sale of an estate, were of the same kind,
and liable to that objection ; but that he thought there was nothing
in the objection.
2. It appears, however, that this case is mis-reported ; for Lord
Rosslyn, in Lloyd v. Collett (6), said he had looked into the case of
Gibson v. Paterson, in which the reporter had made Lord Hard-
wicke treat the time as totally immaterial. He said, it was to be
observed, that the circumstances of that case, of which he had taken
a copy, did not call for any such opinion. The purchaser, who
hung back, had bought an estate in mortgage. The contract took
place in November, and was to be completed in February ; in that
time, therefore, the mortgage could only be paid off by treaty with
the mortgagee. Upon the facts it appeared, that application had
been made to the mortgagee, who consented to take his money.
(a) 1 Atk. 12.
lb) 4 Ves. jun. 690, n. ; 4 Bro. C. C.
497. See Radcliffe v. Warrington. 12
[*2881
Yes. jun. 326 ; Alley r.
Ves. jun. 225.
Deschamps, 13
DELAY FATAL AT LAW. 341
Drafts of conveyance were made, and countermanded by the pur-
*chaser. He had, after the contract, demised part of the estate to
the vendor at a rent ; and, upon apphcation being made to him,
every thing being ready, he said he would be off the bargain ; he
had no money to pay for it ; and if they attempted to force him, he
would go to Scotland to avoid it. Lord Rosslyn added, there
could not be the smallest argument upon it, nor the least doubt
about the decree.
3. But whatever opinion Lord Hardwicke entertained on this
subject (c), it is now settled, that a man cannot call upon a court of
equity for a specific performance, unless he has shown himself ready,
desirous, prompt and eager ; and therefore time alone is a sufficient
bar to the aid of Court (1).
4. Thus in a case yd) where the parties differed as to the construc-
tion of an agreement, and after a delay of seven years one of the
parties filed a bill for a specific performance, it was dismissed
merely on account of the staleness of the demand.
5. A bill for a specific performance is an application to the dis-
cretion, or rather to the extraordinary jurisdiction of equity, which
cannot be exercised in favor of persons who have long slept upon
their rights, and acquiesced in a title and possession adverse to their
claim. Due diligence is necessary to call the Court into activity,
and where it does not exist, a court of equity will not lend its
assistance; it always discountenances laches and neglect (e).
6. If the vendor be not ready with his abstract and title-deeds at
the day fixed, the purchaser may avoid the agreement at law (2).
(c) See 1 Ves. 450. 13 Ves. jun. 225.
(rf) Milward v. Earl of Thanet, 5 Ves. (e) Pe?- Lord Manners, 1 Ball & Beat,
jun. 720, n.(&). See Alley v. Deschamps, 68.
(1) Lach.es and negligence in the performance of contracts are not to be coun-
tenanced or encouraged ; and the party seeking specific performance must show,
that he has not been in fault, but has taken all proper steps towards performance
on his own part, and has been ready, desirous and jirompt to perform. But where
the party who applies for a specific performance, has omitted to execute liis part
of the contract by the time appomted for that purpose, without being able to as-
sign any sufficient justification or excuse for his delay, and where there is nothing
in the acts or conduct of the other party, that amounts to an acquiescence in that
delay, the court will not compel a specific performance, llogers v. Saunders, IG
Maine, 92 ; Benedict v. Lynch, 1 John. Ch. 375 ; Garnett v. Macon, fi Call, 308 ;
Goodwin v. Lyon, 4 Porter Eq. 297 ; Hays v. ILaU, 4 Porter Eq. 374 ; Scott v.
Fields, 8 Ohio, 92; "NViswall v. McGown, 2 Barbour Sup. Court Kep. 270; Voor-
hees V. De Meyer, ib. 37 ; Wells v. Smith, 7 Paige, 22 ; S. C. 2 Edwards, 08 ; More
V. Smedburgh, 8 Paige, GOO ; Reed v. Chambers, G Gill & John. 490. See Criffin
V. Hcermance, 1 Clarke, 133 ; Falls v. Carpenter, 1 Dev. & Bat. 277 ; Page r.
Hughes, 2 B. Monroe, 441 ; post, 302, note ; Pratt r. Carroll, 8 Cranch, 471 ;
Pratt V. Law, 9 Cranch, 456, 494 ; Somerville v. Trueman, 4 Harr. & M'llen. 43.
(2) Ante, 284 and cases in note ; Chittv Contr. (8th Am. ed.) 276.
1*289]
34'2 DELAY FATAL AT LAW.
7. Thus, in a case (/) where upon a sale it was agreed that a
good title should be made out by the 10th of July: in the begin-
ning of July tlie purcliaser called on the vendor to show him the title-
deeds ; but he not having them in his possession, gave the pur-
chaser an abstract of the title, which did not contain any of the
deeds ; and although it was suggested that an application ought to
have been made to the vendor at an earlier period, yet Lord Kenyon
ruled otherwise, as the seller, he said, ought to be prepared to
produce his title-deeds at the particular day.
8. This rule does not, however, prevail in equity ; for it is there
considered equally incumbent on the purchaser to ask for the
abstract, as for the vendor to deliver it. And, therefore, if a pur-
chaser do not call for the abstract before the time agreed upon for
its delivery («•), or do not ask for it until it has become impossible
*to execute the agreement by the day fixed (A), equity will consider
the time as waived.
9. So, if the purchaser receive the abstract after the day
appointed, and do not at the time object to the delay, he cannot
afterwards insist upon it as a bar to a performance in specie (i) (1).
10. It is, however, clearly settled, that a specific performance
will not be enforced, where no steps have been taken by the vendor,
although in proper time urged by the purchaser to do so, and the
purchaser, immediately when the time is elapsed, insists upon his
deposit, and refuses to perform the agreement (2).
11. This was decided in Lloyd v. Collett (k) ; the case was,
that on the 10th August 1792, the defendant contracted for the
purchase of the estate, the purchase to be completed on or before
the 25th of March 1793, and had frequently between those times
applied for an abstract of the title, but could not obtain one.
Shortly after the 25th of March 1793, the purchaser applied for
his deposit, with interest from the 10th of August 1792, when he
paid it ; and afterwards repeatedly applied for it before the 10th
of June 1793, when he brought an action for the deposit. On
the 16th September 1793 an abstract was delivered ; the purchaser
(/) Berry v. Young, 2 Esp, Ca. f.40, (k) 4 Bro. C. C. 469 ; 4 Ves. jun. 689.
n. ; vide srtpra, p. 283. See 5 Ves. 737 ; 7 Ves. jun. 278 ; and
(17) Guestr. Homl'rcy, 5 Ves. jun. 818. see Pincke v. Curteis, stated infra;
(it) Jones V. Price, s'Anstr. 924. Potts v. Webb, 4 Bro. C. C. 330, eked;
(«') Smith V. Bumam, 2 Austr. 527 ; Paine v. Meller, 6 Ves. jun. 349 ; and
and seeScton v. Slade, 7 Ves. jun. 265. Warder. Jeffery, 4 Price, 294.
(1) See Averv v. Kellogg, 11 Conn. 575.
(2) Ante, 289", note, post, 302, note.
[*290]
GROSS DELAY ON THE PART OF SELLER. 343
was then out of town, and on his return, on the 25th of October,
wrote, insisting that he would not complete his purchase. On
the 6th of November the bill was filed by the vendor for a specific
performance, and for an injunction to restrain the proceedings at
law. Lord Rosslyn said, the conduct of parties, inevitable acci-
dent, &;c. might induce the Court to relieve ; but it was a different
thing to say, that 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. And he therefore con-
sidered the contract as at an end.
12. But where a vendor has proceeded to make out his title,
and has not been guilty of gross negligence, equity will assist him,
although the title was not deduced at the time appointed.
13. Thus, in Fordyce v. Ford (/), the purchase was to be com-
pleted on the 30th July 1793. The abstract was not delivered
until the 8th, and the treaty continued until the 25th of September,
on which day the deeds were delivered, and every difficulty cleared
*up ; when the purchaser refused to proceed, alleging that he wanted
the estate for a residence for the last summer, and insisting he was
not bound to go on, on account of the delay. The Master of the
Rolls said, the rule certainly was, that where in a contract either
party had been guilty of gross negligence, the Court would not
lend its assistance to the completion of the contract ; but in this
case he thought there had been no such negligence, and decreed
accordingly ; adding, that he hoped it would not be gathered from
thence, that a man was to enter into a contract, and think he was
to have his own time to make out his title.
14. If an estate was described as in good repair, and it turn out
to be in bad repair, and several months may be required to repair
it, yet the purchaser cannot resist the contract on the ground of
time, unless it could be clearly shown, that he wanted possession
of the house to live in at a given period, by which time the repairs
could not be completed (w). So if the estate is in lease, and it
was stated that the purchaser would be entitled to possession
several months before the lease actually expire, yet he cannot
rescind the agreement, unless the personal occupation of the estate
(/) t Bro. C. C. 491; [rcrkins's cd. (w) Sec Dyer r. Ilargravc, 10 Vcs.
notes.] lladeliffe v. Warrington, 13 Yes. jnn. 505, infra, ch. 7.
jun. 323.
[*291J
344 DELAY ON THE PART OF PURCHASER.
was essential to him at the time appointed (n). In this last case,
however, the jurisdiction should be sparingly exercised.
15. The rules on this subject apply, as they ought to do, to each
party. And therefore, where a purchaser permits a long time to
elapse, without evincing a fixed marked intention to carry his con-
tract into execution, he will be left to his remedy at law, although
he may have paid part of the purchase-money. He is not to be
suffered to lie by, and speculate on the estate rising in value (o) (1).
Nor will he be assisted by equity, where he has made frivolous ob-
jections to the title, and trifled, or shown a backwardness to perform
his part of the agreement, especially if circumstances are altered
( P) C^)- ^^^ where the price is unreasonable or inadequate, or the
contract is in other respects inequitable, equity will not assist either
party, if he has permitted the day appointed for completing the con-
tract to elapse without performing his part of the agreement (^).
*i6. It was observed by Hart, L. C, that if the principle of dis-
charge by delay applies in the case of a willing purchaser, it is
open to the other side to rebut that, by showing that the purchaser
was not a willing purchaser, and that he ought not to be discharged
on the ground of hardship of delay. He who relies on the allega-
tion that he was always ready and willing, must be prepared to
meet the allegation that he was tardy and reluctant (r).
17. The time, however, is more particularly attended to in sales
of reversion ; for it is of the essence of justice that such contracts
should be executed immediately, and without delay. No man sells
a reversion who is not distressed for money ; and it is ridiculous to
talk of making him a compensation by giving him interest on
the purchase-money during the delay (s).
18. So time is very material where the estate is sold in order to
pay off any incumbrance bearing a higher rate of interest than the
vendor is entitled to receive, in respect of the purchase-money,
(«) Hall V. Smith, lloUs, 18 Dec. and see Green v. Wood, 2 Vern. 632 ;
1807, MS. ; S. C. 11 Yes. jun. 426 ; and BeU r. Howard, 9 Mod. 302 ; and Main
see 13 Yes. jun. 77. v. Melbourn, 4 Yes. jun. 720.
(0) Harrington v. AVhccler, 4 Yes. (<?) Yide pos)', ch. 6 ; and Whorwood
jun. C86 ; Alley v. Descharaps, 13 Yes. v. Simpson, 2 Yern. 186 ; Lewis v. Lord
jun. 225. Lechmcre, 10 Mod. 503.
(p) Haves v. Carj-ll, 1 Bro. P. 0. 27 ; (/•) 2 MoUoy, 584.
5 Yin. Abr. 538, pi. 18 ; Spurrier r. (s) Newman v. Rodgers, 4 Bro. C. C.
Hancock, 4 Yes. jun. C67 ; Pope v. 391 ; and see Spurrier v. Hancock, 4
Simpson, 5 Yes. jun. 145 ; and Coward Yes. jun. 667 ; 1 Price, 298, and 1 You.
V. Odingsale, 2 Eq. Ca. Abr. 688, pi. 5 ; & Col. 416.
(1) Rogers r. Saunders, 16 Maine, 92 ; post, 302, note.
(2) Post, 302, note.
[*-29-2]
DELAYS OCCASIONED BY STATE OF TITLE.
34S
during the delay (t) ; or the estate is sold for the purposes of a
trade or manufactory (u) ; or the subject of the contract is in its
nature of a fluctuating value (x) (1).
19. Again, if a party is dealing with an ecclesiastical corporation,
time must of necessity be in a very great degree of the essence of
the contract, especially where the purchaser is not dealing for the
purchase of a fee-simple estate in possession (in which case the
interest of the purchase-money is considered as an equivalent for
the rents and profits), but for a concurrent lease ; in which case
the lapse of every day changes the value and nature of the thing
to be granted, and changes also the persons who are to participate
in the sums to be paid (y).
(t) Popham V. Eyre, LofFt, 786 ; and
see a case cited in 2 Scho. & Lef. 604.
(m) Parker v. Frith, 1 Sim. & Stu.
199 ; Wright v. Howard, ib. 190 ; Cos-
lake V. Tilt, 1 Russ. 376 ; Walker v.
Jef&eys, 1 Hare, 348.
(a;) Doloret v. Rothschild, 1 Sim. &
Stu. 590.
(y) Carter v. Dean and Chap, of Ely,
7 Sim. 211 ; per V. C.
(1) See Hepburn v. Avild, 5 Cranch, 279, Per Livingston J. ; Rogers v. Saund-
ers, 16 Maine, 92, 101,
*SECT10N m.
OF DELAYS OCCASIONED BY THE STATE OF THE TITLE.
1. Delay through title twt material-.
2. Ve7idor should Jih a bill.
3. Procuring title after filing bill.
4. At law, where no time fixed.
5. Willet V. Clarke.
6. Title at time of trial not sufficietU.
9. In equity, time allowed.
10. Purchaser not bound where nexc
suit necessary.
12. Or an account of debts to be takers
14. Title should be at date of report.
15. Purchaser proceeding with knowl-
edge of defect.
17. Acceptance of abstract with notice.
20. Proceeding, bid with protest.
21. Dormant treaty.
22.
23.
24.
25.
27.
28.
30.
34.
35.
37.
36.
40.
Title too late after purchaser fiat
abando led.
Delay m filing a bilU
Waiver of time by vendor.
Vendor may rescind contract where
money cannot be paid.
Forfeiture of deposit.
Time in equity may be of essence
of contract.
Greyson v. Riddle.
Observations on the rule.
> 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<ray;e and always a mort<i;a<re, has there-
lore become a maxim ; and under this axiom equity is indeed
administered ; the parties being put in possession of their respec-
tive rights without detriment to each other. The same reasoninir
seems to apply to relief against a penalty. But in an agreement
for sale of an estate, where it is expressly declared that the con-
tract shall be void if a title cannot be made by a stated time,
the parties themselves have mutually fixed upon a time ; the bona
Jides of such a transaction seems to be a bar to the interference of
a court of equity ; and if the contract be vacated by virtue of the
agreement, the parties will still be in the possession of their
respective rights. We may therefore, perhaps, venture to assert,
that if it clearly appear to be the intention of the parties to an
agreement, that time shall be deemed of the essence of the con-
tract, it must be so considered in equity (o) (1). In the late case of
(/«) 7 Vcs. Jan. '2C).i ; and see I.owis r. liindo, 3 Mcr. 81 ; "Wardc v. JcfTcrv, 4
Ijord Lcchracre, 10 Mod. 003. Sec also Price, 291.
;j Yes. jun. (593 ; 12 Yes. jun. 333 ; 13 (o) See Appendix, Xo. G.
Yes. jun. 289 ; 2 Mer. 140 ; Levy v.
(1) Hays r. Hall. 4 Porter Eq. 297 ; Scott r. Fields, 8 Ohio, 92 ; Runnels r.
Jackson, 1 Howard (Miss.) 3.58 ; Longworth r. Taylor, 1 M'Lean, 39.5 ; S. C. 14
Peters, 173, 174; Criflin r. Ileermance, 1 Clarke, 133; Falls r. Carpenter, 1 Dcv.
& Batt. 277 ; Rogers v. Saunders, 16 Maine, 92 ; Page r. Hughes, 2 P. Monroe,
441 ; Goodwin r. Lyon, 4 Porter Kq. 207 ; Doar r. Mathews^, 1 Ikiiley Eq. 371 ;
ante, 289 in note; 2 Story Eq. Jur. ^^776; Mason v. Wallace, .3 M'Lean, 148;
Shuffleton r. Jenkins, 1 Morris, 427 ; Hunter r. Daniel, before AVigram Y. C.
Lincoln's Lin, Marcli, 184.3. A new agreement entered into by the parties, ex-
tending the time, is evidence that they regard the time as material. Wiswall v.
McCJown, 2 Barbour Sup. Ct. Rep. 270.
[*305]
358 NOTICE OF ABANDONMENT FOU DELAY.
Hudson V. Bartraiu (p), the Vice-Chancellor (Sir John Leach) said,
that the principle was admitted now that time may be made of
the essence of the contract. Why are not parties to insert such a
stipulation in their contract? It is difficult to understand how
the doubt arose, but it is now at an end ; and in Lloyd v. Rip-
pingale, where time was in those very words made of the essence
of the contract, it was so decreed (q). In the later case of Hipwell
*v. Knight, Mr. Baron Alderson considered the rule to be, that the
real contract and all the stipulations really intended to be com-
plied with literally should be carried into effect. He thought, that
if the parties chose, even arbitrarily, provided both of them intend
so to do, to stipulate for a particular thing to be done at a partic-
ular time, such a stipulation ought to be carried literally into
effect in a court of equity. That is the real contract ; the parties
had a right to make it ; why then should a court of equity inter-
fere to make a new contract which the parties had not made (r) ?
35. Where time is not made of the essence of a contract by the
contract itself, although a day for performance is named, of course
neither party can strictly make it so after the contract ; but if
either party is guilty of delay, a distinct written notice by the other,
that he shall consider the contract at an end if it be not completed
within a reasonable time to be named, would be treated in equity
as binding on the party to whom it is given.
36. In Reynolds v. Nelson (5), where the purchaser was in pos-
session as tenant, the point arose, but the seller's notice was, that
if the purchaser made default in attending on one of the days
named in the notice to complete the purchase, he should consider
him as refusing to perform the agreement and act accordingly : and
the Vice-Chancellor observed, that although it might now be con-
sidered as the settled doctrine of the Court, that by the terms of
the agreement time might be made the essence of the contract, yet
it had not been decided that where there was no stipulation in the
contract, time might be made essential by subsequent notice that
it will be so considered, and in this case he might leave that point
untouched. The notice given was not that the seller would con-
sider the contract at an end if it was not completed within the
time, and whether he would act as if the contract were abandoned,
(;;) 12Dec. 1818, MS. ; S. C. 3 Madd. -n-riter thinks he -was counsel in the
440 ; and see Boehnx v. Wood, 1 Jac. & cause.
Walk. 419 ; Williams v. Kdwards, 2 (>•) 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<e; Barrett «. Gomeserra, Bunlx 94; Un-
aiid Edwards f. Heather, Scl. Cha. Ca, 3. derwood r, Hithcox, 1 Yes, 279 ; Mort-
((7) Poole 0. Shergold, 2 Bro. C, C. lock y. Buller, 10 Yes. jun. 292; and
118. [Perkins's ed. notes.] Lowther v. Lowther, 13 Yes> 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<j ; Brashier r. Gratz, 6 Wheat. 528 ; Ellis v. Burdon, 1 Alaba>
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 (</).
(m) Ex parte Latham, 7 Ves. jun. 35, (o) See 2 Ero. C. C. 420.
note. ( p) 1 Anst. 64 ; and see Young v.
(n) Pope V. Root, 7 Bro. P. C. 184 ; Clerk, Prec. Cha. 538 ; Lukey f. O'Don-
Mortimcr t. Capper, 1 Bro. C. C. 156 ; nell, 2 Sch. & Lef. 466.
and Jackson v. Lever, 3 Bro. C. C. 605 ; (rj) Turner v. Harvey, Jac. 169 ; Brea-
see Bower r. Cooper, 2 Hare, 408 ; Ken- ley r. Collins, You. 317 ; supra, ch. 4, s.
ney v. Wexham, 6 Madd. 355. 5, pi. 5.
(Ij In Seymour v. Delancey, 6 John. Ch. 222, Mr. Chancellor Kent discusses
the reasons and propriety of the remarks of Ijord Eldon in Damon v. White, and
he seems to doubt the correctness of Lord Eldon's suggestions, in that case, as ap-
plied to any sales excepting, perhaps, those made at auction. See Damon v.
White, 7 Sumner's Vesey, 30 in note.
(2) See Warner i;. Daniels, 1 Woodb. & Minot, 90.
(3) See Bowman r. Bates, 2 Bibb, 52.
[*312]
OF AN iNADEQ,UATE CONSIDERATION. 367
14. So a misrepresentation by the purchaser, who was the agent
of the seller, of the value of the estate, although it operateid only to
a small extent, has been held to be a sufficient defence against
a bill for a specific performance ; for to entitle a person to call
for the aid of a court of equity, he must go there with clean
hands (r).
15. Where neither of the parties knows the value of the estate, at
the time the contract is entered into, no inadequacy of conside-
ration will operate as a bar to the aid of equity in favor of the
purchaser.
16. Thus in a case (5) where a common was to be inclosed, one
man having a right of common, agreed, before the commissioners
had made any allotment, or any one could know what it was to be,
to sell his allotment for 20/. Afterwards it turned out to be worth
200/. Sir Joseph Jekyll said, the contract ought to be enforced, as
no one could know what the allotment would be ; and both parties
were equally in the dark ; hut it might be different if the circum-
stances had been Tcnown to the plaintiff.
17. But, whether an estate is sold by auction, or by private
agreement, equity will be as vigilant in discovering an excuse for
refusing to perform the contract, where the price is inadequate, as
it will where the consideration is unreasonable (t) (1).
18. A conveyance executed will not, however, be easily set aside
on account of the inadequacy of the consideration ; for there is a
great difference between establishing and rescinding an agree-
ment (ii) (2). It is not sufficient to set aside an agreement in equity,
to suggest weakness and indiscretion in one of the parties who has
engaged in it ; for supposing it to be in fact a very hard and un-
conscionable bargain, if a person will enter into it with his eyes open,
*equity will not relieve him upon this footing only, unless he can
(r) Cadmau y. Horner, LS Vcs. jun. in 11. {a), supra; and see Mortlock v.
10 ; Wall V. Stubbs, 1 Madd. 80. Biillcr, 10 Yes. jun. 292 ; Maddcford v.
(s) Anon. 1 Bro. C. C. 1.58 ; 6 Vcs. Austwick, 1 Sim. 89, and 1 Molloy, 335.
jun. 21, cited ; but see 2 Atk. 134. («) See Dews v. Brandt, Scl. Clia. Ca.
(t) Whorwood v, Sirapson, 2 Vein. 7 ; Cases, Dom. Proc. 1728 ; Ilamiltou
18(j ; Emery v. Wase, 5 Vcs. jun. 846 ; v. Clements, Cas. Dom. Proc. 1766. See
8 Yes. jun. 50.5 ; Twining v. Morris, 2 Small v. Attwood, You. 407, supra, eh.
Bro. C. C. 326 ; and see the cases cited 4, s. 5.
(1) See Hough v. Hunt, 2 Ham. (Ohio.) 502 ; Osgood v. Franklin, 2 John. Ch.
1, 23; Butler v. Haskell, 4 Desaus. 651 ; Hardeman v. Burge. 10 Yerger, 202;
Thompson v. Jackson, 3 Randol])h, 504.
(2) Sec, in reference to this (UH'crencc, Osgood r. Franklin, 2 John. Ch. 1. 23;
Mortlock V, BuUer, 10 Ycsoy (Sumner's ed.) 29 and in note ; AVhite r. Damon, 7
ib. 30 note ; ante, 311, note ; Cathcart c. Robinson, 5 Peters, 264.
1*3 1. 3 J
368 OF AN rNADEqUATE CaNSIDE RATIO y.
show fraud in the party contracting with him, or some undue rnettrr.-?
made use of to draw him into such agreement (x) (1). To set aside-
a conveyance, there must be an inequality so strong, gross and mani-
fest, that it must be impossible to state it to a man of common
sense, without producing an exclamation at the inequality of it (t/).
The truth is, that in setting aside contracts, on account of an inade-
quate consideration, the Court proceeds on fraud (2). In all sucli
eases, however, the basis must be gross inequality in the contract,,
otherwise the party selling cannot be said to be in the power of the
party buying ; unless actual imposition is proved by gross inequa-
lity, other circumstances of fraud will pass for nothing ^ the basis
must he gross inequality (z) (3).
(x) Per Lord HardAvicke, Willis v. Jer- wood^lO Ves. jun. 209 ; 14 Ves. juii. 28 :.
negan, 2 Atk. 251. Verner i\ Winstanley, 2 Scho. & LeL
((/) Per Lord Tliurlow in GAvynne v. 393 ; Mac Ghee v. Morgan, Bruce v.
Heaton,. 1 Bro. C. C. 1 ; and see Ste- llogers, ib. 395 : Darlcy v. Singleton,
phens V. Bateman, 1 Bro, C. C. 22; Wight. 25; Evans v. Brown, ib. 102;
Floyer v. Sherard, Ambl. 18 ; Heath- JS.c par^e Thistlewood, 1 Kose, 290.
cote V. Paignon, 2 Bro. C. C. 167, and (;) Per Lord Thurlow, in Gartside r,
the cases there cited ; Spratlcy v. Grif- Isherwood, 1 Bro. C. C. 558. [SeeSGO,
fiths, 2 Bro. Cr C. 179, n. ; Low v. Bar- 561 and notes. 1
chard, 8 Ves. jun. 133 ; Underhill v. Hor-
(1) Referring ta the language of the text, Mr.. Justice Story saj'S ; — "But this-
language, if maintainable at all, requii-cs many qvialiflcations ; for, if a person is-
of a feeble understanding, and the bargain is unconscionable, what better proof
can one Avish of its being obtained by fraud, or imposition, or undu9 intiucncc, or
by the power of the strong over the weak r" 2 Story Eq. Jur. ^^236 ; Blackford
v. Clmstian, 1 Knapp, K. 77. " It is obvious," says the same learned author^
*' that weakness of undcrstaiiding must constitute a most material ingredient in
examinmg, whether a bond or other contract has been obtained by fraud, or im-
position, or undue intiueuce, for, although a contract, made by a man of sound
mind and fair understanding, may not be set asid&, merely from its being a rash,
improvident, or hard bargain ; yet>. 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 (</).
*22. The reader will perceive that in this chapter a distinction is
' taken between contracts in Jieri, and contracts actually executed ;
but in the case of Coles v. Trecothick (e). Lord Eldon appears to
have been of opinion, that no such distinction exists. He said,
that unless the inadequacy of price is such as shocks the conscience,
and amounts in itself to conclusive and decisive evidence of fraud
in the transaction, it is not a sufficient ground for refusing a spe-
cific performance (3).
23. In treating of inadequacy of price, we must be careful to
distinguish the cases of reversionary interests, the rules respecting
which, especially where an heir is the vendor, depend upon prin-
ciples applicable only to themselves, and not easily definable (/") (4).
(a) Stilwcllr. Wilkiiis, Jau. 280. -17.
(b) Sec Evans r. Luellyn, 2 l?ro. C. 0. (d) Gordon v. Crawford, before the
L30 ; and the cases cited in the next House of Lords ; Gro. & Kiid. of Law
note. and Eq. p. 92, pi. 16 ; Printed Cases
{c) Hernc r. Meers, 1 Vcrn. !(;.) ; 1 Dom. I'ror. 1730.
Bro. C. C. 17C, n. ; Gould r. Okendcn, (c) 9 Ves. jun. 234 ; sed qu. and sec
4 Bro. P. C. bv Toml. 193 ; Farguson c the cases cited in this chapter,
Maitland, Gro'. & Rud. of Law and Eq. ( f) See 9 Ves. jun. 243 ; 2 Pow.
p. 89, pi. 1 ; Pickett ?•. Lofjcgon, 14 Ves. Coiitr. 181 ; 3 Wooddcs. 4G0,s. 7 ; Glib.
21.3 ; Murray v. Palmer, 2 Scho. & Lef. Lex Prietor. 291 ; 1 Trca. Eq. c. 11, s.
474 ; Bowen v. Kirwan, Kep. t. Sugd. 12, and Mr. Fonblanque's notes, ibid.
(1) See Butler v. Haskell, 4 Desaus. 651, 697 ; Clitherall v. Ogilvie, 1 Dcsaus.
250.
(2) Osgood r. Franklin, 2 John. Ch. 24 ; Butler c. Haskell, 4 Dcsaus. 651;
Bunch r. Hurst, 3 Dcsaus. 273.
(31 But sec ante, 311, in note.
(1) Ossrood r. Franklin, 2 John. Ch. 1, 2.3, Per Kent, Chancellor
Vol. I. 47 1*314]
370 OF SALES CFF REVERSIONARY INTERESTS.
1
The heir of a family dealing for an expectancy in that family, fs
distinguished from ordinary cases, and an unconscionable bargain
made with him, is not only to be looked upon as oppressive in tha
particular instance, and therefore avoided, but as pernicious in prin-
ciple, and therefore repressed (g')(0' There are two powerful rea-
sons why sales of reversions by heirs should be discountenanced ; the
one, that it opens a door to taking an undue, advantage of an heir
being in distressed and necessitous circumstances (A), which may
perhaps be deemed a private reason : the other is founded on public
policy, in order to prevent an heir from shaking off his father's au-
thority, and feeding his extravagances by disposing of the family es-
tate (i). Every case of this nature must, however, depend on ils
own circumstances ; the Courts profess not to lay down any particu-
lar rules, lest devices should be framed to evade them (2).
(ff) Per Lord Thurlow, 1 Bro. C. C. Wills. 320; (lAvymie r. Heaton, 1 Bio.
10. See Nott v. Hill, 1 Veru. 167; 2 C. C. 1 ; Bernal r. Donef,'a], SDow, 133 ;
Ycrn. 27 ; Barney v. Pitt, 2 Vcrn. 14 ; Blakeney v. Ba-^ott, 3 Blij^h, N. S. 237.
Earl of Arclglassc r. Muschanip. 1 Yern. (h) Sir JolmBarnardiston r. Lingood,
237; Twisleton v. Griffith, 1 P. Wms. 2 Atk. 133.
310; Curwyn v. Milner, 3 P. Wms. 293, (*) Cole r. Gibbons, 3 P. AVins. 290.
11. (C) ; Sir John Barnardiston r. Liu- See Barnard, Cha. Rep. 6.
' 2 Atk. 133 ; Baugh r. Price, 1
(1) Li Boyntou v. Hubbard, 7 Mass. 112, it was decided that the contract made
by an heir to convey, ou the death of his ancestor, liTiiiij the heir, a certain un-
divided ])art of what shall come to the heir by descent, distribution, or devise, is.
a fraud upon the ancestor, pioductive of public misclucf, and void as well at law
as in e::iuity. See 1 Story Eq. Jur. ^313. But in ^'arick v. Eilwards, 1 Hotfniau
Ch. Hep. 383, 395 — 40 j, it was declared by the Ass. V. Chancellor, after an elab-
orate examination of the authorities, that Chancery Avill support the sale of tlie
expectation of an heir of an inheritance in real as well as personal estate, if made
bonajide, and for a valuable consideratiou. See 2 Kent ((5th ed.) 47t> 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,
<dE SALES OF BEVEftSIONARF INTERESTS. 371
•24. The circumstance of the heir being unprovided for, will not
prevail much in the purchaser's favor : the remoteness or uncer-
tainty of the interest is not material, if the terms be unreasonable,
nor can much stress be laid upon the purchaser incurring the risk
of the loss of his money, in case the heir die before he come into
possession ; nor will the acquiescence of the seller during the con-
*tinuance of the same situation in which he entered into the con-
tract prejudice him (k).
25. The adequacy of the consideration is considered with refer-
ence to the time of the contract and not to the event, and the
burden lies on the purchaser in these cases to show that a full and
adequate consideration was paid (/) (1). It is, however, competent
for the Court at the hearing to direct an inquiry as to the value,
if it think fit (w) (2),
26. But transactions between a father and son are treated as
family arrangements, and not as dealings for reversionary in-
terests (ii).
27. A very anxious protection is also extended by equity to
persons selling reversionary interests, who are not heirs, although
certainly the same reasons do not occur in support of it (o) (3).
23. And although the bargain include property in possession,
yet if the bulk of the property is reversionary, the whole contract
will be set aside (p).
29. So where a loan is effected under the mask of trading, and
an extraordinary rate of interest is in that way gained, the Court
will relieve against the transaction, particularly in the case of an
expectant heir (9-). In the late case of King v. Hamlet, the heir
was not relieved, although after a treaty for a loan, goods to the
(k) Gowland v. DeFaria, 17 \ei. juii. (/*) Lord Aldborough v. Trve, 7 Cla.
20 ; suj)ra, ch. 4, s. 5. ' & Fin. 4.56.
{I) Gowland 1-. De Faria, ubi sup.; (o) Wiseman t;. Beake, 2 Vern. 121;
Evans v. Griffith, Farmer v. Wardell, Cole v. Gibbons, 3 P. Wras. 290; Baw-
17 Ves. jun. 21, cited; Mcdlicott c. tree c. Watson, 3 Mvl. .S: Kee. 339 ; see
O'Donel, 1 Ball .S: Beatty, 13(3 ; Kendall Woodroffe c. Allen, 'l Hay. .S: Jon. 73.
r. Beckett, 2 lluss. & Myl. 83 ; Addis v. {p) Lord Portmore v. Taylor, 4 Sim.
(':iinpholl, 1 Beav. 2.)S." 182.
(m) Heron i'. Heron, 2 Atk. 160; (7) Barker c. Yansommer, 1 Bro. C. C.
TweddeU v. Tweddcll, Turn. & Huss. 1 ; 119.
AVallace v. Wallace, 2 Dru. & War. 452.
(N. S.) 594; Ryle v. Brown, 13 Price, 758; Fitch r. Fitch, 8 Pick. 480; Butler
r. Haskell, 4 Desaus. 487, 488.
(1) 1 Story Eq. Jur. ^^336; Lord Aldborough i-. Trye, 7 Clark & Fin. 457, per
Lord Cottenham.
(2) As to the mode of ascertaining the value of a reversionary interest, see
Earl of Chestertield v. Janssen, White's Lead. Cas. in Equitv, 341, 402, 403.
(3) See 1 Storv Eq. Jur. ^^337, ^338.
[*3151
'fil:i OF SAF.F.S OF KEVERSIONARY INTKRESTS.
value of 8,000/. were sold at the shop prices to an expectant heir,
who had sold his only immediate provision, and a mortgage and
other securities were taken as upon an actual advance of 8,000/.
in money, carrying five per cent, interest frou) the time of sale,
although it was proved that where ready money was paid (and
here the security carrying interest was equal to ready money),
a rebate of five per cent, was allowed in the ordinary way of trade
by the defendant, which would have amounted to 400/., but no
such allowance was made to the plaintiff, and his goods were
detained until the securities were perfected. The goods were of
course resold, and the plaintiff sustained a loss of about 60 per cent,
upon the transaction (r).
*30. The Court in deciding this case laid down two propositions
as incontestable, as applicable to the doctrines of equity upon the
snbject of an expectant heir dealing with his expectancy.
1. That the extraordinary protection given in the general case
must be withdrawn if it shall appear that the transaction was
known to the father or other person standing in loco parentis ; the
person, for example, from whom the spes-successionis was enter-
tained, or after whom the reversionary interest was to become
vested in possession, even although such parent or other person
took no active part in the negotiation, provided the transaction
was not opposed by him, and so carried through in spite of him (1).
2. That if the heir flies off from the transaction, and becomes
opposed to him with whom he has been dealing, and repudiates
the whole bargain, he must not in any respect act upon it so as to
alter the situation of the other party or his property ; at least that
if he does so the proof lies upon him of showing that he did so
under the continuing pressure of the same distress which gave rise
to the original dealing (2).
Now the first of these rules is supported by no previous author-
ity, and as a general rule cannot, it is submitted, be maintained.
The knowledge of the parent may, under some circumstances,
remove one of the objections to such a transaction, but the others
might still remain. The son is entitled to be relieved, although
{)■) Kiugr. Hamlet, 4 Sim. 231 ; 2 My. & Kee. lo6. 8ec. the reasons for the ap-
pellant in App. No. 9.
I
(1) A covenant by an heir expectant, that he will convey the estate, which shall
come to him by descent or otherwise, is valid, if" made with the consent of the
ancestor, and for a sufficient consideration, and without advantaj^e being taken of
the covenantor. Fitch v. Fitch, 8 Pick. 480 ; Trull r. Eastman, 3 Metcalf, 121.
(2) See ante, 27o, 27fi ; 1 Storv Eq. Jnr. ^.346.
p316]
OF SALES OF REVERSIONARY INTERESTS. .'H-'J
his father may witness his ruin with indifference. It is the son's
equity, although partly grounded upon public policy. In many
cases the person standing in loco ])arcntis, or from whom the spes-
successionis is entertained, or after whom the reversionary property
is to become vested in possession, may be more tlian indifferent
about the worldly prospects of the expectant heir. Even in the
case of father and son, how frequently we find the expectant
spendthrift only following his parent's example ! The second
rule, without the concluding qualification, could not be safely
acted upon. In the case of goods substituted for money, and a
security given over the buyer's reversionary property, the heir may
offer to return the goods if the seller will relinquish the securities.
If the offer is refused, and the heir then sell them — which is simply
accomplishing the purpose for which they were bought, — it would
not be possible to maintain that he had forfeited any equity which
he originally had to impeach the transaction.
31. A bona fide sale of a reversionary estate cannot be set aside,
whether the vendor be an heir or not (s), unless fraud or imposi-
tion *be expressly proved, or be implied from the inadequacy of
the consideration, or other circumstances attending the sale {f),
although in the case of Gowland v. De Faria it was deemed suffi-
cient to avoid the contract (ii), tliat the consideration was not
equal to the calculated value in the tables (1).
32. That case was the sale of an annuity secured upon the
reversion, with a warrant of attorney and judgment, and therefore
clearly distinguishable from a sale of the reversion. The evidence
of Mr. Morgan, the actuary for the plaintiff, the seller, proved
the price to be greatly inadequate, and according to the report,
there was no evidence for the purchaser. Sir William Grant held
that, according to the authorities, the purchaser was to show that
a full and adequate consideration was paid. Upon the question
of the adequacy of the consideration, the evidence was all one way.
In many of these cases very opposite opinions are given by calcu-
lation, but here the plaintiff's witness was not contradicted. He
must, therefore, take the value to be inadequate, and then he did
(s) Dews r. Brandt, Scl. Ca. Cha. 8 ; cock v. Evans, 16 Vcs. jun. .)12 ; Kyle v.
and see 1 Bro. C. C. 6; Woodroffe v. Brown, 13 Price, 7o8 ; Lord Portmore r.
Allen, 1 Hay. & Jon. 73. Taylor, 4 Sim. 182.
{t) Nichols i: Gould, 2 Yes. 122; (m) Gowland r. De Faria, 17 Vcs. jim.
Gwynne v. lleaton, 1 Bro. C. C. 1 ; Pea- 20.
(1) See Earl of Chesterfield v. Janssen, "White Lead. Cas. in Equitv, 344, 402,
403 ; Lord Aldborough v. Tri-e, 7 Clark. & Fin. 4.57.
374 OF SALES OF REVERSIONARY INTERESTS.
not see how he could avoid setting aside the contract. The deci-
sion was appealed from, but the suit was compromised by the
seller paying to the purchaser the costs, and a sum of money
beyond the sum decreed to him at the Rolls.
33. The rule supposed to have been laid down in the above case
would have a strong tendency to stop altogether the sale of rever-
sions ; but as this is not possible, it would have the effect of pre-
venting the sale of reversions at their fair market value. It is per-
fectly well known that reversions upon sales, even by auction,
fetch on an average only two-thirds of the sum at which they are
valued in the tables : according to the case of Gowland v.
De Faria (x), tliis does not seem to operate in a purchaser's favor,
although the value of a thing is at last not to be regulated by cal-
culation, but, as it is vulgarly termed, by what it will fetch. Ex-
perience has shown, that, under the most favorable circumstances,
reversions will not fetch their calculated value, which only allows
the purchaser five per cent interest, notwithstanding that his money
may be locked up for many years. ]t seems, therefore, an equity
not founded on reason or convenience, which in these cases inquires
the calculated value of the subject of the contract, instead of its
value according to the well known market price. The effect of
such an equity must ultimately be to injure the very persons in
*whose favor it was introduced. Reversions will never fetch their
calculated value. Fair purchasers will not dare to purchase them
at their market price, and consequently they will be thrown into
the grasp of usurers, who will give very inadequate considerations
for them, running the risk of a suit, in which event they will stand
in as good a situation as if they had given the fair market price
for them.
34. The true rule appears to have prevailed in an early case (y).
A son, thirty years of age, tenant in tail in remainder expectant on
his father's life estate, contracted to sell it at somewhat less than
half of its present value when he came into possession, and interest
was to be paid in the meantime. The father died within two years,
but the Court refused to relieve the son. The Court truly observed,
that a rule that an heir should not dispose of a reversion would be,
that an heir should never be of age. If the bargain had been to
pay when the possession had, that would have been a purchase in
possession, and on account of the groat undervalue bad. Had the
{x) See Ex parfe Thiiit\e^yc}oJi, 1 Kosc, 182; Whichcotei;. Bramstou, ib. 202, n.
290 ; Lord Portmore r. Taylor, 4 Sim. (y) Dews v. Brandt, Sel. Clia. Ca. 7.
f*318]
OF SALES OF REVERSIONARY INTERESTS. 375
bargain been to pay so much down in present money, undoubtedly
it had been good, else there was an end of all sales of, reversions,
and a man would, he tantalized, with having an estate of which he
could malce no use. The payment of the interest they considered
the same as buying the reversion for present money paid, and the
agreement could not be affected by the accident of the early death
of the father. That was a chance on both sides, and might have
happened otherwise.
35. Sir W. Grant, in acting upon the rule, considered that to
the class of expectant heirs the Court seemed to have extended a
degree of protection approaching nearly to an incapacity to bind
themselves by any contract (z) (1).
36. But Gowland v. De Faria has not been approved of, and
later cases place the doctrine upon the right footing, and the Court
will, in estimating the value, look at the real market as well as the
calculated value, in order to ascertain whether the price be a
fair one (2).
37. In a case in Ireland, before Hart, L. C. (a), he observed that
he was not satisfied at the time, nor was he then, that Gowland v.
De Faria was decided on the true principles of equity ; but the
ground upon which his objection turned seems to have been the
length of time which had elapsed. There \\ere, he stated, material
facts in that case, which do not appear in the printed report, going
further to disentitle the plaintiff. He was not a mere expectant
*when he made the contract, but a man in possession of a consider-
able income. He expected an accession, but he was opulent and
he was prudent, for he raised that money not to squander it, but to
lay it out profitably in the improvement of his estate. Sir A. Hart
added, that he advised an appeal from that decree; and it would
have been appealed from, but the plaintiff submitted to a cou)-
promise.
38. In Hincksman v. Smith (A), before Sir John Leach, blaster
of the Rolls, he observed that, in Gowland v. De Faria, Sir W.
Grant did not consider himself as laying down a new rule,
but as following the current of authority, and since that case the
rule had been so far regarded as the settled law of the court ; that
{z) rcaoock 1-. Evans, Ui Yes. juu. oVl. (1S2S).
(a) Scott V. Dunbar, 1 Moll. 458 {b) 3 Russ. 433 (1827). •
(1) Sec 1 Story Eq. Jur. §:536.
(2) Seo Earl ot" Chc^tcrlield v, JaiKScn, White 1-cad. Cad. in Eciuity, ?A\, 40:.',
403, and cs\sc% cited.
1*3191
376 OF SALKS OK KKVEUSIONAHY INTERESTS.
although he (Sir John Tjcacli) had vpon more than one occasion
judicially questioned both the principle and policy of the rule (1), yet
it would not hecome that Court to make a precedent in direct oppo-
sition to it. But he decided the case upon other grounds.
39. In a recent case (c) before Chief Baron Alexander, he refused
to set aside a private sale of a reversionary interest, although
Mr. Morgan the actuary's valuation was 928^. 85., and the price
paid was only 630Z., rather more than two-thirds of the calculated
value. The learned judge could not bring liimself to adopt the
principle laid down in Gowland v. De Faria. He observed, that
in the case before him the price agreed on and actually paid was
in his opinion the utmost that, according to every human prob-
ability, could have been obtained. He did not dispute Mr.
Morgan's valuation, but the price put by the actuary can never be
procured in fact ; the witnesses for the defendant prove it, and it
requires no witnesses. The price set was the arithmetical value.
Now no man will part with his ready money, and all the advan-
tages which the power over it confers, in exchange for a future
interest, without some compensation beyond the dry arithmetical
value of it. To set this bargain aside would be in effect to decree
that no valid bargain for a reversion can be made except by auction ;
and he did not know how any other sale of such an interest could
be sustained, unless judges proceeded on the same principle as he
did. TJiis would be a very inconvenient restraint on the power of
the owners of such property. A private sale is no doubt, sometimes,
an imprudent exercise of that power; but in many situations, and
under circumstances of no unfrequent occurrence, it is wise and
provident. Every case should turn on its particular circumstances ;
and he thought there were none in the present case which, either
*according to sound sense, or to any established course of pre-
cedents, affected it.
40. In the case of Potts f. Curtis (d), the bill was to compel a
transfer of some stock, the reversion of which had been purchased
by private contract by the plaintiff. The purchase was made in
1812 for 550/. The claim was resisted upon the allegation of
inade(juacy of consideration. The plaintiff examined two auc-
tioneers to prove the value. The defendant examined two actuaries,
an auctioneer, and a land agent ; and in the result the purchase
((■) Ilcadcn v. llo.sher, 1 M'Clcl. & (rf) You. .543 (1832).
You. 89 (182.5).
(1) Sec 1 Story E'l. Jiir. §338.
[*320|
OF SALES OF REVERSIONARY INTERESTS. 377
was supported. This case, for the first time, fairly introduced the
question between the conflicting evidence of auctioneers and
actuaries, or, in other words, between the market price of reversions,
and their estimated value according to the tables. Lord Lyndhurst
observed, that he had made a calculation as to the inadequacy.
If the two calculations of Morgan and Ansell, the actuaries, and
the average of their results be taken on the one side, and the cal-
culations of the two witnesses for the plaintiff, and the average of
their results be stated on the other side, and then the average of
the whole, two on one side, and two on the other, be taken, the
result is 597/., that is, 411. more than the price actually paid. It
was quite clear that Sir William Grant, in Gowland v. De Faria,
paused a moment as to an actuary's valuation ; but then, he says,
" there is nothing opposed to it ; it is not questioned, but it is ad-
mitted." He (Lord Lyndhurst) took that as the basis upon which
he should proceed. It was equally clear, he seemed to think, a
question might arise as to whether an actuary's valuation was the
real value. Sir William Alexander, in Headen v. Rosher, states
that the sum at which an actuary values a reversion never can be
obtained. He (Lord Lyndhurst) supposed it could not; for why
should a party choose to lock up his money at the ordinary interest ?
Some deduction therefore should be made on thaf account ; but in
this case, making no deduction, and taking the valuations on both
sides, the average is only 47/. more than the money paid for the
reversion. It was unnecessary for him to say what was the extent
of the inadequacy of consideration which would vitiate a contract
of this kind, for it did not appear to him that the consideration
was inadequate when the subject was fairly considered. L^n-
doubtedly in this case, Mr. Morgan and Mr. Ansell, who were both
actuaries, and accustomed to make calculations of this description
with great accuracy, stated that they calculated the value of this
reversion at considerably more than the sum that was agreed to be
paid for it. This brought him (Lord Lyndhurst) to the consider-
ation *of the doctrine in Gowland v. De Faria. In that case there
was a calculated value, and the Master of the Rolls not finding
that calculated value opposed by any evidence, considered he was
bound by it ; and the calculated value being much more than the
sum paid, ho considered the contract was altogether void. But he
(Lord Lyndhurst) thought the observations made upon that case
by Sir WiUiam Alexander, very judicious and very proper. He
says, " Calculated value is never actual value, and no person sell-
Vol. L " 48 f*;^211
378 or SALES of reversionary interests.
ing a reversionary interest can ever exj3ect to get the calculated
value." And his reason is extremely good and satisfactory. Sir
William Alexander, therefore, would have come to the conclusion
probably in Gowland v. De Faria, that according to his experience,
he would not have been bound, as the Master of the Rolls con-
ceived himself to be, by the evidence of the calculated value. The
Master of the Rolls thought that the calculated value being opposed
by no other evidence, was conclusive upon him. According to his
(Lord Lyndhurst's) understanding of the judgment of Sir Wilham
Alexander, he would not have considered himself so bound ; he
would have exercised his own understanding and experience, and
made certain deductions from the calculated value ; but in the pre-
sent case they have evidence not merely of the calculated value,
but evidence independent of it. ]\ow, the evidence of the two
most experienced witnesses on the part of the defendant, those on
whose judgment he should be disposed most to rely, Mr. Morgan
and Mr. Ansell, was, that the calculated value amounted to 744^.
If you deduct, according to common experience, a third from the
culculated value, the proportion to which as the average price
obtained (e), it would i educe the 744/. to 496/., whereas the sum
here contracted for amounted to 550/. But the evidence on the
other side, of Mr. Fairbrother, was, that it was not worth to
sell more than 530/. : the evidence of Mr. Abbott, that it was
not worth more than 500/. Taking, therfore, the evidence of
dence of Mr. Fairbrother, and the evidence of Mr. Abbott, who were
experienced persons in selling property of this description, and con-
trasting that with the calculated value, the estimate they put upon
the property was something more than two-thirds of the calculated
value, and something less than the money actually given for the
property.
41. In Newton v. Hunt, where Sir L. Shadwell, V. C. relieved
against a sale by private contract at an undervalue, he observed,
that it was insisted that the doctrine laid down in Gowland v.
De Faria was overuled by the decision in Headen v. Rosher.
*But it was observable that in Headen v. Rosher, the only evidence
given by the plaintitTs was the opinion of Mr. Morgan, and for
reasons which the V. C. stated, little reliance could be placed upotj
that opinion as evidence of value, whereas the defendant's evidence
went directly to prove that the price given by him was a fair price.
And there was nothing in the case of Headen v. Rosher from which
(#) Sugd. Vend. & Purch. 239 ; [s»;»-a, p. 317, pi. 33.]
[*3221
OF SALES m REVERSIONARY INTERESTS. 379
il could be inferred that any advantages had been unduly taken of
ihe plaintiff by the defendant. That case was decided in 1825 ;
and in 1827, the case of Hinxsman v. Smith occurred, in which
Sir John Leach, Master of the Rolls, made the observations before
quoted. He (the V. C.) could not, therefore, consider the judg-
ment of the C. B. in Headen v. Rosher as having set aside the
authority of Gowland v. De Faria, even with respect to inadequacy
of price alone. Sir William Grant however had before him a case
in which the defendant did take advantage of the plaintiff's diffi-
culties.
42. The decision of the case of Headen i'. Rosher may be capa-
ble of being referred to the grounds stated by the Vice-Chancellor ;
but Chief Baron Alexander clearly intended to decide that the
market value, and not the calculated one, is the true guide in
these cases ; and so the decision was understood by Lord Lynd-
hurst, G. B.
43. In a recent case before the Vice-Chancellor (/), where the
interest sold was a perpetual rentcharge, which the seller, although
an heir, was enabled in effect to sell in possession, but a question
arose upon value, and two actuaries for the seller gave the same
evidence as to value, and were contradicted by two auctioneers
and a surveyor for the purchaser, as to the market value or price
by public auction ; the Vice-Chancellor, in contrasting the evi-
dence, observed, that both the actuaries singularly enough con-
curred in stating (probably they looked only at the tables) that a
sum named was the value at the time of sale, but although cross-
examined as to the market value, they did not depose. But the
other three persons spoke of the market value, and two of these
witnesses added, that their estimate was made with reference to
the state of the money-market (which was a very material circum-
stance) at the time of the sale, which they said was a very unfa-
vorable time for the sale of property such as that in question. —
All the Judges therefore seem now to take the same view of this
question, for the saiue point arose in VVardle v. Carter as in the
other cases, viz. which is to be looked at, the calculated value or
the market price, and it makes no difference whether the rule is
*applied to a reversion or to a subject like a rentcharge in pos-
session, although when the value is ascertained, a consideration
might be deemed adequate in the one case, which would be inade-
quate in the other.
(/) AVardlc i\ Carter, 7 Sim. 490.
[*323]
380 OF SALES OF REVERSIONARY INTERESTS.
44. In a late case in the House of Lords (,g) the later authorities
were fully reviewed and established, so that now in such cases, the
question is, Was the fair market price given ?
45. In a case (A) where a tradesman for 30/. paid at the time of
the agreement, and 5101. further part of 770/. to be paid at the
time of the conveyance, sold eight-twelfths of a property in re-
mainder expectant upon his father's death, and 200/. was to be
retained by the purchaser, in order that if he were obliged upon
the purchase of the remaining shares to give more than 100/. a
piece, he might reimburse himself the excess, and pay the residue
to the seller, and he was to pay interest on the 200/. in the mean-
time, the bill was filed by the purchaser for a specific performance.
The witnesses differed as to the value, but the Lord Chief Baron
dismissed the bill as too favorable a bargain for the purchaser.
The plaintiff's witnesses were farmers and tradesmen, and in the
opinion of the Court they overvalued the father's life interest. It
was, the Chief Baron said, thrown upon the plaintiff to make out
a case of adequacy, in order to entitle himself to a decree, and he
had not done it in the way he ought ; it was incumbent on him to
have a valuation of the property made by a competent valuator,
and an actuary should have stated what was the value of the
father's life interest, and what would have been a fair consideration
for the reversionary interest upon a view of all the circumstances.
He thought no man capable of dealing prudently for his own inter-
ests (and the seller's condition was represented to be that of
extreme indigence, ignorance, imbecility of intellect, and habitual
inebriety), could have acceded to the stipulation as to the 200/.,
by which it in fact depended upon the conduct of the vendee of the
estate whether he should ever receive more of the residue of the
purchase-money or not.
46. Upon the evidence of surveyors as to value. Lord Lyndhurst
has observed, that he had been so long accustomed to courts of
justice and to evidence of that description, he had seen so much of
its flexible character, and its means of adapting itself to the interest
of the party on whose behalf the evidence is given, that he placed
very little reliance upon evidence of this nature (i).
*47. In a late case (k), Sir John Leach held that the rule did not
extend to sales by auction. He said, that the principle of the rule
{(/) Lord Aldborough v. Tryc, 7 Cla. (i) See You. 491.
& Fin. 436. (k) Shelly v. Nash, .3 Madd. 232. See
(A) Ryle v. Swindells, M'Clel. 510. Fox i'. Wright, 6 Madd, 111.
[*324J
OF SALES OF REVERSIONARY INTERESTS. 381
could not be applied to sales of reversion by auction. There being
no treaty between vendor and purchaser, there can be no opportu-
nity for fraud or imposition on the part of the purchaser. The sale
by auction is evidence of the market price. It was said, that pre-
tended sales by auction may be used to cover private bargains ;
where such cases occur they will operate nothing. It has been
truly observed, that this case establishes the above-mentioned pro-
position, that the market price is the thing to be looked at ; for
if the market price is not the thing to be looked at, how is it
established that a sale by auction is within the rule, for a sale by
auction is a means of ascertaining the market price (I) (1).
48. And if a sale by private contract of one lot be oppressive, it
may be relieved against, although the lot be assigned by the same
instrument with another lot sold by public auction, in respect of
which no relief can be granted (m).
49. It has also been held, that the rule docs not apply to a sale
by a father, tenant for life, and his son tenant in tail in remainder,
for they form a vendor with a present interest, and meet a pur-
chaser with the same advantages as if a single person had the
whole power over the estate (n).
50. So where the seller had an annuity of 500/. a year for the
joint lives of himself and his father, remainder to his father for
life, with remainder to himself in fee ; a sale by him of a perpetual
rentcharge of 500/. was supported, as he stood in the situation of
a person, who, if the purchaser did not make the objection, might
be considered as capable of selling a perpetual rentcharge of 500/.
a year in possession (o).
51. So again, the case of a mere expectant, entirely without
present enjoyment, differs from the case of a man in possession,
and who having the rents and profits, bargains with his tenant for
an extension of his term, and equity has no business to meddle
with such a case as this more than with any ordinary transaction.
One having the absolute dominion is not bound to wait until the
actual expiration of a term to make a new contract, nor is that the
kind of reversionary interest which courts of equity have ever pro-
tected in this way (/>).
(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<j;h, C. J. 2d Juno
(a) Infra. 1800 ; and see Bai-iiewall i. Harris, I
Tuuut. -ioO.
1*353 J
414 KENTCHARGE, FEE-FARM RENTS, ETC.
57. But in equity it has been held, that quit-rents are subjects
of compensation, probably because they are regarded as incidents
of tenure (e).
58. As Sir John Leach observed, in Esdaile v. Stephenson,
rentcharges are not incidents of tenure, but are created by the
voluntary act of the vendor or those under whom he claims ; and
*he added, that it would be a good rule, that a purchaser should
not be bound to complete his purchase unless they were noticed in
the agreement or conditions of sale, but he feared that the habit of
the Court had been, not to proceed upon the distinction between
quit-rents and rent charges, but to compel the purchaser to complete
where the rentcharge is small.
59. In Lord Thurlow's time, the rule was larger than it is now.
He laid it down as settled, that wherever it is possible to compensate
the purchaser for any article which diminishes the value of the
subject matter, he must be satisfied with such compensation, or to
speak in the usual terms, wherever the matter lies in compensation ;
but he could not lay down this rule as universal, for a case might
be so circumstanced, that the party might have purchased purely
for the sake of the very particular wanting.
60. Acting upon this rule, where an estate had been sold as tithe
free, which turned out to be, with other lands, subject to 14/. per
annum in lieu of tithes, Lord Thurlow held the charge to be a sub-
ject for compensation {/)>
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 (</) where the agreement stated that an alleged
deed was set up by a third party, which the seller declared and
had sworn to be a forgery, and that counsel, whose opinion might
be seen, were of opinion that the concurrence of the alleged
grantee was not necessary to make a good title, and it was stipulated
that the purchaser should not make any objection on account of
the deed, or be entitled to the concurrence of the grantee in it,
but might, if he thought fit, retain a portion of the purchase-money
as an indemnity, upon an action brought by the i)urchaser for
his deposit the jury found a verdict for him, and found that the
deed was the deed of the seller; but the Court of Exchequer, upon
argument, held that if the agreement contained a warranty, that
the deed was a forgery, yet the purchaser, because the allegation
was untrue, could not rescind the contract, for they thought that
the contract provided for the case of the deed being genuine by
the indemnity, so that the purchaser's remedy, if there was a
warranty, was by an action for the amount of the damages actually
sustained thereby. They refused to decide the ((uestion as to the
power of the seller to make a good title, without the concurrence
of the grantee, because the agreement stated the opinions on that
point, and the provision that the purchaser was not to make ant/
objection on account of the deed was interdicted from every spe-
cies of objection arising out of the deed. He knew of the supposed
defect, or had the means of knowing it if he had chosen to use
them by perusing the cases upon which the opinion was given.
Upon a bill filed by the seller, a specific performance was decreed,
the Court holding itself bound by the decision of the court of law.
The learned Judge, in the course of the argument, said that the
iq) Corrallf. Cuttcll, 4 Mecs.&Wels. 734.
[*395]
CONDITION TO AVOID CONTRACT. 461
correct way of putting the case seems to be this : Suppose there
was a waiver of the objection on the part of the purchaser, on the
supposition that the affidavit was true, and it turns out, without any
wilful falsehood being intended, that the affidavit is false, is or is
not die purchaser bound by his conditional waiver when the con-
dition is broken (r) ?
The true ground in equity must have been, that the condition
^provided for the case of the deed being genuine, for if there was
a warranty that the deed was a forgery, which was false, aldiough
not fraudulent, equity would not, it should seem, have specifi-
cally enforced the agreement for the seller after the warranty was
broken — for the jury found that the deed was a valid one — and
left the purchaser to his remedy at law, unless the agreement had
clearly provided that the warranty should be accepted in lieu of
title. Equality in equity.
15. In Beevor v. Simpson (s), the Master of the Rolls held, that
a solicitor, who had been employed by a person to advise on the
title to a property, could not, on purchasing the same property from
his client, set up an objection to the title which he did not think of
any importance when advising his principal ; and, further, that
although there were two partners, and the purchaser, who was one
of them, did not personally interfere wiUi the title or the purchase
by his client, and swore by his answer that he had no recollection
of the title at the time of his purchase, yet these ciicumstances did
not vary the rule.
16. A proviso, that in case the vendors could not deduce a
good and marketable title, such as the purchaser or his counsel
should approve, or if the purchasei- should not pay the purchase-
money on the appointed day, the agreement should be utterly void,
it being the intention of the parties that no action or suit in equity
should be brought thereon, was held not to authorize the seller to
say he cannot answer the objections to the tide, and therefore the
contract was void. The meaning is, that if the seller cannot make
a title by the time mentioned, the contract shall be void as against
him, and the purchaser has a right to be off his bargain. So
e contra, if the purchaser does not pay the money, the seller may
avoid the contract, but the purchaser cannot say, " I am not ready
with my money, therefore I will avoid the contract," nor can the
seller say, " My title is not good, therefore I shall be off." It
(r) Cattelli). Corral], 3 You. & Coll. (.s) Tamlyn, 6'J.
413 ; 4 Mcos. & Wels. 734.
[*396J
462 ROBEUTS V. WYATT, ETC.
would bo a monstrous construction if either party could vitiate the
agreement by refusing to perform his part of it (t).
17. But where if objections were made by the purchaser, and not
removed within a time limited, the vendor was to be at full liberty
to annul the contract, and was to repay the deposit with interest and
auction duty, but without costs ; the purchaser made an objection
ivhich the Court held was an untenable one, and the vendor annulled
the contract ; the purchaser's bill for a specific performance was
^dismissed with costs ((i). This case, therefore, decided that if the
purchaser under a mistake in law raise an objection which cannot
be maintained, the seller, although he can make a good title, may
under such a condition rescind the contract.
18. And where (v) there was the common condition, that errors
in description should not annul the contract, but that there should
be an abatement or equivalent, followed by a stipulation, that if
the counsel of the purchaser should be of opinion that a marketable
title could not be made by the time stipulated, the agreement
should be void and delivered up to be cancelled ; it appeared that
ihe seller could make a title to two-thirds only of the freeholds
sold in fee simple, and that he had only a life interest in the
remaining one-third, and in the copyholds sold. And it was held
that the purchaser was not entitled to a specific performance with
an abatement. For this tille did not of course fall within the
condition as to errors of description, and the clause avoiding the
contract was the contract of both the vendor and purchaser. The
Court considered that they might both think it equally to their
interest that ihe agreement should be put an end to if the counsel
of the purchaser should be of opinion that a marketable title could
not be made. There appeared (o be nothing unreasonable in that.
There might be circumstances which might make it very proper for
both parties to insert that term, and as it was the contract of both
parlies, the Court could not make a new contract for them. The
parties themselves had stipulated, that in a given event, which
happened, the agreement should be void.
19. This case does not contradict ihat of Roberts v. Wyatt: it
did not decide that the purchaser could wantonly reject the title
by asserting that it was bad, but that the contract should be void
in the case provided for, viz., the purchaser's counsel being of
opinion that the title was bad. His counsel was of that opinion,
(0 Iloberts t. Wyatt, 2 Taunt. 2'J8 ; («) Vap,e r. Adam, 4 Eeav. 2f)9.
Page V. Adam, i Beav. 269. {v) Williams v. Edwards, 2 Sim. 78.
[*397]
POSSESSION A WAIVEH OF OBJECTIONS, 463
and the soundness of his opinion was not disputed, Tl^e Court
held, not that this stipulation relieved the seller from making a title
if lie could, hut that as he could not make a title, it relieved him
from the common equity to convey what interest he had with an
abatement. The seller would have been at liberty to show that
the title was a good one, and that the opinion of the purchaser's
counsel was erroneous, for such a stipulation is understood to mean
a reasonable objection.
20. A stipulation in a contract that if the seller do not make a
title by a given day, or the like, the contract shall be void, means
*in construction of law, void at the option of the purchaser, who
may enforce it notwithstanding the proviso (x).
21. A condition that every objection to the title shall be made
within twenty-one days after the delivery of the abstract or shall
be deemed waived, and that time in this respect shall be considered
as of the essence of the contract, means after the delivery of a per-
fect abstract ; it does not apply to an imperfect abstract from which
it cannot be ascertained what objections there may be (?/). And
the purchaser is not precluded from taking objections which arise out
of evidence called for before the time limited (z).
22. Sometimes a purchaser has waived his right to object to the
seller's title. Upon an express waiver little difficulty is likely to
arise, but in most cases the waiver is not express, but implied from
the conduct of the purchaser, and I propose to consider, I. What
will amount to an implied waiver ; 2. How far such a waiver may
be modified or altogether nullified by subsequent conduct or dis-
coveries.
23. A purchaser by entering into possession is generally held by
that act to have waived the objections to title (a), for where a pur-
chaser, knowing of an objection to a title, enters into possession of
the estate, he may be considered to have himself executed the pur-
chase (b). But he must be shown to have had distinct information
of the objection (c) (1).
(.r) Ilippingall r. Lloyd, 2 Ncv. & 27 ; seeBinks r, LordRokcby, 2 Swanst.
Mann. 410. 222.
((/) Hobson V. Bell, 2 Bcav. 17. (/j) Sec 3 P. "Wms, 193 ; Warren v.
(z) Blacklow V. Laws, 2 Hare, 40 ; liichardson, You. .3.
Morley r. Cook, 2 Hare, 106. (c) Bla-klow r. Laws, 2 Hare, 40.
(rt) Fludyer v. Cocker, 12 Yes. jun.
(1) Post, 402, in note.
[*39P1
464 RIGHT OF SPORTING.
24. The question in each case is one of fact : did the purchaser
mean to waive, and has he actually waived his right of examining
the title ((I) ? although his intention will be inferred from his acts,
and no direct expression of it is required. His silence, as we shall
see, may be tantamount to the clearest expression of being content
with the title.
25. Where a title could not be made to a most important,
although a small part of the estate, and the seller was in treaty to
obtain a title by means of an exchange, but the time for completing
the purchase having arrived, the purchaser, after warning from the
seller's agent of what the operation of his taking possession would
be, took forcible possession, and encouraged the owner of the part
wanted to ask an unreasonable consideration for it, in consequence
*of which the treaty for the exchange went off, the Court held that
the purchaser had waived the objection to the want of title, but
not to a confirmation. The Lord Chancellor said, he had turned it
much in his mind, whether there was not a ground arising from the
purchaser's conduct, that he had bound himself not to make any
further objection about the small part, and would have been glad
to have found a line to do that, but there was not, as the mat-
ter had not totally ended there (e).
26. So in a case before referred to, where a right of sporting
was not noticed in the particulars of sale, but was mentioned in the
abstract of title and known to the purchaser's solicitor, but neither
of them gave any intimation of it, and the purchaser upon his own
application was let into possession, it was held that he had not only
waived the objection, but was not even entitled to any compensa-
tion. The Court considered,' that on the purchaser's being let into
possession, the contract was completed, except the execution of
the conveyance and the payment of the purchase-money, and the
objection having been waived could not be set up again without
some act of the seller's, or of some person authorized by him (/) (1).
27. And where by the contract the purchaser was to be let into
immediate possession, and was to pay interest for a year, when the
purchase-money was to be paid on having a good title, and posses-
sion was given accordingly, and an abstract delivered, to which no
objection was made, but the purchaser had delayed to complete
(rf) 3 Swanst. 168. (/) Buncll v. Brown, 1 Jac.& Walk,
(e) Calcrat't v. Roebuck, 1 Vcs. jun. 168.
221.
(1) See Barnett v, Gaines, 8 Alabama, 373, cited post, 402 in note.
f*3991
RIOHT OF SPORTINO. 465
the purchase for upwards of three years after the day named, and
had not paid all the interest due, the Court compelled him to
accept the title without any investigation (^g).
28. In a later case, where also possession was given under the
contract, and the abstract was delivered, and the purchaser
allowed more than two years to elapse before he took any objection
to the title, which was about one year and a half after the time
when the contract should have been completed, and in the mean-
time he had made alterations in the houses and let them, and
written several letters, apologising for not having paid the pur-
chase-money, he was decreed by his conduct to have accepted the
title. The alterations of the premises, and the letting them, were
considered acts strongly indicating an acceptance of the title, and
the letters appeared to be founded upon an acceptance of the title,
for till the title was accepted, the purchaser was not bound to pay
the money (A).
*29. In a still later case, the purchaser, by his answer, swore
that he did not mean to waive his objections to the title, but the
Court said, that if a party acts in a manner from which it may be
implied he does not mean to object to the title, he cannot after-
wards, at a distance of time when evidence perhaps is lost, in-
sist upon objections to the title.
30. In a case which arose out of a sale in bankruptcy, where
the purchaser was the bankrupt's son, and he purchased with
knowledge of an objection to the title, and after some months
granted a lease for fourteen years to a son-in-law of the bankrupt,
who was in possession under the bankrupt, the purchaser was held
to have waived the objections to the title which really did exist.
It was considered that he had purchased the estate to keep it in his
family, to keep possession while he could and then shuffle with
objections to the title. The purchaser intended to give the lessee
possession under his title as purchaser, and intended to waive all
objections to the title, for there were no objections of which he
had not from the very first been fully aware (i). The ground
relied upon, that the purchaser intended to waive all objections, is
not reconcilable with the other ground, that he intended to shuffle
with U)e title. The mere grant of a lease cannot of itself be
(ff) Fleetwood c. (ircen, lo Vcs. jun. ford v. Kirkpatrick, 6 Beav. 232.
594 ; see 3 Swaust. 172. ' (i) Ex parte Sidebotham, 1 Mont. &
(A) Margravine of Anspach v. Noel, 1 Ayr. G55 ; ez parte Barrington, 2 Mont.
Madd. 310 ; sec 3 Swanst, 172 ; Hall i-. & Ayr. 2.5,5.
Laver, 3 You. & Coll. 291 ; see Black-
VoL. I. 59 [*400]
466 LEASE' BV PURCHASKK.
deemed an acceptance of a bad title, but coupled with otbcr
circumstances, it was in the above case held to amount to a waiver
of the objections.
31. In a later case, where under an agreement for a lease, the
tenant entered into possession, and, without requiring a title,
returned a draft of a lease sent by the lessor with alterations,
which were acceded to, and the draft was engrossed, and then dis-
putes arising, a bill was filed by the lessor for a specific perform-
ance, and the lessee insisted upon his right to have the title pro-
duced, the Court was of opinion that he had by his conduct waived
all objections to the title (k).
32. If a person be already in possession under the seller, and
the purchaser grant him a lease, that will be held to be a taking
possession, for the possession of the tenant is the possession of the
landlord (/).
33. But if possession is authorized by the contract to be taken
before a title is made, the fact of possession cannot by itself be
*used against the purchaser (m), for that would be contrary to the
very terms of the contract (/i) (1).
34. And where a purchaser is entitled to call for a good title,
his taking possessiom with the concurrence of the vendor will not
amount to a waiver of right (2) ; and the subsequent delivery of
abstracts or negotiations on the subject of title render this
clear (o).
35. And if a purchaser do take possession, with notice of a
defect which it is understood is to be remedied, he cannot be com-
pelled to complete his purchase, but may recover his deposit if the
title be not made good, unless it could be made out that he was
to take the title as it stood : when the etent is ascertained that a
good title cannot be made, he is entitled to have his deposit
back (p).
36. Acts of ownership, after an authorized possession, are of no-
importance ; for wliat can be the pjarpose or advantage of taking
possession, except to act as owner ? And a fall of underwood m
due course is no more than gathering a crop of corn or hay (^q),
{k) Warren v. Richardson, You. 1. (o) Burroughs v. Oaklev, 3 Swanst,
(l) Ex jmHe Sidebotham, 1 Mont. & 159.
Ayr. 655 ; 2 Mont. & Ayr. 255. {p) Duncan v. Cafe, 2 Mees. & Wels.
(m) Dixon v. Astley, 1 Mer. 133, and 241.
see ch. 4, s. 4, supra. {q) S. C.
(n) Stevens v. Guppy, 3 Russ, 171.
(1) See Tevis v. Richardson, 7 Monroe, 657,
(2) See Gans v. Renshaw, 2 Barr, 34.
[*401]
Jl
POSSESSION UNDER CONTRACT. 467
I\or would more important acts of ownership of themselves amount
to a waiver of a good title ; even where possession of four acres was
taken under the agreement, stubbing up an osier bed of nine perches,
and levelling the land, and filling up a pond, were held not to be
acts amounting to a waiver of objections to the title (r).
37. In Small v. Attwood (s), where the purchasers, who had
been in possession, filed a bill to set aside the contract on the ground
of fraud, it was objected by the seller that great alteration had
taken place in the property ; that the trees had been cut down,
and the surface had been altered ; but the Court observed that all
this was in the natural exercise of the rights of the supposed owner
of the property. There was no suggestion that satisfied the Court
in point of evidence, that the purchasers had not acted fairly in the
management of the property ; the whole was incident to the act
done by the seller ; they were put into possession as owners, and
they conducted themselves as owners till they discovered, as they
thought, that they had been imposed upon, and they then stayed
their hands and instituted the suit.
38. Attempting to resell the estate in an important circumstance
upon this question of waiver, but that, like all other acts, may be
^explained ; it may have taken place before any opinion was taken
upon the title, although the objection was known; or it may have
been made in order to ascertain the value, without intendino- to
sell the property (^t) : or it may be upon the presun)ption that a
good title will be made. An actual resale, indeed, as far as mere
title is concerned, can seldom be deemed an acceptance of it,
because unless the first purchaser has bound the second to take
the title as it stands, tlie former must intend to obtain a good title
himself in order to confer it on the latter. Where a title cannot be
n)ade to a portion of the estate, and the purchaser attempts to re-
sell that portion, that unexplained, or an actual resale, would show
that he did not consider that portion (however in fact complicated
with the estate) as material t6 the enjoyment of the bulk of the
property, and therefore it would be so far a waiver, that he would
be compelled to complete his purchase, with a compensation for the
portion so offered to sale or sold (m).
39. A purchaser of a lease which had been agreed to be granted
to the seller of a public-house and of the stock, was held to have
(r) Osborne v. Harvcv, 1 You. & Coll. (() Knatchbull r. Gniebcr, 1 JIadd.
C. C. IIG. ■ 170.
(«) See You. 503, 507 ; see 6 Cla. & (») tjeo Knatchbull v. Grueber, 7tU
Fin. 232. iUjp.
[*4132J
468 NOTICE OF LIMITED TITLE BINmNG.
waived his right to call lor the lessor's title, because he had
entered into possession, and paid part of the money, and given
security for the residue (all which was consistent with the con-
tract^, and had, subsequently to the grant of the lease to the
seller, made a security to certain brewers u{K)n his interest in the
lease (x).
40. So the preparation of a conveyance may be an important
fact, as amounting to evidence that the parties had arrived at
a stage of proceeding subsequent to the question of title, and
may be supposed, therefore, to have removed or abandoned all
objections (y). But this clearly is only a circumstance from which
such an inference may be drawn. Standing by itself, it is not very
important ; for in many cases the conveyance is prepared upon the
belief that the title will be cleared up.
41. If a purchaser, having full notice that he is not to expect
a title beyond a limited period, concludes an agreement for pur-
chase, he will be held to have waived his right (1). This is by matter
of notice, and not of contract (^z).
42. But a purchaser cannot be held to have waived objections
to a title because his counsel has approved of the title. Lord
Eldon determined, that where an abstract is laid before counsel,
who approves the title, his approbation is not to be taken, as
*against the person consulting him, as a waiver of all reasonable
objections ; the Court cannot compel a specific performance upon
the ground of an opinion which it may think wrong. The pur-
chaser may either take an opinion from some other counsel, or the
one first consulted may correct his error in a further opinion (o).
This, it may be observed, was always the understanding of the
Profession.
43. And although a purchaser's solicitor state that all the
objections to the title are removed save one, and make such a
statement in a case submitted to counsel, yet if the seller file
a bill, the purchaser will be entitled to a general reference as to
title. The Master of the Rolls observed, that the purchaser, by his
{z) Haydon r. Bell, 1 Beiiv. 337. (-) See 3 Mcr. 64.
(y) Burroughs v. Oakley, 3 Swaust. («) Devcrell v. Lord Bolton, 18 Yes,
159 ; Harwood v. Bland, 1 Flan. & Kel. 505 ; Harwood v. Bland, 1 Flan. & Kel,
640. 540.
(1) See Lawrence i\ Dale, 3 John. Ch. 23 ; M'Neven v. Livingston, 17 John,
437 ; Roach r. llutherford, 4 Desaus. 126 ; Barnett v. Gaines, 8 Alabama, 373.
A purchaser of land, who, with knowledge of an existing incumbrance, proceed.^
to execute the contract in part, as In' taking possession, will be rcqiih'cd to exe-
cute it in full, and, a fortiori, will not be allowed to rescind it. Barnett t-. Gaines,
8 Alabama, 373.
[*403J
PURCHASER NOT BOUND IF SELLER FILE A BILL. 469
contract was not bound to complete his purchase without a full
and marketable title, and he had not done any act to the prejudice
of the seller, either with respect to the possession of property
or otherwise, which could affect his right to such marketable title.
As to the waiver, the effect of the correspondence between the
solicitors, and the statement in the case for the opinion of counsel,
amounted to no more than this, that according to the advice which
he had received, he was then willing to complete his contract, pro-
vided the objection as to the intestacy was removed. That objec-
tion, however, was never removed, and the voluntary assurance
given at that particular time would not create a legal obligation
upon him to relinquish in all future proceedings his original right
to a marketable title. It might turn out upon inquiry before the
Master that he had been ill advised as to the effect of some of the
objections originally taken to the abstract ; or it might turn out
that there was matter destructive of the title of the seller, which
did not appear upon the abstract [but this of course would furnish
a distinct ground], and the reference to the Master was therefore
made general as to the title (h).
44. A demand by a purchaser at the last hour of possession of
some cottages, part of the purchase, which he knew to be 5n pos-
session of weekly tenants, was treated as a waiver, and a device to
rescind the contract (c).
45. The acceptance of an abstract as satisfactory only waives
the objections in the abstract ; and if in such a case the purchaser
can prove the title bad, of course the contract could not be en-
forced (cZ).
*46. And of course a man may have accepted the title as it
appears upon the abstract, and yet not have waived his right to
have it proved as stated (e).
47. Statements in the abstract, that the seller has not in his
possession or power certain of the deeds, or has them not in his
possession, will bind the purchaser, if ho proceed with the treaty
without objecting on this head, not to object that those deeds are
not delivered up to him on the completion of the purchase ; but
they do not inform him that the vendor is unable to give any
proof of the existence or contents of the document set out in the
abstract (/).
(b) Lesturgeonr. Martin, Mjl. & Ivce. (e) Southby v. Ilutt, 2 Mvl. & Cra.
too. 207.
(c) Sec 1 Per. & Dav. oHl. (/) S. C.
(r!) 1 Yo. & Coll. -370, .571.
1*404]
470 WAIVER OF OBJECTIONS TO TITLE.
48. And where an action was brought by a purchaser to recover
his deposit for a mis-description of the restrictions in the lease by
which the property was held ; an abstract had been delivered,
with a general statement of the restrictions, which did not give
full information ; objections were taken to the title, which were of
no weight, or were answered, but the purchaser never required to
see the lease. Upon the trial the objection was taken by the pur-
chaser when the lease was produced. It was insisted that he had
by his conduct waived the objection. The Court decided that
there was no waiver, but the purchaser stood at the trial, as he
might do, upon his legal right (^g).
49. We may here observe, that a purchaser may, by simple
acquiescence, be held to have waived objections to the title,
although be has not taken possession (A). But if, having pur-
chased out of Court, he go in under a decree, in a suit instituted
for administering the estate, he will not be precluded from taking
any objection which he otherwise might have taken (i).
50. If a seller can establish a case of an acceptance of title by
the purchaser, he should not proceed on an order of reference as
to title, or take any other step which shows that he does not rely
upon the acceptance (Jc).
51. Possession being taken is an implied agreement to p^y in-
terest (Z) (1), and would have weight as to costs (m).
52. Where the vendor in a contract for sale makes it part of tiie
contract that the purchaser shall be let into immediate possession,
and a question afterwards arises whether it is a case for compen-
sation as to a part to which he is unable to make a title, the seller
*cannot turn the purchaser out of possession, and afterwards file a
bill for a specific performance. The purchaser had a right to
retain possession under the contract until a conveyance should be
executed, provided the difficulty about the title could be set to right.
But the seller by his act destroyed the contract (n).
53. In Calcraft v. Roebuck, where the Court thought they
could have held the conduct of the purchaser in taking forcible
iff) Flights. Booth, 1 Bing. N. C. 370. (/) See 12 Ves. jun. 27 ; as to rent,
(h) Fordyce v. Ford, -t Bro. C. C. 494 ; vide supra.
sec 6 Yes. jun. 679 ; 3 Mer. 146. (m) See 15 Ves. jun. 'tQi, post, ch. 16,
(») Cann c. Cann, 1 Sim. & Stu. 284. s. 2.
(A) Harwood v. Bland, 1 Flan. & Kel. («) Knatchbullr. Grueber, 3 Mer. 124.
540.
(1) See Buchanan i". Lorman, 3 Gill, 82, Per Archer Ch. J.; Brockenbrough,
3 Leigh, 647, 64S.
[*405]
WATVF.R qUALTFIED, 471
possession of the estate, witli full knowledge of the want of title
to a part of it, as amounting to a waiver of all objections (b), if the
matter had totally ended there, yet held that the waiver was
restricted so far, that although he was compelled to complete the
purchase, he was entitled to a compensation for the part to which
a title could not be made. This was in consequence of what
passed subsequently to his taking possession ; for the Court could
not infer from his conduct, though he took possession with violence,
that he in his own mind did agree to quit his hold upon this
demand, nor that the seller understood him to do so, for the latter
treated with him for a compromise subsequent to the taking pos-
session ; therefore if he fixed him with the possession, it was more
in the nature of a penalty, which was an impossible ground for
this purpose.
54. This is an instance where possession improperly taken is
yet, by the acts of the parties, prevented from operating altogether
as a waiver. So where the possession is properly obtained, but
the acts would of themselves amount to a waiver, they may be so
qualified by the purchaser as to render them inoperative. As where
a purchaser being in possession, and knowing the infirmity of the
title, did several acts from which it might be inferred that he did
not consider a small portion of the estate, to which a title could
not be made, important to the enjoyment of the estate itself, or
the title to it of consequence, yet they were not held to be con-
clusive circumstances, because he was constantly asking for the
title to this part of the property, and never appeared to have lost
sight of a good title, but from first to last insisted upon it. And
the title was not incurable, but might have been rendered good, if
certain inquiries were satisfactorily answered ; it was not abso-
lutely but contingently bad. The Court observed, that a man, by
going on to treat, does not waive an objection he is constantly
*insisting upon. If nothing had been said of this part after the
title to it had been found defective, the objection might have
been considered as waived, but here he is perpetually desiring
to have a good title. A treaty cannot waive that which he treats
about (^p).
55. And if a purchaser have actually waived his right to call for
a title, and afterwards, for the purpose of settling a conveyance, a
deed is produced which shows a bad title, ho, notwithstanding his
(o) Supra, p. 3G8; 1 Ves. jun. 224. (p) Knatchbull r. Gruebcr, 1 Madd.
170.
[*406]
41'2 WATVER, ANr> 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.
(</) lloswell V. Vaughan, 2 Cro. 196 ; (h) See 4 Rep. 26, a; Bac. Abr. tit.
Lysney 1-. Selby, 2 Lord liaym. 1118; Maintenance, (E.) ; Anson v. Lee, 4 Sim.
Goodtitle v. Morgan, 1 Term Rep. 755 ; 364 ; Prosser v. Edmunds, 1 You. &
and see Anon. 2 Freem. 106 ; and see Coll. 481 ; Bjine v. Frere, 2 Moll. 157.
(j) Hitcliiiis V. Lander, Coop. 34.
(I) Lord Eldon, in a case before liim, expressed considerable doubt upon the
doctrines in the case in the Exchequer.
(II) In thebargam and sale of an existing chattel by which the property passes,
the law docs not (in the absence of fraud) imply any -warranty of the good quali-
ty or condition of the chattel so sold. But the bargain and sale of a chattel
an being of a particular description does imply a contract that the article sold is of
that description. Barr r. Gibson, 3 Mccs. & Wcls. 399, per curiam.
(1) Ante, 272, note.
(2) See 4 Kent (6th ed.) 446 to 450.
[*422]
CHAMPERTY : MAINTENANCE. 489
clear that the statute does not apply to such a case. The sale is
not of a pretended right or title, but of the estate in fee-simple ia
possession, subject certainly to the decision of a court of equity
upon the right to a specific performance. There are similar cases
now in court, and one particularly of great magnitude, in which
the sub-purchaser would be happy to avail. himself of any objection
to get rid of the contract, but it never before occurred to any one
to plead the statute. It might uith equal force be argued, that a
purchaser under an agreement has not a devisable interest, for it is
settled, that a mere right of entry is not devisable (1) ; and this, it
may be said, is " a mere pretended right or title (y)." The clear
doctrine is, that the purchaser, from the time of the contract, is in
equity the owner of the estate, and may devise, sell and dispose of
it in the same manner as if the fee were actually conveyed to him (2),
^although if equity ultimately refuse a specific performance, the
devise, sale or other disposition necessarily falls to the ground. In
a late case Lord Eldon reprobated the doctrine. He held clearly,
that the sale of an equitable estate under a contract was binding.
It was every day's practice. Upon a sale of an interest under a
contract, the seller becomes a trustee for the second purchaser, and
the second purchaser is, without entering into a covenant, bound to
indemnify him against any costs incurred in proceedings for his
benefit. The Court not only considers it not unlawful, but compels
him to permit his name to be used for the benefit of the second
purchaser (k). This puts the point at rest (3).
43. It is not champerty in an agreement to enable the bond Jide
purchaser of an estate to recover for rent due, or injuries done to
it previously to the purchase (/).
44. And it has been held that the mere assignment to a pur-
chaser of the subject of a suit, is not maintenance. Such an assign-
ment gives to the person to whom it is made a right to institute a
new proceeding in order to obtain the benefit of the assignment.
But if the assignment contain an indemnity from the purchaser to
(J) See now 1 Vict. c. 26. (/) Williams c. Protheroc, 5 Biiig.
(/t) Wood V. CJrifHth, V2th. Feb. 1818, .309, 3 Yo. & Jcrv. 129 ; see Scully v.
MS. Delany, 2 Ir. Eq. Hep. 379.
(1) Ilights of entry arc, in general, devisable in this countrj'. 1 Jorman, Wills,
(2d Am. ed.) 85, [43], in note.
(2") Sec ante, 101 and note.
(3) The statute against buying and selling pretended titles, does not prohibit
the sale and purchase of eqiiitable titles. It docs not apply to trust estates. It
means legal and not equitable titles. 4 Kent ('ith cd.)110, in note; Allen i'.
Smith, 1 Leigh, 231; 15akcr r. Whiting, 3 Sumner, 170.
Vol. I. 62 |*J-23|
490
OF TITLE ; IN ACTIONS AX LAW,
the seller against the. expenses which had been incurred or migli^.
be incurred by the seller in the prosecution of the suit, the transac-
tion amounts to maintenance, and cannot be enforced (m).
45. It may be here proper to mention, that an action on the case
for slander of the vendor's title will not lie against a person for
giving notice of his claim upon an estate, either by himself or hi&
attorney, at a public auction, or to any person about to buy the
estate, although the sale be thereby prevented (w) (I) ; and to sustain
the action, malice in the defendant (o), and damage to the plain-
tiff' (p), must be proved (2).
(in) Harrington r. Long, 2 Myl. & Kee.
S90, scd qu. The purchaser appears to
have had an indirect object to carry on
the suit for other purposes. See Burke
V. Greene, 2 Ball & Beat. 517 ; Moore r.
Creed, 1 Dru. & Walsh, 521.
(«) Hargrave v. Le Breton, -1 Burr.
2422.
(o) Smith V. Spooner,. 3 Taunt. 246-
See Rowe v. Roach, 1 Man. & Sehv.
304 ; Pitt V. Donovan,, ib. 630.
( p) Malachy v. Soper, 3 Bing. N. C-
371.
(1) Watson V. Reynolds, 1 Moody & Mai. 1, and notes,
(2) See 2 Greenl. Ev. ^S428.
*SECTION III.
OF TITLE ; IN ACTIONS AT LAW.
1.
Injuitction xmtil Master s re^w-rl
tide.
of
13.
2.
Title to be proved bad.
lo.
3.
Damages.
lb.
4.
None for loss of bargain.
18..
5.
Hopkins v. Grazebrook.
8.
Nor for loss by the funds.
ly.
9,
Interest on deposit reeoverable.
2U.
10.
And expc7ises of investigating title.
12.
Bat not 2>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 <x deed with a
serious defect, stating it to be what it ought to have been, and so
the objection was missed. His mind was engaged in making the
note, and as he knew how the instrument ought to have been
framed, he inserted what was not contained in the abstract, — -
a fatal error, but one not unlikely to occur in a moment of ab-
sence.
4. Still a man should not incumber himself with unnecessary
*details. He may save himself much unnecessary labor by a
little method. He should have a book in which he should write
his opinion, and there should be a margin. He should write his
opinion as he proceeds, reserving, if necessary, any important
point for subsequent consideration. In the margin he should note
every term of years created, and every assignment of it ; thus
1,000 years - - - . - - - - fol. 6,
fol. 18.
fol. 30.
Nothing more is requisite where there is a regular deduction, and
he can at once, when he comes to deal with the terms, refer to the
title to them separately. Where there is a long deduction of a
iegal estate of inheritance, he may pursue the same method. If
the title be complicated, he may leave a blank page in his hook
for references to the abstract, and queries to be considered. With
some such exceptions he will find it the best and surest method of
arriving at a just conclusion, to trust to his view of the title on the
face of the abstract itself, without incumbering himself with or
relying upon notes.
5. It may sometimes be useful to glance the eye over the ab-
stract in the first place, in order to obtain a general view of the
title, and experience will rapidly point out when a subsequent part
of the abstract may be looked into advantageously before its
proper turn ; but, speaking generally, an abstract should be
ft/) 1 Prest. Abstr. 208, vol. 3, p. .59, 101. 201.
[*439]
508 PKHTTSING ABSTRACTS,
perused but once, and that once effectually. The party should
never pass on until he thoroughly comprehends what he has
already read ; the advancing in a difficult title, in order to com-
prehend what you have passed and do not understand, often leads
to insurmountable difficulties.
6. It is the duty of counsel to see that the parcels are correct
in the several instruments, and this particularly should be followed
up, step by step, when the descriptions can often be detected and
reconciled, whilst upon a general view of them it may be deemed
impossible to connect them.
7. In perusing an abstract, it should not be taken for granted
that the dates are chronologically arranged, but the fact should
be ascertained, although this will not, as to new titles, often be
important now that a will is allowed to operate on after-acquired
property (^z). And now counsel should keep constantly in view
the recent statutes altering the law of dower (a), descent (b)^
*wills (c), escheat ((^), illusory appointments (e), executors (/), the
substitution for recoveries act (§•), the new statute of limitations (Ji),
the new acts for amending the law of real property (i), and the
act to render the assignment of satisfied terms unnecessary (^j).
In most cases he will have to consider the early title with reference
to the old law, and the recent title with reference to the new,
and some caution will be necessary not to confound them
or the periods over which they operate ; aud the provision made
by statute in favor of purchasers as regards voluntary settle-
ments, and settlements with power of revocation (Z:), recoveries (Z),
unregistered deeds (m), bankruptcy (n), judgments (o), crown
debts (p), should also be kept in view.
8. Counsel as he proceeds in perusing the abstract, should call,
in the margin, for evidence of facts which he supposes will readily
be produced ; for example, letters of administration, as evidence of
intestacy ; office extracts from wills, to prove the appointment of
executors and probate by them, as such inquiries in the margin
will enable him to confine his opinion to points of importance.
(c) Ch. 11, sect. '6, post. s. 4.
(a) 3 & 4 Will. 4, c. 105, post, ch. 11, (h) 3 & 4 Will. 4, c, 27, post, ch. 1 1 s. 5.
8. 1. (<") 7 & 8 Viet. c. 76 ; 8 & 9 Vict. c. 1 06-
(6) 3 & 4 Will. 4, c. 106, post, ch. 11, (j) 8 & 9 Vict. c. 112.
8. 2. (k) Ch. 21, s, I, post.
(c) 1 Vict. c. 26, post, ch. 11, .=;. 3. (l) lb. s. 7.
(d) 4 & .5 Will. 4, c. 2.3. (m) lb. s. 5.
(e) 1 Will. 4, c. 46. (n) lb. s. 3.
(/) 1 Will. 4, c. 40. (o) lb. s, 4,
Ig) 3 & 4 Will. 4, c. 74, post, ch. 11, {p) lb. s. 9. '
[*440]
EVIDENCE OF TITLE. 509
9. So where the original documents cannot be obtained, be
should, as he proceeds, require to be produced, the prpbate or an
office copy of a will affecting a real estate, but not a resort to the
original will without some strong ground for suspicion. If it has
not been proved, which a will of real estate need not be(l), of course
the will itself should be produced. He should also call for office
extracts from fines and recoveries, and from awards under inclosure
acts, and an attested copy, examined with the roll, of an act not
made a public one, or a printed copy of it made evidence (y).
Where the estate is leasehold, or the title is to be shown to a term
of years carved out of the inheritance, which he must consider in
point of title as a leasehold, the probate is the proper evidence, for
the will itself is insufficient, or an office extract if the probate can-
not be obtained. In a title to an attendant term, it is rarely that
the probate can be obtained. He must also see that the probates
or letters of administration issued out of the proper court, and that
the chain of representation is not broken, for an administration to
*an executor will not carry on the title any more than an executor-
ship will to an administrator.
10. So certificates of marriages, births, baptisms, should be
required to verify a pedigree, and certificates of burial to prove
the deaths of parties, and the last receipt or other sufficient evi-
dence of the payment of an annuity or jointure which has recently
ceased by the death of the party entitled (r).
11. As counsel proceeds, he should, where the fact is not stated,
inquire in the margin whether the deeds in a register county have
been registered, which will be proved by the certificate indorsed ;
whether bargains and sales have been enrolled within six lunar
months, which will be proved by the indorsement ; whether instru-
ments executed under powers have been executed properly, and he
should point out in the inquiry the proper mode of execution ; for
example, " I presume this deed is attested by two witnesses, and
that the attestation contains the words signed and sealed." And
in future he must inquire whether wills made in execution of a
power since the 1 Vict. c. 26, arc attested by two witnesses, and
whether they were executed whilst both were present ; he should
(7) See Brett v. Bcalcs, 1 Mood. & (,•) SceWyunr. WUliaras, Vcs. jun.
Malk. 421; ]?eatimont v. Mountain, 10 loO.
Bing. 40-1.
(1) It is otherwise in many of the United States. 1 Jarman, Wills, (2d Am. ed.)
211, 212.
[*441]
510 SEARCHES Tl) HE MADE.
never rely upon the statement in an abstract, that the instrument
was duly executed, but he should inquire into the requisite ceremo-
nies, unless it is a common deed, in which case he may be content
with the statement.
12. He should also make inquiries in the margin as he proceeds,
for the purpose of obtaining an answer in the negative ; for example,
a power to charge a sum of money is stated in abstracting a settle-
ment, but no trace of its having been executed appears in th(! ab-
stract. The inquiry should be. Was this power executed ? The
answer, as he may anticipate, will be. It was not. The object of
the inquiry is to cast upon the seller and his solicitor the respon-
sibility of stating, and therefore of ascertaining the fact, and for
which statement they would be responsible. Such an inquiry has
often, moreover, led to the production of a deed which it had been
intended to suppress, and it leaves to the seller or his solicitor no
excuse for his fraud or negligence, if an aj)pointment really was
made, and created an incumbrance still in existence.
13. He should direct generally the usual searches to be made ;
for example, for judgments, crown debts, annuities, and, if deemed
necessary, the insolvent court should be searched, and of course
the register office, where the estate lies in a register county ; but
the extent of search must be very much guided by the station and
character of the vendor, although we shall hereafter have occasion
*to consider this matter more in detail : the purchaser should never
rely solely upon having the deeds delivered up to him ; they
would not protect him against judgments or the like, and often
not against mortgages, or against an annuitant who ini";ht not be
postponed, simply on the ground of leaving the title-deeds in the
hands of the grantor, for, generally speaking, the title-deeds are not
delivered to an annuitant (5).
14. He should likewise direct the court rolls to be searched, in
order to ascertain that no documents have been omitted : indeed it
has been said, as we shall see, that the court rolls are notice to a
purchaser (t).
15. Where a particular piece of evidence is known to exist, of
course the seller is bound to produce it, — for example, a certificate
of a marriage, — and the purchaser's solicitor is never directed to
search for it ; but where it is not known whether there are not
suppressed incumbrances, such searches are directed for the pur-
(s) But see Bernard r.. Drought, 1 (/) Vide ch. 23, po.?^
Molloy, 38.
[*442]
EVIDENCE OF TITLE. 511
chaser's own satisfaction, and he bears the expense of them, un-
less the contract goes off by the seller's default or want of title,
and then he may recover the expense. A purchaser, if he please,
may ask the seller whether there is any incumbrance, — judgment,
crown debt, annuity, or the liive, — and may rest upon the statement,
if he chooses to depend upon the seller's veracity or solvency. The
question, however, should always be asked of the seller before the
purchaser's solicitor makes any search, for if the answer be in the
negative, which the subsequent search proves to be untrue, the
seller, it is apprehended, would be bound to pay the expense of the
search, for the search would then be proved to have been necessary
not simply for the purchaser's satisfaction, but for making out the
real state of the vendor's title : this, however, is never insisted upon
in practice.
16. If a deed was executed by attorney, he should require the
production of the power of attorney, and evidence that the prin-
cipal was alive when the deed was executed by the attorney (m).
17. It is the duty of the conveyancer, in perusing an abstract,
although the labor generally falls upon him upon a re-perusal, to
consider the evidence necessary to support the title. In general,
no difficulty arises. The sort of evidence required to support a title
is known to all, and consists mostly of office and attested copies,
or extracts, where the originals cannot be obtained ; and where it
is necessary to prove the root of the title, or any intervening portion
of it, without the common evidence of conveyances, mortgages, or
*wills, leases, land-tax assessments and poor's rates are resorted to,
in addition to affidavits of old inhabitants.
18. Pedigrees are generally readily proved, where the possession
has gone according to them ; the difficulty arises where a person
claims as heir under a long pedigree, which has no other connexion
with the title (I). Long practice makes men particularly cautious in
accepting such a title, for it is often as difficult to point out a defect
in it where there is no contest, as it is to defend it where there is ; for
a question of identity, legitimacy, seniority, or a failure of issue, may
at once destroy a pedigree when the real claimant appears, although
on the face of the pedigree all appeared to be correct ; and in sonic
cases portions of the real pedigree have been fraudulently omitted,
(m) Tide cli. 13, s. l,;w.s<.
(I) How far a pedigree is itself evidence, see Davies & Lowndes, 7 Scott, N. K.
140.
[*443]
51 '2 RECITALS EVIDENCK OF PEDIGREE.
and in others the registries themselves have been fraudulently altered.
Counsel, therefore, cannot be too much upon their guard ; and yet,
unless some reasonable doubt can be thrown on the pedigree, the
purchaser may be compelled to take the title, and the very circum-
stance of resisting the seller's right may lead to a claimant. In
tracing a pedigree, the late act altering the law of descent should
be kept in view, as it in many cases alters the descent (x).
19. Recitals in deeds of a pedigree are entitled to great weight
where the possession is enjoyed according to the pedigree ; but in
a case (y) where, after estates for life, an estate tail was created by
a will dated in 1732, and the first tenant for life died in 1747, and
trustees in the will under a power entered into possession to raise
a legacy, and in 1750 created a term of years by way of mortgage
to secure what remained due, and until 1793 no person entitled
under the will enjoyed the estate or made any claim to it ; but in
that year certain persons residing abroad claimed as issue in tail,
and executed deeds in which their title under the will, in default of
issue of a previous devisee, was recited, and by which deeds, and a
fine and recovery, they conveyed to a purchaser in fee, and the
purchaser afterwards obtained an assignment of the mortgage term
from the personal representative of the mortgagee, and the posses-
sion, from 1793 to 1826, a period of 33 years, had remained undis-
turbed ; upon a bill filed for a specific performance against a sub-
sequent purchaser, the Master thought the title bad, and the Court
confirmed his opinion ; for the recitals, whatever effect they might
have against the parties to the deeds, could not, as against third
*parties be any evidence of the pedigree. If evidence had been given
that possession had followed and accom[)anied the pedigree, if
between 1747 and 1793 a possession had been shown passing from
father to child under the entail created in 1792, that enjoyment
would have been a strong circumstance to prove that the persons
named in the pedigree did, in fact, fill the characters which it was
in 1793 alleged that they did fill. With nothing but the recitals of
the deeds executed in 1793, the conveyance to the purchaser, and
the subsequent enjoyment under that conveyance, with no proof of
the pedigree on which the title depended, or of possession from
1747 to 1793, according to that pedigree, the Court could not say
that this was a title which a purchaser would be compelled to accept.
(.f) Post, ch. 11, sect. 2. The new act Will. 4, c. 85.
for registering births is 6 & 7 Will. 4, (</) Fort v. C'hirke, 1 liuss. 601 ; sec
c. SG, and the new marriage act, G &. 7 pout, sect. 4.
[*444]
REGISTERS OF BIRTHS, ETC. 513
20. Of course every link in the chain of the pedigree should be
proved, as the marriage of the parents and the baptism of the son,
and the certificate of the burial of the father, or the probate of his
will, or letters of administration to him, in order to prove the son's
right to an estate by descent from his father ; and, where she was
dowable, proof of the mother's burial and the discharge of her
arrears of dower, if recently dead, should be required, and inquiry
should be made after any settlement executed by either father or
son. The proof of failure of issue of an elder branch, as of a first
son, is often slight and depending upon affidavits ; but weight
may be given to such evidence where the possession of the estate
has gone with the pedigree produced.
21. The new registers will in most cases supply what the old
registries did not, the time of birth of the parties ; but considering
how wide a door this opens to fraud, it will not hereafter be safe to
place too much reliance upon them.
22. Presumptions of marriages, and therefore of legitimacy, and
of deaths without issue, may often be made in a court of law
between contending parties, where a purchaser would not be
compelled to take such a title (;r), and yet the Court has directed
the seller's pedigree to be tried in an issue between him and the
purchaser.
23. A seller cannot himself prove a fact upon which the title
depends (a).
24. The certificate of a stockbroker, that a fund stands in the
books of the Bank, is not sufficient evidence of that fact as against
a purchaser (b).
25. It would be useless to give any forms of abstracts, because
every one having occasion to draw one can obtain precedents, and
*common attention to the rules will readily enable the practitioner
to correct the faults of the precedent before hhn. But he will
best draw an abstract, and he best peruse it when drawn, who
most understands the operation of the instruments themselves.
(z) See post, ch. 10. (a) Ilobson v. Bell, 2 Bcav. 17. (6) S. C.
Vol. I. 65 [*4d5J
514
ABSTRACT, WHEN COMPLETE^
SECTION m.
OF COMPARING THE ABSTRACT WITH THE DOCUMENTS,
1. Abstract, when complete.
2. No inquiry in suit lohether perfect.
3. Acceptance of abstract.
4. 14. Restricted abstract by contract.
5. Of the title of a tenant in common.
6. For what purposes abstract delivered.
7. Purchaser's property in it.
8. Seller to produce the deeds.
9. Place for exaimnation.
10. At a third person s.-
11. At a distance, seller to pay expense.
12. So in sale by court.
13. Agent in Lofidon to examine abstract.
14. Southby V. Hutt : verifying abstract.
15. Purchaser not bound to go to record
offices.
16. Grant from the Croicn : impropriuu
tithes : tithe rontckarges.
17. Notice to purchaser of place of pro-
duction.
18. Seller having covohcmt t02»'oduce deeds-
must produce them.
19. Promise to produce deeds.
20. Deeds burned after examination.
22. Copies of court roll.
23. Abstract to be examined before pur-
chaser act as owner.
24. Expenseof examination lalmre no title,
25. Purchaser neglecting to call for deeds
for examination.
We have still to congidcr when the abstract is considered to be
complete, and where the deeds should be produced in order to be
examined with the abstract («). And whilst we are upon the
latter subject, we may consider not only the general question of a
purchaser's right to the title-deeds, and the rules of the courts in
enforcing their production, but also the purchaser's right to attested'
copies, and a covenant to produce the originals, and whether the
latter covenant will run with the land.
1. The abstract ought to mention every incumbrance whatever
affecting the estate, and should, therefore, contain an account of
every judgment by which it is affected (b) ; but equity considers
it complete whenever it appears, that upon certain acts done, the
legal and equitable estates will be in the purchaser ; which may
be long before the title can be completed (c). And even at law,
*where a tenant was described in the contract as in possession
under a lease, which operated merely by estoppel, as the mort-
gagee did not concur in it, the title was deemed good, as the
seller was ready to procure a re-conveyance from the mortgagee, so
(a) See section 1, supra.
\b) Ilichards v. Barton, 1 Esp. Ca. 26S.
(c) See 8 Ves. jun. 436 ; and 1 Jac. &
[*446J
Walk. 421 ; see Mosley v. Cook, 2 Hare,
106 ; Jurapson v. Pitches, 1 Coll. 13.
ABSTRACT, WHEN COMPLETE. 515
llial the lease might operate in interest ((/). Although the estate
is sold free from incumbrances, and the abstract shows an amount
of incumbrance exceeding the purchase-money, yet it must be
considered that the seller can make a good title (c) ; nor can any
objection be made on the ground of an incumbrance where the
incumbrancer may be brought in and be compelled to join in the
conveyance (/"), nor to the want of registry of any deed, for where
there is no other subsequent purchaser who has registered his
conveyance, the objection is capable of being removed at any time
before the completion of the purchase (g), but of course the ob-
jection must be removed in due time. This rule is properly confined
to cases where the seller, and persons who are trustees for him,
can make a title ; for if the concurrence of a stranger is necessary,
and he is not bound to join, the abstract cannot be deemed per-
fect until it shows that he has given perfection to the title (A).
If the estate be vested in a person, not for the purpose of securing
a right, but for the purpose of enabling that person to perform a
duty to others, then until that duty has been performed there
can be no right to call for a conveyance (i).
2. But the ordinary rule of the Court does not authorize an
inquiry before the Master, whether the abstract was perfect, and if
deficient, in what respects its deficiencies consisted, and whether
it was ever perfected (k). We have already seen what the usual
reference is as to title (I).
3. If, as we have already seen, the purchaser accepts an abstract
as showing a satisfactory title, yet he is not precluded from show-
ing by other evidence that the title is a bad one (m).
4. We have before seen how unwillingly the courts hold a
limited obhgation to produce deeds to amount to a condition to
accept the title, though unmarketable (n).
5. And even if two persons be tenants in common and hold
under the same title, as in the case of partners buying real property
*or holding such property bought by one of them, a contract to sell
by the representatives of the one to the survivor, with a stipulation
that the sellers should deliver to the purchaser at their own
(rf) Webb V. Austin, 8 Mees. & Wels. (i) Sidebottom v, Barrington, 3 Bcav.
419. 525.
(e) Townsend V. ChampernoMii, 1 (A) Bennett d. Recs, 1 Kee. 405.
You. & Jerv. 449. (I) Supra, eh. 4, s. 4 ; ch. 8, 8. 2.
(/) 2 Moll. 583. (m) Shepherd v. Keatley, 4 Tyr. 571 ;
((/) Ch. 10. 2>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 (</), because they were not material
evidence to defend the title paramount.
3. The practice as to the custody of title-deeds has varied greatly
since the* time of Elizabeth, but the principles of law regarding
them are still the same. The title-deeds are things which go with
the inheritance, descend with it, and pass with it by conveyance
without being named (e).
4. The rule that the person who is entitled to the land has a
right to all the title-deeds affecting it, is carried out to all its con-
sequences. Therefore, where a seller, upon receipt of part of the
purchase-money for a leasehold estate, executed an assignment as
an escrow, which, with the deeds, was left with the solicitor for
both parties, to be delivered to the purchaser when the rest of the
money was paid, it was held that the vendor could not by the aid
(o) Lord Buckhuist's case, 1 Hep. 1. (</) Moo. 503 ; sec 3 Ves. jun. 226.
{h) 1 Hep. 2 a. (e) See Austin c. Croomc, 1 C'lirr. &
(c) 1 Kep. 2 b. Mars. 6o3.
has been held that ho must produce the deed to his ancestor, in the same manner
as the ancestor himself would beobli{;ed to do. KcLscy r. Hanmcr, 18 Conn. 311.
A want of the regular rcgistratioji of the deeds, by wliich a vendor deduces title,
there being no other proof of their execution, is an insuj)eral)le ol)jcction to
compelling the vendee to receive a conveyance. Bartlctt v. IJlanton, 1 J, J.
Marsh. 128.
[*454]
524 LIEN OF seller's solicitor.
of the solicitor pledge the deeds to a tiiird party, although an in-
nocent one, for more than the balance due, because the deeds
belonged to the purchaser, and neither the seller nor the solicitor
had any right over them, but held them until the purchaser had
paid the balance due. The person with whom the deeds were
pledged obtained them from a person who had obtained them by
fraud, and although he received them on a valuable consideration,
and there was nothing on the face of them which showed that
there was a title in the purchaser — for the assignment to him was
withheld — he could not retain them against the purchaser (/).
5. And although the purchaser leave the deeds without fraud,
but negligently, in the hands of the seller, yet «?iy subsequent ])ur-
chaser from the first purchaser may, upon his legal title, recover
them in trover, even against a person to whom the original seller
has fraudulently conveyed the estate, as if he were still owner of
it, and delivered the deeds up to him : his negligence was held not
to affect his legal right to the deeds, although his negligence had
enabled another to commit a fraud ; and besides, there was equal
^negligence on the part of the holder of the deeds, who had not in-
quired in whose possession the estate itself was (^).
6. In Hooper v. Ramsbottom the deeds had been deposited for
the purchaser, who had not completed his purchase : in Barrington
V. Price the purchase was completed, and the owner of the land
stood upon his mere right to the deeds as incident to his owner-
ship.
7. In a case, however, before Hart, L. C, in Ireland, an an-
nuitant allowed the title-deeds to remain in the possession of the
seller, who was tenant for life, and he delivered them to his solici-
tors, who claimed a lien on them for costs, and the Court refused to
relieve against them ; for it was said, if a purchaser will permit the
vendor to retain the deeds, and he pledges them, although this be
a fraud in the vendor, the Court could not take them away at the
instance of one who was instrumental, by his negligence, in leaving
them in the vendor's hands, from parties not contaminated with such
fraud (h).
8. But the principle has been carried so far, that where a man
delivered the title deeds of his wife's estate to a person to draw a
(/J Hooper V. Kamsbottom, -1 Camp, but see Smith c. Chichester, 2 Dru. &
Ca." 121 ; 6 Taunt. 12. War. 393; and see Blunden v. Uesart,
(ff) Harrington v. Price, 3 Bani. & ib. 405 ; as to a solicitor's lien on title-
Adol. 170. deeds for the costs of the suit, see Bakcv
(/«) Bernard v. Drought, 1 Moll. 38 ; '•, Henderson, 1 Sim. 27.
[*45.5]
WHO ENTITLED TO DEEDS, 525
conveyance, which was accordingly drawn, and by which, with
a fine, the estate was settled on the wife and one of the sons, it
was held that he could not maintain trover for the deeds against the
conveyancer, because the muniments of an estate belong to the per-
son who has the legal interest in it, and the plaintiff had no longer a
right' to them, as the property itself was no longer vested in him (i).
9. It will be observed that the conv^eyance was actually com-
pleted, and the new title in operation. It must not be understood
that the seller's attorney, as soon as the conveyance is executed,
can refuse to deliver back his title-deeds to him : the seller may,
if he please, recover the deeds and complete the purchase with the
purchaser, without the intervention of his attorney.
10. So if upon an agreement for a purchase, the seller deliver the
instrument under which he holds the estate to the purchaser, in
order to enable him to prepare a conveyance to himself, the latter
will, upon payment of the purchase-money and taking a convey-
ance, be entitled to retain possession of the instrument ; but if the
j)urchaser refuse to perform the contract according to its import, or
*to return the instrument, an action of trover will be maintainable
for it (j).
11. In L-eland, by a general order, an opinion ought to be ob-
tained that a good title can be made before an estate is sold before
the Master, and it was held that an opinion so taken was the prop-
erty of the plaintiff, as part of the proceedings in the cause, and
consequently that the purchaser was not entitled to have it delivered
over with the title-deeds (k).
12. Upon a sale of part of an estate without any stipulation
as to the deeds, the prevailing opinion has been that the holder of
the portion of the highest value is entitled to the custody of the
deeds, — whether the seller or the j)urchaser, — giving to the other a
covenant to produce them ; but of course the purchaser would not
be bound to furnish the seller with attested copies of them.
13. It would not, it should seem, be a sufficient reason why a
seller should retain the deeds, where he sells the property in respect
of which he retained them, that he had covenanted with a former
purchaser of part of the estate for the production of them ; but the
seller would be entitled to have the covenant recited in the convey-
ance or indorsed on it, and might fairly require a covenant from the
(t) Philips I'. Robinson, 4 Taunt, 108. 4-51.
(J) Parry r. Fiainc, 2 lios. i;; Pull. (A) Foster r. Foster, 1 Ilogan, 224.
|*'1'')()1
526 DEEDS IN CUSTODY OF MORTGAGEE.
purchaser to perform it. The seller would not be at liberty, after
the second sale, to deliver the deeds to the first purchaser.
14. There is great inconvenience in leaving the title-deeds in the
hands of a seller who has parted with the whole of the property,
although he has covenanted to produce them, for the obligation is
soon forgotten or disregarded, and the deeds accordingly are in dan-
ger of being neglected or destroyed, unless by being sometimes call-
ed for, they produce emolument in the hands of a solicitor.
15. Where the estate is in mortgage at the time of the sale, and
only part of it sold, and the mortgage is not wholly paid off, as the
mortgagee cannot be compelled to covenant for the production of
the deeds, and of course will not part with them, some careful pro-
vision on this head should be made before the sale. If the mort-
gagee should agree to covenant for the production of them, he
would probably limit his responsibility to the time he should con-
tinue mortgagee, which would not be satisfactory to a purchaser
or binding upon him ; or if the mortgagee were to enter into a
general covenant to produce the deeds, he would, upon being paid
off, probably object to relinquish the possession of the deeds unless
he were released by the purchaser from his covenant, which would
lead to expense and vexation. An arrangement might be made in
*such a case for the deposit of the deeds at a banker's, for example,
for the benefit of the mortgagee and purchaser until the mortgage
was paid off or foreclosed, and the deeds might then be delivered
up to him or to the seller (as the case might require), upon his
entering into a covenant to produce them to the purchaser, and
this could be provided for by the conditions of sale or agreement ;
and it admits of no doubt that any stipulation of that nature would
be binding upon the purchaser, and could not be disregarded by a
court of equity.
16. The real property commissioners, in discussing the law in
regard to covenants for the production of deeds, observe, that in
the ease of a mortgagee, he cannot be compelled to produce the
deeds or allow their inspection till his debt is paid ; the effect of
which doctrine is, in many cases, to prevent the mortgagor from
dealing with his equity of redemption ; and, upon the whole, they
see no sufficient reason for continuing this privilege to mortgagees.
And they think every person showing a right in land consistent
with the title of the party holding the deeds may compel the pro-
duction of them (I). This proposal is somewhat startling. No
(I) 3d Report.
[*457|
DEEDS IN CUSTODY OF MORTGAGEE. 527
reason is stated why the right of the mortgagee should be broken
in upon except the convenience of the mortgagor, whilst the pro-
duction of the deeds for his convenience would frequently operate
not simply to the inconvenience but to the positive damage of the
mortgagee ; and, as the right is with him, and he may be paid off,
there appears to be no ground for altering the law. In regard to
the general right of persons claiming consistently with the title of
another to have the deeds produced, that would lead to more mis-
chief, probably, than the present rule, which can always be extended
by provident purchasers. In many cases, e. g. sales of small pieces
of land for the accommodation of parties, by the owner of a great
estate, the purchaser would not venture to ask for the family title,
or a covenant to produce the deeds, nor would the family produce
them, but the conveyance is accepted upon the understanding,
although nothing is expressed on the subject, that the purchaser
is to be satisfied with a simple conveyance. Equity in such a case
would not, it should seem, contrary to the real nature of the trans-
action, enforce the production of the deeds after the execution of a
conveyance (rn), and yet a general law would effect that object.
In many other cases the rule would lead to injustice.
17. In a proper case a purchnser will be compelled to be content
with the deposit of a deed for the benefit of himself and others
interested in it. As where the reversion of an estate was sold in
*lots, subject to a ground lease, which contained covenants to the
benefit of which the purchasers would be entitled. Nothing was
said in the particulars of sale as to the custody of the counterpart
oi* the lease, and it was not in the possession of the sellers, but of
one of the other parties to a partition. Lord Eldon said, he was
of opinion that the counterpart of the lease not being in the
possession of the plaintiffs, was not an objection to their title. No
doubt the parties would be entitled to the production of the coun-
terpart of the lease, in order to enable them to proceed against the
tenant if necessary. But unless the deed was deposited, he would
not compel the purchaser to take under one of the lessors. It
would be loo much to put the purchaser to the necessity of filing
a bill from time to time to have the counterpart delivered to him
as often as he might want it. The lease was deposited, and Lord
Eldon enforced the purchase (n).
18. And although in the above case there was an equitable right
to compel the production of the deed, and the deed itself was en-
(m) Yi(let«/rrt, s. .5, pi. 3 ; s. 6. pi. 22. (») Shore r. Collctt, Coop. 234.
[*458J
528 EVIDENCE OF TITLE.
rolled in the Common Pleas, yet that was not deemed satisfactory
by the Court.
19. It is of great importance not on light grounds to be satis-
fied without the production of the muniments of title, whether the
estate be freehold or copyhold, for if the documents are pledged,
he may, by want of inquiry, be held in equity to be bound by the
deposit (o).
20. There are few titles in which all the evidences of title are
within the purchaser's reach, so as to enable him to furnish them
to a future purchaser, and yet he may be bound to accept the
title : in many cases a purchaser is entitled to have instruments
produced as negative evidence that the estate sold was not com-
prised in them, yet he would not be entitled to a copy of them, or
a covenant to produce them, although a purchaser from him may
be as anxious to ascertain the fact as he was. So portions become
settled, and mortgaged, and assigned, and are ultimately released,
and the purchaser at the time satisfies himself of the contents of
the deeds of settlement, he, but rarely can procure a covenant to
produce them all ; yet a subsequent purchaser, where some time
has elapsed, is seldom advised to consider the want of these deeds
as an objection to the title, nor could the objection in many cases
be insisted upon.
21. So there are few cases in which a purchaser is not compelled
to take a title depending in many respects upon evidence which,
*although it may be satisfactory as a proof of the fact, yet could
not be received in a court of justice ; for example, upon a question
of identity, affidavits of old inhabitants are furnished, and if satis-
factory, the purchaser is bound to accept the title, yet the affidavits
could not be used in support of the title ; they however prove the
fact, and show that evidence from living persons can at that time
be obtained to establish it (p).
22. It seems formerly to have been thought, that a plaintiff in
an ejectment for a leasehold estate could not recover, unless the
original lease and all the mesne assignments were proved ; but this
rule has been relaxed, and where the possession has been uniform,
the jury will be recommended to presume any old assignments
which have been lost (^q). It cannot, however, be laid down as a
general rule, that a purchaser of a leasehold estate can safely
(o) Whitbread v. Jordan, 1 You. & .388.
Coll. 303 ; nnd post, ch. 23. (?) Earl v. Baxter, 2 Blackst. 1228 :
(p) See Scott r. Nixon, 3 Drn. & War. see 11 Yes. jun. 3-50 ; see supra.
[*459]
LOST DEKDS. o20
accept the title where any of the mesne assignments have been
lost, although he might be able to recover in ejectment if he actually
(lid purchase. Every case of this nature must depend upon its
own circumstances (r). A purchaser is at all events entitled to a
strict inquiry as to the loss, and is not bound to rely upon an affi-
davit by the other party (5).
23. The loss of a lease for a year (I), where it was recited in
the release, which was a conveyance to a tenant to the precipe,
was held, in a suit against a purchaser, to be supplied by the
14 Geo. 2 (t) : and the Court was of opinion, that it would not be
unreasonable to presume, as the lease was recited in the release,
and the parties were thus apprised of the necessity of the lease,
that there was a lease (u). The deeds were 70 years old, and it is
clear that a lease ought to have been presumed.
24. Where an old deed recites prior deeds, and the seller is
unable to procure the instruments recited, the true inquiry is,
whether the absence of the deeds recited throws any reasonable
doubt upon the title. Where there is a title of sufficient age with-
out the aid of the recited deeds, and no circumstance to repel the
presumptions in favor of the title, the Court will compel the
purchaser to accept it (x).
*25. The loss of the deeds may not be fatal to the title if the ven-
dor can deliver over copies which would be evidence at law (y).
But if the title-deeds are lost, the seller must furnish the purchaser
with the means of showing what were the contents of the deeds,
and of proving that they were duly executed, and this even where
the deeds are accidentally destroyed by fire after the contract is
made (z) (I).
26. A title may be a good one, although there are no deeds. In
a late case the Master of the Rolls observed, that he was perfectly
()■) Vide post, Hillay 0. Waller. instrument in which they arc contained,
(s) Stubbs V. Sargon, 4 Beav. 'JO. see Bringloe v. Goodson, Bing. N. C
(f) C. 20, s. 5 ; see post, ch. 21, s. 7. 738.
(u) Holmes v. Ailsbic, 1 Madd. 5-51 ; (y) Harvey v. Phillips, 2 Atk. 541 ;
see 8kip-\vith v. Shirley, 11 Vcs. jun. G4 ; Mr. Booth's opinion, 2 Ca. iS: Opin. 223 ;
"Ward V. Uarnons, 17 Ves. jiin. 134. see Coussmaker y. Scwell, App. No. 11,
{x) Prosser v. "Watts, C Madd. 59 ; see ch. 10, infra ; Const v. Barr, 2 Mer. .57 ;
Doc r. Brooks, 3 Adol. & Ell. 513; Brindlev r. AVoodhousc, 1 Car. & Kir.
Gillett V. Abbott, 7 Adol. & Ell. 783 ; 646.
as to recitals binding the parties to the (2) Bryant v. Busk, 4 Kuss. 1.
(V) A lease for a vcar is no longer necessary ; 7 & 8 Vict. c. 76, s. 2 ; 8 & 9 "Vict,
c. 106, s. 2. '
(1) Sec ante, 1.53, in note.
Vol. I. (iT [*460)
530 DKcns cuRNEr/.
satisfied that there were good titles in which the origin coulcf
not be shown by any deed or will, but then you must show some-
thing that is satisfactory to the mind of the Court ; that there has
been such a long uninterrupted possession, enjioyment, and dealing
with the property, as to afford a reasonable presumption that there
is an absolute title in fee-simple (o). And of course the absence of
any documents in support of the title must be satisfactorily
accounted for, so as to guard against the danger of settlements^
mortgages, or wills having been suppressed.
27. And here we may observe, that if a conveyance to a pur-
chaser have accidentally been burned, the seller will be compelled
upon a resale to join in a conveyance to the new purchaser (6), or
of course, if the estate is not resold, to again convey to the first
purchaser.
28. In Prosser u. Watts (c), the Court observed, that th'ere was
no dispute that the recital of a deed is constructive notice of its
contents ; but to say that a purchaser is not to complete his contract
unless he has the actual possession of every deed of which he has
constructive notice by recital, would lead to a practical incon-
venience which would be manifestly absurd. Prima facie, it is to
be presumed that the purchaser in the ancient conveyance had
actual inspection of every deed recited, and was satisfied with theii'
contents, and it was not probable that a vendor would recite deeds
which afforded evidence against his title. When there v^as no
circumstance to repel the effect of these general presumptions, and
when the title under the conveyance which contains the recital i^?
fortified by sixty years undisputed possession, the Court thoughS
it a good practical rule to hold that the loss of a deed recited ^
*throws no considerable doubt upon the title of the vendor, and that
the purchaser must con>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<sA ; ac< q/" bankruptcy.
22. Ca«?iv. Cann : commission unopened.
23. Stapylton v. Sco^i : entirety or share.
24. Hartley v. Pehall : covenant to take
beer.
25. Jenkins v. Herries : contingency rejec-
ted.
26. Cases wliere title held good.
27. LorrZ Braybroke v. Liskip : devise of
trust estate.
28. Nouaille v. Greemcood : equitable re-
covery.
29. TFarMc/brrZ v. Thompson : poxoer of
sale.
30. Gibson v. Clarke : grant from the
Croton 2)resumed,
31. 76. Hillary v. Waller : presumption
of conveyance.
32. 77. Emery y. Grocock : presumption
of surrender.
33. Nouaille y. Greemvood : presumption.
34. Monck v. Huskisson : tithe exemption.
35. Haskery. Sutton: contingent remain-
der destroyed.
36. TFes< v. Burney : release of poicer.
37. Howard v. Ducane : sale to tenant for
life.
38. Biddle v. Perkins : poiver too remote.
39. Strips of leaste.
40. Rushton V. Craven : quantity of es-
tate.
41. Clarke y. Royl : lien for purchase-
money.
42. jBare possibility no objection.
43. Suggestions : suspicions.
44. Mines reserved to Crown.
46. Mines under common.
48, 59. Suspicionof fraud in appointment
to child.
50. Bill filed by adverse claimant.
51. Existing right an objection.
52. Reservation of mines. *
53. General description of parcels.
55. Reversion: iiicumbrances.
57. iSra/e U7ider jMwer in mortgage.
58. Bankruptcy.
60. r<<fe to allotments before award.
64. TtYfe to allotments.
65. Purchaser taking possessiofi of allot-
ments.
66. Equitable title bought under decree,
valid.
70. .Vo< rts against sub-purchaser.
[*513]
DECISIONS IN EQUITY ON DOUBTFUL TITLES. 585
73. Infant heir of seller. i 76. rresumption of convayaiice.
75. Infant trustee acts. \ TJ. Presumption of surreiifler of term.
1. There is not of course any question of law which may not
arise upon a contest between a seller and a purchaser as to the
validity of a title ; an examination of the points decided would
*be foreign to the objects of this work unless where they furnish
a general rule by which all purchasers are to be bound, inde-
pendently of the point of law. But as the practitioner, in con-
sidering a particular question upon a title, may wish to see at
once how a point of the same nature was treated by the Court,
as between a seller and a buyer, I propose to furnish here such a
catalogue as will enable a reference to most of the leading points
which have arisen in equity, as well in the cases in which the
questions have been considered too doubtful to be forced upon
the purchaser, as in those where, notwithstanding the difficulty of
the question, the purchaser has been compelled to accept the title.
The first class are as follows :
2. Whether by devise the legal estate passed to the tenant for
life so as to enable his estate for life to coalesce with a subsequent
legal limitation to his heirs male of his body (a) (I).
3. Whether by devise a man took an estate tail where, after a
devise to him for life, the gift was to such of his children as he
snould appoint, and their heirs, and for want of appointment, to
the heirs of his body and their heirs for ever ; and in case he should
die without issue of his body, then over to his sister, &;c., and in
case he should live and have children as aforesaid, then 500/. to
the sister at twenty-one or marriage (6).
4. Whether under a devise to his son, to be entailed upon his
male heirs, and failing such, to pass to his next brother, and so
on from brother to brother, allowing 2,500/. to be raised upon the
estates for female children each, the son took an estate tail (c) (II) ( I ).
(a) Shapland v. Smith, 1 Bro. C. C. (6) "Wilcox r. Bcllaers, Turn. & Russ.
75 ; Playt'ord v. Iloarc, 3 You. & Jerv. 491.
175. (c) Jervoise v. Duke of Northumber-
land, 1 Jac. & "Walk. 559.
(I) In 1795 the heir claiming by purchase the estate, the subject of the suit in
Shapland v. Smith, brought an ejectment. The claimant under Christopher Shap-
land, the tenant for life, at first defended the ejectment, but afterwards confessed
the action.
(II) This was afterwards, in a family suit, held to be an estate tail.
(1) The subject of estates tail is, in general, regulated by statute in the United
States, and the tenure thereby is very much modified. See 1 Cruise Dig. by Mr.
Greenleaf, Tit. 2, Estate Tail, ch. 2, ^U4, where the .statutes of several of the
States on this subject an; referred to.
Vol. I. 71 [*5I4J
586 DECISIONS IN EQUITY
5. Whether a devise to a son for ever if he have a son who
shall attain twenty-one, but if he should chance to die without son
to inherit, the son of another son should inherit, created an execu-
tory devise, and not a remainder over expectant upon an estate
tail (d) ([).
6. Whether a fee passed by a will by the application of the
words " with all right and title to the same," to previous de-
vises, which could not be settled without litigation (e).
*7. Whether the term in a will, " legal representatives," of chil-
dren as should be dead, meant executors and administrators (/).
8. Whether the purchaser could have a valid legal covenant
to run with the land to produce the title-deeds (j^) (2).
9. Whether leaseholds for lives passed under general words in
a devise with fee simple estates to uses in strict settlement (A) (3).
10. Whether a power of sale inserted in a settlement made
under the direction of the Court, was authorized by the will which
directed the settlement (i). And in another case, whether a power
of exchange, executed in aid of an imperfect exchange, was
valid (k).
11. Whether void leases granted by a tenant for life under a
power, were confirmed by a recovery suffered by him and the tenant
in tail, and by a conveyance to a purchaser, the lease being recited
in the recovery deed and in the conveyance (Z).
12. Whether one of two trustees to whom the other had con-
veyed, could alone give a valid discharge for the purchase-
money (m) (4).
13. Whether one of several trustees for sale under a will having
(f/) Heath v. Heath, 1 Bro. C. C. 147 ; (A) Sheffield v. Lord Mulgi-ave, 2 Ves.
[Perkins's ed. notes.] see lloake». Kidd, jun. 526 ; see 1 Vict. c. 26.
6 Ves. jun. 647 ; Fisher v. Barry, 2 Hog. («) Wheate v. Hall, 17 Ves. jun. 80,
153. [Sumner's cd. Mr. Ilovenden's note (1).]
(e) Sharps. Adcock, 4 Russ. 374 ; see (k) Cowgill v. Lord O.vmantown, 3
now 1 Vict. c. 26. You. & Coll. 369.
(/) Price V. Strange, 6 Madd. 159 ; (/) Cooper v. Denne, 4 Bro. C. C. 80.
Cotton r. Cotton, 2 Bcav. G7. [2 Jarman, [Perkins's ed. notes.]
Wills, (2d Am. ed.) 31.] (;«) Crewe v. Dicken, 4 Ves. jun. 97 ;
(/7) Barclay v. Raine, 1 Sim. & Stu. Nicloson v. Wordsworth, 2 Swanst. 365.
449,
(1) See 3 Cruise Dig. Tit. 38, Devise, Ch. 17 and notes, vol. 6, p. 366
et seq. ; 1 Jarman, Wills, (2d Am. ed.) Ch. 27, p. (ioa et seq. and notes ; Hawley
V. Northampton, 8 Mass. 3; Nightingale r. Burrell, 15 Pick. 104, 110; Holme ».
Low, 4 Metcalf, 190.
(2) See 2 Cruise by Mr. Greenleaf, Tit. 32, Deed, ch. 26, J99, vol. 4, p. 393, and
note ; ante, 453, note.
(3) 1 Jarman, Wills, (2d Am. ed.) 542, Endnote.
(4) 1 Cruise Dig. by Mr. Greenleaf, Tit. 12, Trust, ch. 4, §35, s^36, §37 and
notes.
[*515]
ON DOUBTFUL TITLES. 587
renounced, the continuing trustees could make a good title and
give a valid discharge for the purchase-money (ti).
14. Whether presumption from non-payment of tithe would bar
a lay impropriator (o).
15. Whether long possession of a portion of tithes justified the
presumption of a grant (^).
16. Whether an allotment for a right of warren was authorized by
an inclosure act (5-).
17. Where the title was made through tenants in tail claiming
by descent, who had not been in possession for a considerable
period prior to 1793, and there was no proof of the pedigree except
in the recitals in a deed executed in that year (r).
18. Whether a conveyance had been executed as an escrow or
not (5) (1).
19. Whether a reversion which was vested in the Crown by
*forfeiture, and not by original grant, could be barred by a recov-
ery(0.
20. Whether trustees took the legal lee in a deed under a limita-
tion to them and their heirs, or whether it could be cut down by the
context to an estate pur autre vie (u).
21. Whether an act of bankruptcy having been committed by
the vendor, a commission might not issue, although no debt could be
shown to exist, and the seller swore there was none (x).
22. Whether a commission issued against the seller, but not
opened, might not be opened so as to vest the legal estate in the
assignees, although the equity was bound by a decree in a suit (y).
23. Whether the seller had the entirety of the estate, the doubt
arising from exj)ressions in the will under which he claimed (r).
(n) Adams r. Taunton, 5 Madd. 43o. (r) Fort i-. Clarke, 1 lluss. fiOl.
(o) Hose V. C;illand, 5 Ves. jun. 186 ; («) Sloper v. Fish, 2 Ves. & Bea. 115.
see Mead r. Lord Xorbury, 2 Price, 338 ; {t) Blosse i-. Clanmorris, 3 Blij^'h, {)2.
3 Bligh, 217 ; Berney r. Harvey, 17 Ves. (u) Colmore v. Tindall, 2 You. \: Jcrv.
jun. 119. 605; see Nash v. Coates, 3 Barn. &
{p} Sec the judpjracnt in Oxenden v. Adol. 846.
Skinner, 4 GwU. 1513. (x) Lowes v. Lush, 14 Ves. jun. 547.
(?) Cassamajor v. Strode, 2 Myl. & (y) Cann v. Cann, 1 Sim. & Stu. 284.
Kee. 706. (z) Stapvlton v. Scott, 17 Ves. jun.
272.
■(1) 2 ib. Tit. 32, Deed, ch. 2, $68 to §76 and notes, voL 4, p. 29 et seq. Where
the future delivery of a deed, handed to a stranger, is to depend upon the pay-
ment of money, or the performance of some other condition, it will be doomed
an escrow. Where it is merely to await the lapse of time, or the hnppeniuj,' of
some contingency, and not the performance of any condition, it will be deemed
the <i;raiitor's deed ])rescntly. Still it will not take etlect as a deed, until the
second delivcrv ; but when "thus delivered, it will take effect by relation, from
the first delivery, Pei- Shaw Ch. J. in Foster v. Mansfield, 3 Mctcalf, 412, 414,
415.
[♦516]
588 DKCISIONS IN E(iUITY
24. Even at law, whether a covenant in a brewer's lease, purport-
ing to bind the assignees, would bind the purchaser, as assignee, to
buy his beer of the lessor (a).
25. Whether words of contingency can be rejected and the devi-
see for life be held, upon the construction of the whole will, to take
an estate tail in order to include all the issue (b). This was so de-
cided against the purchaser upon exceptions, but that decision was
not adopted in the House of Lords (c) ; the House resolved to wait
for the decree on further directions.
26. On the other hand, in many cases courts of equity have com-
pelled a purchaser, upon their own opinion, to accept a title depend-
ing upon questions of great nicety. The leading cases are, —
27. Where it was held that a trust estate passed by a general
devise, although the Master had reported that it did not pass, but
the Master of the Rolls and the Lord Chancellor ruled differently,
and a specific performance was decreed (d) (1).
28. Where it was held that an equitable recovery might be suf-
fered without the concurrence of the equitable mortgagee (e).
29. Where under an obscure will a purchaser was compelled to
*take the title upon the construction that although the legal estate
was not given, a power of sale was (/).
30. Where a grant from the Crown of an advowson which under
general words had been excepted out of an early grant in existence,
was presumed against a purchaser, the title being evidenced by con-
veyances and deeds for a period of nearly one hundred and forty
years, and there having been three presentations under them, and
none by the Crown (g-).
3L Where a conveyance of the legal fee was presumed (A) (2),
as it was considered such a title as a purchaser might safely take.
(«) Hartley v. I'ehall, Peake's Ca. (e) Nouaille v. Greenwood, Turn. &
135; Bristow v. Wood, 1 Coll. N. C. Russ. 2G.
480; ace post, eh. 14, s. 1. (/) Warneford v. Thompson, 3 Ves.
(b) Jenkins v. Herries, 4 Madd. G7. jun. 513,
(c) MS. 6 Madd. 168, n. The author (.//) Gibson i-. Clarke, 1 Jac. & Walk,
argued the case in D. P. He believes 159.
the case was not carried further : see p. (/j) Hillary v. Waller, 12 Vcs. jun.
511, supra. 239 ; sec Doe v. DaA'ics, 1 Adol. & Ell.
(d) Lord Braybroke v. Inskip, 8 Ves. N. S. 430.
jun. 417.
(1) 1 Jarman, WiUs, (2d Am. ed.) 562 et seq. Ch. 22, §11 ; Ram. Assets, ch.4, §7,
p. 68, 69 ; 4 Kent (6th ed.) 538, 539 ; Jackson v. Delancy, 13 John. 537.
(2) 1 Cruise Dig. by Mr. Greenleaf, Tit. 12, Trust, ch. 2, 6^39 to 41, and
notes, p. 415 ; 1 Greenl. Ev. §46 ; Hillary v. Waller, 12 Sumner's Vesey, 239 note
(b) and cases cited.
[*517]
ON GOOD TITLES. 589
32. Where the surrender of a term of years to secure portions
was presumed (i), p >
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
(<?) 10 rrice, 207.
(I) This corrects the passage in 1 Marsh, whore it is put as a devise to .1, B
and C, and the sale by A and B only, since they could give a good legal titU
■without the concuncuce of <'.
(*5:M1
608 EQUITABLE OBJECTIONS AT LAW.
could not do so at all, for it did not follow that sufficient parlies
to the conveyance might not be forthconming. There was in equity
a wide difference, recognised by the courts, between the consider-
ations which belong to making titles and such as belong to making
conveyance. So that the learned Judge's opinion appears to have
depended not upon the general rule, but upon the particular
circumstances of the case ; for as the bond had been given, the
seller might be enabled to obtain the concurrence of all necessary
parties. And Mr. Baron Graham observed, that had the case
rested on the first agreement, which was a common agreement for
the sale and purchase of the premises, he should have considered
the objection a complete answer to the action, for that the seller
ought not to be permitted to recover against the purchaser the
price of a title which he could not sustain in equity, and he should
have thought the purchaser entitled to resist the payment of the
residue of the purchase-money on that ground. But he considered the
purchaser bound by the second agreement to accept the seller's bond
and to complete the purchase. This case therefore really ^furnishes
no authority against the rule as settled in the case of Maberley v,
Robins, which we may perhaps safely consider as the law of the Court.
16. The action which a vendor must bring is founded upon the
equitable circumstances of the case between the parties. And in
a case (r) in B. R. the Court would not permit the assignees of a
bankrupt to recover money from his trustees, because the deed by
which the trusts were created, although perhaps void at law, would
probably be restored and set up again in a court of equity.
The Court, I am informed, said they would not permit the assignees
to recover, as it would be to no purpose. It would be merely driv-
ing the trustees to the other side of the hall, where they would most
likely regain the property. This case seems in point ; the same
observation would apply to a vendor endeavoring to obtain the
purchase-money where there were equitable objections to his
title : the Court would naturally say, cui bono, when the purchaser
can compel you to repay it in equity (1) ?
17. The difficulty of course only arises where the seller can
make a legal title, although there is an equitable objection to it,
for if the contract is general, it amounts to an undertaking for the
conveyance of a legal estate ; and if the seller have no more than
(?•) Shaw V. Jukeman, 4 East, 201.
(1) Sec ante, 530, note.
535]
DOUBTFUL TITLES UPON FACTS.
609
an equitable one, the contract is not binding upon the purchaser at
law (5), nor, as we have seen, in equity, if the seller caqnot procure
the legal estate.
(s) Cane v. Baldwin, I Stark. Ca. 65.
SECTION VI.
OF TITLES DEPENDING UPON QUESTIONS OF FACT.
1. Fact not admitting of proof.
3. Deed depending upon extrinsic circum-
stances.
4. Doubt raised by devise of shares where
entirety sold.
7. Title depending upon proof of party
answering a description.
8. Doubtful reference by codicil to a will.
9. Constructioti of ill-penned shifting
clause : residence.
10. Issue upon pedigree.
11. Doubts as to legitimacy.
13. Doubtful fact at law.
1. A Court of equity deals with questions of fact upon the
same principle as upon questions of law. If the fact be of such
*a nature as does not admit of proof, the Court will not compel a
purchaser to accept a title depending upon it. Sir John Leach,
V. C, observed, that a court of equity would not compel the
acceptance of a title where there was reasonable doubt in law or in
fact. In law, strictly speaking, there was no doubt, but practically
there was often a doubt as to the application of settled principles.
In matter of fact there is doubt, where the testimony is direct,
because it may be given mala fide, or, if bona fide, by mistake.
In assuming the jurisdiction of a specific performance, courts of
equity are compelled to grapple with these difficulties (a).
2. Therefore where (6) after a contract had been entered into,
the seller executed a deed which was held to amount to an act of
bankruptcy, although the seller in his examination swore that he
owed no debt upon which a commission could issue, and the
purchaser could not disprove the statement, and the Master re-
ported in favor of tl>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/,
<r?130NVS0^ ■
''^/^a3AiNn-3Wv
"^•i/ojnvj jo""^ "^.j/ojiivj jo"^'
x^
^NWEUKIVtRi//,
vj^lOSANCflf/^
■^TiUDNVSOl^ "^/iaJAINfl-^W^
'^(?AaviJ8n-i^N^
^<?A«v8an
3WV
>
-<
^^tUBRARYQ^
^^HIBRARYc
5^1 ir-'^
^^.0FCAIIF0%
,^0FCA1IF0%
o
^ w / m <^
\WE UKIVEW//,
o
AWFUNIVERS//,
^lOSANCFl^.
i
>
%- - -I
"v/yajAiNnjwv^
<ril3QNVS01^ %il3AINn3V\V
''^
o
.>^ <?
■'/Sa3AINI]3WV'
<>evHIBRARYQr^ <^IIIBRARY<
^oiimi^"^ ^<!/0inv3 JO '^
X\\tU^ilVERy//,
f
v^lOSANCElfj-^
o
'^/sa3AiNn-3\^
^OFCAIIFO/?^ ^OFCAllFOftiUj
^<?Aavaaii-^^'^ ^<?Aav}i8ii#
§ 1
^.v:^ ^.0
.vMllBRARYOc.
AWEUNIVERJ/a ^vvlOSANCFial
o
'O-
O
?3
ii-
C>^
^
>&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.
<r?]30NVS01^
^^l•llBRARYac
'^AOJUVJ-Jv;
^OfCAllfO/?^
^<?AavaaiTiN
^n\mi\^\^
. \WE UNIVERS/A
<"J^